Another perplexing problem centering on keeping
information from both the public’s eye and from the Governor’s Review Panel
centers on Cho’s “lost” medical records. There is no evidence that Cho’s
medical records were intentionally lost, but their disappearance was certainly
convenient from the school’s point of view. The circumstances surrounding Cho’s
missing medical records and then their discovery have a particularly unsavory
odor. Indeed, all the hemming and hawing by individuals in positions of authority—following
the discovery of Cho’s medical records—brings into question the credibility of
those who claim to search for truth in the aftermath of the shootings at
Virginia Tech.
I fully agree with the Richmond Times-Dispatch when it wrote, “It strains credulity to
think that files relating to the worst campus massacre in American history
simply have slipped the mind of the very person (Robert Miller) who had
counseled the gunman.” Robert Miller, the former director of the school’s
counseling center, was in fact among several senior school officials who
consulted with English department Chairwoman Lucinda Roy when she sought help
for Cho after Professor Nikki Giovanni barred Cho from one of her writing
classes.
Somehow Dr. Miller forgot that he had Cho’s medical
records. It is amazing that someone so absent-minded could ever have risen to
be the head of the Cook Counseling Center. Just the fact that a patient’s
medical records were “accidently” removed from an office in the first place
raises questions about his motive and professionalism.
What the records show is a lack of thoroughness in
dealing with a deeply troubled student. This lack of thoroughness raises the
specter of culpability on the part of some officials at the Cook Counseling
Center. The records show that the Center had numerous opportunities to deal
with Cho’s mental instability and did nothing. For example, as early as 2005, a
Counseling Center staff member described Cho as “troubled” and in need of
follow-up counseling. That follow up did not take place. The legal question that will probably never
be addressed (or answered) is whether or not the counseling center is liable
for its lack of professionalism in handing Cho’s records. What is clear is that
both Dr. Miller’s and the center’s poor practices should have at least brought
a review of their licenses.
School officials said that they were “dismayed” that
the records were found in Miller’s possession.
It is one thing to express this emotion and another to act on it. In
fact, if anything characterizes the reaction of people in positions of
authority (school leaders and politicians) since the Virginia Tech tragedy of
April 16, 2007, it is that they are long on words and short on action. I would
have thought that the school would have been in the forefront of thoroughly
examining the Cook Counseling Center and scrubbing it to remove any question of
incompetence. Not only was the school quiet on the counseling center’s conduct,
but the Governor’s Review Panel never interviewed Robert Miller.
Then there are the school’s claims of ignorance of the
law. If we recall correctly, Virginia Tech said it did not contact the Cho
family about their son’s odd and menacing behavior because of privacy issues.
The same defense was given as reason for the various school components (who
were aware of the problems Cho presented) for not communicating and consulting
with each other. In fact, the school was wrong in all cases.
According to the U.S. Department of Justice and Human
Services, there was plenty of support under the Health Information Privacy Act
for notifying Cho’s parents.
The Privacy
Rule sets rules and limits on who can look at and receive your health
information. To make sure that your health information is protected in a way
that does not interfere with your health care, your information can be used ads
shared:
1. For your
treatment and care coordination
2. To pay
doctors and hospitals for your health care and to help run their business
3. With your
family, relatives, friends, or others you identify who are involved in your
health care or your health
care bills, unless you object
4. To make sure
doctors give good care and nursing homes are clean and safe
5. To protect
the public’s health, such as by reporting when the is in your area
6. To make
required reports to the police such as reporting gunshot wounds
As far as his school records go, there was no reason
for his high school not to share information with Virginia Tech, and no
justification for Virginia Tech to withhold information from the Governor’s
Review Panel. According the U.S. Department of Education, writing about the
Family Education and Rights Privacy Act:
Generally, schools must have written
permission from the parent or eligible student in order to release any
information from a student’s education record. However, FERPA allows schools to
disclose those records, without consent to the following parties or under the
following conditions (34 CFR 99.31):
1. School
officials with legitimate educational interest;
2. Other
schools to which a student is transferring;
3. Specific
officials for audit or evaluation purposes;
4. Appropriate
parties in connection with financial aid to a student;
5. Organizations conducting certain studies for or on
behalf of the school;
6. Accrediting
organizations;
7. To comply
with a judicial order or lawfully issued subpoena;
8. Appropriate
officials in cases of health and safety emergencies; and
9. State and
local authorities, within a juvenile justice system pursuant to specific State
law.
Clearly, in Cho’s case, there should not have been any
serious obstacles to health workers or university staff sharing information
among themselves about his case. In fact this is reiterated on Virginia Tech’s
own Web site where it lists the rights to privacy that a student may expect
with regard to academic records:
The right to
consent to disclosures of personally indentifiable information contained in the
student’s education records, except to the extent that FERPA authorizes
disclosure without consent. One exception which permits disclosure without
consent is disclosure to school officials with legitimate educational interests
or concerns of health safety. A school official is a person employed by the
university in an administrative, supervisor, academic or research, or support
staff position (such as health staff); a person or company with whom the
university has contracted (such as an attorney, auditor, or collection agent);
a person serving on the Board of Visitors; or a student serving on an official
committee, such as a disciplinary or grievance committee, or assisting another
school official in performing his or her tasks. A school official has a
legitimate educational interest if the official needs to review an education
record in order to fulfill his or her professional responsibility.
Privacy and the right to privacy seem to bounce around
at Virginia Tech like a leaky balloon—sometimes privacy is respected, sometimes
not. I am confused. To borrow a word that university officials used, I am
“dismayed.” Can there really be
confusion about patients’ privacy?
You have to wonder—how can one of this nation’s best
academic universities be so ignorant of the law? (To be continued)
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