Fairfax County school officials determined that Seung Hui Cho suffered from an anxiety disorder so severe that they put him in special education and devised a plan to help, according to sources familiar with his history, but Virginia Tech was never told of the problem.
The disorder made Cho unable to speak in social settings and was deemed an emotional disability, the sources said. When he stopped getting the help that Fairfax was providing, Cho became even more isolated and suffered severe ridicule during his four years at Virginia Tech, experts suggested. In his senior year, Cho killed 32 students and faculty members and himself in the deadliest shooting by an individual in U.S. history….
Professors and school administrators at Virginia Tech could not have known of Cho’s emotional disability — Fairfax officials were forbidden from telling them. Federal privacy and disability laws prohibit high schools from sharing with colleges private information such as a student’s special education coding or disability, according to high school and college guidance and admissions officials. Those laws also prohibit colleges from asking for such information.
The only way Virginia Tech officials would have known about Cho’s anxiety and selective mutism would have been if Cho or his parents told them about it and asked for accommodations to help him, as he had received in Fairfax….
Although the only way college officials could have known about Cho’s problem would have been from Cho, experts said that asking for help is an almost impossible task for someone with selective mutism.
Better late than never:
Virginia Tech has provided some of Seung Hui Cho’s medical records to a panel investigating the April 16 massacre, after negotiating with family members to waive their privacy rights….
The records were released after weeks of frustration among the eight panel members over not being able to analyze Cho’s mental health in the years leading to the massacre, the worst mass shooting by an individual in U.S. history….
…panel officials said Thursday that they will continue to press for additional records, which also are protected under state and federal privacy laws.
(Tim Craig, “Panel Given Some Medical Files on Cho”, Washington Post, Jun. 15). And from a Thursday news report, also in the Post:
Authorities’ abilities to identify potentially dangerous mentally ill people are crippled across the nation by the same kinds of conflicts in privacy laws that prevented state officials from being able to intervene before Seung Hui Cho went on his rampage at Virginia Tech, according to a federal report commissioned after the Blacksburg shootings that was presented to President Bush yesterday.
Because school administrators, doctors and police officials rarely share information about students and others who have mental illnesses, troubled people don’t get the counseling they need, and authorities are often unable to prevent them from buying handguns, the report says.
Vienna, Va. attorney Thomas J. Fadoul, Jr., who represents twenty victim families, has threatened to sue unless a family representative is appointed to the panel investigating the massacre so as to help “steer” its proceedings; Virginia governor Tim Kaine has replied that the panel was chosen so as not to include parties involved, and noted that the panel does not include any representative of Virginia Tech itself.
This fairly gripping New York Times account by reporter Serge Kovaleski gives the backstory of the horrendous Navy Yard massacre — a contract employee with a security clearance had been displaying increasingly florid symptoms of paranoid schizophrenia, yet was not taken off his job — but is missing one angle I was curious about:
On Aug. 9, the director of human resources for the Experts spoke to Mr. Alexis’ mother, who told the director of his previous paranoid behavior, the person with knowledge of the investigation said. His mother told the director that Mr. Alexis’ paranoia tended to subside with time, but that “he likely needed to see a therapist.”
That same day, the director convened a meeting of “senior-level personnel” at the Experts who concluded that he could be sent back to work. The Hewlett-Packard investigation found that the Experts did not attempt to get Mr. Alexis to seek mental health care, a finding that the Experts has not disputed.
…In an e-mail message, the Experts said that a Hewlett-Packard manager in Newport said she was “comfortable” having Mr. Alexis come back to work after he reported hearing voices.
Hewlett-Packard said its manager in Newport was a low-level employee who was not given full details by the Experts about Mr. Alexis’ problems. The company said it has placed that manager on administrative leave.
The missing angle is: what if any role was played by the legal constraints on the various entities that directly or indirectly employed Mr. Alexis? Severe mental illness is a protected condition under the ADA, and employers may not be free to take workers off their duties unless and until they can assemble evidence that would stand up in court documenting a “direct threat,” “undue hardship” or other adequate reason for removal; the law places limits on the employer’s right to demand medical exams to evaluate the exact contours of disability; and privacy rules limit sharing of medically relevant information between different entities, as we saw in the Seung-Hui Cho/Virginia Tech case. All these rules apply to ordinary larger private businesses, but some come in especially stringent form when applied to federal contractors.
Did any of these legal doctrines influence the course of decision-making by which Mr. Alexis received oddly hands-off treatment even as his mental state spun out of control? One hopes a future NYT article will return to take a look at those questions.
The Columbus Dispatch (national, local angles; via WSJ Law Blog) claims universities are using the federal student-privacy law, FERPA, to evade disclosure of information about league violations and other embarrassments in college sports programs. Others say given the law’s incentives it’s natural for administrators to err on the side of not sharing information of possible benefit to the public, as notoriously happened in the case of student/mass murderer Seung-Hui Cho.
More HIPAA madness? On Wednesday, in a crime that cast a chill through the mental health community, a Manhattan therapist was brutally slaughtered in her office by a man whose actions seemed consistent with those of a current or former patient with a grudge. The assailant escaped on foot, and although his image had been captured on surveillance tape, police were nowhere near beginning to know where to start looking for him: “Because of privacy laws, police hadn’t been able to access patient records as of late yesterday, sources said.” (New York Post, Feb. 14)(via Bader). On medical privacy laws and the Virginia Tech rampage of Seung Hui Cho, see Jun. 16, 2007.
More: Commenter Supremacy Claus says not to blame HIPAA, which has an exemption for police reports.
Friday morning sequel: This morning’s New York Post sticks with the original story and fleshes out the HIPAA role somewhat:
The hunt for the savage beast who butchered an Upper East Side therapist has hit a roadblock – because detectives can’t access her patients’ medical records under federal privacy laws, The Post has learned.
Police believe the meat-cleaver-wielding psycho who killed Kathryn Faughey on Tuesday night inside her office on East 79th Street could be the doctor’s patient – and need access to her records to identify him.
But police sources said because of the Health Insurance Portability and Accountability Act, signed by President Bill Clinton in 1996, investigators are having a hard time gaining access to those records.
“A case like this gets complicated because of medical privacy protections,” a source close to the investigation told The Post yesterday.
The federal law states that doctors, hospitals and health-insurance companies must protect the privacy of patients – even in a murder investigation – and that only through the use of subpoenas can authorities hope to obtain such information.
Police sources said investigators have applied for a subpoena, but have yet to receive it. Even if the subpoena is issued, patients can sue to keep their records private. …
[D]etectives have tried to get around the law by tracking down patients through sign-in sheets at the building’s front desk and through surveillance cameras in the lobby, sources said.
Over at That Other Website, there’s a link to a Findlaw column by Anthony Sebok, entitled, “Could Virginia Tech Be Held Liable for Cho Seung Hui’s Shootings, If An Investigation Were to Reveal It Had Been Negligent?” The subtitle of the column, which tells you all you need to know, is “The Unfortunate Answer.”
To be fair, Sebok is a law professor, and the question posed is a legitimate academic one: what, if any, legal liability does Virginia Tech face? And also to be fair, Sebok speaks the right words about how Cho bears the primary blame. But at the same time, the article illustrates that the trial lawyers of the sort Overlawyered complains about every day are not revolutionaries; they’re just doing what they’ve been taught in law school. Namely, find a legal theory under which one can blame third parties.
Sebok is careful not to declare the university liable, but at the same time, he doesn’t think there’s anything farfetched about considering that it might be. He doesn’t think there’s anything wrong with trying to assign blame to the school for the acts of a criminal. Ultimately, he’s disappointed because Virginia is “notoriously pro-defendant,” and so even if the victims’ families can blame the state, the “final indignity” is that they could likely “only” win a maximum of $100,000. For the actions of a criminal.