Chipping Away at FERPA?

Under federal law, administrators cannot notify the parents of a student exhibiting troubling behavior – say, isolating oneself for weeks due to depression – unless it’s clearly “in connection with a health or safety emergency." Many health experts, and the parents of many students, have criticized the law as needlessly strict – potentially leaving vulnerable students unable to get the help they need.

That could change under new legislation proposed last month, which appears to slightly broaden the circumstances under which disclosure is allowable.

The Helping Families in Mental Health Crisis Act would permit parental or caregiver notification “when the provider believes it's necessary to protect the health, safety or welfare of an individual or others.” The student would have to be diagnosed with a serious mental illness and have functional impairment that substantially interferes with their life.

There are many exemptions through which administrators and campus health providers can circumvent the rules of disclosure in the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPPA) – and experts say they often do.

“FERPA is also understood to have few teeth given the lack of lawsuits under FERPA,” said Brian Van Brunt, senior vice president for professional program development at the National Center for Higher Education Risk Management. “This new provision seems to take out even more of the bite.”

But the new language does appear to give more leeway to administrators and doctors to make a judgment call. (FERPA, which covers educational records, would apply to staff and faculty in groups like behavioral intervention teams who are worried about a student who is not being medically treated. HIPPA, which covers medical records, applies to all campus health centers that use electronic billing systems. It does not apply to most stand-alone counseling centers.)

While acknowledging that the provision regarding colleges is “not markedly different” from current law, Darcy Gruttadaro, director of the National Alliance on Mental Health Campus Program, said NAMI supports it.

She recalled one case in Massachusetts, where a student was hospitalized after a suicide attempt but would not allow parental notification (student permission is a FERPA exemption). After not hearing from their son for a time, the parents only found out by reaching out to his friends. In a situation like that, Gruttadaro said, the most logical reason why campus officials would not contact parents is their perception of the law and fear of litigation over breaking it.

“To the extent that this bill can help clarify the circumstances under which families can be contacted, that’s important,” she said.

The U.S. Departments of Education and Health and Human Services last issued joint guidance on FERPA and HIPPA as they apply to campuses after the mass Virginia Tech shooting, which some say could have been prevented had the college notified Seung-Hui Cho’s parents that he visited the counseling center and told a roommate he threatened suicide.

The proposed bill, sponsored by Republican Pennsylvania Rep. Tim Murphy, is the result of a House subcommittee's year-long review of the country’s mental health system initiated after the Sandy Hook Elementary School shooting last December. After the tragedy, the National Rifle Association (and many others) countered calls for stricter gun laws with claims that mental health was the root problem in shootings. The NRA endorsed Murphy in his run for the House, and gives him an "A" grade on gun issues.

“The mentally ill are no more violent than anyone else, and in fact are more likely to be the victims of violence than the perpetrators, but individuals with untreated serious mental illness are at an increased risk of violent behavior,” Murphy writes in a summary of the legislation. “Tragically, undertreated mental illness has been linked to homicides, assaults, and suicides.”

The summary notes that because of “complicated federal rules,” doctors are “often” unwilling to share information with parents or caretakers, despite the fact that psychosis begins to manifest between the ages of 14 and 25.

“Any higher ed person on the front line will probably appreciate it,” Van Brunt said. “We don’t want to profile and target those with mental illness and treat them differently, we want to identify these problems and work collaboratively with parents to help them be more academically successful.”

But others don’t see the bill as a major development – and also have some concerns about it.

“My sense of it is FERPA is not the thing that is keeping them from [disclosing] anyway. Much more it’s a philosophy of, how do we deal with students on campus, and that they’re adults,” said John E. Gunn, president of the American College Counseling Association and director of counseling and psychological services at Kennesaw State University. “What scares me a little bit is I wouldn’t want this to become more of a slippery slope of loosening privacy laws.”

Despite recent urging from the White House for colleges and legislators to better-address mental health issues, some are skeptical that the bill will pass in its current form, if at all. There appears to be strong support in the House of Representatives, Gruttadaro said, but the bill still faces revisions and a potentially tougher crowd in the Senate, where Democratic leaders have pushed for anti-violence legislation that focuses on weapons regulation as well as mental health.

Nancy L. Wolf, a lawyer who studies mental health issues, is hoping the bill passes, not just because colleges have information of interest to parents, but because parents might also have helpful information for colleges.

“A student having a major depressive episode can hide out in his dorm room for two weeks and the college does not have to say anything to his parents because of the student's privacy rights under FERPA,” she said, “and that is what Rep. Murphy's bill would fix.”