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CAMPUS LIFE AND SAFETY AND SECURITY (CLASS) TASK FORCE 2008 fINAL Report 

Subcommittee Reports - Laws and Policies

Scope of Work
Current Assessment
Review of Existing Laws
Recommendations


Scope of Work
At its initial meeting on May 23, 2007, the task force established five subcommittees and assigned to each subcommittee a particular aspect of the Executive Order upon which to focus its work. The Laws and Policies Subcommittee was directed to review existing federal and state laws and campus policies that are pertinent to the purpose of the task force and to make recommendations as needed.

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Current Assessment

Balancing of Interests
In crafting laws and policies to address the issues most recently raised by the Virginia Tech incident, there are three major interests to be balanced: the safety of persons on the campus; the right of students who have mental health problems to be on the campus and to have records of such problems kept private; and the need for campus personnel to have access to such information when it is necessary to protect the safety of a student with mental health problems and/or of other persons on the campus. Each of these interests has evolved in varying degrees since the time that each of the existing laws described below were drafted.

For example, the level of interest in the safety of persons on the campus has surely increased, and not just as a result of the Virginia Tech incident. A number of events during recent years have demonstrated the ability of one or two persons to do great harm to people and property in a public place, including a school campus. It is fair to say that at least some of those incidents were caused by persons with mental health problems.

At the same time, however, advances in treatment and diagnosis have allowed more persons with mental health problems to increasingly participate in society, including being a student on a campus. Such students have a right to continue their educations and to have their records of diagnosis and treatment kept private under most circumstances, so that they can avoid the stigma that can attach to those who have mental health problems.

A final complication is that, while the relevant laws include provisions for disclosure of mental health information and records in an emergency if necessary to protect the safety of the student or of other persons, there are no clear guidelines as to what constitutes an emergency or a threat. Without such guidelines, campus personnel can be reluctant in trying to determine when and if an emergency exists.

Major Issues
It is the conclusion of the subcommittee that the Virginia Tech incident brought to light at least two major issues regarding campus safety and security. The first issue is that there appears to be a fairly widespread perception that there are legal barriers to disclosing and sharing information about a person on campus who is a cause for concern and to taking action with respect to that person. The second issue is that campus policies regarding the lines of communication among those people, both on and off campus, who should be part of the discussion about a person who is a cause for concern, should be clear and well-publicized. Campus policies regarding notification to students and other persons on campus should likewise be clear and well-publicized.

With respect to the first issue, the subcommittee reviewed a number of federal and state laws that are pertinent to the issue of campus safety and security. Section IV of this report is the subcommittee's analysis of the substance, application and possible changes of each of the most pertinent laws. In general, and as described in more detail in Section III of this report, the subcommittee found that the substance of the existing laws was not an impediment to addressing issues of campus safety and security but that misunderstanding and lack of training regarding those laws was.

With respect to the second issue, the subcommittee took into account the wide variety of campus settings that exist at colleges and universities in Oklahoma. For example, a rural campus with student housing has different communications issues than does an urban campus at which all of the students are commuters. However, the subcommittee did reach the conclusion that certain principles regarding communications could be applied to all campuses.

The heart of the problem in creating and maintaining a safe and secure campus is that, on any given day, it will be host to a wide variety of people, from traditional-age students living on campus, to non-traditional-age students commuting to classes, to faculty, to staff, and to visitors. This open and diverse campus atmosphere is one of the hallmarks of higher education in the United States. However, it also creates the potential for what the subcommittee came to refer to as "in-between situations."

These in-between situations are those in which there is no clearly criminal conduct, but rather behavior that is a cause for concern. The concern arises because the observed behavior is not just an effort to be different, to be provocative or to gain attention, but instead may be a prelude to behavior that could potentially be a danger to that person or to other people on campus. It is to the end of helping a college or university deal with these in-between situations that the subcommittee submits the recommendations at the end of this report.

Review of Existing Laws
The subcommittee found the following laws to be most pertinent to the purposes of the task force:

  1. the federal Family Educational Rights to Privacy Act (FERPA) (Title 20, U.S.C., Section 1232g; and 34 C.F.R. Part 99)

  2. the federal Health Insurance Portability and Accountability Act (HIPAA) (Public Law 104-191, 104th Congress; and 45 C.F.R. Parts 160 and 164)

  3. federal statutes and regulations protecting the privacy of records regarding substance abuse diagnosis and treatment (Title 42, U.S.C., Section 290dd-2; and 42 C.F.R. Part 2)

  4. Oklahoma statutes protecting the privacy of records regarding mental health diagnosis and treatment (Title 43A, O.S., Section 1-109)

  5. Oklahoma statutes regarding the procedure for the emergency detention of a person who appears mentally ill (Title 43A, O.S., Section 5-206 et seq.)

  6. the Tarasoff rule regarding a mental health professional's duty to warn a potential victim

  7. the federal Americans With Disabilities Act (ADA) (Title 42, U.S.C. Sections 12101 et seq.)

These laws were enacted over a number of years, starting with FERPA in 1974. Although these laws deal with related subject matter, they were not each enacted with the view of harmonizing with the others. Each was enacted in response to a different legislative imperative. For that reason, there is some potential for misinterpretation or inconsistency in the application of those laws by campus personnel. In the following paragraphs, each of these laws will be reviewed with respect to its substance, application and possible changes. This listing of pertinent laws is not intended to be all-inclusive. Other laws which the subcommittee considered but found to be beyond the scope of its work (due to the limited amount of time within which to do that work) are federal and state laws regarding the purchase of guns, federal and state anti-terrorism laws, and federal immigration laws regarding foreign students. In addition, the subcommittee assumed that institutions and campus personnel are aware of and comply with federal and state laws pertaining to emergency response plans and related matters. For that reason, that topic is not addressed in the subcommittee's report.

A. FERPA
1.) Substance – FERPA appears to be the law most applicable to the situations on campus that, if properly handled, has the greatest potential to avoid another Virginia Tech incident. Generally, under FERPA, a university may not release a student's education records without the student's consent or in the absence of a court order. However, there are exceptions to this general rule. An education record is any record that is directly related or identifiable to a student and maintained by the university, with the exception of: (1) law enforcement records, which are not considered educational records, so long as they are maintained by a law enforcement agency; (2) records that are kept in the sole possession of the maker (personal notes); (3) records relating to an individual who is employed by an educational agency, which are made and maintained in the normal course of business; and (4) records on a student who is 18 years of age or older or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity and are used solely in the provision of treatment and are not disclosed to anyone other than individuals providing such treatment.

Further, a student's "directory information," unless withheld at the student's request, is available to the public. A student's directory information includes, but is not limited to, the following: student's name, local and permanent addresses, e-mail address, photo, date and place of birth, telephone number, college, major, classification, current enrollment status, participation in recognized student activities and sports, weight and height of a member of an athletic team, dates of attendance, degrees and awards received and dates of receipt, posting of an individual student's grades and interim class evaluations by code number or I.D. number, anticipated date of graduation based on completed hours, and the most recent educational agency or institution attended. Items that may never be designated as "directory" are a student's social security number, gender, religious preference, grades and GPA. In addition, the institution or agency must give public notice to its students of the categories of information that it has designated as "directory."

FERPA provides other exceptions to the release of a student's education records without his or her consent. One important exception is applicable in emergency situations and permits release of a student's education information as follows:

An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. 34 C.F.R. §99.36.

2.) Application – It appears to the subcommittee that the level of understanding of the existing laws is not what it should be on all campuses and that FERPA in particular seems to be regarded by campus personnel with great concern and caution. In this regard, it should be noted that FERPA and the other laws refer to the privacy of records regarding students. Those laws do not create some type of zone of privacy on campus, in which a student may engage in bizarre or threatening behavior without fear of that behavior being brought to the attention of appropriate campus personnel, including law enforcement.

It is the experience of the subcommittee that, at times, campus personnel may hesitate to determine that circumstances justify the release of information that is otherwise protected by FERPA. This hesitation is perceived by the subcommittee to be due, in large part, to a lack of understanding of FERPA.

It is the subcommittee's recommendation that training regarding the laws be provided to a wide spectrum of campus personnel, to include those who interact most often with students (resident assistants, student affairs personnel, etc.). The goal of the training would be to provide those persons with a level of confidence in recognizing what is and is not prohibited by the laws discussed herein, when making determinations regarding the disclosure of information otherwise considered private.

3.) Possible Changes – At this time, the subcommittee is aware of only one proposed change to FERPA. U.S. Rep Tim Murphy, R–Pa., has introduced legislation that he asserts will help clarify FERPA. Specifically, he believes that HR 2220, "The Mental Health Security for America's Families in Education Act," will "more clearly define circumstances where colleges and universities can release information to parents, including risk for suicide, homicide, or physical assault." Further, the bill would "hold harmless" a college or university which, after consultation with qualified mental health professionals and acting in the best interest of the student, could release information to parents or guardians. Rep. Murphy has stated that his bill is intended to clarify FERPA, which was intended to protect the confidentiality of student records and to define in what instances parents can have access to student information and grades.

HR 2220 has been referred to the House Subcommittee on Higher Education, Lifelong Learning, and Competitiveness. No action has been taken on the measure since it was referred in May 2007. The legislation highlights one real consequence of FERPA: that school administrators, personnel and faculty, who, traditionally, have had little to no training in the mental health area, are left to determine if a student is at risk or presents a threat and that the emergency exception therefore applies. The proposed legislation would "allow an institution of higher education to disclose to a parent or legal guardian of a student who is a dependent, information related to any conduct of, or expression by, such student that demonstrates that the student poses a significant risk of harm to himself or herself, or to others, including a significant risk of suicide, homicide or assault (emphasis added)."

The proposed legislation provides that, in order to disclose student information in the above circumstances, the educational agency or institution of higher education must (1) consult with a mental health professional (approved by the state in which the institution is located, licensed by that state and acting in accordance with ethical and professional standards); and (2) obtain a written certification from such professional that the professional has reason to believe that the conduct or expression by the student poses a "significant risk of harm to himself or herself, or to others, including a significant risk of suicide, homicide or assault" and that "possession of the knowledge of such information by the parent or legal guardian may protect the health or safety of the student or other persons." Additionally, the educational institution may, in accordance with the proposed legislation, disclose the dependent's information regardless whether the student has attained the age of eighteen or is attending an institution of postsecondary education.

The proposed legislation also includes a "hold harmless" provision, which states that "an educational agency or institution that, in good faith, discloses education records or other information … in accordance with the requirements of this subsection shall not be liable to any person for the disclosure." FERPA itself does not provide for a private right of action, but until recently there was a split in the courts' decisions. Indeed, in some instances, courts held that a student could entertain a private cause of action under a §1983 action. A §1983 action is one in which a private cause of action is created against one who, "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" causes a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. §1983. However, the United States Supreme Court in 2002, in Gonzaga University v. Doe, 536 U.S. 273, 287 (2002), held that "there is no question that FERPA's nondisclosure provisions fail to confer enforceable rights. To begin with, the provisions entirely lack the sort of 'rights creating' language critical to showing the requisite congressional intent to create new rights." Gonzaga abrogated Owasso Independent School Dist. v. Falvo 1-011, 233 F.3d 1203 (10th Cir 2000), in which the 10th Circuit Court of Appeals had held in 2000 that FERPA created an enforceable right under §1983. As a result of Gonzaga, the highest court in the land has ruled that there is no private right of action under FERPA. In Gonzaga, the Supreme Court stated that "our conclusion that FERPA's nondisclosure provisions fail to confer enforceable rights is buttressed by the mechanism that Congress chose to provide for enforcing those provisions. Congress expressly authorized the Secretary of Education to 'deal with violations' of the Act, §1232g(f) (emphasis in original), and required the Secretary to 'establish or designate [a] review board' for investigating and adjudicating such violation, §1232g(g)." Gonzaga at 289. The Department of Education may withhold federal funds from an educational institution that has a policy or practice of releasing student records without a student's consent, except as permitted by the act. It is worth noting that, to date, no federal funding has been withheld from an institution for violating FERPA.

The final provision of the proposed legislation states that "nothing in this subsection shall be construed to prohibit an educational agency institution from taking such other action as the agency or institution determines to be necessary to protect the safety of students." Therefore the new law would, under the enumerated circumstances and after compliance with the stated requirements, allow a university to disclose a student's information when the student is a dependent, regardless of whether the student is currently attending the college or university and regardless of the student's age. However, this provision does not include any student who is not a "dependent" as defined under the Internal Revenue Code. For that reason, a university administrator would not be able to utilize this provision of law with respect to a student who may have met all of the other requirements, but not the "dependent" status. An addition to the proposed legislation which might cover much of this gap would be a provision that, for the non-dependent student, the information could be disclosed to the person listed as the student's "emergency contact" in the student's educational record.

HR 2220 also appears to require a new step in the process for emergency disclosure, as it mandates the involvement of a mental health professional and a written certification of the student's conduct or behavior. Therefore, this legislative attempt at clarification may actually convolute the process and, in reality, do more harm than good. Practically speaking, situations will arise when there is not time to have a student evaluated by a mental health professional and/or the resources necessary to follow the proposed process are not available. Even though the current exceptions (the emergency and the dependent/parental notification provisions) would still be in effect if the proposed legislation is passed, a negative presumption could be inferred if the proposed procedure requiring involvement of a mental health professional is not followed by a school official when taking action regarding a student who poses a "significant risk of harm to himself or herself, or to others, including a significant risk of suicide, homicide or assault." It is a well-settled common law maxim that the specific rules the general. FERPA already allows for an educational institution to disclose personally identifiable information to a dependent student's parents, as long as the student meets the definition of "dependent" as defined by the Internal Revenue Code. 34 C.F.R. §99.31(a)(8). Although, currently, university administrators are prohibited from utilizing of §99.31(a)(8) where non-dependent students are at issue, FERPA's general emergency provision, §99.36 (quoted above), is still applicable. Furthermore, the proposed procedure may create a new obligation on the part of the educational institution, when contacting the parents of a dependent, or, in the case of the current emergency exception, create a new standard altogether (i.e., must consult with a mental health professional before taking action). Therefore, the new proposed legislation appears to be somewhat unnecessary, with the possible exception of the "hold harmless" provision.

Although case law holds there is not private right of action conferred under FERPA, a college or university is still subject to a finding by the Family Policy Compliance Office (FPCO), the office within the U.S. Department of Education that is responsible for administering and enforcing FERPA, that it violated the law and to the possibility of having federal funding withheld for that violation. A hold harmless provision that completely removes the college or university from sanctions by the FPCO, when all of the proposed requirements are met, might be of benefit.

The FPCO, in a recent policy statement, declared that "under FERPA, schools may release any and all information to parents, without the consent of the eligible student, if the student is a dependent for tax purposes under the IRS rules (emphasis added)." Such a statement coupled with the date of its posting, June 7, 2007, indicate that this may well be the FPCO's response to the proposed legislation. In the same release, which also recognized the emergency exception discussed earlier, the FPCO commented on FERPA stating, "While the privacy rights of all parents and adult students are very important, there are clear and straightforward ways under FERPA that institutions can disclose information to parents and keep them involved in the lives of their sons and daughters at school."

In considering how to best clarify the current emergency provision of FERPA, it seems that the kind of breadth and latitude allowed under the current regulations can be very useful to educational institutions. The best action may be no change to the current law's application and flexibility. However, administrators and other school officials are sometimes too hesitant to utilize the current exceptions as they fear violating the law and the potential consequences. As mentioned above, the addition of a general hold harmless provision to the proposed legislation appears to be unnecessary as current case law hold that FERPA provides no private right of action. Further, the proposed exception excludes those students that are not "dependents" as defined by the Internal Revenue Code. Nevertheless, a hold harmless against any action by the U.S. Department of Education to withhold federal funds, not linked to any other requirement of the proposed legislation, may provide some additional comfort – not because the department has taken action in the past, but because of a perception or fear that it might do so in the future.

BACK TO LIST OF EXISTING LAWS

B. HIPAA

1.) Substance – In addition to the general protections afforded to health care information, behavioral health information is granted further protections against unwanted disclosure. This is because there is unfortunately a stigma associated with mental health and substance abuse issues which affects an individual’s ability to obtain jobs, homes, etc. Individuals with substance abuse problems are also less likely to seek treatment for fear that in admitting to their problem they may subject themselves to prosecution.

The laws protecting mental health and substance abuse information are primarily found in 42 C.F.R. Part 2 which pertains to substance abuse treatment information; 45 C.F.R. Parts 160 and 164 (hereinafter referred to as “HIPAA”) which applies to all medical information; and 43A, O.S., Section 1-109 which protects both mental health and substance abuse treatment information.

In 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA). This act is applicable to healthcare providers. In December 2000, the U.S. Department of Health and Human Services (DHHS) issued the “Standards for Privacy of Individually Identifiable Health Information” final rule, pursuant to the provisions of the HIPAA. These standards accomplish two distinct purposes. First, they give individuals greater access to their medical information and limit the circumstances where a health provider can deny patients’ access to their own records. Second, HIPAA essentially limits access to a consumer’s health care information to only those individuals who “need to know” the information, and then further limits access to “the minimum amount of information necessary” to accomplish their intended purpose.

It should be noted that HIPAA does not override the more stringent federal regulations protecting substance abuse information found in 42 C.F.R. Part 2, nor does it preempt state statutes which afford greater protections to confidentiality. See 45 C.F.R. §160.203(b). In situations where an individual is covered by 42 C.F.R. Part 2, the provider must follow the stricter standards as indicated in those regulations.

HIPAA does provide several limited exceptions to the general rule that patient identifying information may not be disclosed. Some of those exceptions are as follows: 1) written consent; 2) internal communications between staff within a program; 3) communications that do not disclose the patient’s identification; 4) medical emergency situations; 5) court-ordered disclosures which include disclosure of health records pursuant to a subpoena without written consent from the consumer, provided there is satisfactory assurance from the party seeking the information that reasonable efforts were made to ensure that the consumer was given notice of the request and the opportunity to object, or reasonable efforts were made to secure a qualified protective order; 6) crimes committed by a patient on the hospital’s premises or against the hospital’s employees; 7) releases for scientific research, provided that patient health information is de-identified; 8) releases for audits and evaluations conducted for healthcare operations; 9) reporting child abuse and neglect; 10) releases as required by law; and 11) releases under a business associate agreement which allows disclosure of patient-identifying information between organizations that provide services to the program or the patient.

2.) Application – It appears to this subcommittee that campuses and law enforcement across Oklahoma lack complete understanding of the provisions of HIPAA and the exceptions to HIPAA that allow disclosure of pertinent healthcare information. The penalties attached to violations of HIPAA, including criminal prosecution, may limit an institution's willingness to explore these HIPAA exceptions. Furthermore, a lack of understanding on what entities HIPAA actually applies to creates another barrier to the disclosure of information between necessary agencies.

This subcommittee believes that standardized training and education on HIPAA and the application of its standards and exceptions will be an important component to avoiding incidents that may lead to situations such as the Virginia Tech tragedy. Standardized training and education should be provided to campuses, healthcare providers and law enforcement across the state. This training will better enable the communication of relevant information among necessary entities to avoid dangerous circumstances that may lead to incidents such as Virginia Tech.

3.) Possible Changes – This subcommittee is not aware of any relevant proposed changes to HIPAA at this time, nor does it recommend any.

BACK TO LIST OF EXISTING LAWS

C. Federal Statutes and Regulations Protecting Privacy of Records Regarding Substance Abuse Diagnosis and Treatment

1.) Substance – In the early 1970s, Congress enacted legislation giving substance abuse patients a right to confidentiality. See 42 U.S.C. §290dd-2. Federal regulations were subsequently enacted which created the foundation for the protection of substance abuse treatment information and records. See 42 C.F.R. Part 2.

The protections resulting from these regulations are quite broad. They not only protect the patients’ records from disclosure but also protect any information that could be used to identify an individual as a substance abuse patient. In addition, they protect not only individuals who have received treatment for substance abuse but also individuals who have applied for, or been given a diagnosis of, alcohol or drug abuse at a federally assisted program.

Accordingly, substance abuse information may only be released if: 1) the consumer signs a valid consent for release; 2) a court of competent jurisdiction issues an appropriate order for release; or 3) the circumstance for release falls under one of the allowable exceptions. These exceptions are much more limited and restrictive than those found under HIPAA. The primary exceptions under Title 42 C.F.R. Part 2 that allow the release of substance abuse records are as follows: 1) consent; 2) disclosure of necessary information between staff within a program; 3) disclosing information that does not identify the patient; 4) disclosure in a medical emergency; 5) court-ordered releases if certain procedures are followed and certain findings are made; 6) crimes that are committed on the substance abuse program’s premises or against its employees; 7) disclosure for research; 8) disclosure of information for audits and evaluations upon written agreement by the entity conducting the audit/evaluation limiting re-disclosure; 9) reporting child abuse or neglect; and 10) release of information pursuant to a qualified service organization agreement.

2.) Application – It appears to this subcommittee that, as with HIPAA, campuses and law enforcement across Oklahoma lack complete understanding of the provisions of Title 42 C.F.R. Part 2 and the exceptions to this act that allow disclosure of pertinent substance abuse treatment information. The penalties attached to violations of 42 C.F.R. Part 2, including criminal prosecution, appear to have paralyzed most entities’ willingness to explore these exceptions. Furthermore, a lack of understanding on what entities Part 2 applies to creates another barrier to the disclosure of information between necessary agencies.

This subcommittee believes that standardized training and education on 42 C.F.R. Part 2 and the application of its standards and exceptions will be an important component to avoiding incidents such as the Virginia Tech tragedy. Standardized training and education should be provided to campuses, healthcare providers and law enforcement across the state. This training will better enable the communication of relevant information between necessary entities to avoid dangerous circumstances that may lead to incidents such as Virginia Tech.

3.) Possible Changes – This subcommittee is not aware of any relevant proposed changes to Title 42 C.F.R. Part 2 at this time, nor does it recommend any.

BACK TO LIST OF EXISTING LAWS

D. Oklahoma Statutes Protecting Privacy of Records Regarding Mental Health Diagnosis and Treatment

1.) Substance – As a result of the enactment of HIPAA, the Oklahoma Legislature passed a series of legislation making state law compliant with both HIPAA and 42 C.F.R., Part 2. There are, however, areas of Oklahoma confidentiality law that more closely resemble the restrictions mandated by Title 42 C.F.R. Part 2 than to HIPAA. Those areas are in the release of information based on a subpoena, a warrant and written consent to the release of mental health information.

In Oklahoma, confidentiality laws for mental health records give greater protection in this area by specifically stating that a “subpoena by itself is not sufficient to authorize disclosure of mental health and alcohol or substance abuse treatment information.” See 43A, O.S., Section 1-109(D).

Oklahoma law also affords greater protection to health information when requested via a warrant. Specifically, Title 43A, O.S., §1-109 does not have a specific exception to allow the release of records or information based on a search warrant or arrest warrant. Neither does 42 C.F.R. Part 2 which protects substance abuse information. HIPAA, on the other hand, allows providers to disclose information for law enforcement purposes such as warrants. See 45 C.F.R. §164.512.

As mentioned above, another area of confidentiality where Oklahoma law adds greater protection than federal law is concerning an “authorization to release health information” form. Oklahoma law requires that for the authorization form to be proper, it must contain the all of following:

  1. The specific name or general designation of the program or person permitted to make the disclosure.
  2. The name or title of the individual or the name of the organization to which disclosure is to be made.
  3. The name of the consumer whose records are to be released.
  4. The purpose of the disclosure.
  5. A description of the information to be disclosed.
  6. The dated signature of the consumer or authorized representative or both when required.
  7. A statement of the right of the consumer to revoke the release in writing and a description of how the consumer may do so.
  8. An expiration date, event or condition if not revoked before, which shall ensure the release will last no longer than reasonably necessary to serve the purpose for which it is given.
    If the release is signed by a person authorized to act for a consumer, a description of the authority of such person to act.
  9. A statement in boldface writing stating, “The information authorized for release may include records which may indicate the presence of a communicable or venereal disease which may include, but is not limited to, diseases such as hepatitis, syphilis, gonorrhea, and the human immunodeficiency virus, also known as Acquired Immune Deficiency Syndrome (AIDS)."

While Oklahoma’s statutorily required elements for this form are very similar to the requirements of HIPAA and 42 C.F.R. Part 2 (see 45 C.F.R. §164.508(c) and 42 C.F.R. §2.31(a)), Oklahoma does have the additional requirement, as listed in paragraph 10 above, concerning the release of records that may indicate the presence of certain diseases.

2.) Application – It appears to this subcommittee that, as with HIPAA and Title 42 C.F.R. Part 2, campuses and law enforcement across Oklahoma lack complete understanding of the provisions of Title 43A, O.S., Section 1-109 and the exceptions to this statute that allow disclosure of pertinent mental health and substance abuse treatment information. The penalties attached to violations of Section 1-109, including criminal prosecution, appear to have paralyzed most entities’ willingness to explore these exceptions.

The subcommittee also believes that standardized training and education on Title 43A, O.S., Section 1-109 and the application of its standards and exceptions will be an important component to avoiding incidents such as the Virginia Tech tragedy. Standardized training and education should be provided to campuses, healthcare providers and law enforcement across the state. This training will better enable the communication of relevant information between necessary entities to avoid dangerous circumstances that may lead to incidents such as Virginia Tech.

3.) Changes – This subcommittee is not aware of any relevant proposed changes to Title 43A, O.S., Section 1-109 at this time, nor does it recommend any.

BACK TO LIST OF EXISTING LAWS

E. Oklahoma Statutes Regarding Procedure for Emergency Detention of a Person Who Appears Mentally Ill

1.) Substance – Title 43A, O.S., Sections 5-206 et seq. and 5-209 are the Oklahoma statutes regarding the procedure for emergency detention of a person who appears mentally ill. Those statutes provide that any person who appears to be or states that he or she is mentally ill, alcohol-dependent or drug-dependent to a degree that immediate emergency action is necessary may be taken into protective custody and detained (these statutes are not to be construed as being in lieu of prosecution under applicable public intoxication laws). Any peace officer who reasonably believes that a person is in need of treatment for any of those reasons shall take the person into protective custody.

In conjunction with taking the person into protective custody, a statement indicating the basis for the belief that the person is in need of treatment shall be prepared by the peace officer, the person taken into protective custody or by the person upon whose statement the peace officer relies to take a person into custody. The peace officer takes the person to the nearest mental health facility. There, within 12 hours of the person being placed in protective custody, a licensed mental health professional must conduct an initial assessment of that person. If the licensed mental health care professional determines that emergency detention is not warranted, the person is released.

If the determination is that emergency detention is warranted for the person in protective custody, the licensed mental health professional shall prepare a statement describing the findings of the initial assessment and the person shall be detained for not more than 72 hours, excluding weekends and holidays. During that time, two other licensed mental health professionals will conduct a mental health evaluation. If it is determined that the person detained will require treatment beyond the emergency detention, then the administrator of the mental health facility shall file or request the district attorney to file a petition to have the person declared in need of treatment and kept in detention.

2.) Application – Oklahoma statutes provide that any peace officer may take a person into protective custody as described above. That means that a campus police officer or an officer of a local law enforcement agency can be, and usually is, the person who initiates that action. As a practical matter, this is more difficult and time-consuming with respect to those campuses that are not located near a mental health facility. Also, the threshold step in the process is the determination by the peace officer that the person should be taken into custody for an initial assessment. That indicates a need for peace officers to be trained in making that determination.

3.) Changes – The subcommittee is not aware of any relevant proposed changes to Title 43A, O.S., Sections 5-206 to 5-209, nor does it recommend any.

BACK TO LIST OF EXISTING LAWS

F. The Tarasoff Rule Regarding a Mental Health Professional's Duty to Warn a Potential Victim

1.) Substance – The rule is based on a California Supreme Court opinion issued in 1976 in Tarasoff v. Regents of the University of California. In that case, Dr. Moore was a psychologist at a university hospital. One of his patients confided to Moore his intent to kill Tatiana Tarasoff, a girl who had rejected his romantic advances. Moore took action to have the patient detained, but his supervisor overruled him and the patient was released. Several months later, the patient killed Tarasoff. At no time prior to her killing had Tarasoff or her parents been warned of the patient's statement to Moore. Tarasoff's parents sued the university for not warning her or them. The California Supreme Court held that a mental health professional has a duty to warn individuals who are specifically being threatened by a patient. This reasoning has since been adopted by many states, including Oklahoma.

2.) Application – The subcommittee assumed that licensed mental health professionals in Oklahoma are familiar with the Tarasoff rule. It also assumed that such professionals receive training with respect to the rule in the course of obtaining their credentials.

3.) Changes – The subcommittee is not aware of any relevant proposed changes with respect to the Tarasoff rule, nor does it recommend any.

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G. The Federal Americans With Disabilities Act (ADA)

1.) Substance – The ADA provides that persons with physical or mental disabilities are entitled to have reasonable accommodations made for them so that they can participate in society, if the person is otherwise qualified to do so. This includes attending classes on a college campus. The ADA encourages a process by which a person self-identifies or is identified by campus personnel as a person with a disability, and a dialogue is carried out between the person and the campus personnel. The goal of the dialogue is to reach an agreement as to what reasonable accommodations will be made by the institution to allow the person the full benefit of being a college student. There is obviously a balance to be struck between what is possible and what is reasonable with respect to accommodation.

2.) Application – With respect to students with mental health problems, the ADA requires them to give notice to the institution if they are seeking any accommodation. Such notice would begin a presumably useful dialogue between the student and the institution; at the least, the institution would have notice of the student's mental health problems. The reality is that many, and perhaps most, students with mental health problems do not give notice and do not seek any accommodations, instead relying on medication or other treatment of which the institution is not aware.

3.) Changes – The subcommittee is not aware of any relevant proposed changes to the ADA, nor does it recommend any.

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Recommendations
The subcommittee recognizes that the manner and extent to which its recommendations could be implemented on a particular campus depends on personnel and funds available and that not all of its recommendations would be needed or appropriate on every campus. However, the subcommittee believes that some of its recommendations could be implemented at not much cost at every campus and that implementation of those recommendations would provide significant benefits.

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