Mental Health on Campus and The Law

Institutional Responsibility

“At the federal level, requirements regarding confidentiality and privacy of student mental health records are primarily driven by the Federal Education Rights and Privacy Act of 1974 (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The application of these laws is further complicated by individual clinician licensure requirements governed by states or by individual professional associations, such as the American Psychological Association or the National Association of Social Workers. FERPA requires institutions to receive written consent from students before disclosing their educational records and personally identifiable information to a third party. Student medical record information becomes subject to
FERPA when it is used for purposes other than treatment, such as for disability accommodations (Jed Foundation, 2008). However, in the event of an emergency and when the health and safety of others is of concern, FERPA allows the disclosure of a student’s educational record to appropriate parties—such as law enforcement officials, public health officials, parents or guardians, or trained medical personnel— without the student’s permission (U.S. Department of Education Family Policy Compliance Office, 2007)…Lack of clear protocols for campus and hospital interaction can lead to ambiguous interpretations of how HIPAA and FERPA rules apply in specific situations” (NASPA Policy & Practice Issue, 2019).

Suicide & Student Violence

The potential for an institution of higher education (IHE) to be held liable for a student’s suicide is a recent phenomenon. For decades, suicide was considered to be a wrongful act, solely the fault of the suicidal individual. Therefore, IHEs historically faced no significant risk of litigation regarding a student’s suicide. Recently, a few courts have begun to consider lawsuits alleging that an IHE has a responsibility to provide some level of care to prevent suicide or to mitigate suicide risk. However, the law in its current state is largely inconclusive regarding such responsibility. Note that most cases settle before the courts are afforded the opportunity to make pronouncements of law.

There is no immediate legal movement to impose broad-based suicide prevention responsibilities on colleges, despite the fact that there have been several highly publicized lawsuits. Issues of potential liability are further complicated by competing policy considerations that must be taken into account when deciding whether colleges have a “duty of care” to prevent suicide. Courts will be cautious in defining such a duty (JED Foundation Student Mental Health and the Law, 2008).

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