Privacy Laws Stymie Va. Tech Panel

The Associated Press
Tuesday, June 12, 2007; 7:33 PM

RICHMOND, Va. -- When Virginia Tech gunman Seung-Hui Cho committed suicide, he not only foreclosed any opportunity for officials to question him about his killing spree, but also ensured that his mental health records will remain secret _ at least until a court says otherwise.

A governor-appointed panel investigating the April 16 shootings, in which 33 people died, has been confounded by laws that protect Cho's privacy in death even more than they did in life. Panel members and victims' relatives did not hide their frustration at a public meeting Monday when state mental health officials refused to answer questions about the gunman, citing privacy laws.

"It's really rather remarkable we're talking about a deceased individual responsible for all kinds of carnage and you as an individual are still encumbered by law," panelist and former Homeland Security Secretary Tom Ridge told James Stewart, the state's inspector general for mental health, mental retardation and substance abuse services.

State officials were less encumbered when Cho was under orders to obtain outpatient mental health treatment because he had been deemed a danger to himself, legal experts said Tuesday. The federal Health Insurance Portability and Accountability Act, or HIPAA, allows records to be released under those circumstances.

But HIPAA's privacy protections continue indefinitely after a person's death. Gary Pavela, director of judicial programs at the University of Maryland and editor of a national newsletter on campus legal issues, said now that Cho is dead and no longer a threat, no exception allows the release of his mental health records.

Paul Lannon, a Boston attorney for colleges and universities, agreed with that and said the panel's struggles raise the question of whether HIPAA should be amended. The goal should be to balance public and private interests, he said.

The panel's chairman has vowed to go to court if necessary to obtain Cho's records, and Pavela believes he will succeed.

"I think they'll get around that with a court order," Pavela said of HIPAA and state privacy laws. "That is a fairly mundane problem that can be fixed."

Sheldon Steinbach, a higher education lawyer in Washington and former general counsel for the American Council on Education, agreed that the panel can make a strong case for obtaining the information.

"One could argue the public's right to know exceeds the rights of the deceased," he said. "He's not going to be hurt. I believe one has to weigh the equities, and in my mind the full weight comes down for disclosure."

The rationale for posthumous privacy protection is to encourage people who need treatment to seek it, Lannon said.

"The fact that the confidentiality and privacy would continue after their death makes it more comfortable for people because they feel their reputation is protected even after they are deceased," he said.

Ron Honberg, legal director of the National Alliance for the Mentally Ill, said he doesn't believe HIPAA is as restrictive as Virginia officials have portrayed it. The problem, he said, is that few people understand the complex law.

He said that while he believes some basic information can be disclosed _ such as whether Cho ever had a psychiatric evaluation at the student health center _ treatment details are rightly protected.

"I really do have some sympathy for the frustrations of the families and the panel but would stop way short of saying a person's mental health records should be opened upon their death," he said.

But Mary Zdanowicz, executive director of the nonprofit Treatment Advocacy Center, questioned the need to keep records confidential after death.

"Frankly, I don't see any good basis for it," she said, "particularly in a case like this when people are trying to get answers and prevent something like this from happening in the future."

© 2007 The Associated Press