Here is the quick and dirty of this new bill, in case you hate legalese.
The bill is an addition to the Colorado Mental Health Practice Act (CRS 12-43-218) Disclosure of confidential communications. This part of the act does two things:
- Mandates that mental health professionals (including unlicensed ones) are not allowed to disclose if communication with a client occurred and what the content of that communication may be without the consent of the client.
- Provides a list of exceptions under which information CAN be disclosed:
- The client or their representatives files a lawsuit or complaint against a mental health professional about the care that they received. In order for this to be investigated, the content of communication has to be disclosed.
- The client or their representatives file a lawsuit or complaint against a health/social service professional with whom the mental health professional was collaborating, and the confidential information is needed to investigate the complaint.
- The mental health professional is undergoing review by a higher authority. In those cases, the records may be disclosed, but not the identity of who they belong to.
Now, regardless of what this particular piece of legislation says, there is still the matter of HIPAA and FERPA.
HIPAA (Health Insurance Portability and Accountability Act) says that a mental health professional may disclose protected health information when:
- A person makes a “serious and imminent threat” to the health or safety of themselves or others (i.e., says that they are going to kill someone).
- The disclosure is made to someone who the professional can reasonably conclude would be able to lessen or prevent that harm. This may include law enforcement, family members, the target of the threat, or school officials.
FERPA (Family Education Right and Privacy Act) says that a student’s health and medical information may become part of their education record accessible by other school officials without the student’s consent when:
- The disclosure is made because of a “legitimate educational interest” (i.e., a student is diagnosed with dyslexia and disclosure to teachers would be helpful to their education)
- The disclosure is made to protect the health or safety of the student or other individuals (i.e., a student has severe asthma and disclosure to gym teacher is necessary to protect the safety of that student)
Okay. So this bill, HB16-1063, is written to make clear what exactly a mental health professional is allowed to do in the instance that their client makes a threat to a person or group of people at an educational institution. As you can see from all the different bills above, it’s a bit confusing about what rules apply where. FERPA kind of allows it, but not really, and HIPAA kind of allows it, but not really, and Colorado law says nothing about it whatsoever.
The purpose of this bill is to add an additional exception to confidentiality mandates put forth in the Colorado Mental Health Practice Act. With this bill, a mental health professional may disclose protected health information including confidential communications with their client when:
- The client makes a “articulable and significant threat” against a school or its occupants.
- The client exhibits behaviors that, in their best professional judgement, create an articulable and significant threat to the school or its occupants.
- The disclosure is made to “appropriate school or school district personnel and law enforcement agencies.”
- This information as disclosed to school district personnel may now become a part of an educational record under FERPA statutes because this information is necessary to disclose in order to protect the health and safety of the students.
An “articulable and significant threat” is one that can be defined and explained and one that, if carried out, will cause significant bodily harm to another person.
Under this new legislation, here are some situations that would and would not warrant disclosure.
- Does not warrant disclosure:
- Client seems “off.”
- Client says that they’re going to slap a certain classmate.
- Client says that they sometimes wish everyone in school would die.
- Client says that they think about doing a mass shooting sometimes. threat)
- Warrants disclosure:
- Client reveals that they have bought numerous semiautomatic weapons, thousands of rounds of ammo, and SWAT gear after expressing a wish that everyone in school would die.
- Client says they are going to stab a certain classmate.
- Client says they are going to kill everyone in the school.
- Client says they are going to commit a mass shooting.
Now that you have the quick and dirty, here’s what I think. I think that public concern about safety at school is at an all-time high and I understand the desire to clarify exactly what can be done in the instance that someone threatens a school or student(s). I do agree that a mental health professional should be allowed to disclose to school officials when someone makes an immediate threat to the safety of the school. HOWEVER. The law already allows for this. What it doesn’t allow for is the inclusion of this information into educational records covered by FERPA. When dealing with new and emerging mental health legislation, we must ALWAYS think of the worst case scenario along with the best. Sure, this piece of legislation may help prevent an act of violence by a troubled college student who has expressed an intent to act to his or her mental health professional.
This piece of legislation may also do great harm to innocent young people. Included deliberately in this piece of legislation is the definition of an educational institution which specifically names public or private preschools and elementary schools. There is no such thing as a preschool or young elementary student with mass homicidal intent. Under this legislation, an unlicensed mental health “professional” may disclose that a young child has made a threat to commit homicide at their school to the administrator of that school, who notes this threat in the child’s permanent educational record that, under the statutes of FERPA, can be disclosed to any and all future educational institutions and financial aid entities to which that child applies.
That is the worst case scenario. Make of it what you will.