Blame It on the Lawyers
Posted by Chap at 9/19/2007 8:05 AM and is filed under uncategorized 
I had a debate last night at Thoreau Middle School in Vienna with State Senator Davis. It was well-attended and both campaigns were out in force.
There was one interesting exchange that deserves some comment.
The moderator asked us a question about the tragedy at Virginia Tech and how we could improve the ability for schools to obtain their students' mental health records.
I spoke first and discussed the need to treat mental illness as a disease and the importance of full disclosure of this student information as a matter of public safety.
Senator Devolites-Davis went next. To her, the question was an opportunity to bash trial lawyers, because ..... well, I'm a trial lawyer in Fairfax and many lawyers are supporting me.
According to her, the fear of lawsuits under the Federal law "HIPAA" caused the problem. Trial lawyers sue people under this law and, therefore, doctors are afraid to share information. These trial lawyers are "running the show." And they support Chap.
Because of the political activity of trial lawyers, she said, "we see the cost ... we saw a real cost in this." The meaning of "this" in that sentence was clearly the massacre at Virginia Tech.
Wow. First of all, the "HIPAA" law (Health Insurance Portablility and Access Act) ensures the confidentiality of medical records, not student records. The law had no impact on the ability of Virginia Tech to get Cho's student records from Centreville High School.
Secondly, nobody makes money off HIPAA. According to the Washington Post, the Bush administration received nearly 20,000 grievances under HIPAA in its first three years. Not a single one led to a civil fine. Not one. http://www.washingtonpost.com/wp-dyn/content/article/2006/06/04/AR2006060400672.html
Third, the lawyers of this nation have done good things and bad things. But one thing is sure -- we did not cause the tragedy at Virginia Tech. Period.
It's one thing to make an inaccurate statement during a debate. That happens. It's another thing to blame the tragedy at Virginia Tech (even implicitly) on a profession of people who had no connection with it.
P.S. We are working on a You Tube clip of this statement. This is based on my notes.
P.P.S. Here is the YouTube link. From my notes, the question was: "In light of the tragedy at Virginia Tech, how will can we improve access to student records, particularly involving mental health?"
There was one interesting exchange that deserves some comment.
The moderator asked us a question about the tragedy at Virginia Tech and how we could improve the ability for schools to obtain their students' mental health records.
I spoke first and discussed the need to treat mental illness as a disease and the importance of full disclosure of this student information as a matter of public safety.
Senator Devolites-Davis went next. To her, the question was an opportunity to bash trial lawyers, because ..... well, I'm a trial lawyer in Fairfax and many lawyers are supporting me.
According to her, the fear of lawsuits under the Federal law "HIPAA" caused the problem. Trial lawyers sue people under this law and, therefore, doctors are afraid to share information. These trial lawyers are "running the show." And they support Chap.
Because of the political activity of trial lawyers, she said, "we see the cost ... we saw a real cost in this." The meaning of "this" in that sentence was clearly the massacre at Virginia Tech.
Wow. First of all, the "HIPAA" law (Health Insurance Portablility and Access Act) ensures the confidentiality of medical records, not student records. The law had no impact on the ability of Virginia Tech to get Cho's student records from Centreville High School.
Secondly, nobody makes money off HIPAA. According to the Washington Post, the Bush administration received nearly 20,000 grievances under HIPAA in its first three years. Not a single one led to a civil fine. Not one. http://www.washingtonpost.com/wp-dyn/content/article/2006/06/04/AR2006060400672.html
Third, the lawyers of this nation have done good things and bad things. But one thing is sure -- we did not cause the tragedy at Virginia Tech. Period.
It's one thing to make an inaccurate statement during a debate. That happens. It's another thing to blame the tragedy at Virginia Tech (even implicitly) on a profession of people who had no connection with it.
P.S. We are working on a You Tube clip of this statement. This is based on my notes.
P.P.S. Here is the YouTube link. From my notes, the question was: "In light of the tragedy at Virginia Tech, how will can we improve access to student records, particularly involving mental health?"
http://www.youtube.com/watch?v
Right on Chap!
The Family Educational Rights and Privacy Act (FERPA)protects student records. The Health Insurance Portability and Accountability Act (HIPAA) protects medical records.
A school might have HIPAA protected records in a few places such as at a college health clinic. But HIPAA was designed so that it does not create a private right of action.
And the Supreme Court ruled a few years ago that FERPA does not create a private right either. That means that you, me and junior cannot go to a Court to enforce these laws.
Ms. Davis should know that no members of the Plaintiff's bar are going to make money off of complaining about violations of privacy under these laws. She has had plenty of time to read the results of all the studies that have been made in the wake of Virginia Tech. Obviously she does not care about the facts.
JMDD's response closely resembles the approach of Tom Davis last year in the mailer he sent out that labeled Andy Hurst an "extremist" because he was a lawyer who had represented criminal defendants.
This approach is contemptable.
There are many reasons why it is very important to be concerned about student privacy -- especially in relation to psychological and other counseling. Among them: people who need help often avoid it if getting help means creating records that can be used against them. A counselor's office should be a safe place for a student to go for help with their problems.
A statesman (or woman) would understand that there is a need to balance important reasons to protect the privacy of medical and psychological records against the public's interest in getting information about dangerous individuals in time to avoid tragedies.
Ms. Davis is obviously not concerned about the public interest here: she wants to demagogue the Virginia Tech tragedy, "emote" without regard to reality, and demonize members of a noble profession.
She does not deserve to be re-elected.
To be honest, Chap, you had my vote from day one, but as a lawyer myself and a parent of a VA Tech student, I now have two more reasons never to consider voting for Ms. Davis. I need to also congratulate you for quickly responding with the facts on Ms. Davis' untruth about her vote on local income taxes. It's very important for candidates to state where they stand, tell the truth, and refrain from demagoguing. I'm sensing Ms. Davis is scraping the bottom of the barrel in both desperately trying to hang on to her seat and in helping her husband establish his right-wing credentials. I can't wait for election day and step one in no longer having either Davis represent me.
I would love to vote for you if I lived in your district, but I don't. Just please, please stop her.
Not being a lawyer - let me put my 2 cents in.
What Jeannemarie stated was what many non-lawyers feel - that law suits limit the amount of information that is and can be shared. She may have spoken about her concern in the wrong context (using HIPAA) but that does not change the fact that lawyers and law suits have a lot to do with why our current laws seem to do more to protect the right to sue, then truly protecting the rights of the individual. Even in the wake of the VA Tech incident, you see lawyers lining up to see how much money they can get. The comments about how the settlement by the school was too low - using 9/11 as a point of comparison - that was pretty crass (this made by the lawyers of the affected families). Is that what we are down to?
We need to have the ability to sue when there is truly negligence - but at some point we all need to take a reality check and decide when a person is responsible for themselves. Also it is important to keep in perspective that all people don't become gun toting killers just because they are treated for mental illness. Last, just because you suffer a tragic loss because of one crazy person, the venue where it happened is not responsible for insuring your loss - that is what life insurance companies do.
Regarding the original question - why don't you (Chap) propose the proper legislation to make it so mental health information can be managed in such a way that it can be accessed by schools? Do we have to make this like criminal records? So if you go for any form of mental illness treatment (say a short bout of depression - which occurs to many people) this would be registered (with who?) and searchable later? What are the penalties for using this information in a discriminatory manner?
It is hard enough to manage criminal history information in law enforcement so that people's privacy is not violated - you would have to create entire new agencies just to manage and vet mental health information. I can see more bloated government in my future.
Jeannemarie may be appealing to people's emotions by mentioning lawyers and law suits - are you trying to say that this blog site is free from that? I think that these days by definition all politicians are demagogues - and it is easy to present a favorable side of "facts" and how you responded to them on your own website
Nice website by the way Chap