- Center for Ethical Practice - https://centerforethicalpractice.org -

Virginia Legal Changes – 2008


Parents’ Records No Longer Protected in Custody Cases – The privilege statute that protected parents’ records from being used as evidence in child custody cases [ § 20-124.3:1 ] has been REPEALED. As of July 1, 2008, it is no longer in effect. Life returns to the way it was before this statute took effect in 2003. See comparisons of Virginia’s privilege laws with those of other states. [1]
Several other statutory changes reflected the legislature’s response to the Virginia Tech tragedy. Some of these changes are listed below. The excerpts below are from the statutes as enacted effective July 1, 2008.  THE LINKS BELOW will take you to the complete text of the CURRENT VERSION of each of these statutes
§ 23-2.1:3 [2]Colleges May Require Admitted or Attending Students to Submit Prior School Records, Including Mental Health Records: ” Each public and private institution of higher education may require that any student accepted to and who has committed to attend, or is attending, such institution provide, to the extent available, from the originating school a complete student record, including any mental health records held by the school. . .” This means that colleges may legally require an admitted student to give access to his prior school’s records, which include anything written down there by the mental health professionals who work in the school, as well as records of evaluations or therapy provided by mental health professionals who contract to provide services for the school, or who forward mental health information to schools about their minor therapy patients. Once received by the college, it is not clear how this information will be used, where it will be stored, or when and to whom it will be re-disclosed.
§ 23-9.2:3 [3] Parental Notification by Public College Counseling Centers – This statute contains a new paragraph “C” requiring public colleges to notify a parent of a dependent student when such student receives mental health treatment at the institution’s student health or counseling center and it has been determined that “there exists a substantial likelihood that, as a result of mental illness the student will, in the near future, (i) cause serious physical harm to himself or others as evidenced by recent behavior or any other relevant information or (ii) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs. However, notification may be withheld if the student’s treating physician or treating clinical psychologist has made a part of the student’s record a written statement that, in the exercise of his professional judgment, the notification would be reasonably likely to cause substantial harm to the student or another person. No public institution of higher education or employee of a public institution of higher education making a disclosure pursuant to this subsection shall be civilly liable for any harm resulting from such disclosure unless such disclosure constitutes gross negligence or willful misconduct by the institution or its employees.Note that this statute requires clinicians in public college counseling centers to do what they would ordinarily do anyway if a dependent student is at serious risk for harm to self or others. However, it will now be more important for the counselors to (1) inform students about this possibility; and (2) document in the file, in advance, if they believe it would harm the student or someone else if the parent(s) were to be notified in this circumstance. (The statute does not define the term “dependent.”
It also applies only if “such treatment becomes part of the student’s educational record in accordance with the federal Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d et seq.) and may be disclosed without prior consent as authorized by the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and related regulations (34 C.F.R. Part 99).” )
§37.2-809 [4]; § 37.2-815 [5]New Standard for Involuntary Civil Commitment to Inpatient Treatment or Mandatory Outpatient Treatment – The current standard requires that a person be determined to be “imminently dangerous to himself or others.” This amended statute contains a new lower standard, authorizing involuntary civil commitment if there is “substantial likelihood that, as a result of mental illness, the defendant will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm” or will suffer serious harm due to substantial deterioration of his capacity to protect himself from harm or to provide for his basic human needs.” These statutes also now require magistrates to provide for the disclosure of records of current or prior mental health treatment: Any emergency custody order entered pursuant to this section shall provide for the disclosure of medical records pursuant to § 37.2-804.2 [see this statute below.]. This subsection shall not preclude any other disclosures as required or permitted by law.” This is one of many changes brought about by the huge omnibus bill that changed numerous statutes related to involuntary commitment, both inpatient and outpatient. [[To see the “markup” that indicates all the changes made to these and other statutes, see http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0850 [6]]]
 § 32.1-127.1:03 [7]Health Records Privacy Statute: Amended every year, this time the amendment reflects the reduced confidentiality created by the statutes above. The omnibus bill (see link above) added a new “exception #13” to paragraph D of a statute that already contained 30+ legal exceptions to the Virginia therapy patient’s confidentiality protections.§ 37.2-804.2 [8]Providers Records to be Disclosed to Magistrate and Others: If requested, a current or former provider of health care services must disclose treatment records, without patient consent, to a magistrate, the court, the person’s attorney, the GAL, the examiner, a community services board (CSB) or behavioral health authority, or law-enforcement officer. This change was included in the omnibus bill (see link above). This new statute relates only to adults, but there is a comparable new requirement for records of minors who undergo commitment proceedings (see §16.1-337 [9] ).

§ 37.2-818 [10]Re-Disclosure of Records Following Commitment Order :
Paragraph C of this statute was amended to read as follows: “After entering an order for involuntary admission or mandatory outpatient treatment, the judge or special justice shall order that copies of the relevant records of the person be released to (i) the facility in which he is placed, (ii) the community services board of the jurisdiction where the person resides, (iii) any treatment providers identified in a treatment plan incorporated into any mandatory outpatient treatment order, and (iv) any other treatment providers or entities.” The term “relevant records” is not defined, so it may include the records of current or prior treatment that were provided to the magistrate as required by § 37.2-804.2 (above).