Colleen Flaherty
Inside Higher Ed
Originally published 10 FEB 22
Here are two excerpts:
Harvard provided background information about how its dispute resolution office works, saying that it doesn’t contact a party’s medical care provider except when a party has indicated that the provider has relevant information that the party wants the office to consider. In that case, the office receives information from the care provider only with the party’s consent.
Multiple legal experts said Wednesday that this is the established protocol across higher education.
Asked for more details about what happened, Kilburn’s lawyer, Carolin Guentert, said that Kilburn’s therapist is a private provider unaffiliated with Harvard, and “we understand that ODR contacted Ms. Kilburn’s therapist and obtained the psychotherapy notes from her sessions with Ms. Kilburn, without first seeking Ms. Kilburn’s written consent as required under HIPAA,” the Health Insurance Portability and Accountability Act of 1996, which governs patient privacy.
Asked if Kilburn ever signed a privacy waiver with her therapist that would have granted the university access to her records, Guentert said Kilburn “has no recollection of signing such a waiver, nor has Harvard provided one to us.”
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Even more seriously, these experts said that Harvard would have had no right to obtain Kilburn’s mental health records from a third-party provider without her consent.
Andra J. Hutchins, a Massachusetts-based attorney who specializes in education law, said that therapy records are protected by psychotherapist-patient privilege (something akin to attorney-client privilege).
“Unless the school has an agreement with and a release from the student to provide access to those records or speak to the student’s therapist—which can be the case if a student is placed on involuntary leave due to a mental health issue—there should be no reason that a school would be able to obtain a student’s psychotherapy records,” she said.
As far as investigations under Title IX (the federal law against gender-based discrimination in education) go, questions from the investigator seeking information about the student’s psychological records aren’t permitted unless the student has given written consent, Hutchins added. “Schools have to follow state and federal health-care privacy laws throughout the Title IX process. I can’t speculate as to how or why these records were released.”
Daniel Carter, president of Safety Advisors for Educational Campuses, said that “it is absolutely illegal and improper for an institution of higher education to obtain one of their students’ private therapy records from a third party. There’s no circumstance under which that is permissible without their consent.”
