From loco parentis to the Higher Education Mental Health Act
The role of the college or university in ensuring the mental health of its students is a matter of perennial debate. The issue has become more complex in recent years, as the student population has become less tied to the campus environment. A single university may maintain campuses in multiple states and nations, and serve both campus-based and online students simultaneously locally and internationally.
Concurrently, there is evidence that there have been increasing rates of mental illness experienced by students in higher education. This is a consequence of both efforts by higher education to be more accommodating of students facing a wider range of challenges, and by the increasing prevalence of mental illness among young adults. Thus, there are growing mental health needs that colleges and universities potentially must address.
In loco parentis
As the teaching environment evolves, the legal expectations of colleges and universities in maintaining the mental health of their students is being transformed as well. In the early 20th Century, colleges and universities were expected to act in loco parentis – to act in the manner that they perceived to be in the best interest of students, but were not held responsible for student injuries.
After the Civil Rights Movement, colleges and universities were no longer expected to act in loco parentis, but were held accountable for injuries that students experienced. The situation has grown quite complex, as colleges and universities have simultaneous obligations to protect the privacy and civil liberties of their students, while also protecting students from experiencing harm.
Students have legal protections under the Family Educational Rights and Privacy Act (FERPA), which impacts the way information may be shared about a student’s mental health. FERPA allows for information about a specific to be shared between faculty, staff, and administrators, if they are concerned about the welfare of the student or the community. However, there are confidentiality obligations that limit communications between professionals within the institution and people outside the institution (such as parents), unless consent has been received from the student.
The extent to which information may be shared is also governed by the Health Insurance Portability and Accountability Act (HIPAA) in situations in which FERPA does not apply.
Additional protections are afforded to students experiencing mental illnesses through the Americans with Disabilities Act (ADA). Under the ADA, individuals having difficulty completing one or more life activities due to a disability, such as a mental illness, are entitled to academic accommodations and reasonable modifications of institutional policies.
While colleges and universities are required to accommodate students with disabilities, they are not required to make changes that would alter their operations, waive essential requirements, or cause heavy financial burden. Thus, colleges and universities are required to make a reasonable effort to ensure that they offer a welcoming environment to students with disabilities – both mental and physical.
Despite the degree of protection that students already have at colleges and universities, tragedies persist, and there are definite opportunities for further improvement. The solutions to the issues that students face are still a work in progress.
Proposed Legislation: Higher Education Mental Health Act
In order to gain a better understanding of the issue and potential solutions, the Higher Education Mental Health Act was introduced by Senator Robert Casey and Representative David Trone. The Act (S. 1204 / H.R. 3489) highlights the fact that over three-quarters of mental illnesses begin before the age of 24, that over a quarter of students between the ages of 18 to 24 report having a mental health concern, and that over half of students of those ages report having a severe psychological problem.
In order to address these issues, the Act has two aims:
“To ensure States and institutions of higher education are provided with accurate information on the mental health concerns facing students.
To provide detailed recommendations that institutions of higher education, States, and the Federal Government can take to improve the mental health services available to students and properly treat the rising number of students with mental health issues.”
The Act works to achieve its aims by having the Secretary of Education form the Advisory Commission on Serving and Supporting Students with Mental Health Disabilities in Institutions of Higher Education to study four areas:
“the services available to students with mental health disabilities in institutions of higher education and their effectiveness in supporting these students;
the impact of policies and procedures that help or hinder the goal of providing equal opportunity for students with mental health disabilities, such as reasonable accommodation policies, mandatory and voluntary leave policies, and disciplinary policies;
the use of protected health information of students with mental health disabilities by institutions of higher education, including the extent to which campus-based mental health providers share this information with college or university officials without student consent; and
the impact of providing mental health services on a student’s academic performance, well-being, and ability to complete college.”
Once the areas have been studied, the Commission is to draw conclusions on the challenges that students with mental health disabilities are facing within colleges and universities, and to pose a series of recommendations for improving the education, retention, and graduation of this group of students, to ensure that they have access to education equal to their non-disabled peers.
The Commission would terminate after the submission of its final report. In addition to requiring the Commission to write a report covering these topics, the Act additionally requires the Comptroller General of the Government Accountability Office to submit a report to Congress covering a similar set of topics.
The Higher Education Mental Health Act has received widespread support from college and university leaders; it has the potential to provide useful information while not requiring leaders in higher education to take any specific actions at this juncture.
A petition to gather support for the bill from college and university leaders was launched by Furman University. It has gathered over 200 signatories, including the President of Penn State, Eric Barron; the President of Tufts, Anthony Monaco; the President of George Washington University, Thomas LeBlanc; the President of Cornell University, Martha Pollack; and the President of the University of Wisconsin System, Raymond Cross. This support suggests that there is a hunger for more information on the services that are currently available to students and the impact that these services are having.
The government has played a role in determining how the mental health of students is protected by colleges and universities. The widespread support that the Higher Education Mental Health Act has received from leaders in higher education suggests that the question regarding how student needs may best be addressed still requires further exploration, and that opportunities for peer learning exist.
If passed, the Act will not solve today’s growing student mental health challenges but will potentially provide a roadmap that can be used to work towards doing so. The Act would represent one of multiple efforts to ensure that students with mental illnesses are able to have successful experiences obtaining a higher education.