New Administrative Rules and Illinois State Police Form Issued for Clear and Present Danger Determination Reporting – Colleges

In a previous law alert, we noted that the new Firearm Concealed Carry Act (“Act”) contains a provision which imposes certain mental health reporting requirements on the chief administrative officer of public and private colleges, community colleges and universities. Specifically, pursuant to the new School Administrator Reporting of Mental Health Clear and Present Danger Determinations Law within the Act, it is now the duty of the chief administrative officer, or his or her designee, to report when a student is determined to pose a “clear and present danger” to himself, herself or others. 430 ILCS 66/105.  

Similarly, at the same time the Act became law, section 6-103.3 was added to the Mental Health and Developmental Disabilities Code and provides that physicians, clinical psychologists and other qualified examiners (including those clinicians and examiners employed by community colleges and universities who meet the definition of a qualified examiner), now have a duty to report when a person is determined to pose a “clear and present danger” to himself, herself or others. 405 ILCS 5/6-103.3. However, it is important to note that the clear and present danger definition which forms the basis for a clinician and qualified examiner report is more expansive than the definition a college or university chief administrative officer uses for required reporting. Additionally, physicians, psychologists and qualified examiners report to a different entity than college and university chief administrative officers and law enforcement officials.  

Defining “Clear and Present Danger.”  The term “clear and present danger” has the meaning as provided in Section 1.1 of the Firearm Owners Identification Card Act (“FOID Act”), except that, for college and university chief administrative officers and law enforcement officials, the term “clear and present danger” only has the meaning as provided in paragraph 2 of that Section. 430 ILCS 65/1.1.  

Section 1.1 of the FOID Act provides that “clear and present danger” means a person who:  (1) communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself, or another person as determined by a physician, clinical psychologist, or qualified examiner; or (2) demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior, as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official. 430 ILCS 65/1.1.  

Submission of Clear and Present Danger Reports.  For college and university chief administrative officers and law enforcement officials, the clear and present danger report is to be made to the Illinois Department of State Police within 24 hours of the determination. For physicians, clinical psychologists and other qualified examiners (including those clinicians and examiners employed by community colleges and universities who meet the definition of a qualified examiner), clear and present danger reports are to be made to the Illinois Department of Human Services within 24 hours of the determination. As a matter of prudence, we recommend that the chief administrative officer of a college or university, or his or her designee, be informed of instances when clinical psychologists and qualified examiners employed by the college or university make a clear and present danger report to the Department of Human Services.    

The Illinois Department of State Police has created and released a form with instructions to be used when making clear and present danger determination reports.  The form contains a fax number where the completed form should be sent and provides a phone number for confirming receipt of the faxed form.  Both the instructions and the form are located on the Illinois Department of State Police website and can be accessed at: http://www.isp.state.il.us/foid/foid-clear-present-danger.cfm.  Likewise, the Illinois Department of Human Services has set up a FOID Mental Health Reporting System for clear and present danger determination reporting by clinicians and can be accessed at: https://foid.dhs.illinois.gov/foidpublic/foid/. Physicians, clinical psychologists, and qualified examiners who report to the Department of Human Services will need to establish a user ID prior to or at the time of their initial report. 

FERPA Implications.  Recently promulgated administrative rules by the Illinois Department of State Police provide that clear and present danger reporting shall be made consistent with theFamily Educational Rights and Privacy Act, 20 U.S.C. § 1232 (“FERPA”). However, the State Police’s administrative rules provide no guidance as to how the clear and present danger reporting requirement is to be reconciled with the disclosure limitations FERPA imposes on student education records.  

Reconciling FERPA with the new clear and present danger reporting requirements was the subject of an Illinois Association of School Boards (“IASB”) letter to the U.S. Department of Education Family Policy Compliance Office last November, requesting guidance on the matter. The webpage at www.iasb.com/law/cca.cfm contains a link to the IASB’s 7-page letter, which asks important and relevant questions surrounding this issue. At this time there has been no response from the Family Policy Compliance Office.  

In many instances, FERPA may not apply because FERPA does not prohibit a college or university administrator from disclosing information about a student if the information is obtained through the administrator’s personal knowledge or observation, and not from the student’s education records. In a FERPA guidance document the U.S. Department of Education provides, as an example, that if a teacher overhears or observes a student making threatening remarks to other students, FERPA does not protect that information and the teacher may disclose what he or she overheard or observed to appropriate authorities.

Of course, FERPA (and the federal regulations governing FERPA) provide for several other exceptions to the general prohibition on disclosure of personally identifiable information from education records. Particularly pertinent in the clear and present danger reporting context is the ability of a college or university administrator to disclose personally identifiable information from an education record “in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” 34 C.F.R. 99.36(a). Identification of such emergency situations where disclosure is allowed is not always clear cut, though federal regulations counsel that such situations exist where there is an “articulable and significant threat” and that in making such determinations schools may take into account the “totality of the circumstances” based on the “information available at the time.” 34 C.F.R. 9936(a).  

Still, some and perhaps many situations will undoubtedly be difficult judgment calls. Until there is more clarity on this issue from the State Police or lawmakers, it is advisable that legal counsel be contacted in those situations where uncertainty prevails as to whether a clear and present danger report should be made and whether such reporting is consistent with FERPA.          

If you have any questions concerning reporting requirements or procedure, please do not hesitate to contact a Robbins Schwartz attorney.