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Slide #1 Professional Perspective, Audience, and Topic

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Slide #1 Professional Perspective, Audience, and Topic

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- My perspective is that of a future school counselor.
- The topic of this Padlet is Confidentiality and School Counseling: What Counselors Must Legally and Should Ethically Disclose to Parents.

- The intended audience for the topic of this Padlet is comprised of

those who are interested in clarification about the important issue of confidentiality in the student-counselor relationship and balancing that confidentiality with what the counselor must and should disclose to parents.

educators who are in training to become school counselors, parents, or teachers and other school personnel who might find this information helpful when working with students and parents.

- I chose this topic because

I wanted to learn more about how to build strong, trusting, helpful relationships with middle school and high school students and how to respect their confidence while also partnering with parents.

While confidentiality is key to building trust in the counseling relationship, I wanted to learn more about the laws and best practices that require disclosure of certain information to parents.

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I spoke with school counselor Mary Campise at Ursuline Academy, a high school in Dallas, Texas.

Why is knowing about confidentiality in the student-counselor relationship and knowing when to disclose information to parents important?

Mrs. Campise explained that a sense of confidentiality is an important component in forming a helpful, trusting student-counselor relationship. However, she stressed that student safety must come first, so disclosure is necessary in the event that a student is in harm's way. Examples she gave were suicidal ideation and eating disorders. She said that students experiencing such issues need help from resources outside of the school, and partnering with parents is important to help students access these resources and to respect the parents' right to guide their children.

What are three best practices when breaching student confidentiality is necessary?

Mrs. Campise stressed

The importance of being clear, compassionate, and communicative with students when their safety is compromised and she must inform them that she will have to notify their parents.

The value in offering the student different scenarios and options for disclosing information to the parents, such as asking the student if he or she would like her to call the parents on her own without the student present, or if the student would like to have a counselor-parent-student meeting, or if the student would like to be with her while they call the parents together.

When disclosure is necessary, the counselor should feel confident that he or she is taking the right (and sometimes legally required) action in order to help students and respect parents' rights. In her experience, Mrs. Campise has found that while students may be upset in the moment by the disclosure, after it has been made, students are often relieved and understand that sharing the information was in their best interest.

An emerging issue is the increase in anxiety, depression, and suicidal ideation among adolescents and young adults over the last year and decade. These problems are not new, but they have grown in prevalence, so it is critical to evaluate and utilize the best practices to prevent and address them in this context. Mrs. Campise and the school's counseling department are collaborating to assess and utilize consistent and clear best practices for working with students and parents to promote and protect the well-being of students.

(M.Campise, personal communication, September 26, 2019)

For statistics and information about the increase in mental health issues in adolescents over the past decade, click on the box below.

American Psychological Association. (2019). Mental health issues increased significantly in young adults over last decade. Retrieved from https://www.apa.org/news/press/releases/2019/03/mental-health-adults

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WASHINGTON - The percentage of young Americans experiencing certain types of mental health disorders has risen significantly over the past decade, with no corresponding increase in older adults, according to research published by the American Psychological Association.

"More U.S. adolescents and young adults in the late 2010s, versus the mid-2000s, experienced serious psychological distress, major depression or suicidal thoughts, and more attempted suicide," said lead author Jean Twenge, PhD, author of the book "iGen" and professor of psychology at San Diego State University. "These trends are weak or non-existent among adults 26 years and over, suggesting a generational shift in mood disorders instead of an overall increase across all ages."

The research was published in the Journal of Abnormal Psychology.

Twenge and her co-authors analyzed data from the National Survey on Drug Use and Health, a nationally representative survey that has tracked drug and alcohol use, mental health and other health-related issues in individuals age 12 and over in the United States since 1971. They looked at survey responses from more than 200,000 adolescents age 12 to 17 from 2005 to 2017, and almost 400,000 adults age 18 and over from 2008 to 2017.

The rate of individuals reporting symptoms consistent with major depression in the last 12 months increased 52 percent in adolescents from 2005 to 2017 (from 8.7 percent to 13.2 percent) and 63 percent in young adults age 18 to 25 from 2009 to 2017 (from 8.1 percent to 13.2 percent). There was also a 71 percent increase in young adults experiencing serious psychological distress in the previous 30 days from 2008 to 2017 (from 7.7 percent to 13.1 percent). The rate of young adults with suicidal thoughts or other suicide-related outcomes increased 47 percent from 2008 to 2017 (from 7.0 percent to 10.3 percent).

There was no significant increase in the percentage of older adults experiencing depression or psychological distress during corresponding time periods. The researchers even saw a slight decline in psychological distress in individuals over 65.

"Cultural trends in the last 10 years may have had a larger effect on mood disorders and suicide-related outcomes among younger generations compared with older generations," said Twenge, who believes this trend may be partially due to increased use of electronic communication and digital media, which may have changed modes of social interaction enough to affect mood disorders. She also noted research shows that young people are not sleeping as much as they did in previous generations.

The increase in digital media use may have had a bigger impact on teens and young adults because older adults' social lives are more stable and might have changed less than teens' social lives have in the last ten years, said Twenge. Older adults might also be less likely to use digital media in a way that interferes with sleep - for example, they might be better at not staying up late on their phones or using them in the middle of the night.

"These results suggest a need for more research to understand how digital communication versus face-to-face social interaction influences mood disorders and suicide-related outcomes and to develop specialized interventions for younger age groups," she said.

Given that the increase in mental health issues was sharpest after 2011, Twenge believes it's unlikely to be due to genetics or economic woes and more likely to be due to sudden cultural changes, such as shifts in how teens and young adults spend their time outside of work and school. If so, that may be good news, she said.

"Young people can't change their genetics or the economic situation of the country, but they can choose how they spend their leisure time. First and most important is to get enough sleep. Make sure your device use doesn't interfere with sleep - don't keep phones or tablets in the bedroom at night, and put devices down within an hour of bedtime," she said. "Overall, make sure digital media use doesn't interfere with activities more beneficial to mental health such as face-to-face social interaction, exercise and sleep."

Article: "Age, Period, and Cohort Trends in Mood Disorder and Suicide-Related Outcomes in a Nationally Representative Dataset, 2005-2017," by Jean Twenge, PhD, San Diego State University; Thomas Joiner, PhD, and Mary Duffy, BA, Florida State University; Bell Cooper, PhD, Lynn University; and Sara Binau, Pomona College. Journal of Abnormal Psychology, published online March 14, 2019.

Jean Twenge can be contacted via email.
The American Psychological Association, in Washington, D.C., is the largest scientific and professional organization representing psychology in the United States. APA's membership includes nearly 118,400 researchers, educators, clinicians, consultants and students. Through its divisions in 54 subfields of psychology and affiliations with 60 state, territorial and Canadian provincial associations, APA works to advance the creation, communication and application of psychological knowledge to benefit society and improve people's lives.

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Mental health issues increased significantly in young adults over last decade

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The percentage of young Americans experiencing certain types of mental health disorders has risen significantly over the past decade, with no corresponding increase in older adults.

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Slide #3 American School Counselor Association's Position on the School Counselor and Confidentiality

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Slide #3 American School Counselor Association's Position on the School Counselor and Confidentiality

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The American School Counselor Association [ASCA] statement on the school counselor and confidentiality addresses respecting the privacy of the counseling relationship and establishing trust and confidence, but also stresses that exceptions to confidentiality exist.

The statement includes a summary explaining that disclosure may be necessary if legally required and/or to prevent serious or foreseeable harm to the student or to others (ASCA, 2018) and to respect the inherent and legal rights of parents (ASCA, 2018).

American School Counselor Association. (2018). The school counselor and confidentiality. Retrieved from https://www.schoolcounselor.org/asca/media/asca/PositionStatements/PS_Confidentiality.pdf.

To read the full statement, please click the box below.

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Slide #4 News Related to Notifying Parents

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Slide #4 News Related to Notifying Parents

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A lawsuit filed in New York alleged that a high school student, a victim of bullying and sexual assault at school, died by suicide after school personnel, including a school counselor, failed to intervene and failed to notify the student's parents.

In addition to being named in the lawsuit, the school counselor was terminated by the school district for failing to handle the situation properly.

The article serves as a reminder that following protocol for contacting parents and abiding by procedures for keeping students safe are crucial to protecting students from harm and can have life or death consequences.

Rand, B. (2019). Bullying, sexual assault led to student's suicide after school staff didn't intervene. ABC News.
Retrieved from https://abcnews.go.com/US/bullying-sexual-assault-led-students-suicide-school-staff/story?id=63345308.

To read the full article, please click the box below.

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A New York City high schooler who took her own life after she was allegedly bullied and forced to perform sexual acts on other students had experienced the abuse since she began attending the school, and school staff knew about it but did not intervene, a lawsuit by the girl's parents alleges.

Mya Vizcarrondo-Rios jumped 34 stories from the roof of her apartment building with her backpack still on shortly after 2 p.m. on Feb. 28, 2018, and was pronounced dead at the hospital about an hour later. She was 15 years old.

Employees at Harry S. Truman High School in the Bronx, New York, knew that Mya was being bullied "almost daily" and that she had developed "severe emotional pain and depression" as a result of the bullying, which began shortly after she started attending the high school in September 2017 and lasted five months until her death, the lawsuit filed in Bronx Supreme Court alleges.

The lawsuit goes on to say that the school's staff did not intervene and failed to notify Mya's parents, Heribierto Rios and Nelly Vizcarrondo.

The lawsuit accuses the City of New York and the New York City Department of Education of causing Mya's death due to "their negligence, carelessness, recklessness and unlawfulness."

"The tragic circumstances surrounding my client's death could have been prevented," said John Scola, the parents' attorney, in a statement. "We hope that this case will cause the New York City Department of Education to reevaluate their policies and properly train their employees on issues related to bullying so that no student feels so hopeless they believe suicide is the answer."

Mya was an honor student who had perfect attendance prior to the bullying, the lawsuit states, but she began missing school beginning in late 2017 as a result of the bullying, which included body shaming, harassment and physical and verbal abuse.

Her declining attendance led to a meeting between Mya's parents and her guidance counselor on Jan. 24, 2018. During the meeting, the lawsuit says the school's principal, Keri Alfano, and the school's dean - both of whom were also at the meeting - told Mya's parents that she would need to sign in for each class to ensure she was attending.

The lawsuit says that despite employees at the school having "actual" and "constructive notice" of the abuse, they did not inform Mya's parents about the bullying in that meeting.

Mya met with her guidance counselor and Alfano on separate occasions to talk about the bullying, according to the lawsuit, which says that the guidance counselor once told Mya she would investigate but that she never did. The meeting with Alfano, meanwhile, ended with Mya being "ignored and simply sent back to class without any intervention by the school," according to the lawsuit, which says Mya's parents were not told about either meeting.

Google Maps Street View

On Feb. 27, 2018, the lawsuit says Mya's guidance counselor appeared at Mya's gym class after one of Mya's friends told her about problems Mya was having.

The guidance counselor "assessed [Mya] for any signs of physical or verbal abuse," according to the lawsuit, which says that "[f]ollowing this conversation...the guidance counselor, despite saying she would do so in [Mya's] guidance review card, again failed to notify [Mya's parents] that [Mya] was having problems at school so they could lookout for any harm [Mya] could cause herself including but in no way limited to acting on suicidal ideations."

After participating in a show in the school's auditorium the next morning, Mya was taken into the back of the unlocked and unsupervised auditorium by two boys and "forced to perform a sex act on the two students," the lawsuit says, adding that Mya was then made fun of by students in the school.

Mya then left school early "without a note or reason to do so," the lawsuit states, adding that she went home unnoticed and without teachers searching for her.

Just hours later, Mya jumped from the roof of her apartment building, the lawsuit says.

The guidance counselor was later fired by the Department of Education for "the improper handling of the bullying of" Mya, according to the lawsuit.

The lawsuit claims that the school was negligent in providing safety to Mya while she was under the school's care and that because the school staff did not notice that Mya had left, the dean and principal had "misrepresented" the requirement that Mya would have to sign in.

"If the representation that [Mya] was required to sign in at each class were true, her absence would have triggered a notification of the parents or a search as to [Mya's] whereabouts and prevented her death," the lawsuit says.

"This was a tragic loss, and students deserve safe and supportive school environments," said Doug Cohen, a spokesperson for the New York City Department of Education, in a statement. "We recognize the deep impact bullying can have, and schools are required to immediately investigate and address any allegation. We'll continue to invest in anti-bullying and safe schools initiatives."

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Bullied student killed herself after school staff didn't intervene: Lawsuit

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A New York City high schooler who took her own life after she was allegedly bullied and forced to perform sexual acts on other students had experienced the abuse since she began attending the school, and school staff knew about it but did not intervene, a lawsuit by the girl's parents alleges.

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Slide #5 News Related to Confidentiality, Disclosure, and FERPA

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Slide #5 News Related to Confidentiality, Disclosure, and FERPA

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A situation in Virginia raised issues about parents’ rights to their eighteen year-old high school daughter's information, students' rights to confidentiality once they turn eighteen, and how balancing those rights can be challenging for schools and school counselors.

A parent accused a school counselor of being "highly negligent" (Mathews, 2018) because the counselor did not disclose an eighteen year-old student’s ineligibility to graduate to the student’s parents.

The issue in question is whether the counselor would have violated the student’s rights under FERPA (Federal Educational Rights and Privacy Act) (20 U.S.C. § 1232 (g)) if she had disclosed the student’s failing grades to the parents after the student explicitly and repeatedly told her not to, or whether she violated the parents' rights by not disclosing the information since the daughter was still in high school and a dependent on the parents' tax return. (For more information about FERPA, refer to Slide #8.)

Implications for school counselors include the importance of being knowledgeable about FERPA and seeking clarification about how to proceed when a student is still in high school but is no longer a minor.

Mathews, J. (2018). Their daughter wasn’t graduating. Why didn’t they know until
graduation day? The Washington Post. Retrieved from
https://www.washingtonpost.com/local/education/their-daughter-wasnt-graduating-why-didnt-they-know-till-graduation-day/2018/07/01/b232ecba-7a3c-11e8-93cc-6d3beccdd7a3_story.html.

To read the full article, click on the box below:

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Yorktown High School in Arlington County, Va., has a way for parents to check their children's grades online. It is called ParentVUE. When Susan and Tom Mockler saw their daughter's grade in English 12 listed as "N/A," they emailed a counselor to ask what that meant.

Their daughter had struggled as a student and switched to Yorktown from Washington-Lee High School before her senior year. She had an individualized education program because of her disabilities: depression and high anxiety. She needed to pass the English class to graduate, but the counselor did not respond to two emails from the Mocklers.

So, they felt poorly served by the school when their daughter gave them this news at 3:30 a.m. on graduation day: She had failed English 12 and would not be receiving a diploma. Without that document, her plan to take a year off to participate in the City Year public service program was dead.

The parents were accustomed to communication difficulties with their daughter. But why hadn't the counselor told them what was up? When they told me the reason, I was startled. The problem was a federal law that often frustrates college parents, including me, but I had never heard of it being used in high school.

Their daughter had told the counselor, and by extension all Yorktown High staff, not to tell her parents she had flunked the course. The Family Educational Rights and Privacy Act (FERPA) lets college students keep their records confidential. I didn't know that it also applies to anyone 18 or older, as the daughter was, even if in high school. The Individuals With Disabilities Education Act (IDEA) does the same.

Bridget Loft, Yorktown's principal, cited IDEA after the Mocklers sent her an email complaint at 4:30 a.m. graduation day. They were furious. "I find that highly negligent on the school's part that the counselor did not contact me to say why she wasn't responding," Susan Mockler told me. "We were completely frozen out and blindsided that our daughter wasn't graduating.

"I respect a student's right to privacy once they turn 18, but I question the rigidity of the interpretation of federal laws in the case of emotionally vulnerable students, especially in this era of rising suicide rates and persistent school shootings."

Arlington County schools spokeswoman Linda Erdos said Yorktown staff did everything they could to encourage the student to attend class and take required tests, but she often did not show up. The school told her that she could walk at graduation and that no one but she and her family would know there was no diploma in the holder she received. She declined.

Erdos said the principal and staff "worked very hard to try to be responsive and respectful with the student's needs while also working to maintain communication with the family to the extent that they could." The daughter's refusal to cooperate was a big hurdle, even though it was her right.

Susan Mockler said she teaches at the university level and understands FERPA, but "colleges now allow professors to contact trained personnel who will reach out to students we identify as struggling emotionally or academically." She said she thought FERPA gave parents access to school records if they still claim the student as a dependent on tax forms, but I found experts contradicted one another on this.

Even if the law kept the Yorktown counselor from telling the parents about the failed course, couldn't she have emailed them that she wasn't allowed to answer their question? Or maybe she could have said something helpful, such as "Don't invite relatives to graduation"? In my experience, school administrators can devise roundabout ways to convey vital information.

The law is often a crude instrument. But that shouldn't stop us from trying our best to treat others as we would like to be treated. That rule predates FERPA and IDEA by many centuries. With faith in each other and some ingenuity, educators and parents both might be able to stumble through these situations better than we do.

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Perspective | Their daughter wasn't graduating. Why didn't they know till graduation day?

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Yorktown High School in Arlington County, Va., has a way for parents to check their children's grades online. It is called ParentVUE. When Susan and Tom Mockler saw their daughter's grade in English 12 listed as "N/A," they emailed a counselor to ask what that meant.

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Slide #6 The Tenth Amendment to the United States Constitution

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Slide #6 The Tenth Amendment to the United States Constitution

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U.S. Const. amend. X.

Constitutional Law

The Tenth Amendment to the Constitution addresses states’ powers: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S. Const. amend. X).

Education is a function of the states; therefore, many laws regarding confidentiality and disclosure to parents in Texas schools are Texas laws that require school counselors to follow specific procedures. For example, bullying, cyberbullying, and threat of suicide are issues that must be disclosed to parents by following specific procedures enacted by the Texas legislature and detailed by local school districts. Federal codes related to education are typically addressed at the state level as well as at the federal level. For example, federal codes about parents’ rights access to their child’s educational records are also included in state laws.

To read the Tenth Amendment to the U.S. Constitution, click on the box below.

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Note: The following text is a transcription of the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda at the National Archives Museum. The spelling and punctuation reflects the original.
On September 25, 1789, the First Congress of the United States proposed 12 amendments to the Constitution. The 1789 Joint Resolution of Congress proposing the amendments is on display in the Rotunda in the National Archives Museum. Ten of the proposed 12 amendments were ratified by three-fourths of the state legislatures on December 15, 1791. The ratified Articles (Articles 3-12) constitute the first 10 amendments of the Constitution, or the U.S. Bill of Rights. In 1992, 203 years after it was proposed, Article 2 was ratified as the 27th Amendment to the Constitution. Article 1 was never ratified.

Transcription of the 1789 Joint Resolution of Congress Proposing 12 Amendments to the U.S. Constitution

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Article the first... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Article the third... Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article the fourth... A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article the fifth... No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the seventh... No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article the eighth... In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article the ninth... In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article the tenth... Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article the eleventh... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth... The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
ATTEST,
Frederick Augustus Muhlenberg, Speaker of the House of Representatives
John Adams, Vice-President of the United States, and President of the Senate
John Beckley, Clerk of the House of Representatives.
Sam. A Otis Secretary of the Senate
Amendments 11-27
The U.S. Bill of Rights

The Preamble to The Bill of Rights

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Amendments 11-27
Note: The capitalization and punctuation in this version is from the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda of the National Archives Building, Washington, D.C.
Back to Main Bill of Rights Page

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Note: The following text is a transcription of the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda at the National Archives Museum. The spelling and punctuation reflects the original.

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Slide #7 Eisel v. Board of Education of Montgomery County 

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Slide #7 Eisel v. Board of Education of Montgomery County 

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Eisel v. Board of Education of Montgomery County, A.2d 447 (Md. 1991).

Judicial Law

In the case of  a lawsuit brought against school counselors by the parent of a middle school student who died by suicide, the court ruled that the counselors were partially liable for the student’s death because they neglected their duty to notify the parent (Eisel v. Montgomery County Board of Education, 1991).

Implications from the ruling include the urgent necessity for school to counselors notify parents if a student has suicidal ideation.

This case is unpublished, but case information is available by clicking the box below:

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The legal theory advanced by the plaintiff in this wrongful death and survival action is that school counselors have a duty to intervene to attempt to prevent a student's threatened suicide. The specific question presented is whether the duty contended for may be breached by junior high school counselors who fail to inform a parent of suicidal statements attributed to the parent's child by fellow students where, when the counselors sought to discuss the subject, the adolescent denied ever making the statements. The circuit court granted summary judgment for the defendants, premised on the absence of any duty. As explained below, we shall hold that summary judgment was erroneously entered.

The decedent, Nicole Eisel (Nicole), was a thirteen year old student at Sligo Middle School in Montgomery County. She and another thirteen year old girl consummated an apparent murder-suicide pact on November 8, 1988. Nicole's father, Stephen Eisel (Eisel), brought the instant action. His amended complaint alleges negligence on the part of two counselors at Nicole's school, among others. In order to state the facts that are before us, and to determine the scope of the issues for decision on this appeal, we must review the procedural history.

I

Eisel's complaint, filed in March 1989, joined as defendants the Board of Education of Montgomery County (the Board), "Montgomery County Public Schools" and three individuals, the Superintendent of Schools of Montgomery County, the principal of Sligo Middle School, and Dorothy Jones (Jones), Nicole's counselor. The defendants filed an answer. Thereafter the parties engaged in discovery. Answers to interrogatories and documents produced are part of the record. Full copies of depositions were not filed in the court. Documents produced included the Board's memorandum of a telephone call on November 10, 1988, from the identified mother of a child at Sligo Middle School. That parent reported that children in her car pool said that Deidre Morgan (Morgan), another school counselor, knew of Nicole's suicide threats. Eisel amended his complaint to join Morgan as an additional defendant.

"Montgomery County Public Schools" is the name by which the Board of Education of Montgomery County describes itself on letterheads and other documents in the record.

Shortly thereafter the defendants filed a "Motion to Dismiss the Amended Complaint and/or Motion for Summary Judgment." Among other grounds, the motion asserted that the "[d]efendants owed no duty to the plaintiff or plaintiff's decedent."

The hearing on the defendants' motion resulted in a final judgment entered on the docket as, "Order of Court . . . granted the defendants' motion to dismiss complaint with prejudice." The transcript of the hearing reflects that a number of rulings were made. The circuit court ruled that allegations of negligence against the superintendent and school principal were insufficient. The court ruled that "Montgomery County Public Schools" was not an entity separate from the Board of Education. These rulings are not challenged on this appeal.

With respect to the Board, Jones, and Morgan, counsel for the defendants accepted the allegations of the amended complaint as true, for purposes of the motion. On that basis defendants' counsel argued, as a matter of law, the absence of any duty and the lack of proximate cause. The circuit court ruled that proximate cause was a question for the jury, but that public policy considerations precluded legally recognizing any duty on the remaining defendants to intervene for the purpose of attempting to prevent suicide.

Eisel appealed. We issued the writ of certiorari on our own motion prior to consideration of the matter by the Court of Special Appeals.

Eisel's brief characterizes the appeal as one from the grant of summary judgment. The defendants view the judgment as one entered on the grant of a motion to dismiss for failure to state a claim upon which relief can be granted. Eisel's analysis is correct. Under Maryland Rule 2-322(b) it is permissive to raise, by motion to dismiss, the defense of failure to state a claim upon which relief can be granted, if the motion is made before answer is filed. If the defense is not made by a threshold motion, it "may be made in the answer, or in any other appropriate manner after answer is filed." Id. "A defense of failure to state a claim upon which relief can be granted . . . may be made . . . by motion for summary judgment under Rule 2-501 or at the trial on the merits." Md. Rule 2-324(a). Here, the procedural tool used by the defendants was a motion for summary judgment, but the defendants chose to argue their motion as if it were one to dismiss for failure to state a claim. Because, for purposes of the motion, the defendants and the trial court accepted the allegations of the amended complaint as true, we shall do the same. Nevertheless, because judgment was entered on summary judgment, we are free to state from the record, in addition to the accepted allegations, admissible facts which are favorable to Eisel's claim. Further, because the appeal is from the grant of a summary judgment, our review of whether judgment was properly entered looks only to the ground relied upon by the trial judge for granting the motion, i.e., the absence of duty. See Boyer v. State, 323 Md. 558, 588 n. 19, 594 A.2d 121, 136 n. 19 (1991); Finci v. American Casualty Co., 323 Md. 358, 381-82, 593 A.2d 1069, 1081 (1991).

Discovery material in the record, and the arguments by counsel at the motion hearing, reflect that there is a dispute over whether the counselors were ever advised by Nicole's fellow students, before Nicole's death, that Nicole was contemplating suicide. The defendants never argued that they were entitled to summary judgment because Eisel could not produce competent evidence sufficient to support a finding that the counselors were so advised.

II

The amended complaint avers that Nicole became involved in satanism, causing her to have an "obsessive interest in death and self-destruction." During the week prior to the suicide, Nicole told several friends and fellow students that she intended to kill herself. Some of these friends reported Nicole's intentions to their school counselor, Morgan, who relayed the information to Nicole's school counselor, Jones. Morgan and Jones then questioned Nicole about the statements, but Nicole denied making them. Neither Morgan nor Jones notified Nicole's parents or the school administration about Nicole's alleged statements of intent. Information in the record suggests that the other party to the suicide pact shot Nicole before shooting herself. The murder-suicide took place on a school holiday in a public park at some distance from Sligo Middle School. The other party to the pact attended another school.

III

There is no direct Maryland precedent on the issue before us. We have not been cited to, nor have we found, any decision by any other court that deals with the issue of duty on substantially similar facts. Before the circuit court the defendants' argument that the counselors owed no duty to intervene rested largely on language in judicial decisions that defendants say are analogous.

On the issue of duty Eisel argued that, by the School Board's own policy, counselors were required to contact the parents of any child who had expressed suicidal thoughts. Eisel pointed to deposition testimony on that subject by the principal, who said: "If the student is in danger, of course, you take care of that first. Then the next thing you do would be to notify a parent. If the student is in no apparent danger, you will notify the parent."

There appear to be two broad categories of cases in which a person may be held liable for the suicide of another. The first type occurs when the defendant's conduct actually causes the suicide, as when a negligent driver causes head injuries that lead to psychosis. See Fuller v. Preis, 35 N.Y.2d 425, 322 N.E.2d 263, 363 N.Y.S.2d 568 (1974). It is not contended here that Nicole's suicide was caused, in that sense, by the defendants' conduct.

The second type of case holds that a special relationship between a defendant and the suicidal person creates a duty to prevent a foreseeable suicide. For instance, many courts have held that a hospital or a prison that has custody over a person who commits suicide may be liable if the suicide was foreseeable. See Annotation, Civil Liability for Death by Suicide, 11 A.L.R.2d 751, §§ 13.5-14 (1950 Supp. 1985). In State ex rel. Shockey v. Washington Sanitarium Hosp., 223 Md. 554, 557, 165 A.2d 764, 765-66 (1960), we said:

"[T]here is a duty upon a sanitarium or hospital to exercise such care in looking out for and protecting a patient as the circumstances, including known mental and physical conditions, may reasonably require. Failure to do so may be negligence, and if suicide is a proximate result of the negligence, recovery may be had under the wrongful death statute. . . ."

At least one case has concluded that a professional therapist may be held liable when a patient commits suicide, even if the therapist or the therapist's hospital does not have custody over the patient. Bellah v. Greenson, 81 Cal.App.3d 614, 620, 146 Cal.Rptr. 535, 538 (1978); but see Nally v. Grace Community Church of the Valley, 47 Cal.3d 278, 295-96, 763 P.2d 948, 958, 253 Cal.Rptr. 97, 107-08 (1988) (limiting Bellah), cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989). Liability against therapists for outpatient suicides is rarely imposed, e.g., Farwell v. Un, 902 F.2d 282 (4th Cir. 1990) (applying Maryland law); Comment, Civil Liability for Causing or Failing to Prevent Suicide, 12 Loy.L.A.L.Rev. 967, 993 (1979), and some commentators have suggested that liability under these circumstances should never be imposed. See id. at 993 n. 142.

Recent attempts to extend the duty to prevent suicide beyond custodial or therapist-patient relationships have failed. For instance, the Supreme Court of California refused to impose a duty on a church pastor to refer a twenty-four year old suicidal counselee to a mental health professional. Nally, 47 Cal.3d at 299-300, 763 P.2d at 960-61, 253 Cal.Rptr. at 110. Although on its facts Nally dealt only with religious counselors, the court appeared to extend its no-duty rule to all "nontherapist counselors," who were defined as "persons other than licensed psychotherapists, who counsel others concerning their emotional and spiritual problems." Id. at 283, 763 P.2d at 949-50, 253 Cal.Rptr. at 99.

In McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983), a jail prisoner killed himself within twelve hours of incarceration after his conviction on burglary and drug charges. The administrator of the suicide's estate sued his attorney for legal malpractice. The Supreme Court of New Hampshire held that the attorney had no duty to prevent the suicide because she neither had custody or control over the defendant nor did she have the "expertise or the training necessary to judge or foresee that a client will commit suicide." Id. at 342, 461 A.2d at 127; see also Snyder v. Baumecker, 708 F. Supp. 1451, 1463 (D.N.J. 1989); McPeake v. Cannon, 381 Pa. Super. 227, 553 A.2d 439 (1989). In Krieg v. Massey, 239 Mont. 469, 781 P.2d 277 (1989), an apartment manager had reason to believe an elderly tenant was suicidal and attempted to remove the tenant's handgun, but ultimately left it within the tenant's reach. The court found the manager had no duty to prevent the subsequent suicide because she was not in a custodial relationship with the tenant.

Probably the closest case, factually, to the matter before us is Bogust v. Iverson, 10 Wis.2d 129, 102 N.W.2d 228 (1960). The parents of a college student who killed herself sued a college professor-counselor. The suicide occurred about six weeks after the counselor suggested terminating counseling sessions with the student. The court held that the counselor had no duty to secure psychiatric treatment for the student or advise her parents of her emotional state because the plaintiff had alleged no facts showing that the counselor was apprised that the student had suicidal tendencies. One commentator has cited this ruling as potentially establishing a duty when such facts are alleged. See Comment, supra, 12 Loy.L.A.L.Rev. at 991.

The custody rule is extended, arguably unjustifiably, well beyond the confines of the instant matter in Sneider v. Hyatt Corp., 390 F. Supp. 976 (N.D.Ga. 1975). That court refused to grant summary judgment for a hotel company which claimed it could not be liable for the death of a registered guest who jumped from the twenty-first floor of the hotel. The plaintiff had alleged that the hotel's management was aware that the hotel had become an "attractive location for suicides," and that the decedent was inebriated, had no luggage and was seen by hotel employees wandering in a confused state on the twenty-first floor. The court acknowledged that a hotel has less control over a customer than does a hospital over a patient. Nonetheless, the court refused to decide that the hotel had no duty at all. Id. at 979-81.

A number of factors distinguish the instant matter from those cases finding an absence of any duty, reviewed above, in which the custodial relationship between the suicide victim and the defendant was other than that of hospital and patient or jailer and prisoner. Eisel's claim involves suicide by an adolescent. The negligence relied on is a failure to communicate to the parent the information allegedly possessed by the defendants concerning the child's contemplated suicide, not a failure by the school authorities physically to prevent the suicide by exercising custody and control over Nicole. The theory of Eisel's case is that he could have exercised his custody and control, as parent, over Nicole, had he been warned, and inferentially, that there was nothing known to the counselors about Eisel's relationship with Nicole that would make such a warning unreasonable. Compare Farwell v. Un, 902 F.2d at 288-89 (limited duty to prevent suicide on a physician who had no authority to commit a patient involuntarily) with Md. Code (1982, 1990 Repl. Vol.), § 10-610 of the Health-General Article (parent's right to apply for, and consent to, "voluntary" commitment for up to twenty days of minor child suffering from mental disorder).

There are, of course, various statutory and constitutional restrictions on a parent's right to commit a child against the child's will. See, e.g., Parham v. J.R., 442 U.S. 584, 604, 99 S.Ct. 2493, 2505, 61 L.Ed.2d 101, 120 (1979) (parents retain plenary authority to seek institutionalization of their children subject to physician's independent judgment).

Further, we have recognized

"the doctrine that the relation of a school vis a vis a pupil is analogous to one who stands in loco parentis, with the result that a school is under a special duty to exercise reasonable care to protect a pupil from harm, Segerman v. Jones, 256 Md. 109, 123-24, 259 A.2d 794, 801 (1969); Restatement (Second) of Torts § 320 at 130 (1965); 2 Harper and James, The Law of Torts § 18.7 at 1058 (1956); Annot., 86 A.L.R.2d 489, 565-68 (1962); Annot., 32 A.L.R.2d 1163, 1178-81 (1953); Annot., 160 A.L.R. 7, 155-56 (1946)."

Lunsford v. Board of Educ., 280 Md. 665, 676, 374 A.2d 1162, 1168 (1977) (footnote omitted).

The harm in Lunsford was an assault and battery, inflicted on a student who was en route to his home after having been released from school, where there was evidence that the school authorities knew of the danger. The jury verdict was for the defendant. This Court found no error in the proceedings. Two dissenting judges believed it was error to submit the issue of contributory negligence to the jury.

Finally, the relationship of school counselor and pupil is not devoid of therapeutic overtones. The "Counselor Job Description," published by the Department of Professional Personnel of the Board lists the first two "[p]riorities of the counseling profession" to be:

"1. Counseling with individuals and groups concerning school adjustment, physical and emotional development, educational planning, and career awareness. . . .

"2. Identifying students with significant problems and taking steps to provide help for these students."

The defendant Jones has been a counselor in the Montgomery County school system since 1977. She holds an M.A. in guidance and counseling. Her answers to interrogatories include the following:

" Continuum Education:

Psychiatric Institute (1979) - 6 hrs., Crisis Intervention Techniques

Frost Center (1984) - 2 hrs., Suicide Warnings - Steps to Follow

Crisis Psychiatric Services (1987) - Suicide."

Given the peculiar mix of factors presented, it is an open question whether there is a duty to attempt to prevent an adolescent's suicide, by reasonable means, including, in this case, by warning the parent. Therefore, we must analyze whether we should recognize a duty in this case.

IV

A tort duty is "an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Jacques v. First Nat'l Bank, 307 Md. 527, 533, 515 A.2d 756, 759 (1986) (quoting Prosser Keeton on the Law of Torts § 53, at 358 (5th ed. 1984)). "[A]mong the variables to be considered in determining whether a tort duty should be recognized are:

`[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.'"

Village of Cross Keys, Inc. v. United States Gypsum Co., 315 Md. 741, 752, 556 A.2d 1126, 1131 (1989) (quoting Tarasoff v. Regents of Univ. of Calif., 17 Cal.3d 425, 434, 551 P.2d 334, 342, 131 Cal.Rptr. 14, 22 (1976)). See also Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986).

A. Foreseeability and Certainty of Harm

Foreseeability is the most important variable in the duty calculus, Ashburn, 306 Md. at 628, 510 A.2d at 1083, and without it there can be no duty to prevent suicide. Comment, Civil Liability for Suicide, 12 Loy.L.A.L.Rev. at 991. Here Nicole's suicide was foreseeable because the defendants allegedly had direct evidence of Nicole's intent to commit suicide. That notice to the defendants distinguishes this case from Bogust v. Iverson, 10 Wis.2d 129, 102 N.W.2d 228, where the counselor had no notice of contemplated suicide.

The degree of certainty that Eisel and Nicole suffered the harm foreseen is one hundred percent.

Nor would reasonable persons necessarily conclude that the harm ceased to be foreseeable because Nicole denied any intent to commit suicide when the counselors undertook to draw out her feelings, particularly in light of the alleged declarations of intent to commit suicide made by Nicole to her classmates. "An adolescent who is thinking of suicide is more likely to share these feelings with a friend than with a teacher or parent or school guidance counselor. But, we all - parents, teachers, administrators, service providers and friends - can learn what the warning signs are and what to do." 3 Maryland Office for Children and Youth, Monthly Memo, at 3 (Apr. 1986). Jurors, as triers of fact, may well conclude that the quoted point of view is consistent with their own experiences with adolescents. On the other hand, when the facts of this case are fully developed, the court may conclude that the duty did not arise, or jurors may conclude that it had not been negligently breached.

B. Policy of Preventing Future Harm

The General Assembly has made it quite clear that prevention of youth suicide is an important public policy, and that local schools should be at the forefront of the prevention effort. A Youth Suicide Prevention School Programs Act (the Act) was enacted by Chapter 122 of the Acts of 1986, codified as Md. Code (1978, 1989 Repl. Vol.), §§ 7-4A-01 through 7-4A-06 of the Education Article (EA). The uncodified preamble to the Act states that "[t]he rate of youth suicide has increased more than threefold in the last two decades," and that "[o]ver 5,000 young Americans took their lives [in 1985], including over 100 young people in Maryland. . . ."

Further legislative findings and declarations are set forth in EA, § 7-4A-01. "A statewide Youth Suicide Prevention School Program is essential to address" the problem. § 7-4A-01(1). "County suicide prevention and crisis center agencies along with local education agencies are best suited for developing and implementing programs for statewide youth suicide prevention." § 7-4A-01(5). Section 7-4A-03(a)(1) provides for a statewide Youth Suicide Prevention School Program administered by the State Department of Education in cooperation with, inter alia, participating local education agencies. Any program established under the Act "shall . . . [t]rain school personnel in individual and school wide strategies for teenage suicide prevention." EA, § 7-4A-04(c)(2).

In 1987 the Maryland State Department of Education (the Department) published its "YOUTH SUICIDE PREVENTION SCHOOL PROGRAM for the Public Schools of Maryland." It presented goals, objectives and strategies for youth suicide prevention, intervention and "postvention," i.e., "coping with the aftermath of a student's attempted suicide, or completed suicide." Id. at 2.

Nicole's school had a suicide prevention program prior to her death. Eisel requested that the Superintendent of Schools for Montgomery County produce "all published rules . . . or other written directives available as of November 1, 1988, to . . . counselors . . . or other school system staff relating to staff responses to alleged student intent to commit suicide." In response, the superintendent produced, inter alia, a memorandum dated February 18, 1987, from the office of the principal to the staff of Sligo Middle School on the subject of "Suicide Prevention." It consists of a top sheet setting forth the "steps [that] must be followed." The top sheet is supplemented by materials on other pages reproduced from various sources. These materials include lists of the methods of, and motives for, suicide and important warning signs ("[A]lmost all who have committed suicide have communicated their intent beforehand."). Part IX lists ten answers to the question, " How Can You Help In A Suicidal Crisis?" Answer D is:

The description of the steps, in relevant part, reads:
"1. Notify the appropriate grade level counselor and administrator immediately.
"2. It will be the grade level administrator's responsibility to call a team meeting. . . .
"3. The committee will decide jointly as to the next steps - i.e., contacting parents, outside agencies, etc.
"4. Reminders:
(a) Our counselors are trained to counsel with a youngster who is contemplating suicide; there are also full-time professionals who are available.
(b) Confidentiality is not an issue - it makes for more sense to pick up the pieces of a teacher/pupil relationship after the crisis is over.
(c) The student should not be left alone at any time."

"Tell others - As quickly as possible, share your knowledge with parents, friends, teachers or other people who might be able to help. Don't worry about breaking a confidence if someone reveals suicidal plans to you. You may have to betray a secret to save a life."

There is no indication in the Act that the Legislature intended to create a statutorily based cause of action against school counselors who negligently fail to intervene in a potential suicide. Nevertheless, holding counselors to a common law duty of reasonable care to prevent suicides when they have evidence of a suicidal intent comports with the policy underlying this Act.

C. Closeness of Connection Between Conduct and Injury

This factor is the proximate cause element of a negligence action considered on the macroscale of policy. Consideration is given to whether, across the universe of cases of the type presented, there would ordinarily be so little connection between breach of the duty contended for, and the allegedly resulting harm, that a court would simply foreclose liability by holding that there is no duty. The defendants in the instant matter argue the closeness of connection factor from two aspects, superseding cause and remoteness.

The defendants say that the law considers suicide to be "a deliberate, intentional and intervening act which precludes a finding that a given defendant is responsible for the harm." Brief of Appellees at 6. Defendants cite McLaughlin v. Sullivan, 123 N.H. at 339, 461 A.2d at 125, where the court held that an attorney's alleged malpractice, in not requesting a stay of sentence or bail pending appeal in a criminal case, could not have been the proximate cause of the client's suicide in jail during the first day of confinement following conviction. Here, however, we deal with the relationship between an adolescent and school counselors who allegedly were informed that the adolescent was suicidal. Legally to categorize all suicides by adolescents as knowing and voluntary acts which insulate the death, as a matter of law, from all other acts or omissions which might operate, in fact, as causes of the death is contrary to the policy manifested by the Act. The Act does not view these troubled children as standing independently, to live or die on their own. In a failure to prevent suicide case, Maryland tort law should not treat an adolescent's committing suicide as a superseding cause when the entire premise of the Act is that others, including the schools, have the potential to intervene effectively.

The bill file on the Act reflects that the General Assembly had before it, inter alia, a publication of the State of Maryland Office for Children and Youth devoted entirely to youth suicide. In rejecting the "myth" that children do not commit suicide, the publication presents the following as "fact":
"Children from the age of 3 years can understand the concept of suicide and do kill themselves. The danger is that while they may understand the concept of suicide, they may not understand the finality of death until the age of 10-15 years."
3 Maryland Office for Children and Youth, Monthly Memo, at 3 (Apr. 1986).

The defendants also argue that "[i]n blaming the Board and the school counselors for his daughter's death, [Eisel], at most, makes out a case for a remote cause, one which is speculative and inconclusive." We have held, supra, Part I, that this issue of causation in fact is not before us on this appeal. Obviously, when the factual skeleton, on which the duty issue has been presented to us, has been fleshed out with evidence at trial, causation may be a question for the jury, or it may develop that, as a matter of law, any causal connection has been severed by some fact, other than that death was essentially self-inflicted.

D. Moral Blame

Moral blame as a factor to be weighed in deciding whether to recognize a legal duty in tort is less than an intent to cause harm. This factor considers the reaction of persons in general to the circumstances. Is it the sense of the community that an obligation exists under the circumstances? Certainly if classmates of Nicole found her lying on the floor of a lavatory, bleeding from slashed wrists, and those students told one or more teachers of the emergency, society would be outraged if the teachers did nothing and Nicole bled to death. Here, the information allegedly received by the counselors involved intent, not a description of physical facts. The distinction does not form a bright line separating duty from the absence of duty. The youth suicide prevention programs provided for by the Act call for awareness of, and response to, emotional warning signs, thus evidencing a community sense that there should be intervention based on emotional indicia of suicide.

E. Burden on the Defendant

"[U]nintended harms are ordinarily compensable if caused by conduct that involves undue risks - risks that, along with other costs, outweigh the usefulness of the conduct causing the harms." Prosser Keeton on The Law of Torts § 85, at 608 (5th ed. 1984) (footnote omitted).

The harm that may result from a school counselor's failure to intervene appropriately when a child threatens suicide is total and irreversible for the child, and severe for the child's family. It may be that the risk of any particular suicide is remote if statistically quantified in relation to all of the reports of suicidal talk that are received by school counselors. We do not know. But the consequence of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish duty. We pointed out in Jacques v. First Nat'l Bank, 307 Md. 527, 537, 515 A.2d 756, 761 (1986), that "[a]s the magnitude of the risk increases, the requirement of privity is relaxed - thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury." See Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 35 n. 5, 517 A.2d 336, 345 n. 5 (1986) (recognizing a duty against architects, enforceable by recovery for economic loss, if building conditions present a clear risk of death or personal injury).

Moreover, when the risk of death to a child is balanced against the burden sought to be imposed on the counselors, the scales tip overwhelmingly in favor of duty. Certainly the physical component of the burden on the counselors was slight. Eisel claims only that a telephone call, communicating information known to the counselors, would have discharged that duty here. We agree.

The counselors argue that there are elements of confidentiality and discretion in their relationships with students that would be destroyed by the imposition of a duty to notify parents of all reports of suicidal statements. Confidentiality does not bar the duty, given that the school policy explicitly disavows confidentiality when suicide is the concern.

The defendants further point out that counselors are required to exercise discretion when dealing with students. Their discretion, however, cannot be boundless when determining whether to treat a student as a potential suicide. Discretion is relevant to whether the standard of conduct has been breached under the circumstances of a given case. Discretion does not create an absolute immunity, which would be the effect of denying any duty.

F. Community Consequences of Liability - Insurability

EA, § 4-105(d) and Md. Code (1974, 1989 Repl. Vol., 1991 Cum. Supp.), § 5-353(b) of the Courts and Judicial Proceedings Article (CJ) allow a county board of education to "raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if self-insured or a member of a pool . . . above $100,000." The Board participates in the Montgomery County self-insurance program. CJ, § 5-353(e) provides that a "county board employee acting within the scope of employment, without malice and gross negligence, is not individually liable for damages resulting from a tortious act or omission for which a limitation of liability is provided . . . under subsection (b)." Recognizing the duty contended for by Eisel in this case would not appear to have any substantial adverse impact on this legislative scheme, or on the community at large.

We refer to statutes enacted after the occurrence involved in the action before us because the issue is whether to recognize a duty in tort, and the most recent statutes represent the best guide to the future. We intimate no opinion on the precise statutes which might govern coverage in the instant matter.

At the hearing on the motion for summary judgment in this action, the circuit court also ruled that there were no allegations of malice or gross negligence on the part of Jones or Morgan. Eisel did not seek leave to amend; nor does he question those rulings on this appeal.

V

The Centers for Disease Control (CDC) in Atlanta has reported on a new survey of high school students, which revealed that twenty-seven percent "thought seriously" about suicide in the preceding year, and "one in 12 said they had actually tried." The Sun (Baltimore), Sept. 20, 1991, at 3A, col. 3. The CDC report noted that suicide rates among teenagers between fifteen and nineteen years old had quadrupled between 1950 and 1988. The General Assembly had similar numbers before it when it adopted the Act. "Changing social conditions lead constantly to the recognition of new duties." Prosser Keeton on The Law of Torts § 53, at 359 (5th ed. 1984) (footnote omitted); see, e.g., B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) (transmission of herpes).

Considering the growth of this tragic social problem in the light of the factors discussed above, we hold that school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student's suicidal intent. On the facts of this case as developed to date, a trier of fact could conclude that that duty included warning Eisel of the danger.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY APPELLEE, BOARD OF EDUCATION OF MONTGOMERY COUNTY, MARYLAND.

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Slide #8 FERPA - Family Educational Rights and Privacy Act

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Slide #8 FERPA - Family Educational Rights and Privacy Act

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Family Educational Rights and Privacy Act of 1974. 20 U.S.C. § 1232 (g) (amended 2011).

Statutory Law

Under FERPA, parents have the right to review their child’s educational records (20 U.S.C. § 1232 (g)), including school counseling records.

Schools are required to give access to the records upon request from the parents.

The implication for school counselors is that any counseling notes (other than informal memory joggers that are kept in the counselor's sole possession) are part of a student's school records and can be accessed and reviewed by a parent upon request.

To read the Family Educational Rights and Privacy Act, click on the box below:

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Title 34: Education

PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY
Contents
Subpart A-General§99.1 To which educational agencies or institutions do these regulations apply?
§99.2 What is the purpose of these regulations?
§99.3 What definitions apply to these regulations?
§99.4 What are the rights of parents?
§99.5 What are the rights of students?
§99.6 [Reserved]
§99.7 What must an educational agency or institution include in its annual notification?
§99.8 What provisions apply to records of a law enforcement unit?
Subpart B-What Are the Rights of Inspection and Review of Education Records?§99.10 What rights exist for a parent or eligible student to inspect and review education records?
§99.11 May an educational agency or institution charge a fee for copies of education records?
§99.12 What limitations exist on the right to inspect and review records?
Subpart C-What Are the Procedures for Amending Education Records?§99.20 How can a parent or eligible student request amendment of the student's education records?
§99.21 Under what conditions does a parent or eligible student have the right to a hearing?
§99.22 What minimum requirements exist for the conduct of a hearing?
Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?§99.30 Under what conditions is prior consent required to disclose information?
§99.31 Under what conditions is prior consent not required to disclose information?
§99.32 What recordkeeping requirements exist concerning requests and disclosures?
§99.33 What limitations apply to the redisclosure of information?
§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?
§99.35 What conditions apply to disclosure of information for Federal or State program purposes?
§99.36 What conditions apply to disclosure of information in health and safety emergencies?
§99.37 What conditions apply to disclosing directory information?
§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?
§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses?
Subpart E-What Are the Enforcement Procedures?§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?
§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?
§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?
§99.63 Where are complaints filed?
§99.64 What is the investigation procedure?
§99.65 What is the content of the notice of investigation issued by the Office?
§99.66 What are the responsibilities of the Office in the enforcement process?
§99.67 How does the Secretary enforce decisions?
Appendix A to Part 99-Crimes of Violence Definitions

Authority: 20 U.S.C. 1232g, unless otherwise noted.

Source: 53 FR 11943, Apr. 11, 1988, unless otherwise noted.

Subpart A-General

§99.1 To which educational agencies or institutions do these regulations apply?

(a) Except as otherwise noted in §99.10, this part applies to an educational agency or institution to which funds have been made available under any program administered by the Secretary, if-

(1) The educational institution provides educational services or instruction, or both, to students; or

(2) The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

(b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non-monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution.

(c) The Secretary considers funds to be made available to an educational agency or institution of funds under one or more of the programs referenced in paragraph (a) of this section-

(1) Are provided to the agency or institution by grant, cooperative agreement, contract, subgrant, or subcontract; or

(2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (titles IV-A-1 and IV-B, respectively, of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives funds under one or more of the programs covered by this section, the regulations in this part apply to the recipient as a whole, including each of its components (such as a department within a university).

(Authority: 20 U.S.C. 1232g)

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000]

§99.2 What is the purpose of these regulations?

The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as amended.

(Authority: 20 U.S.C. 1232g)

Note to §99.2: 34 CFR 300.610 through 300.626 contain requirements regarding the confidentiality of information relating to children with disabilities who receive evaluations, services or other benefits under Part B of the Individuals with Disabilities Education Act (IDEA). 34 CFR 303.402 and 303.460 identify the confidentiality of information requirements regarding children and infants and toddlers with disabilities and their families who receive evaluations, services, or other benefits under Part C of IDEA. 34 CFR 300.610 through 300.627 contain the confidentiality of information requirements that apply to personally identifiable data, information, and records collected or maintained pursuant to Part B of the IDEA.

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 73 FR 74851, Dec. 9, 2008]

§99.3 What definitions apply to these regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section 444 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g)

Attendance includes, but is not limited to-

(a) Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and

(b) The period during which a person is working under a work-study program.

(Authority: 20 U.S.C. 1232g)

Authorized representative means any entity or individual designated by a State or local educational authority or an agency headed by an official listed in §99.31(a)(3) to conduct-with respect to Federal- or State-supported education programs-any audit or evaluation, or any compliance or enforcement activity in connection with Federal legal requirements that relate to these programs.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

Biometric record, as used in the definition of personally identifiable information, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.

(Authority: 20 U.S.C. 1232g)

Dates of attendance. (a) The term means the period of time during which a student attends or attended an educational agency or institution. Examples of dates of attendance include an academic year, a spring semester, or a first quarter.

(b) The term does not include specific daily records of a student's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

(a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

(b) Directory information does not include a student's-

(1) Social security number; or

(2) Student identification (ID) number, except as provided in paragraph (c) of this definition.

(c) In accordance with paragraphs (a) and (b) of this definition, directory information includes-

(1) A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and

(2) A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Disciplinary action or proceeding means the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution.

Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(2))

Early childhood education program means-

(a) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq.), including a migrant or seasonal Head Start program, an Indian Head Start program, or a Head Start program or an Early Head Start program that also receives State funding;

(b) A State licensed or regulated child care program; or

(c) A program that-

(1) Serves children from birth through age six that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and

(2) Is-

(i) A State prekindergarten program;

(ii) A program authorized under section 619 or part C of the Individuals with Disabilities Education Act; or

(iii) A program operated by a local educational agency.

Educational agency or institution means any public or private agency or institution to which this part applies under §99.1(a).

(Authority: 20 U.S.C. 1232g(a)(3))

Education program means any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(3), (b)(5))

Education records. (a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8.

(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's capacity as an employee; and

(C) Are not available for use for any other purpose.

(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.

(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:

(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection with treatment of the student; and

(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, "treatment" does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and

(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student.

(6) Grades on peer-graded papers before they are collected and recorded by a teacher.

(Authority: 20 U.S.C. 1232g(a)(4))

Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.

(Authority: 20 U.S.C. 1232g(d))

Institution of postsecondary education means an institution that provides education to students beyond the secondary school level; "secondary school level" means the educational level (not beyond grade 12) at which secondary education is provided as determined under State law.

(Authority: 20 U.S.C. 1232g(d))

Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

(Authority: 20 U.S.C. 1232g)

Party means an individual, agency, institution, or organization.

(Authority: 20 U.S.C. 1232g(b)(4)(A))

Personally Identifiable Information

The term includes, but is not limited to-

(a) The student's name;

(b) The name of the student's parent or other family members;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number, student number, or biometric record;

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

(Authority: 20 U.S.C. 1232g)

Record means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

(Authority: 20 U.S.C. 1232g)

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of authority.

(Authority: 20 U.S.C. 1232g)

Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.

(Authority: 20 U.S.C. 1232g(a)(6))

[53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000; 73 FR 74851, Dec. 9, 2008; 76 FR 75641, Dec. 2, 2011]

§99.4 What are the rights of parents?

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.

(Authority: 20 U.S.C. 1232g)

§99.5 What are the rights of students?

(a)(1) When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student.

(2) Nothing in this section prevents an educational agency or institution from disclosing education records, or personally identifiable information from education records, to a parent without the prior written consent of an eligible student if the disclosure meets the conditions in §99.31(a)(8), §99.31(a)(10), §99.31(a)(15), or any other provision in §99.31(a).

(b) The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.

(c) An individual who is or has been a student at an educational institution and who applies for admission at another component of that institution does not have rights under this part with respect to records maintained by that other component, including records maintained in connection with the student's application for admission, unless the student is accepted and attends that other component of the institution.

(Authority: 20 U.S.C. 1232g(d))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008]

§99.6 [Reserved]

§99.7 What must an educational agency or institution include in its annual notification?

(a)(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

(2) The notice must inform parents or eligible students that they have the right to-

(i) Inspect and review the student's education records;

(ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

(iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent; and

(iv) File with the Department a complaint under §§99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the Act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to inspect and review education records.

(ii) The procedure for requesting amendment of records under §99.20.

(iii) If the educational agency or institution has a policy of disclosing education records under §99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effectively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than English.

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g (e) and (f))

[61 FR 59295, Nov. 21, 1996]

§99.8 What provisions apply to records of a law enforcement unit?

(a)(1) Law enforcement unit means any individual, office, department, division, or other component of an educational agency or institution, such as a unit of commissioned police officers or non-commissioned security guards, that is officially authorized or designated by that agency or institution to-

(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or Federal law against any individual or organization other than the agency or institution itself; or

(ii) Maintain the physical security and safety of the agency or institution.

(2) A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non-law enforcement functions for the agency or institution, including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student.

(b)(1) Records of a law enforcement unit means those records, files, documents, and other materials that are-

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of a law enforcement unit does not mean-

(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or

(ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.

(c)(1) Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.

(2) Education records, and personally identifiable information contained in education records, do not lose their status as education records and remain subject to the Act, including the disclosure provisions of §99.30, while in the possession of the law enforcement unit.

(d) The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records.

(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))

[60 FR 3469, Jan. 17, 1995]

Subpart B-What Are the Rights of Inspection and Review of Education Records?

§99.10 What rights exist for a parent or eligible student to inspect and review education records?

(a) Except as limited under §99.12, a parent or eligible student must be given the opportunity to inspect and review the student's education records. This provision applies to-

(1) Any educational agency or institution; and

(2) Any State educational agency (SEA) and its components.

(i) For the purposes of subpart B of this part, an SEA and its components constitute an educational agency or institution.

(ii) An SEA and its components are subject to subpart B of this part if the SEA maintains education records on students who are or have been in attendance at any school of an educational agency or institution subject to the Act and this part.

(b) The educational agency or institution, or SEA or its component, shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request.

(c) The educational agency or institution, or SEA or its component shall respond to reasonable requests for explanations and interpretations of the records.

(d) If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall-

(1) Provide the parent or eligible student with a copy of the records requested; or

(2) Make other arrangements for the parent or eligible student to inspect and review the requested records.

(e) The educational agency or institution, or SEA or its component shall not destroy any education records if there is an outstanding request to inspect and review the records under this section.

(f) While an education agency or institution is not required to give an eligible student access to treatment records under paragraph (b)(4) of the definition of Education records in §99.3, the student may have those records reviewed by a physician or other appropriate professional of the student's choice.

(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.11 May an educational agency or institution charge a fee for copies of education records?

(a) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student.

(b) An educational agency or institution may not charge a fee to search for or to retrieve the education records of a student.

(Authority: 20 U.S.C. 1232g(a)(1))

§99.12 What limitations exist on the right to inspect and review records?

(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.

(b) A postsecondary institution does not have to permit a student to inspect and review education records that are:

(1) Financial records, including any information those records contain, of his or her parents;

(2) Confidential letters and confidential statements of recommendation placed in the education records of the student before January 1, 1975, as long as the statements are used only for the purposes for which they were specifically intended; and

(3) Confidential letters and confidential statements of recommendation placed in the student's education records after January 1, 1975, if:

(i) The student has waived his or her right to inspect and review those letters and statements; and

(ii) Those letters and statements are related to the student's:

(A) Admission to an educational institution;

(B) Application for employment; or

(C) Receipt of an honor or honorary recognition.

(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:

(i) The educational agency or institution does not require the waiver as a condition for admission to or receipt of a service or benefit from the agency or institution; and

(ii) The waiver is made in writing and signed by the student, regardless of age.

(2) If a student has waived his or her rights under paragraph (b)(3)(i) of this section, the educational institution shall:

(i) Give the student, on request, the names of the individuals who provided the letters and statements of recommendation; and

(ii) Use the letters and statements of recommendation only for the purpose for which they were intended.

(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions occurring after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.

(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Subpart C-What Are the Procedures for Amending Education Records?

§99.20 How can a parent or eligible student request amendment of the student's education records?

(a) If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record.

(b) The educational agency or institution shall decide whether to amend the record as requested within a reasonable time after the agency or institution receives the request.

(c) If the educational agency or institution decides not to amend the record as requested, it shall inform the parent or eligible student of its decision and of his or her right to a hearing under §99.21.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.21 Under what conditions does a parent or eligible student have the right to a hearing?

(a) An educational agency or institution shall give a parent or eligible student, on request, an opportunity for a hearing to challenge the content of the student's education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student.

(b)(1) If, as a result of the hearing, the educational agency or institution decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall:

(i) Amend the record accordingly; and

(ii) Inform the parent or eligible student of the amendment in writing.

(2) If, as a result of the hearing, the educational agency or institution decides that the information in the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall inform the parent or eligible student of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution, or both.

(c) If an educational agency or institution places a statement in the education records of a student under paragraph (b)(2) of this section, the agency or institution shall:

(1) Maintain the statement with the contested part of the record for as long as the record is maintained; and

(2) Disclose the statement whenever it discloses the portion of the record to which the statement relates.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.22 What minimum requirements exist for the conduct of a hearing?

The hearing required by §99.21 must meet, at a minimum, the following requirements:

(a) The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student.

(b) The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.

(c) The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing.

(d) The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised under §99.21. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

(e) The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.

(f) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

(Authority: 20 U.S.C. 1232g(a)(2))

Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?

§99.30 Under what conditions is prior consent required to disclose information?

(a) The parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in §99.31.

(b) The written consent must:

(1) Specify the records that may be disclosed;

(2) State the purpose of the disclosure; and

(3) Identify the party or class of parties to whom the disclosure may be made.

(c) When a disclosure is made under paragraph (a) of this section:

(1) If a parent or eligible student so requests, the educational agency or institution shall provide him or her with a copy of the records disclosed; and

(2) If the parent of a student who is not an eligible student so requests, the agency or institution shall provide the student with a copy of the records disclosed.

(d) "Signed and dated written consent" under this part may include a record and signature in electronic form that-

(1) Identifies and authenticates a particular person as the source of the electronic consent; and

(2) Indicates such person's approval of the information contained in the electronic consent.

(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 2004]

§99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:

(1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party-

(1) Performs an institutional service or function for which the agency or institution would otherwise use employees;

(2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and

(3) Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records.

(ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section.

(2) The disclosure is, subject to the requirements of §99.34, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer.

Note: Section 4155(b) of the No Child Left Behind Act of 2001, 20 U.S.C. 7165(b), requires each State to assure the Secretary of Education that it has a procedure in place to facilitate the transfer of disciplinary records with respect to a suspension or expulsion of a student by a local educational agency to any private or public elementary or secondary school in which the student is subsequently enrolled or seeks, intends, or is instructed to enroll.

(3) The disclosure is, subject to the requirements of §99.35, to authorized representatives of-

(i) The Comptroller General of the United States;

(ii) The Attorney General of the United States;

(iii) The Secretary; or

(iv) State and local educational authorities.

(4)(i) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to:

(A) Determine eligibility for the aid;

(B) Determine the amount of the aid;

(C) Determine the conditions for the aid; or

(D) Enforce the terms and conditions of the aid.

(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided to an individual (or a payment in kind of tangible or intangible property to the individual) that is conditioned on the individual's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(1)(D))

(5)(i) The disclosure is to State and local officials or authorities to whom this information is specifically-

(A) Allowed to be reported or disclosed pursuant to State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released; or

(B) Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38.

(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or type of State or local officials to whom disclosures may be made under that paragraph.

(6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(C) Improve instruction.

(ii) Nothing in the Act or this part prevents a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section from entering into agreements with organizations conducting studies under paragraph (a)(6)(i) of this section and redisclosing personally identifiable information from education records on behalf of educational agencies and institutions that disclosed the information to the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section in accordance with the requirements of §99.33(b).

(iii) An educational agency or institution may disclose personally identifiable information under paragraph (a)(6)(i) of this section, and a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section may redisclose personally identifiable information under paragraph (a)(6)(i) and (a)(6)(ii) of this section, only if-

(A) The study is conducted in a manner that does not permit personal identification of parents and students by individuals other than representatives of the organization that have legitimate interests in the information;

(B) The information is destroyed when no longer needed for the purposes for which the study was conducted; and

(C) The educational agency or institution or the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section enters into a written agreement with the organization that-

(1) Specifies the purpose, scope, and duration of the study or studies and the information to be disclosed;

(2) Requires the organization to use personally identifiable information from education records only to meet the purpose or purposes of the study as stated in the written agreement;

(3) Requires the organization to conduct the study in a manner that does not permit personal identification of parents and students, as defined in this part, by anyone other than representatives of the organization with legitimate interests;

and

(4) Requires the organization to destroy all personally identifiable information when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destroyed.

(iv) An educational agency or institution or State or local educational authority or Federal agency headed by an official listed in paragraph (a)(3) of this section is not required to initiate a study or agree with or endorse the conclusions or results of the study.

(v) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not limited to, Federal, State, and local agencies, and independent organizations.

(7) The disclosure is to accrediting organizations to carry out their accrediting functions.

(8) The disclosure is to parents, as defined in §99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986.

(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.

(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action, unless the disclosure is in compliance with-

(A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;

(B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or

(C) An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.

(iii)(A) If an educational agency or institution initiates legal action against a parent or student, the educational agency or institution may disclose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff.

(B) If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student's education records that are relevant for the educational agency or institution to defend itself.

(10) The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36.

(11) The disclosure is information the educational agency or institution has designated as "directory information", under the conditions described in §99.37.

(12) The disclosure is to the parent of a student who is not an eligible student or to the student.

(13) The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.

(14)(i) The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. The institution must not disclose the final results of the disciplinary proceeding unless it determines that-

(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and

(B) With respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.

(ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.

(iii) This section applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998.

(15)(i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student's violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if-

(A) The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and

(B) The student is under the age of 21 at the time of the disclosure to the parent.

(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an institution of postsecondary education from disclosing information.

(16) The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educational agency or institution under 42 U.S.C. 14071 and applicable Federal guidelines.

(b)(1) De-identified records and information. An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by §99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.

(2) An educational agency or institution, or a party that has received education records or information from education records under this part, may release de-identified student level data from education records for the purpose of education research by attaching a code to each record that may allow the recipient to match information received from the same source, provided that-

(i) An educational agency or institution or other party that releases de-identified data under paragraph (b)(2) of this section does not disclose any information about how it generates and assigns a record code, or that would allow a recipient to identify a student based on a record code;

(ii) The record code is used for no purpose other than identifying a de-identified record for purposes of education research and cannot be used to ascertain personally identifiable information about a student; and

(iii) The record code is not based on a student's social security number or other personal information.

(c) An educational agency or institution must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the agency or institution discloses personally identifiable information from education records.

(d) Paragraphs (a) and (b) of this section do not require an educational agency or institution or any other party to disclose education records or information from education records to any party except for parties under paragraph (a)(12) of this section.

(Authority: 20 U.S.C. 1232g(a)(5)(A), (b), (h), (i), and (j)).

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 61 FR 59296, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008; 74 FR 401, Jan. 6, 2009; 76 FR 75641, Dec. 2, 2011]

§99.32 What recordkeeping requirements exist concerning requests and disclosures?

(a)(1) An educational agency or institution must maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student, as well as the names of State and local educational authorities and Federal officials and agencies listed in §99.31(a)(3) that may make further disclosures of personally identifiable information from the student's education records without consent under §99.33(b).

(2) The agency or institution shall maintain the record with the education records of the student as long as the records are maintained.

(3) For each request or disclosure the record must include:

(i) The parties who have requested or received personally identifiable information from the education records; and

(ii) The legitimate interests the parties had in requesting or obtaining the information.

(4) An educational agency or institution must obtain a copy of the record of further disclosures maintained under paragraph (b)(2) of this section and make it available in response to a parent's or eligible student's request to review the record required under paragraph (a)(1) of this section.

(5) An educational agency or institution must record the following information when it discloses personally identifiable information from education records under the health or safety emergency exception in §99.31(a)(10) and §99.36:

(i) The articulable and significant threat to the health or safety of a student or other individuals that formed the basis for the disclosure; and

(ii) The parties to whom the agency or institution disclosed the information.

(b)(1) Except as provided in paragraph (b)(2) of this section, if an educational agency or institution discloses personally identifiable information from education records with the understanding authorized under §99.33(b), the record of the disclosure required under this section must include:

(i) The names of the additional parties to which the receiving party may disclose the information on behalf of the educational agency or institution; and

(ii) The legitimate interests under §99.31 which each of the additional parties has in requesting or obtaining the information.

(2)(i) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) that makes further disclosures of information from education records under §99.33(b) must record the names of the additional parties to which it discloses information on behalf of an educational agency or institution and their legitimate interests in the information under §99.31 if the information was received from:

(A) An educational agency or institution that has not recorded the further disclosures under paragraph (b)(1) of this section; or

(B) Another State or local educational authority or Federal official or agency listed in §99.31(a)(3).

(ii) A State or local educational authority or Federal official or agency that records further disclosures of information under paragraph (b)(2)(i) of this section may maintain the record by the student's class, school, district, or other appropriate grouping rather than by the name of the student.

(iii) Upon request of an educational agency or institution, a State or local educational authority or Federal official or agency listed in §99.31(a)(3) that maintains a record of further disclosures under paragraph (b)(2)(i) of this section must provide a copy of the record of further disclosures to the educational agency or institution within a reasonable period of time not to exceed 30 days.

(c) The following parties may inspect the record relating to each student:

(1) The parent or eligible student.

(2) The school official or his or her assistants who are responsible for the custody of the records.

(3) Those parties authorized in §99.31(a) (1) and (3) for the purposes of auditing the recordkeeping procedures of the educational agency or institution.

(d) Paragraph (a) of this section does not apply if the request was from, or the disclosure was to:

(1) The parent or eligible student;

(2) A school official under §99.31(a)(1);

(3) A party with written consent from the parent or eligible student;

(4) A party seeking directory information; or

(5) A party seeking or receiving records in accordance with §99.31(a)(9)(ii)(A) through (C).

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74853, Dec. 9, 2008]

§99.33 What limitations apply to the redisclosure of information?

(a)(1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student.

(2) The officers, employees, and agents of a party that receives information under paragraph (a)(1) of this section may use the information, but only for the purposes for which the disclosure was made.

(b)(1) Paragraph (a) of this section does not prevent an educational agency or institution from disclosing personally identifiable information with the understanding that the party receiving the information may make further disclosures of the information on behalf of the educational agency or institution if-

(i) The disclosures meet the requirements of §99.31; and

(ii)(A) The educational agency or institution has complied with the requirements of §99.32(b); or

(B) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) has complied with the requirements of §99.32(b)(2).

(2) A party that receives a court order or lawfully issued subpoena and rediscloses personally identifiable information from education records on behalf of an educational agency or institution in response to that order or subpoena under §99.31(a)(9) must provide the notification required under §99.31(a)(9)(ii).

(c) Paragraph (a) of this section does not apply to disclosures under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f) (Clery Act), to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(d) An educational agency or institution must inform a party to whom disclosure is made of the requirements of paragraph (a) of this section except for disclosures made under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Clery Act to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(Authority: 20 U.S.C. 1232g(b)(4)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74853, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?

(a) An educational agency or institution that discloses an education record under §99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless:

(i) The disclosure is initiated by the parent or eligible student; or

(ii) The annual notification of the agency or institution under §99.7 includes a notice that the agency or institution forwards education records to other agencies or institutions that have requested the records and in which the student seeks or intends to enroll or is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer;

(2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and

(3) Give the parent or eligible student, upon request, an opportunity for a hearing under subpart C.

(b) An educational agency or institution may disclose an education record of a student in attendance to another educational agency or institution if:

(1) The student is enrolled in or receives services from the other agency or institution; and

(2) The disclosure meets the requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1232g(b)(1)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.35 What conditions apply to disclosure of information for Federal or State program purposes?

(a)(1) Authorized representatives of the officials or agencies headed by officials listed in §99.31(a)(3) may have access to education records in connection with an audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs.

(2) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) is responsible for using reasonable methods to ensure to the greatest extent practicable that any entity or individual designated as its authorized representative-

(i) Uses personally identifiable information only to carry out an audit or evaluation of Federal- or State-supported education programs, or for the enforcement of or compliance with Federal legal requirements related to these programs;

(ii) Protects the personally identifiable information from further disclosures or other uses, except as authorized in paragraph (b)(1) of this section; and

(iii) Destroys the personally identifiable information in accordance with the requirements of paragraphs (b) and (c) of this section.

(3) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) must use a written agreement to designate any authorized representative, other than an employee. The written agreement must-

(i) Designate the individual or entity as an authorized representative;

(ii) Specify-

(A) The personally identifiable information from education records to be disclosed;

(B) That the purpose for which the personally identifiable information from education records is disclosed to the authorized representative is to carry out an audit or evaluation of Federal- or State-supported education programs, or to enforce or to comply with Federal legal requirements that relate to those programs; and

(C) A description of the activity with sufficient specificity to make clear that the work falls within the exception of §99.31(a)(3), including a description of how the personally identifiable information from education records will be used;

(iii) Require the authorized representative to destroy personally identifiable information from education records when the information is no longer needed for the purpose specified;

(iv) Specify the time period in which the information must be destroyed; and

(v) Establish policies and procedures, consistent with the Act and other Federal and State confidentiality and privacy provisions, to protect personally identifiable information from education records from further disclosure (except back to the disclosing entity) and unauthorized use, including limiting use of personally identifiable information from education records to only authorized representatives with legitimate interests in the audit or evaluation of a Federal- or State-supported education program or for compliance or enforcement of Federal legal requirements related to these programs.

(b) Information that is collected under paragraph (a) of this section must-

(1) Be protected in a manner that does not permit personal identification of individuals by anyone other than the State or local educational authority or agency headed by an official listed in §99.31(a)(3) and their authorized representatives, except that the State or local educational authority or agency headed by an official listed in §99.31(a)(3) may make further disclosures of personally identifiable information from education records on behalf of the educational agency or institution in accordance with the requirements of §99.33(b); and

(2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of this section.

(c) Paragraph (b) of this section does not apply if:

(1) The parent or eligible student has given written consent for the disclosure under §99.30; or

(2) The collection of personally identifiable information is specifically authorized by Federal law.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.36 What conditions apply to disclosure of information in health and safety emergencies?

(a) An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

(b) Nothing in this Act or this part shall prevent an educational agency or institution from-

(1) Including in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community;

(2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials within the agency or institution who the agency or institution has determined have legitimate educational interests in the behavior of the student; or

(3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.

(c) In making a determination under paragraph (a) of this section, an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.37 What conditions apply to disclosing directory information?

(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:

(1) The types of personally identifiable information that the agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and

(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.

(b) An educational agency or institution may disclose directory information about former students without complying with the notice and opt out conditions in paragraph (a) of this section. However, the agency or institution must continue to honor any valid request to opt out of the disclosure of directory information made while a student was in attendance unless the student rescinds the opt out request.

(c) A parent or eligible student may not use the right under paragraph (a)(2) of this section to opt out of directory information disclosures to-

(1) Prevent an educational agency or institution from disclosing or requiring a student to disclose the student's name, identifier, or institutional email address in a class in which the student is enrolled; or

(2) Prevent an educational agency or institution from requiring a student to wear, to display publicly, or to disclose a student ID card or badge that exhibits information that may be designated as directory information under §99.3 and that has been properly designated by the educational agency or institution as directory information in the public notice provided under paragraph (a)(1) of this section.

(d) In its public notice to parents and eligible students in attendance at the agency or institution that is described in paragraph (a) of this section, an educational agency or institution may specify that disclosure of directory information will be limited to specific parties, for specific purposes, or both. When an educational agency or institution specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, the educational agency or institution must limit its directory information disclosures to those specified in its public notice that is described in paragraph (a) of this section.

(e) An educational agency or institution may not disclose or confirm directory information without meeting the written consent requirements in §99.30 if a student's social security number or other non-directory information is used alone or combined with other data elements to identify or help identify the student or the student's records.

(Authority: 20 U.S.C. 1232g(a)(5) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?

(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B).

(b) The officials and authorities to whom the records are disclosed shall certify in writing to the educational agency or institution that the information will not be disclosed to any other party, except as provided under State law, without the prior written consent of the parent of the student.

(Authority: 20 U.S.C. 1232g(b)(1)(J))

[61 FR 59297, Nov. 21, 1996]

§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that would, if proven, constitute any of the following offenses or attempts to commit the following offenses that are defined in appendix A to this part:

Arson

Assault offenses

Burglary

Criminal homicide-manslaughter by negligence

Criminal homicide-murder and nonnegligent manslaughter

Destruction/damage/vandalism of property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed acts that, if proven, would constitute statutory rape or incest. These offenses are defined in appendix A to this part.

Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.

Sanction imposed means a description of the disciplinary action taken by the institution, the date of its imposition, and its duration.

Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution's conclusion that the violation was committed.

(Authority: 20 U.S.C. 1232g(b)(6))

[65 FR 41853, July 6, 2000]

Subpart E-What Are the Enforcement Procedures?

§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?

(a) For the purposes of this subpart, Office means the Office of the Chief Privacy Officer, U.S. Department of Education.

(b) The Secretary designates the Office to:

(1) Investigate, process, and review complaints and violations under the Act and this part; and

(2) Provide technical assistance to ensure compliance with the Act and this part.

(c) The Secretary designates the Office of Administrative Law Judges to act as the Review Board required under the Act to enforce the Act with respect to all applicable programs. The term applicable program is defined in section 400 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g (f) and (g), 1234)

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 82 FR 6253, Jan. 19, 2017]

§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it must notify the Office within 45 days, giving the text and citation of the conflicting law. If another recipient of Department funds under any program administered by the Secretary or a third party to which personally identifiable information from education records has been non-consensually disclosed determines that it cannot comply with the Act or this part due to a conflict with State or local law, it also must notify the Office within 45 days, giving the text and citation of the conflicting law.

(Authority: 20 U.S.C. 1232g(f))

[76 FR 75642, Dec. 2, 2011]

§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?

The Office may require an educational agency or institution, other recipient of Department funds under any program administered by the Secretary to which personally identifiable information from education records is non-consensually disclosed, or any third party outside of an educational agency or institution to which personally identifiable information from education records is non-consensually disclosed to submit reports, information on policies and procedures, annual notifications, training materials, or other information necessary to carry out the Office's enforcement responsibilities under the Act or this part.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.63 Where are complaints filed?

A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part. The Office's address is: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202.

(Authority: 20 U.S.C. 1232g(g))

[65 FR 41854, July 6, 2000, as amended at 73 FR 74854, Dec. 9, 2008]

§99.64 What is the investigation procedure?

(a) A complaint must contain specific allegations of fact giving reasonable cause to believe that a violation of the Act or this part has occurred. A complaint does not have to allege that a violation is based on a policy or practice of the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or any third party outside of an educational agency or institution.

(b) The Office investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part. If the Office determines that an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part, it may also determine whether the failure to comply is based on a policy or practice of the agency or institution or other recipient. The Office also investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether a third party outside of the educational agency or institution has failed to comply with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

(c) A timely complaint is defined as an allegation of a violation of the Act that is submitted to the Office within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation.

(d) The Office may extend the time limit in this section for good cause shown.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 65 FR 41854, July 6, 2000; 73 FR 74854, Dec. 9, 2008; 76 FR 75643, Dec. 2, 2011]

§99.65 What is the content of the notice of investigation issued by the Office?

(a) The Office notifies in writing the complainant, if any, and the educational agency or institution, the recipient of Department funds under any program administered by the Secretary, or the third party outside of an educational agency or institution if it initiates an investigation under §99.64(b). The written notice-

(1) Includes the substance of the allegations against the educational agency or institution, other recipient, or third party; and

(2) Directs the agency or institution, other recipient, or third party to submit a written response and other relevant information, as set forth in §99.62, within a specified period of time, including information about its policies and practices regarding education records.

(b) The Office notifies the complainant if it does not initiate an investigation because the complaint fails to meet the requirements of §99.64.

(Authority: 20 U.S.C. 1232g(g))

[73 FR 74855, Dec. 9, 2008, as amended at 76 FR 75643, Dec. 2, 2011]

§99.66 What are the responsibilities of the Office in the enforcement process?

(a) The Office reviews a complaint, if any, information submitted by the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or third party outside of an educational agency or institution, and any other relevant information. The Office may permit the parties to submit further written or oral arguments or information.

(b) Following its investigation, the Office provides to the complainant, if any, and the educational agency or institution, other recipient, or third party a written notice of its findings and the basis for its findings.

(c) If the Office finds that an educational agency or institution or other recipient has not complied with a provision of the Act or this part, it may also find that the failure to comply was based on a policy or practice of the agency or institution or other recipient. A notice of findings issued under paragraph (b) of this section to an educational agency or institution, or other recipient that has not complied with a provision of the Act or this part-

(1) Includes a statement of the specific steps that the agency or institution or other recipient must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the educational agency or institution or other recipient may comply voluntarily.

(d) If the Office finds that a third party outside of an educational agency or institution has not complied with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33, the Office's notice of findings issued under paragraph (b) of this section-

(1) Includes a statement of the specific steps that the third party outside of the educational agency or institution must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the third party may comply voluntarily.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.67 How does the Secretary enforce decisions?

(a) If an educational agency or institution or other recipient of Department funds under any program administered by the Secretary does not comply during the period of time set under §99.66(c), the Secretary may take any legally available enforcement action in accordance with the Act, including, but not limited to, the following enforcement actions available in accordance with part D of the General Education Provisions Act-

(1) Withhold further payments under any applicable program;

(2) Issue a complaint to compel compliance through a cease and desist order; or

(3) Terminate eligibility to receive funding under any applicable program.

(b) If, after an investigation under §99.66, the Secretary finds that an educational agency or institution, other recipient, or third party has complied voluntarily with the Act or this part, the Secretary provides the complainant and the agency or institution, other recipient, or third party with written notice of the decision and the basis for the decision.

(c) If the Office finds that a third party, outside the educational agency or institution, violates §99.31(a)(6)(iii)(B), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation of §99.31(a)(6)(iii)(B) access to personally identifiable information from education records for at least five years.

(d) If the Office finds that a State or local educational authority, a Federal agency headed by an official listed in §99.31(a)(3), or an authorized representative of a State or local educational authority or a Federal agency headed by an official listed in §99.31(a)(3), improperly rediscloses personally identifiable information from education records, then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the improper redisclosure access to personally identifiable information from education records for at least five years.

(e) If the Office finds that a third party, outside the educational agency or institution, improperly rediscloses personally identifiable information from education records in violation of §99.33 or fails to provide the notification required under §99.33(b)(2), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation access to personally identifiable information from education records for at least five years.

(Authority: 20 U.S.C. 1232g(b)(4)(B) and (f); 20 U.S.C. 1234c)

[76 FR 75643, Dec. 2, 2011]

Appendix A to Part 99-Crimes of Violence Definitions

Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.

An unlawful attack by one person upon another.

Note: By definition there can be no "attempted" assaults, only "completed" assaults.

(a) Aggravated Assault. An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious injury if the crime were successfully completed.)

(b) Simple Assault. An unlawful physical attack by one person upon another where neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury involving apparent broken bones, loss of teeth, possible internal injury, severe laceration, or loss of consciousness.

(c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm through the use of threatening words or other conduct, or both, but without displaying a weapon or subjecting the victim to actual physical attack.

Note: This offense includes stalking.

The unlawful entry into a building or other structure with the intent to commit a felony or a theft.

The killing of another person through gross negligence.

The willful (nonnegligent) killing of one human being by another.

To willfully or maliciously destroy, damage, deface, or otherwise injure real or personal property without the consent of the owner or the person having custody or control of it.

The unlawful seizure, transportation, or detention of a person, or any combination of these actions, against his or her will, or of a minor without the consent of his or her custodial parent(s) or legal guardian.

Note: Kidnapping/Abduction includes hostage taking.

The taking of, or attempting to take, anything of value under confrontational circumstances from the control, custody, or care of a person or persons by force or threat of force or violence or by putting the victim in fear.

Note: Carjackings are robbery offenses where a motor vehicle is taken through force or threat of force.

Any sexual act directed against another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent.

(a) Forcible Rape (Except "Statutory Rape"). The carnal knowledge of a person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her temporary or permanent mental or physical incapacity (or because of his or her youth).

(b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

(c) Sexual Assault With An Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: An "object" or "instrument" is anything used by the offender other than the offender's genitalia. Examples are a finger, bottle, handgun, stick, etc.

(d) Forcible Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: Forcible Fondling includes "Indecent Liberties" and "Child Molesting."

Unlawful, nonforcible sexual intercourse.

(a) Incest. Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

(b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent.

(Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16)

[65 FR 41854, July 6, 2000]

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Electronic Code of Federal Regulations (eCFR)

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Home gpo.gov govinfo.gov e-CFR Navigation Aids Browse Simple Search Advanced Search  - Boolean  - Proximity Search History Search Tips Corrections Latest Updates User Info FAQs Agency List Incorporation By Reference Related Resources The Code of Federal Regulations (CFR) annual edition is the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government produced by the Office of the Federal Register (OFR) and the Government Publishing Office.

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Standards Required for the School Counselor Certificate, 19. Tex. Admin. Code § 239.15

Administrative Law

The Texas Administrative Code states that the school counselor must

consult with parents to enhance his or her work with students (19 TAC § 239.15).

support responsive interventions for students by communicating with parents (19 TAC § 239.15).

The implication for school counselor is that in order to meet the standards required for certification, he or she must be prepared and knowledgeable about consulting and communicating with parents.

To read the standards in the Texas Administrative Code, click on the box below:

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(a) School Counselor Certificate Standards. The knowledge and skills identified in this section must be used by an educator preparation program in the development of curricula and coursework and by the State Board for Educator Certification as the basis for developing the examination required to obtain the School Counselor Certificate. The standards also serve as the foundation for the professional growth plan and continuing professional education activities required by §239.25 of this title (relating to Requirements to Renew the Standard School Counselor Certificate). (b) Standard I. Learner-Centered Knowledge: The certified school counselor has a broad knowledge base. The certified school counselor must know and understand: (1) the history and philosophy of counseling; (2) counseling and consultation theories and practices; (3) career development theories and practices; (4) the roles and responsibilities of a comprehensive school counseling program that emphasizes college and career readiness and postsecondary options for all students, including college admissions, college financial aid resources, application procedures, and workforce and career opportunities; (5) assessment principles and procedures, including the appropriate use of tests, test interpretation, and test results; (6) changing societal trends, including demographic, economic, and technological tendencies, and their relevance to school counseling; (7) environmental, social, and cultural factors that affect learners' development and the relevance of those factors to educational, career, personal, and social development, along with comprehensive school counseling programs; (8) learners' developmental characteristics and needs and their relevance to educational and career choices; (9) legal and ethical standards, practices, and issues and the importance of commitment to and implementation of ethical principles; (10) the characteristics and educational needs of special populations; (11) techniques and behavioral interventions to assist teachers with classroom management; (12) the integration of a school counseling program, the Texas College and Career Readiness Standards, and academic curricula; (13) the roles and responsibilities of a comprehensive school counseling program that is responsive to all students; (14) counseling-related research techniques and practices; (15) developing and teaching best practices on leadership skills; (16) how cultural factors and group membership impact individual students; (17) the comprehensive school counseling program model; (18) how to utilize various forms of technology and how inappropriate use could be professionally and personally harmful; and (19) an understanding of systems, including family dynamics and school environments. (c) Standard II. Learner-Centered Skills: The certified school counselor applies the knowledge base to promote the educational, personal, social, and career development of the learner as outlined in The Texas Model for Comprehensive School Counseling Programs. The certified school counselor must: (1) develop processes and procedures for planning, designing, implementing, and evaluating The Texas Model for Comprehensive School Counseling Programs; (2) provide a proactive, comprehensive, developmental school counseling program based on the needs of students, as set forth in The Texas Model for Comprehensive School Counseling Programs; (3) counsel individuals and small groups using appropriate counseling theories and techniques in response to students' needs; (4) consult with parents/guardians, teachers, administrators, and other individuals as appropriate to enhance his or her work with students; (5) coordinate resources, referrals, and follow-up procedures for students within the school and community; (6) demonstrate proficiency in teaching small and large groups by actively engaging students in the learning process; (7) participate in the selection, use, and interpretation of assessments and assessment results; (8) use multiple sets of information and data to make decisions about students, programs, and services; (9) use counseling-related research techniques and evidence-based practices to address student needs; (10) advocate for a comprehensive school counseling program that is responsive to all students; (11) facilitate learners' ability to achieve their potential by helping them set and attain challenging educational, career, personal, and social goals based on various types of information; (12) maintain proficiency in counseling and campus-related technology; and (13) use varied sources of information, resources, and practices to counsel students about postsecondary opportunities and college and career readiness. (d) Standard III. Learner-Centered Process: The certified school counselor participates in the development, monitoring, revision, and evaluation of a campus based on The Texas Model for Comprehensive School Counseling Programs that promotes learners' knowledge, skills, motivation, and personal growth. The certified school counselor must: (1) collaborate with others in the school and community to implement a guidance curriculum that promotes learners' development in all domains, including cognitive, social, and emotional areas; (2) facilitate learners' ability to achieve their potential by helping them set and attain challenging educational, career, personal, and social goals based on various types of information; (3) use both preventive and intervening strategies to address the concerns of learners and to help them clarify problems and situations, set goals, explore options, and implement change; (4) implement effective referral procedures to facilitate the use of special programs and services; (5) act as a consultant to help learners achieve success inside and outside of school; (6) advocate for a comprehensive school counseling program and recognize the required time commitment to fully apply the program implementation cycle; (7) create a program mission, goal, and services in alignment with the school mission and campus improvement plan; (8) create and disseminate literature or newsletters to all stakeholders that describe the comprehensive school counseling program and reduce negative stigmas associated with receiving counseling services in a school-based program; (9) establish an advisory council or board with membership of all stakeholders (student, parent, teacher, administrator, community member, other personnel, and support specialists); (10) increase public relations and awareness through community outreach, such as fundraising, grant writing, donations, volunteerism, local businesses, and use of public or guest speakers; (11) provide school-wide professional development and parent workshops throughout the school year; (12) support participation in fair-share responsibilities versus non-counseling related duties; (13) know district, state, and federal initiatives that are to be reflected in a comprehensive school counseling program; and (14) develop practices to promote learners' knowledge about college and career readiness processes necessary to pursue postsecondary opportunities. (e) Standard IV. Learner-Centered Equity and Excellence for All Learners: The certified school counselor promotes academic success for all learners by acknowledging, respecting, and responding to diversity while building on similarities that bond all people. The certified school counselor must: (1) understand learner differences, including those related to cultural background, gender, race, ethnicity, socio-economic levels, academic ability, and learning styles, and know ways to create and maintain a positive school environment that is responsive to all learners; (2) advocate for a school environment in which diversity is acknowledged and respected, resulting in positive interactions across all cultures, genders, ethnicities, and learning styles; (3) facilitate learning and achievement for all students to ensure services that cover an array of exceptionalities, including special populations, by promoting a cooperative, inclusive, purposeful learning environment; (4) take a positive, strength-based approach that builds on commonalities versus differences in all learners; (5) understand how environment and behavior may impact or influence individual learners; (6) ensure equitable access to programs and services for all students; (7) understand how family values, group membership, and culture intersect; (8) acknowledge learners' gifts, strengths, and extracurricular talents when considering programs and services; (9) increase students' awareness and include their voices regarding educational and individualized plans; and (10) ensure equitable access and exposure to postsecondary opportunities and college and career readiness information and resources for students and parents/guardians. (f) Standard V. Learner-Centered Communications: The certified school counselor, an advocate for all students and the school, demonstrates effective professional and interpersonal communication skills. The certified school counselor must: (1) demonstrate effective communication through oral, written, and nonverbal expression; (2) use knowledge of group dynamics and productive group interaction; (3) support responsive interventions by effectively communicating with parents/guardians, teachers, administrators, and community members; (4) facilitate learners' access to community resources; (5) develop and implement strategies for effective internal and external communications; (6) facilitate parent/guardian involvement in their children's education; (7) develop partnerships with parents/guardians, businesses, and other groups in the community to facilitate learning; (8) work effectively as a team member to promote positive change for individuals, groups, and the school community; (9) take a positive, strength-based approach that verbalizes commonalities versus differences in all learners; (10) effectively communicate his or her role and responsibility and counselor identity to all stakeholders to reduce confusion about the duties of a school counselor; (11) adhere to best practices connected to ethical and legal considerations around appropriate use of technology and email, documentation, record keeping, privileged communication, and informed consent process; and (12) facilitate access to and use of school and community information and resources related to postsecondary opportunities and college and career readiness by learners, parents/guardians, teachers, administrators, and community members. (g) Standard VI. Learner-Centered Professional Development: The certified school counselor continues professional development, demonstrating a commitment to learn, to improve the profession, and to model professional ethics and personal integrity. The certified school counselor must: (1) use reflection, self-assessment, and interactions with colleagues to promote personal professional development; (2) use counseling-related research techniques and practices as well as technology and other resources to facilitate continued professional growth; (3) strive toward the highest level of professionalism by adhering to and modeling professional, ethical, and legal standards; (4) apply research-based practice to improve the school guidance and counseling program; (5) engage in ongoing professional development to improve the school guidance and counseling program; and (6) engage in continued professional development experiences to learn and apply concepts, skills, and practices related to increasing college and career readiness and promoting postsecondary opportunities and preparation for all learners.

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(a) School Counselor Certificate Standards. The knowledge and skills identified in this section must be used by an educator preparation program in the development of curricula and coursework and by the State Board for Educator Certification as the basis for developing the examination required to obtain the School Counselor Certificate.

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Slide #10 Local Administrative Law/Policy/Rule 

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Slide #10 Local Administrative Law/Policy/Rule 

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Dallas Independent School District. (2018). Student welfare: Freedom from bullying. Retrieved from https://www.dallasisd.org/cms/lib/TX01001475/Centricity/Domain/159/ffi%20local%20new.pdf.

The Dallas Independent School District requires that bullying be disclosed to both the parents of the victim and the alleged bully.

The law states that the school principal or designee must notify the parent of a victim of bullying by the third day from when the report was made.

The school must also notify the parents of the student who allegedly engaged in the bullying behavior within a reasonable amount of time.

The implication for school counselors is that they must report bullying to the school principal and, in turn, the parents must be informed by the counselor if he or she is the designee of the principal.

To read the Freedom from Bullying administrative law, click on the box below:

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American School Counselor Association. (2016). ASCA ethical standards for school counselors. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf.

The ASCA code of ethics states that

a school counselor's primary ethical obligation for confidentiality is to the students

school counselors must balance the obligation for confidentiality with the understanding that parents have legal and inherent rights to be the guiding voice in their children’s lives (ASCA, 2016).

The implication for school counselors is that they must balance confidentiality with the obligation to keep students safe and the legal and ethical requirements to disclose information to parents (ASCA, 2016).

To read the ASCA Ethical Standards for School Counselors (2016), click the box below:

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Slide #12 Non-Law Source: Website of the American School Counselor Association

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Slide #12 Non-Law Source: Website of the American School Counselor Association

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American School Counselor Association. (n.d.) Legal and ethical faq. Retrieved from https://www.schoolcounselor.org/school-counselors-members/legal-ethical/legal-ethical-faq

The website of the American School Counselor Association has a helpful Legal and Ethical FAQ resource section. It addresses numerous questions about disclosure to parents in various situations involving students, such as suicidal ideation, student pregnancy, divorced parents, small group counseling, case notes, non-suicidal self-harm, and student safety issues. Many of the scenarios include advice for working through the decision-making process about when, how, and to whom to disclose information.

To read the ASCA Legal and Ethical FAQ on the ASCA website, click the box below:

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Legal and Ethical FAQs

From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work.

Subpoenas/Case Notes

What do I do if I receive a subpoena for my testimony or case notes?
This is a common part of being a school counselor. Remember, most courts are not looking to attack educators and operate under the general thought that you are attempting to do what is best for students and families. Let your principal know, and ask for assistance to contact your district legal team to get advice on how to proceed. If possible, work with the district legal team to get the subpoena quashed. If you are not able to do this, then you are compelled to testify. When giving a testimony, provide only facts and omit any subjective information that may make room for doubt. A few states give students privileged communication, which means they can render the school counselor incapable of testifying about their communications. Check your state statutes. In most of cases, the courts are entitled to your testimony, and even in the states awarding privilege communication to minors, judges can often exercise discretion if they need the information for the safety and health of the minor.

What is best practice regarding case notes? How do I know if my personal notes meet the criteria for case notes?
Parents/guardians have a federal right to see anything you write down or record that refers to their child so, as a general rule of thumb, keep your notes in a way you would be comfortable with a parent reading. Personal notes should really be more like memory-joggers for you professionally. Anything that refers to a student, even using initials, ID numbers or personal descriptors, if specific enough, is an educational record that belongs primarily to the parent/guardian. Other student names can be omitted, but the parents/guardians have a right to see the rest. You can keep personal notes if you feel the need to be more specific, but the law has been clear that if anyone knows the notes exist they are then covered under the Family Education and Privacy Act (FERPA). According to FERPA, case notes are "sole-possession records" and not educational records if they meet specific criteria. They must: serve as a memory aid, not be accessible or shared in verbal or written form, be a private note created solely by the individual possessing it and include only observations and professional opinions.

I have taken a job in another district. What do I do with my personal case notes? What notes should I keep?
Personal notes, as in those notes only you are aware of, are kept for the purpose of supporting the student through long-term knowledge of a student's experience. If you are comfortable with your school counseling replacement, you may choose to leave the notes with the new school counselor. Case notes can always be purged except when there is knowledge that a subpoena is likely or the notes may be needed to help the courts convict a perpetrator such as in the case of child sexual abuse. Exercise judgment as to when notes need to remain and when they can be purged. If in doubt, consult.

Confidentiality

When do I share information about students with parents or families and with administrators or other school staff?
Sharing information with parents/guardians is important when a student's safety is in question. This may be sexual behaviors, self-harm, drug use or threats to self or others. Ultimately, open communication with parents/guardians is important and will help with overall programming in the school.

Notify administrators of any threats to self or others and when a human services report has been made or the police have been called. If you do not already have a protocol in place for this situation, check with a few neighboring districts for their protocols and bring them to administration for approval. Sharing information with the remainder of your team, such other school counselors, psychologists or social workers, is helpful for consultation but also provides additional eyes on students in case you are out of the building when a student needs assistance. This is particularly important regarding social/emotional interventions. Otherwise, a sharing of general information when you are concerned about a student - such as a student who has been struggling with a loss or depression -- can be helpful so teachers can notify you of changing behavior in class or with peers. Typically, just asking teachers to notify you if they see any behaviors from the student that are different from the student's normal behavior is enough.

What do I do if my administrator asks for the names of the students I see and the reasons I'm working with them?
Your administrator may be curious about who is seeing you and for what reasons. Prepare that information in a general way, using descriptors such as "academic," "career" or "social/emotional" or in another way where personal information is de-identified. If the administrator wants to know more specifics, this is a good time to process your legal and ethical pull between FERPA's "legitimate educational interest" and your ethical obligation to protect the information. If the information is relevant to building safety or school programming, it is important to share that with administration. However, remind administration the information is sensitive and that it must be kept confidential to preserve the student's dignity and rights, as well as your relationship with the students.

My central office supervisor wants me to provide copies of the action plans we create for students who express suicidal ideation. Is that breaking confidentiality?
Because of the health and safety concerns, districts have the right to require school counselors to follow policy regarding providing copies of action plans for suicidal students. The confidentiality breach comes when these plans are indiscriminately kept without regard to when they should be purged, where they should be kept and if they are necessary beyond just the district's need to ward off liability. The action plan is an educational record, but the plan should be kept outside the actual folder for certain eyes only and purged at the appropriate time.

What do I do if a student tells me she thinks she is pregnant?
It is important to know your state laws around this topic (i.e., what is the age of consent, issues around pregnancy decision-making, etc.) as well as your school board policies regarding the issue and community norms. Find out how or if the student has confirmed her pregnancy. Other issues to consider include whether the sex was consensual and the age difference of both parties. Understanding the student's relationship with her parents/guardians will provide insights for how you might advise the student to tell her parents/guardians.

What do I do if a student tells me he was inappropriately touched by an adult several years earlier or by another student more recently?
If the student tells you he was inappropriately touched, follow your school district's protocol regardless of the amount of time that has passed. You still have a duty to report. Remember that child offenders often offend many times before they are actually caught. You may be preventing future offenses. Also, remember that if the adult is anyone but a family member living in the home, you should call the police department. If the student was touched by another student, you will go through a Title IX protocol. Contact your administration and local police department to investigate; your district may have an identified Title IX officer at the district level who can assist. In the case of young children, you may need to call child protective services. A principal recently lost her job when three 5 year olds were caught simulating sex acts on each other, and the principal called the parents and not child protective services. Do not ever question if the student is being honest. It isn't a school counselor's job to investigate, only to report and support the student.

My principal and central office supervisor want to know the names of all the students I report to child protective services for possible abuse or neglect. Am I required to tell them?
School counselors are mandated reporters, and good-faith reporting is assumed when a professional reports child abuse. The term good-faith reporting refers to the assumption that the reporter, to the best of his or her knowledge, had reason to believe the child in question was being subjected to abuse or neglect. A mere suspicion of abuse is all that is necessary when reporting child abuse. The school counselor is acting legally and ethically when reporting and does not require anyone's permission to report child abuse. Following district or administration policy regarding notifying after the fact the students for whom you called in child abuse is legal and ethical.

Due to COVID concerns, students aren't allowed to come to my office for any reason. I'm only allowed to speak with students in the hallway directly outside their classroom. What do I do?
According to the ASCA Ethical Standards for School Counselors schools present competing interests, including the safety of students, parental rights and the best interest of students, but it is critical to respect students' privacy to the greatest extent possible and to adhere to laws, policies and ethical standards around confidentiality and disclosure in the school setting. Students need a safe, private space to talk, and the school must consider what the plan will be in case of a crisis, if abuse is suspected or if the student is considering harm to self or others. A student in crisis may not feel comfortable opening up when peers are nearby. If students can move around the building to see other school staff, they should be able to see the school counselor. In the past six months, many students have experienced trauma and stress related to the pandemic and racialized trauma following the death of George Floyd and the related protests. A safe, supportive and equitable learning environment requires us to provide structures for physical and emotional safety. Providing student physical and psychological safety includes ensuring specialized support personnel, including school counselors, school psychologists and school social workers, have an adequate space to meet with students confidentially while being able to be physically distant. When schools and school districts do not plan for these safety concerns, the school counselor should advocate for change. Ethical standard A.2.m states school counselors advocate for safeguards and protocols to protect student confidentiality, and A.10.b states school counselors advocate for student safety at school. School counselors can use the above points and the ASCA Ethical Standards in their advocacy efforts. The ASCA position statements The School Counselor and Confidentiality, The School Counselor and Safe Schools and Crisis Response and The School Counselor Student Mental Health may provide additional advocacy support. As a school counselor, you need to understand how to negotiate your school's political landscape. Advocacy efforts that come across as adversarial may do more harm than good. Diplomacy is an important skill to employ when advocating.

VIRTUAL: What confidentiality considerations should I keep in mind during virtual individual and group counseling?
The same limits of confidentiality apply (serious and foreseeable harm) virtually as well as in-person, and you should discuss them with students before counseling begins. To limit others overhearing you and your students, you should be in a private space and use a headset if possible. Also be sure to use a district-approved, secure platform. Be aware that you don't know who else is on the other side of the computer screen, and make sure the student understands you can only control confidentiality on your end. If a parent, sibling, family member, friend, repairman or anyone else is on their end, that person potentially can hear what the student is saying. The same goes for a group setting. You don't know who else may be in the room with other members, so encourage students to wear headphones for some privacy.

Do I need to provide notification to parents and families when a student is involved in a small group I lead?
School counselors want to build, not erode, credibility and maintain a strong working relationship with parents/guardians. This mission is forwarded when school counselors inform parents their child is to be a group member, as some parents/guardians may view small-group counseling as moving away from classroom instruction to a social/emotional focus; therefore, you should inform parents/guardians. This notification gives you a chance to explain the connection small groups have to academic success, and it gives parents/guardians a chance to opt out.

VIRTUAL: Can school counselors conduct group counseling in a virtual setting? Am I still required to get parent/guardian consent?
Under the best circumstances, legal and ethical complications are acutely present in small-group delivery. This is especially problematic in the virtual world. Confidentiality for groups in a brick-and-mortar situation is fragile because the school counselor can never feel secure that students will abide by it or understand all the nuances. Remember, anything said in the group can be tweeted, posted on social media or discussed in the hallway within seconds or minutes. School counselors must be vigilant in what they allow one student to talk about in front of their classmates. Ensuring confidentiality in a virtual world is even more difficult. You can't know who is listening in each student's household. It might be impossible for a student to seek a private place, have headphones or keep family members out of earshot. Informed consent is even more important when providing group counseling services. Many legal and ethical complications in small-group counseling settings are more pronounced in a virtual context, particularly in regard to ensuring confidentiality. Students may disclose sensitive or personal information in front of classmates or household members, and school counselors should take the perspective that confidentiality likely will be breached. As a result, you should inform parents/guardians when their child is participating in a small group. Parent/guardian notification allows you to share the group's purpose, focus and goals and inform them about the challenges of maintaining confidentiality in a virtual format. Informing parents/guardians of the benefits and limitations of group counseling provides them an opportunity to make an informed decision and opt their child out of services if they choose. It is helpful to share this information both verbally (video or phone) and in writing. While best practice is to obtain written consent from parents, it can be challenging in a virtual setting. At minimum, school counselors should obtain verbal consent and document it is received from parents/guardian before students begin attending virtual small group sessions.

VIRTUAL: Is it necessary to get parent/guardian consent for individual counseling in a virtual setting?
Challenges exist in obtaining parent/guardian consent in a brick-and-mortar school setting and are even more pronounced in a virtual context. Despite the complications of providing virtual school counseling services, it is important to adhere to the same ethical guidelines as you would in person. Some school districts have specific policies and procedures around parent/guardian consent. If your district previously required consent for school counseling services when you worked in person, you should continue to adhere to those policies in a virtual setting unless they have been softened or amended. Similarly, you must comply if your district enacted a new policy for obtaining parental permission when providing virtual school counseling services. Best practice is to inform parents/guardians when you are providing individual counseling for a student over more than one or two sessions. Currently it may be challenging to simply inform parents/guardians without adding the need for a parental signature. Nevertheless, you should make every effort to inform parents/guardians about the risks and benefits of providing individual virtual school counseling services, including limits of confidentiality in a video or electronic format. It is impossible to guarantee confidentiality in an online setting; therefore, both students and parents need to be informed of these limitations.

My school and district have an electronic management system and want me to include the names of the students I see and the reasons I am working with them. Does that break confidentiality?
It is in your best interest to maintain these records as well. And, if you keep the reasons vague enough, you are still protecting student confidentiality while also informing parents/guardians, teachers and/or administrators that the student is accessing you for support. It's also a reminder to administrators of the need for your position. The ASCA Ethical Standards for School Counselors state: Section A.2n. Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and currently acceptable algorithms to be utilized for data in transit. Avoid using software programs without the technological capabilities to protect student information based upon currently acceptable security standards and the law.

VIRTUAL: What FERPA and HIPPA guidelines should school counselors follow in virtual school counseling?
School counselors have expressed much angst regarding whether or not the platform they're being asked to use is Health Insurance Portability Accountability Act (HIPAA) compliant. HIPAA does not apply to elementary or secondary schools except in "in a few limited circumstances" (USDOE and USDHHS, 2019, p. 8). Schools that receive federal funds are not HIPAA-covered entities, because the health information maintained on a student's record is an education record and covered by Family Educational Rights and Privacy Act (FERPA). Use the platform your district has assigned because this is safest for you. If the district did not vet the platform for privacy, you may need to advocate for a change, but you do not have to worry about whether the platform is HIPAA compliant; even mental health providers who are under contract and control of the district are covered under FERPA, not HIPAA. If your school is private and receives no federal funds, you may encounter an unusual case in which someone who bills for health care might fall under HIPAA. For example, "if a private elementary or secondary school not subject to FERPA employs a physician who bills a health plan electronically for the care provided to students (making the school a HIPAA-covered entity), the school must comply with the HIPAA rules regarding the individually identifiable health information of its patients" (USDOE and USDHHS, 2019, p. 8). Get all the information you need on how HIPAA and FERPA intersect and an easy-to-read chart.

VIRTUAL: What are some things I can do to ensure confidentiality?
It is important to note that we cannot completely "ensure" confidentiality in an online setting given our limitations. We cannot know the student is alone, for example. However, these practices can help work toward this ideal:

Use headphones with a microphone, and suggest students do as well.

Use a white noise machine to help prevent others from overhearing private conversations

Identify a separate or private room. (You may think you are starting with an academic topic, but the discussion may venture into other areas.)

VIRTUAL: My school wants school counselors to record phone calls or virtual meetings with students and families. Is this something I should do?
It depends. For academic advising or college-related topics, this may be okay as long as you let the student and family know ahead of time that the session is being recorded. Obviously, you will not be able to have private (confidential) conversations with students given that these will be recorded and made available to administration.
Working With Administrators and Other Staff

On several student IEPs, the special education director has noted that weekly counseling be provided. This prevents me from fully implementing a comprehensive program. What do I do?
It can be difficult to curtail the process of writing school counselors into IEPs. Explain that the teacher or the inclusive classroom can better handle interventions targeting social skills and anger management due to the constant need to reinforce or extinguish behavior in the authentic context of the classroom where the behaviors occur. You can support regular education and special education students in brief group counseling or behavior management programs, but a long-term approach that interferes with the student's education is an inappropriate use of school counselors' time.

IEP teams need leadership, communication and clarity regarding the appropriate use of IEPs. The team leader should ensure every team member understands that the school counselor's role must be realistic and relevant as defined by ASCA. School counselors serve all students in their charge; it is unethical and professionally questionable when others define school counselors' role as acting outside their scope of practice and serving a small percentage of their population to the exclusion of hundreds of other students in their caseload.

The educators in my state are planning to strike. Am I required to participate? Would my participation be considered student abandonment?
You are not required to do anything that isn't federal, state or county law, district or school policy, or mandated by your supervisor. This means you are not required to participate in any strikes unless you feel compelled to do so. As for student abandonment, if you believe the safety and wellbeing of your students will suffer in your absence, that may be something to consider. Consider the length of the absence, whether the family provide appropriate support in your absence and other resources that may be available to students if you chose to strike.

Student Harmful Behavior

My district recently purchased a software package that sends alerts to the school and district when students engage in potentially harmful behavior online. As the school counselor, I'm expected to follow up with all the students for whom alerts were received. This is taking all my time. What do I do and what are the liabilities?
Those who favor this type of software argue that it can save lives. However, if schools choose to use this type of software, it's important to bypass the school and send alerts directly to the parents, guardians or family members if a student's online activity yields red flags. This direct line of communication should also convey to parents the reason the software generated concern and possible referral resources. Some school districts use parts of the software to limit access to particular websites but don't activate the alerts. However, if schools use the alert functionality, it's likely school counselors will be assigned to follow up on the alerts. If the software developers continue to put educators into the loop instead of going straight to parents/guardians with alerts, the school district and its designees could face unneeded and unwarranted liability. In a hypothetical example, a student makes a suicide attempt Saturday night, but 24 hours earlier at 11 p.m. on a Friday night, when the school counselor wasn't working, the student's online activity indicated suicidal ideation. The student's online activity was not detected because the school district used the software to block certain sites but opted out of the self-harm alerts. Or, the school district did accept alerts, but the alert came in when the school counselor wasn't working. Could this create liability? Possibly. The argument is weak that liability would follow because a school district's actions or lack of action would have to be the actual cause of the death, but do school districts really want to test the argument?

A student at my school sent me an email indicating another student is expressing suicidal thoughts. What are my obligations?
Suicide reporting does not hinge on certainty of harm or your discretion. Waiting until you have certainty is dangerous. The only knowledge you need to meaningfully act is an expressed, implied, veiled, peer-reported or rumored suicidal ideation. The consequence of the risk - death of a child - is too great. We must err of the side of caution. School counselors should never rely on a student's denial of suicide intent. Students who are bent on self-harm will escape our scrutiny by telling us what they think we want to hear. If something prompted you to question a student about suicide, then you should talk to the parents/guardians as well. In-school suicide assessments are dangerous if relied on for conclusive answers. If a school district performs suicide assessments, these assessments should only be used to alert parents/guardians to the need to monitor their child's safety and to get them professional mental health care to evaluate and, if necessary, treat the suicide risk. The standard of care for school counselors when informally assessing students who are identified as a potential suicide risk is to employ these assessments with extreme caution, with a follow-up assessment completed by a mental health professional who has been trained to assess the risk. School counselors who rely on an in-school suicide assessment for definitive answers are not only negligent but reckless in their evaluation.

A student told me she cuts herself. Do I need to tell her parents?
Self-harm can feel like a tricky situation because research is unclear of the intent or impact. Ultimately, cutting is a form of self-harm, and best practice and the ASCA Ethical Standards for School Counselors advise school counselors to inform parents/guardians so they have the opportunity to intervene. This helps ensure the student's overall safety and can help the student get additional help outside of school.

What do I do if a student tells me she has heard another student brought a firearm to school?
As a school employee, your obligation is to the safety of all students. Inform administration and the school resource officer or police, and allow them to move forward from there.

What is the school counselor's responsibility when a student may be a risk to self and a parent/guardian cannot be located?
ASCA's position statement The School Counselor and Suicide Risk Assessment indicates our primary responsibility is to notify parents/guardians. Educators and school counselors stand in loco parentis, meaning we stand in the parent's place when the student is at school. In a brick-and-mortar setting, good practice is to keep the student with you until you can make contact with the parent. At times, the student may have to stay with you after school until the parent/guardian can be reached. As ASCA's position statement indicates, students may say things to avoid scrutiny; therefore, parent contact is imperative. If the school day has ended and all attempts to contact a parent have been unsuccessful, it may be necessary to contact law enforcement and/or child protective services to take custody of the student and keep the student safe.

VIRTUAL: If counseling is being provided remotely, it is critical to always know the physical address of your student's location. In the event of risk of harm to self or another, the school counselor should attempt to keep the student online while simultaneously trying to contact a parent or guardian. In the event a parent or guardian is unable to be reached, law enforcement should be sent to the student's location to ensure the student's safety.

What do I do if my school district requires me to indicate a student's level of risk on suicide risk assessment paperwork?
A school counselor's role in working with students at-risk for suicide is complex. You must navigate your legal and ethical responsibilities toward students, parents/guardians and the school district. You have a duty of care and legal obligation to make every attempt to prevent a student's suicide and have the responsibility to notify parents/guardians anytime you conduct a suicide risk assessment with a student. It is impossible for a school counselor to know a student's level of suicide risk with certainty, but some districts still require school counselors to document a student's level of risk as low, medium, or high. Although it is important to comply with mandated district procedures, do not document or indicate to a parent/guardian that a student is low risk for suicide since you have no way of knowing with assurance that this is the case. Remembe, FERPA grants parents/guardians the right to access anything you write down. Therefore, if you do not directly tell a parent you believe the child is at low risk but indicate so on a suicide risk assessment form, the parent still will access to that information. The best approach is to consider noting "unable to determine" if a child falls under the low risk category on a district suicide risk assessment form. In addition, always notify a parent/guardian that you conducted suicide risk assessment on a student (at any risk level) and support parents/guardians in obtaining mental health services for the child.

Dual Relationships

I live in a small, rural community and have my LPC and run a private practice after school hours. Does it create a dual relationship if I see current or previous students in my private practice?
The ASCA Ethical Standards for School Counselors state: Ensure there is not a conflict of interest in providing referral resources. School counselors do not refer or accept a referral to counsel a student from their school if they also work in a private counseling practice.

My son will be a student at my school next year. What do I need to do to avoid a dual relationship?
If a dual relationship is unavoidable, the school counselor is responsible for taking action to eliminate or reduce the potential for harm to the student through use of safeguards, which might include informed consent, consultation, supervision and documentation. The best way to minimize any negative impact is to assign the family member to a different school counselor. If the school counselor is the only one in the building, then the school counselor must work to ensure there isn't even an appearance of gaining any unfair advantages for the school counselor's son.

My principal has asked me to teach a class and assign grades to the students. Is that permitted? Does that create a dual relationship?
Sadly, this isn't uncommon. Your administrator is legally your supervisor and determines your role. However, be careful of going down this road and setting precedence. Remind your administrator that teaching a class puts students at risk as you will need to prioritize any crisis or suicidal ideation over the class you're teaching, which could leave your classroom students unsupervised and potentially unsafe. Additionally, being responsible for assigning grades to students leads to a dual relationship and should be avoided to minimize potential harm to students.

Do I need a signed release before meeting with a student virtually?
It is recommended to follow the policies of your school. If students do not sign releases to meet with you in your typical role on site at your school, it may not be necessary to get additional permission. However, it is important to follow the policies established by your school district, particularly in relation to the move to online learning.

Can school counselors take home educational records if asked to do so by an administrator?
There is no prohibition against teachers and school counselors taking home educational records, assuming the school counselors/teachers are school officials with legitimate educational interests, which they probably are. They should just be sure to protect the information they take home and ensure other people who are not school officials or parents don't see the information.

Our school provided laptops to our students. Through a monitoring system our school district uses, we are seeing some of the things students are searching. These include issues such as substance use, rape and suicide. What is our legal obligation when we see these searches?
An internet search doesn't necessarily indicate serious and foreseeable harm to self or others but could. If the monitoring system is in place, always alert parents if a suicide topic is being researched, and provide community resources and ask the parents to seek outside resources to address what is going on with their child. The district needs to determine a way to respond to serious concerns without burdening the school counselors and also determine which topics will trigger a call to parents. Perhaps an administrator could be responsible for this since the monitoring system is already in place anyway. The administrator and school counselor could collaborate about issues requiring outreach from the school to the student and families. The school district may want to see if the software has an alert that will skip the school and go right to the parent/family. Districts may also consider working with parents and families about how to appropriately monitor their child's online activity.

Technology

VIRTUAL: My district wants me to use one type of online conferencing technology, but I'd rather use a different kind. Is this okay?
It is far safer to use what the district suggests. The district has likely vetted the program to make sure it will interface and integrate with the district's system and security approach. For example, one large urban district requires Microsoft Teams because it is part of the larger group of software applications fully adopted and integrated with the district's systems and security. This protects the educator against false accusations and the student against exploitation because the district can review activity occurring in Teams. It is not a matter of which program or app is superior but rather which online program offers the best layer of protection for all as determined by the district.

VIRTUAL: What are some considerations when using a specific platform for virtual/distance school counseling?

Read the privacy policies of the platforms your school system uses.

Know limitations of the district's platform.

Advocate for a change if the platform is thought to be detrimental.

Don't select or use a platform without district approval.

Can I use my personal cell phone to talk with students and families?
It is recommended to use school-issued devices. However, if the school has not provided you with devices, you may need to discuss the possibility of using your own devices. If it is decided that you will use your personal device, it's important to develop boundaries around your working hours and communicate this to students and families. In addition, be sure you maintain these boundaries, such as not answering the phone at times you are not able to assist a student. It would be helpful to use away messages or other communications to direct students to where they may get help outside of your available working hours.
If you want to block a phone number, you can follow these steps:

Enter *67.

Enter the number you wish to call (including area code).

Tap Call. The words "Private," "Anonymous" or some other indicator will appear on the recipient's phone instead of your mobile number.

Do I have to use the computer the school issued me, or can I use my much superior laptop?
You must use the school-issued computer unless the district offers you an exception. Again, it is about safety and security. There are privacy settings that protect district computers that your personal computer may not have. Advocate for your equipment needs, but be careful not to go against school district dictates regarding equipment.
Appropriate Duties

I am being asked to make home visits for those students who have not responded to their virtual classes. Am I unreasonable to want out of this dictate?
Dictates that would be considered unheard of in the everyday life of a brick and mortar school counselor's day are suddenly appearing in virtual schools. You are right to feel uncomfortable. Use all your powers of persuasion to get out of this. If you're in a state with a shelter-in-place order, these visits might even be illegal. Students have to be reached without putting educators at risk. Robo calls, news reports, public service announcements, etc., can be used to emphasize to the school community the importance of responding to the school. If a school counselor does end up making house calls, he or she should never go alone. Try to pair up with the school resource officer, use COVID-19 safety precautions, have a set plan as to what should be accomplished and take any resources, such as a laptop, you may need. Again, home visits should not be on the school counselor's shoulders.

What do I do if I'm asked to help with health screening?
In the current, unprecedented environment, school counselors may be tasked with participating in functions that are not typically part of their role - whether instruction is occurring virtually or in person. Advocating for appropriate responsibilities is important, but flexibility will be required. School counselors may be assigned to participate in health and safety efforts (taking temperatures, enforcing mask wearing, etc.). Given that all staff likely will be engaged in these or similar functions, this should be considered a fair-share responsibility.

What if I'm asked to teach a class to lower classroom ratios?
Classroom instruction is part of the ASCA National Model; however, teaching a course is not. Reference your school or district's job description for school counselors to determine if this is addressed. Also, it's important to know if a teaching certification is required for serving in this role. You should discuss with your administration about the student needs that may not be met or addressed as a result of teaching. Share data about the impact of your school counseling work. Ask what would be the contingency plan if you needed to deal with a school emergency. That said, at the end of the day, if a district wants to require this and there is no policy, you must comply.

VIRTUAL: How can I provide a school counseling program for all students in a virtual or hybrid setting that addresses students' academic, career and social/emotional development?
You have an ethical responsibility to deliver a school counseling program that addresses the students' academic, career and social/emotional needs. Delivering school counseling services through a virtual or hybrid setting should include all three of these domains and should not be limited by meeting platforms the district has put in place. A wide variety of resources are available on the ASCA website, www.schoolcounselor.org, for school counselors to access so they can deliver an evidence-based, effective program online.
Similar to the brick and mortar setting, school counselors should continue to rely on the data obtained from needs assessments, program evaluations, and outcome data to inform them about student needs and the effectiveness of interventions. Data obtained from these assessments can be analyzed and reported to school administrators, faculty and parents in ways that highlight the current program's accomplishments and limitations. Findings from these reports will provide the evidence needed to determine whether all three school counseling domains are addressed in the virtual or hybrid setting.

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Legal & Ethical FAQ | American School Counselor Association (ASCA)

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Legal and Ethical FAQs From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work.

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The best practices for confidentiality and disclosure in the school counseling relationship include:

Knowing and following federal, state, and local laws and policies for when the school and/or counselor must legally disclose information to parents.

Explaining the value of confidentiality to students, parents, and school personnel in the context of building a trusting, strong counseling relationships.

Communicating the limits of confidentiality to students in a compassionate, clear way.

Respecting student confidentiality but also respecting the parental right to be the primary guiding voice in their child's life (ASCA, 2016).

Breaching confidence if serious and foreseeable harm to the student or others is a concern (ASCA, 2016), or if required by law.

Being knowledgeable about FERPA guidelines and prepared for how to proceed in various circumstances, such as when a high school student turns 18.

Communicating with and respecting the rights of both custodial and non-custodial parents (ASCA, 2016), unless otherwise restricted by a court.

By law, parents of a student:

Have the right to review their child's educational records, including school counseling records (FERPA, 2011).

Must be informed in the event their student has suicidal ideation.            Tex. Educ. Code § 11.252 (a) (3) (b) (i). Retrieved from https://statutes.capitol.texas.gov/SOTWDocs/ED/htm/ED.11.htm

Must be informed in the event their child is the victim of or is engaging in bullying (Tex. Educ. Code § 37.0832). Retrieved from https://statutes.capitol.texas.gov/Docs/ED/htm/ED.37.htm#37.0832.

Additional Resources for Determining When and Whether to Disclose Information to Parents:

Student Self-Harm (non-suicidal), such as eating disorders or cutting: https://www.schoolcounselor.org/magazine/blogs/november-december-2005/cutting,-eating-disorders-and-confidentiality

Drug or Alcohol Use/Abuse:  http://www.ascaschoolcounselor-digital.org/ascaschoolcounselor/november_december_2018/MobilePagedArticle.action?articleId=1442146#articleId144214

Student Pregnancy: https://www.schoolcounselor.org/magazine/blogs/september-october-2012/district-policy-and-student-pregnancy

Student Depression:
https://www.schoolcounselor.org/magazine/blogs/may-june-2009/supporting-students-with-depression

Mental Health Crisis Protocol:

The Mental Health Crisis Protocol section of the Dallas Independent School District website: https://www.dallasisd.org/Page/5785