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Confidentiality in school counseling is important for both the school counselor and students to have a clear understanding of what information will be kept confidential and the information that must be reported to others. The intent of the school counselor is to assist all students by addressing issues inhibiting their progress in the academic setting so students can reach their full potential and success. The school counselor must be unbiased and work with the students to build trust with the students and let the students know the counselor’s office is a safe place. It is the responsibility of the school counselor to obtain assent from the minor student and be able to clearly communicate with the student the limits of confidentiality. The school counselor should have a notice posted in their office that is visible at all times to the students and frequently refers to the notice of the limits of confidentiality when information that is shared by the student meets one of the limits of confidentiality.

I chose the topic of confidentiality in school counseling because it is prevalent in the field of education and school counseling. Students need to know they can confide in their school counselor without the fear of information being shared with those without privilege. The intended audience for this legal guide is other school counselors.

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The federal agency which governs confidentiality is the United States Department of Education, Student Privacy Policy Office.  This agency oversees the Family Educational Rights and Privacy Act, known as FERPA.
In Texas, the Texas Education Agency governs school counselors for the compliance and facilitation of legal and ethical practices. All complaints regarding confidentiality are addressed by the federal agency governing FERPA.
(The Family Educational Rights and Privacy Act [FERPA], 1974).

https://tea.texas.gov/about-tea/contact-us/complaints/complaints-addressed-by-other-agencies#:~:text=The%20confidentiality%20of%20student%20education,Education%2C%20Student%20Privacy%20Policy%20Office.

https://www.ecfr.gov/current/title-34/subtitle-A/part-99

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Federal Constitutional Law:
The 14th amendment in the United States Constitution provides the fundamental right to privacy and protects against unwarranted invasions of privacy by federal or state entities or arms thereof (U.S. Const. amend. XIV, § 2). This protects the school counselor and student counseling relationship by providing boundaries for communication of needs to assist the well-being of the student.
*No state can enforce a law that violates privacy of the U.S. citizens
*All persons within the U.S. have equal protection of the laws
*No state can deprive a person of life, liberty, or property

https://constitution.congress.gov/browse/amendment-14/#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws.

State Constitutional Law:
The Texas Administrative Code (25 Tex. Admin. Code § 448.210) protects the privacy of individuals served and the provider shall not disclose confidential information without express written consent, except as permitted by law. The Texas Administrative Code impacts the confidentiality of the student and school counselor relationship by protecting the information provided to the counselor by the student.
*Shall not discuss or divulge information obtained in clinical or consulting relationships
*Confidential information shall be safeguarded from illegal or inappropriate use

https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=25&pt=1&ch=448&rl=210#:~:text=Texas%20Administrative%20Code&text=The%20provider%20shall%20protect%20the,except%20as%20permitted%20by%20law.

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Federal Statute:
The federal statute that impacts the confidentiality of school counselor records is The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.
*FERPA allows parents or students to control their student records and how/what information is distributed.

https://www.law.cornell.edu/uscode/text/20/1232g

Federal Administrative Law:
The U.S. Department of Education regulation 34 CFR § 99.10 pertains to FERPA.
*Parents or guardians may request and review their student's educational records
*School counselor's notes are part of the student's educational records
*The school counselor must notify the student when a parent/guardian requests record that contain confidential information shared with the counselor

https://www.ecfr.gov/current/title-34/subtitle-A/part-99?toc=1

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Case Law:
Owasso Public Schools v. Falvo

*Student's grades announced in front of other classmates
*Supreme court sided with school district- FERPA was not violated since the grades were not input into the district gradebook system at the time of the grade being announced
*Grade is not an official record until entered in the gradebook

This case impacts the topic of confidentiality in regards to student information. The notes a school counselor keeps when counseling students is subject to information parents may request or that may be requested through the law.

Falvo, 534 U.S. 426 (2002).

https://supreme.justia.com/cases/federal/us/534/426/

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Federal Mandate:
FERPA impacts the role and duty of the school counselor and student interaction and record keeping.
*protects the privacy and confidentiality of student information
*can only be disclosed through written consent or requested by the law.
* information shared by students may require the school counselor to make a report to other agencies out of ethical concern for the safety of the student or if the law is requesting records.
(The Family Educational Rights and Privacy Act [FERPA], 1974)

https://studentprivacy.ed.gov/node/548/

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Boerne ISD School Board Policy:
(Boerne ISD Board Policy -FL-Student Records (2022)

*Student records must be kept confidential at all times
*Only view in the superintendent's, principal's, or school counselor's office, or other restricted area designated by the records custodian.
*Limits location of confidential student records
*May contain previous notes from school personnel, including school counselors

https://pol.tasb.org/PolicyOnline/PolicyDetails?key=762&code=FL

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*The first risk management strategy in maintaining confidentiality within school counseling is "Mitigating Risks- this is identifying the risk of potentially having to break confidentiality due to limits, assessing all possible solutions, creating a plan, taking action, and monitoring the outcome" (AuditBoard, 2021). This is important in school counseling to identify what information can and can not be shared to protect the confidentiality of the student, especially when seeking ethical advice from other school counselors, or administration or when keeping personal notes of the sessions.

https://www.auditboard.com/blog/10-risk-management-strategies-2021/

*The second risk management strategy in maintaining confidentiality within school counseling is limiting the location of student records to be reviewed within the school district including who has access to records. This strategy is important to keep student records secure and only allows access to those individuals with a legitimate educational interest in the student's needs. Highly sensitive information should be kept under high security and only shared with individuals on a need-to-know basis or legally required.

*The third risk management strategy in maintaining confidentiality within school counseling is to adhere to the ASCA code of ethics section A.2. Confidentiality. Standard A.2.K of the ASCA code of ethics states, "school counselors recognize the vulnerability of confidentiality in electronic communications and only transmit student information electronically in a way that follows currently accepted security standards and meets federal, state, and local laws and school board policy." This is important for school counselors to follow all the ethical standards outlined by the ASCA to prevent unlawful breeches in student confidentiality.

https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

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The American School Counselor Association's ethical standards include a section dedicated to confidentiality.

Ethical Standard A.2.a states school counselors promote awareness of school counselors’ ethical standards and legal mandates regarding confidentiality and the appropriate rationale and procedures for disclosure of student data and information to school staff.

Ethical Standard A.2.b also includes school counselors inform students on the disclosure of the limits of confidentiality.

Ethical Standard A.2.g states school counselors recognize their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of the parents’ /guardians’ legal and inherent rights to be the guiding voice in their children’s lives.

Each of the above ethical standards works together to hold school counselors accountable and responsible for keeping students' confidential information a top priority while also explaining to the students the limits of confidentiality. School counselors must keep information shared by students confidential unless required to share the information with other agencies to protect the student from self-harm or harm to others or is legally required by a court order.

(American School Counselor Association, 2022)

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#10 Personal Connection to the Legal & Ethical Standards

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#10 Personal Connection to the Legal & Ethical Standards

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I have learned how the law influences my position in regard to student confidentiality and the limits of confidentiality as a professional school counselor working with minor students. From the 14th amendment of the U.S. Constitution to FERPA and the Owasso Public Schools v Falvo case, I have learned the importance of keeping student information confidential. Student information includes any information the student may share during counseling sessions. It is my responsibility to clearly explain the limits of confidentiality to students prior to counseling them in a developmentally appropriate manner. The ethical standards that a school counselor is responsible for upholding include an entire section of sixteen standards on student confidentiality. I feel that I have a clear understanding of the laws regarding student confidentiality at both the federal and state levels. I also feel that I have gained an understanding of the intertwining of the various levels of laws from federal and state statutes to administrative laws to school board policies that I did not possess prior to this class. This class and assignment have allowed me to gain knowledge of education law and the impact it has on my future role as a professional school counselor.

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#11 Bulleted list of Recommendations/Best Practices for Compliance

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#11 Bulleted list of Recommendations/Best Practices for Compliance

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*School counselors must be intentional and use developmentally appropriate language to define and explain confidentiality and the limits of confidentiality
*School counselors must obtain written consent from parents to provide services to the student
*School counselors must obtain assent from the minor student, preferably in writing and verbal
*School counselors must refrain from sharing confidential information that is provided in counseling sessions with others who do not have a necessary educational connection to the issue
*School counselors are recommended to keep notes of information shared during counseling sessions
*School counselors are recommended to limit session notes to skeletal information, only include enough information to refer to, do not include identifiable student information
*School counselors must follow the law and ethical standards pertaining to confidentiality