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As a future school counselor and eventually hopefully licensed professional counselor, it is important to know what laws are in place to protect myself and my student's or client's information. This is important because it could potentially save a client or another party involved from harm. This legal guide was made with my future in mind. There are many reasons that counselors could be potentially sued. Knowing your legal rights can help prevent this. This legal guide was made with people like me, who should know their rights regarding confidentiality and disclosing information.

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In the counseling field, there is a wide range of topics covered. There are also many clients involved who will disclose information. This information is helpful to know how the law protects school counselors and professional counselors. This is impacting my field because some professionals do not understand their rights to disclose information or keep it confidential. This could result in lawsuits on the counselor.

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When I searched information release on the American Counseling Association, an article came up titled Confidentiality Concerns with Minors (Wade, 2015). In this article, one parent of a minor consents to counseling for the minor, but the other does not. This article discusses the ethical principles that the counselor must follow. One part that I found to be interesting was that it explains that the counselor can limit parent's access to the client's file if they believe it may put the minor in danger.

Wade, M. (2015). Confidentiality concerns with minors. Counseling Today. https://www.counseling.org/docs/default-source/ethics/ethics-columns/ethics_september_2015_confidentiality-minors.pdf?sfvrsn=1624522c_4

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This article details a mother suing a school district whose counselor allegedly encouraged their child to socially transition without notifying the parents. The mother believes she has the right to control decisions for her child.

On the other hand, people in favor of the school district believe that the school district had a responsibility to keep the child's sexuality confidential in order to maintain trust.

(Associated Press, 2023)

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PORTLAND, Maine (AP) - A Maine woman is suing a school district whose counselor encouraged her teen's social gender transition, providing a chest binder and using a new name and pronouns, without consulting parents.

It's the latest lawsuit to pit a parent's right to supervise their children's health and education against a minor's right to privacy when confiding in a mental health professional. A similar lawsuit filed in California was working its way through the courts earlier this year. In Massachusetts, parents are suing a middle school for not telling them their two pre-teens were using different names and pronouns.

The federal lawsuit in Maine argues the mother of the 13-year-old student has a "right to control and direct the care, custody, education, upbringing and healthcare decisions of her children," and that Great Salt Bay Community School violated her constitutional right by keeping gender-affirming treatments from parents.

Civil rights advocates have argued in other cases that schools must protect student privacy including their gender identity and sexuality under federal law, and that counselors need to be able to keep conversations with students confidential if they want to maintain trust.

Administrators at the Maine school add that confidentiality requirements have prevented them from responding to "a grossly inaccurate and one-sided story" that began circulating on social media. The superintendent didn't immediately return a message seeking comment Thursday.

Political Cartoons

Amber Lavigne, of Newcastle, Maine, filed the lawsuit after being unsatisfied with the school's response after she became concerned by the discovery of the chest binder in her child's belongings in December. The compression clothing allows people to better conceal their breasts under clothing.

Lavigne's child told her that a school counselor provided the chest binder at the school and provided instruction on how to use it, according to the lawsuit. The mother also says the school was also calling her child by a different name and pronouns.

The Goldwater Institute, an Arizona-based conservative and libertarian think tank, is lead counsel on the lawsuit filed Tuesday. It argues the Maine mother's rights trump state statute allowing school counselors to keep information private.

Along with legislation banning surgical and pharmacological gender-affirming care, Republicans have also pushed so-called parental rights legislation demanding transparency from schools. A 2022 Arizona law expands the rights of parents to know anything their children tell a teacher or school counselor.

"I deserve to know what's happening to my child. The secrecy needs to stop," said Lavigne, who is now homeschooling her teenager, in a statement released by the institute.

Copyright 2023 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Maine Mom: School Wrong to Help, Hide Gender Transition

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PORTLAND, Maine (AP) - A Maine woman is suing a school district whose counselor encouraged her teen's social gender transition, providing a chest binder and using a new name and pronouns, without consulting parents.

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This article details a case where a counselor was doing couple counseling with two individuals along with individual counseling. The woman involved was being abused by her partner. The woman discussed potentially taking legal action against her partner. The counselor then turned around and told the partner.

This put the woman in a bad position. She sought legal action against the counselor. He ended up voluntarily surrendering his license.

(Blechl, 2023)

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The victim in the domestic violence case against former state Sen. Jeff Woodburn and the couple's former mental health counselor whom she sued in 2021 for medical malpractice and breach of confidentiality have settled their civil case.

A trial management conference that had been scheduled for Thursday after Grafton Superior was canceled after a settlement letter was received by the court the day before.

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Victim In Woodburn Domestic Violence Case Settles Separate Case Against Counselor

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The victim in the domestic violence case against former state Sen. Jeff Woodburn and the couple's former mental health counselor whom she sued in 2021 for medical malpractice and breach

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Slide #7 State Administrative Law- 22 T.A.C. § 681.41 

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Slide #7 State Administrative Law- 22 T.A.C. § 681.41 

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•        Examining Boards, 22. Tex. Admin. Code § 681.41

•        Counselors should report behavior that is harmful or could be harmful to others.

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Slide #6  Administrative Law ASCA Ethical Standards for School Counselors A.2. Confidentiality  

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Slide #6  Administrative Law ASCA Ethical Standards for School Counselors A.2. Confidentiality  

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This law requires school counselors to keep information confidential unless a breach is required due to legal requirements. The reasons for this could be the student is in danger or knows of someone else that could be in danger. When in doubt of reporting, school counselors should discuss matters with appropriate professionals.

•  American School Counseling Association. (2022). ASCA Ethical Standards for School Counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8f15909c3d164/EthicalStandards.pdf

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• San Angelo Independent School District Employee Handbook 2022-2023

•  SAISD (2022, p.51)

https://resources.finalsite.net/images/v1662061721/saisdorg/fnuh4ywnz3kj4bhpnnkp/Em%20ployeeHandbook2022-2023.pdf

•  Source of Law: Local Administrative Law

•  In this section of the handbook, it states that any student or employee that may experience or know about inappropriate conduct, they should report it to district officials. It lists specific district officials who deal with certain areas of issues including ADA, Title IX, dating violence, and 504.

This is important because a counselor may be told information that must be reported to the district officials. Often, students will not go directly to district officials. It is important that counselors report this behavior because it could be dangerous to students.

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Slide #11 Ethical Principle ACA Code of Ethics B.2.a Exceptions to Confidentiality

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Slide #11 Ethical Principle ACA Code of Ethics B.2.a Exceptions to Confidentiality

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•        American Counseling Association. (2014). ACA Code of Ethics.

•        https://www.counseling.org/resources/aca-code-of-ethics.pdf

•        The law states that counselors should report when behavior could cause serious harm to the client or someone else. The counselor should consult with another professional to seek advice before reporting.

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Under FERPA, parents are allowed to request records of their child. With that, parents could get records and information from the school counselor upon request.

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The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students."

Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.

Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

School officials with legitimate educational interest;

Other schools to which a student is transferring;

Specified officials for audit or evaluation purposes;

Appropriate parties in connection with financial aid to a student;

Organizations conducting certain studies for or on behalf of the school;

Accrediting organizations;

To comply with a judicial order or lawfully issued subpoena;

Appropriate officials in cases of health and safety emergencies; and

State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

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policy; privacy; academic records; technical assistance; parent rights; student rights; ferpa

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Family Educational Rights and Privacy Act (FERPA)

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Family Educational Rights and Privacy Act (FERPA) Home Page.

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Slide #9 Statutory Law-Health and Safety Code §611.002 

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Slide #9 Statutory Law-Health and Safety Code §611.002 

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•        Sec. 611.002 Confidentiality of information and prohibition against disclosure

•        This law states that confidential information should remain confidential. This law protects mental health professionals from disclosing information that was intended to be confidential.

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HEALTH AND SAFETY CODE CHAPTER 611. MENTAL HEALTH RECORDS

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HEALTH AND SAFETY CODE TITLE 7. MENTAL HEALTH AND INTELLECTUAL DISABILITY SUBTITLE E. SPECIAL PROVISIONS RELATING TO MENTAL ILLNESS AND INTELLECTUAL DISABILITY CHAPTER 611. MENTAL HEALTH RECORDS Sec. 611.001. DEFINITIONS. In this chapter: (1) "Patient" means a person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction.

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Clarity Cooperative. (n.d)
This website discusses releases of information. There is also information on why you would need to release information and different types of medical release forms.

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What is a Release of Information Form for Therapy and Why Do I Need One?

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Communicate your commitment to creating a safe and confidential space for your therapy clients.

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Slide #13 Recommendations/Best Practices for Compliance

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Slide #13 Recommendations/Best Practices for Compliance

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It is important that professionals use their best judgement when deciding whether or not to report information. It is also important to know your rights when in situations where confidentiality may need to be breeched for the safety of the student or client.

Join a union in order to have a community to discuss difficult matters with. This will also help if you are sued to cover legal fees.

Respect the privacy of student and clients. Building a trustworthy relationship with them is important in order to be successful.

If information is disclosed to you that may be harmful to your student, client, or someone else, you should report it. Safety is extremely important.

Even if a client is involved with another client you have, their information should still remain confidential, even if it has to do with the other client. If it needs be reported to anyone, it should be the authorities.

As a school counselor, you are allowed to keep information from parents if you believe that disclosing the information could be harmful to the student.

Always use your best judgement. If something seems off, look further into it. Ask your student or client questions if something feels off. Trust your instincts.