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My name is Samantha Nally and I am currently a graduate student at Angelo State University studying Professional School Counseling. I am planning to become a school counselor at the elementary school level. My topic for this assignment is confidentiality within the school counseling parameters. I chose this topic because it is one of the most important things to know and understand in this career field, and one that not many people understand or respect.

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This topic is important because many students are led to believe that what they share with a school counselor is and will stay private. While that is the case in many situations, there are still scenarios in which school counselors are legally required to notify parents or the authorities. Additionally, some teachers do not understand confidentiality and it is important that the school counselor is able to inform these teachers of confidentiality and not share what was said in the school counselor office unless the student requested this information be shared with the teacher or if the teacher is on a needs-to-now basis. It is important to know what must remain confidential, what must be reported, and know your students rights.

A common issue with confidentiality at this time is students sharing with the counselor that they are struggling with their sexual orientation, or gender, and parents are not being notified. Parents are upset when they find out that these conversations are being had at school. However, since the student is not in danger, or in danger of harming themselves or others and have permission to speak with the school counselor, school counselors are not required to discuss these concerns with the students parents.

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Attached is an article that was published by the American Counseling Association. In this article, the author provides the reader with scenarios in which the school counselor must determine whether or not a breach in confidentiality occurred. Essentially, it describes the process a school counselor should take to determine the next steps.

American Counseling Association. (2017). To tell or not to tell: The fine line between minors' privacy and others' rights to know. Counseling Today. https://www.counseling.org/docs/default-source/ethics/ethics-columns/ethics_october-2017_minor-privacy.pdf?sfvrsn=a25522c_6

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The Maine Department of Education is attempting to adopt a law that states “that school counselors should not be required to divulge information from student counseling sessions to parents” (Portland Press Herald, 2023, para 2).

Parents believe that school counselors should have to share what is discussed in a private session between their child and the school counselor.

Professionals believe that students are less likely to seek help from the school counselor if they know what they discuss will be shared with their parents.

Portland Press Herald. (2023). Clash over parents' and students' rights at hearing about school counselor rules. https://www.pressherald.com/2023/04/06/rights-of-parents-and-students-clash-at-hearing-about-school-counselor-rules/

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Lawmakers heard conflicting testimony Thursday from dozens of parents, educators and counselors about what has become a controversial issue in Maine and across the country: how to balance the rights of parents to know what happens in school with the rights of students who confide personal information to school counselors.

If adopted, a proposed Maine Department of Education rule would make it clear that school counselors should not be required to divulge information from student counseling sessions to parents "consistent with the professional obligations of the counselor or social worker," except in cases of imminent danger to the child or others.

While such rules typically take effect without legislative approval, the Maine Legislature has the power to review rules and prevent them from going into effect by voting to block them.

School policies around confidentiality vary from district to district. Policies that protect student confidentiality have angered some parents and advocacy groups who argue that parents should be informed about what was discussed during counseling sessions, such as when students are questioning their sexual orientation or gender identities. Others contend that students need a safe space to discuss topics that they may be uncomfortable sharing with their parents.

Amber Lavigne of Newcastle filed a federal lawsuit this week against the Central Lincoln County School System and the Great Salt Bay Community School Board because school counselors withheld information that her 13-year-old child adopted a different gender identity at school, which Lavigne argues violates her constitutional rights. The lawsuit alleges that a school employee provided Lavigne's child with a chest binder - a compression undergarment worn to flatten breasts - and staff referred to Lavigne's child with pronouns different than those aligned with the biological sex and name of the child at birth, all while intentionally keeping that information from Lavigne. The lawsuit does not provide proof that the school district or any of its employees gave Lavigne's child a chest binder.

Lavigne testified before the Education and Cultural Affairs Committee on Thursday that the school trampled on her parental rights because of "serious flaws in the judgment of a social worker." Lavigne said parents in Maine should have their rights protected, and the state should not approve a policy that undermines those rights.

"This bill violates my parental rights and the rights of parents across Maine, which are protected by the 14th Amendment," Lavigne said.

But others argued that students need to be able to have adults they can confide in, and sometimes need to do so without worrying about the reaction of their parents.

Jennifer Curran, a trauma therapist, testified that confidentiality is "so very important."

"Individuals are less likely to share about challenges in their life during therapeutic sessions if they believe that information could be shared with others outside that session," Curran said in written testimony. "Children who believe that their thoughts could be divulged to their parents are less likely to share their thoughts deeply.

"To go a bit deeper, children who are discovering their authenticity, leading them to believe they are part of the LGBTQIA community, can face a difficult task of communicating this to their family/friends, some which might not accept or support this authenticity."

Curran said the "pressure of being different can put elevated stress on that child, placing that child at additional risk for suicide and self-harm."

Ashley Schumacher of Freeport, a parent and substitute school nurse, said "school should always be a safe place for the children of Maine, especially with the counselors and social workers who assist the most vulnerable in our communities. Students need to know that, outside of risk of harm to themselves or others, they can trust school counselors and social workers to keep the information they disclose private."

But Ed Thelander of Bristol, the Republican challenger who lost to U.S. Rep. Chellie Pingree, D-1st District, in the 2022 election, said that when school counselors keep important information from parents, it could be causing rifts in families.

"Parents should always have a say in every aspect of a child's life," Thelander said.

Schools currently have varying policies on the issue, with Portland Public Schools leaning toward protecting student rights.

But when the Oxford Hills area school district tried to pass a similar policy, two school board members who supported it were recalled.

The Education and Cultural Affairs Committee will host a workshop session on the policy in the coming weeks.

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Clash over parents' and students' rights at hearing about school counselor rules

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Parental rights advocates want the Legislature to block a proposed Department of Education rule that would direct school counselors to respect student confidentiality.

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A teacher has a difficult student that she knows transferred to her school with several files. When she approaches the counselor for information, the school counselor refuses to disclose information from the files.

The school counselor has an ethical obligation to keep student information private. While the school counselor cannot divulge explicit information, they can inform the teachers of any special needs a child might need in order to be successful in the classroom.

Kappan. (2019).  Teacher is upset with counselor for withholding information. https://kappanonline.org/fagell-teacher-counselor-withholding-information-troubled-student/

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Q: I just got a new student in my 7 th-grade English class. He seems really troubled. He steals supplies, knocks papers off my desk when he's mad and makes crass sexual comments to the girls. He's in 7th grade but can barely read. To say he's disrespectful would be an understatement. When I went to meet with his counselor, she told me nothing. The secretary said he showed up at our school with several boxes of files, and I'm so irritated that his counselor placed him in classes without giving teachers any background information. OK, so now I'm magically supposed to know what to do with this boy? For all I know, he's got a criminal record. This isn't the first time she's told me she can't breach student confidentiality. Don't teachers have any rights to background information?

A: The short answer is yes, but it's complicated. School counselors have the challenge of balancing their students' rights to confidentiality with the legitimate rights and concerns of teachers. Weighing those competing interests isn't always straightforward. Counselors are consultants to educators and want to provide helpful information about students' safety and well-being, but they also want to protect their students' confidentiality. Trust is a critical part of the counselor-student relationship. No child is going to disclose personal information to someone who's cavalier about their privacy.

That said, there's no question that teachers need to know about students' special needs to teach effectively and make a positive impact. At the same time, there's no need to gratuitously divulge sensitive information. For instance, a counselor might share that a child is prone to rage when he feels incompetent, or that he's excruciatingly sensitive to loud noises. A teacher wouldn't need to know the details of every setback that contributed to his fragility. Similarly, the counselor could let a teacher know a student had a very rough night without revealing that his parents fought loudly for hours.

There are instances when counselors must break confidentiality, including when they believe the student's behavior presents clear and imminent danger to themselves or others. That should give you some comfort. If the counselor did make that type of report, an administrator would be privy to that information even if you're left in the dark. Speaking of administrators, I assume you've been involving one to help you address the inappropriate sexual comments, stealing and disrespect. Counselors don't get involved in managing discipline because it's at odds with their role as the student's advocate. You clearly need all hands on deck to help this boy.

So where does that leave you as far as the counselor is concerned? Laws and ethical guidelines will vary from state to state, and individual counselors will take different approaches. You can try asking her more general questions, such as "What effective strategies have teachers used in the past with this student?" or "what might prevent him from leaving the room every time I ask him to sit and do work?" You can suggest that she ask the child for permission to share details with you. And don't be afraid to connect with the student on your own. Invite him to lunch and take the time to get to know him. If he opens up and starts to trust you, he may feel less edgy and display more respect in the classroom.

School counselors are charged with protecting students from harm, and that includes respecting their privacy. They only should reveal sensitive information when educators can use it to help a child. That's a tricky line to walk, and counselors have to rely on their best judgment. I doubt this particular one is trying to torment you by withholding data. As in any situation when you're frustrated with a colleague, talk to her directly in a nonconfrontational way. She might meet you somewhere in the middle. After all, you both want to help this student adjust and succeed.
Have a question that you'd like Career Confidential to answer? Email to careerconfidential@pdkintl.org. All names and schools will remain confidential. No identifying information will be included in the published questions and answers.

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Teacher is upset with counselor for withholding information - kappanonline.org

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Q: I just got a new student in my 7 th-grade English class. He seems really troubled. He steals supplies, knocks papers off my desk when he's mad and makes crass sexual comments to the girls. He's in 7th grade but can barely read. To say he's disrespectful would be an understatement.

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#6 Original Sources of Law at Federal or State Level

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#6 Original Sources of Law at Federal or State Level

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Law: The Individuals with Disabilities Act

Reference List Citation for the Original Law: Individuals with Disabilities Act, 34 C.F.R. § 300.9

Source of Law: Administrative Law

URL if possible to the law: https://sites.ed.gov/idea/regs/b/a/300.9

Brief summary: The Individuals with Disabilities Act (IDEA), is a federal law. Section 300.9 of IDEA discusses parents having the power to allow or consent to their child participating in certain activities at school, such as visiting with the school counselor.

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Individuals with Disabilities Education Act

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300.9 Consent.

(a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication;

(b) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

(2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).

(3) If the parent revokes consent in writing for their child's receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent. [71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007; 73 FR 73027, Dec. 1, 2008]

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Sec. 300.9 Consent - Individuals with Disabilities Education Act

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300.9 Consent. Consent means that- (a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication; (b) The parent understands and agrees in writing to the carrying out of the activity for which his or...

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#7 Original Sources of Law at Federal or State Level

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#7 Original Sources of Law at Federal or State Level

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Law: The Fourth Amendment

Reference List Citation for the Original Law: U.S. Const. Amend. IV

Source of Law: Constitutional Law

URL: https://constitution.congress.gov/constitution/amendment-4/#:~:text=The%20right%20of%20the%20people,and%20the%20persons%20or%20things

Brief summary: The fourth amendment in the United States Constitution, gives every individual the right to privacy.

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#8 Original Sources of Law at Federal or State Level

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#8 Original Sources of Law at Federal or State Level

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Law: 1966 Supreme Court Jaffee v. Redmond

Reference List Citation for the Original Law: Jaffee v. Redmond, 518 U.S. 1, (1966).

Source of Law: Judicial Law

URL: https://www.apa.org/about/offices/ogc/amicus/jaffee Explanation p. 6:https://www.researchgate.net/profile/H-Glosoff/publication/234700799_Privacy_and_Confidentiality_in_School_Counseling/links/0f31753c545050206f000000/Privacy-and-Confidentiality-in-School-Counseling.pdf

Brief summary: In the Supreme Court Case: Jaffee v. Redmond, the courts determined that conversation that happened in confidence between the defendant and their psychotherapist was protected, which resulted in the therapist not having to testify against their patient. Districts have used this ruling to help determine limitations of confidentiality in the school counselor student relationship.

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518 U.S. 1
Brief Filed: 1/96
Court: Supreme Court of the United States
Year of Decision: 1996

Read the full-text amicus brief (PDF, 1MB)

Issue

Whether a psychotherapist-patient privilege was recognized under Rule 501 of the Federal Rules of Evidence. The U.S. Supreme Court granted certiorari to review a decision of the Seventh Circuit that recognized the existence of a psychotherapist-patient privilege and held that confidential communications of a police officer with a licensed social worker were protected from compelled disclosure

Index Topic

Confidentiality/Psychotherapist-Patient Privilege

Facts

The defendant police officer shot and killed an individual to prevent the stabbing of another person. The decedent's family brought suit against the officer alleging constitutional violations and seeking damages for wrongful death. After the shooting, the officer sought counseling from a licensed clinical social worker. Plaintiffs sought to obtain information regarding the contents of the counseling sessions. The defendant refused, citing psychotherapist-patient privilege. The trial court found that the Federal Rules of Evidence did not provide for a psychotherapist-patient privilege. When the defendant continued to refuse to comply, the trial court instructed the jury that it could draw an adverse inference from this refusal and could presume that the contents of these communications would be unfavorable to the defendant. The jury awarded the plaintiffs $545,000 in damages. The Seventh Circuit reversed, finding that the Federal Rules of Evidence did, indirectly, recognize a psychotherapist-patient privilege because all fifty states recognized some sort of psychotherapist-patient privilege. The court reasoned that recognition of the privilege would serve to encourage troubled individuals as well as those who witness, participate in, and are intimately affected by acts of violence in today's stressful, crime ridden environment, to seek the necessary professional counseling and to assist mental health professionals to succeed in their endeavors. The plaintiffs sought review in the U.S. Supreme Court.

APA's Position

APA submitted an amicus brief arguing that: (1) Federal Rule of Evidence 501 authorizes the federal courts to recognize a psychotherapist-patient privilege; (2) common law principles, applied in the light of reason and experience, strongly support recognition of a psychotherapist-patient privilege in that (a) psychotherapeutic clients have a strong expectation of confidentiality, (b) confidentiality is essential to the success of psychotherapy, (c) society has a strong interest in fostering the psychotherapeutic relationship and in protecting client privacy, and (d) the benefits of the psychotherapist-patient privilege outweigh its costs; and (3) applying the psychotherapist-patient privilege using a case-by-case balancing approach would substantially undermine the value of the privilege.

Results

The U.S. Supreme Court affirmed the Seventh Circuit decision. The Court decision supported the arguments presented in the APA brief.

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At issue was psychotherapist-patient privilege and whether confidential communications of a police officer with a licensed social worker were protected from compelled disclosure.

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#9 Original Sources of Law at Federal or State Level

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#9 Original Sources of Law at Federal or State Level

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Law: Texas Administrative Code

Reference List Citation for the Original Law: Privacy and Confidentiality, 22. Tex. Admin. Code. § 465.12

Source of Law: Administrative Law

URL if possible to the law: 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=22&pt=21&ch=465&rl=12

Brief summary: Section 465.12 of the Texas Administrative Code, indicates that the school counselor must provide students and their families explicit information and limitations on confidentiality and privacy.

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(a) Licensees utilize business practices and provide services in a manner that safeguards the privacy and confidentiality of patients and clients. (b) Licensees must inform their patients or clients about confidentiality and foreseeable limitations on confidentiality created by existing and reasonably foreseeable circumstances prior to the commencement of services as part of the informed consent process. (c) Licensees keep patients and clients informed of all changes in circumstances affecting confidentiality as they arise. (d) Licensees comply with Chapter 611 of the Texas Health and Safety Code and all other state and federal law applicable to patient or client confidentiality. (e) Licensees disclose confidential information without the consent of a patient or client only in compliance with applicable state and federal law. (f) Licensees who release confidential records relating to a patient or client that also contain confidential information relating to a second patient or client that the licensee obtained through the provision of services to that second individual, and who lack consent or other legal authority to disclose the second individual's identity or records, must remove all identifying and confidential information relating to the second individual before releasing the records. (g) Licensees may share information for consultation purposes without a consent only to the extent necessary to achieve the purposes of the consultation. Licenses shall exclude information that could lead to the identification of the patient or client. (h) Licensees shall not require a patient or client to waive a legal right to confidentiality as a condition of providing services. (i) Licensees include in written and oral reports and consultations, only information germane to the purpose for which the communication is made.

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(a) Licensees utilize business practices and provide services in a manner that safeguards the privacy and confidentiality of patients and clients. (b) Licensees must inform their patients or clients about confidentiality and foreseeable limitations on confidentiality created by existing and reasonably foreseeable circumstances prior to the commencement of services as part of the informed consent process.

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#10 Policy or Rule from a School or Institution - Administrative Law

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#10 Policy or Rule from a School or Institution - Administrative Law

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School/Org Policy: San Angelo Independent School District Student Records Policy FL

Reference List Citation for the Original Law: San Angelo ISD. (2022). Employee Handbook. https://resources.finalsite.net/images/v1662061721/saisdorg/fnuh4ywnz3kj4bhpnnkp/EmployeeHandbook2022-2023.pdf

Source of Law: Administrative Law

Link to the policy if possible: https://resources.finalsite.net/images/v1662061721/saisdorg/fnuh4ywnz3kj4bhpnnkp/EmployeeHandbook2022-2023.pdf

Brief summary: San Angelo Independent School District has a Student Records Policy within their employee handbook that ensures a students educational records are kept confidential with only a limited number of people given access. Additionally, this list of people considers family dynamics and other educators that are on a need to know basis.

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Section A.2 of the American School Counselor Association Ethical Standards discuss confidentiality. This section explains the limitations of confidentiality, receiving informed consent, mandated reporting, advocating and keep confidentiality virtually.

American School Counselor Association. (2016). ASCA Ethical Standards for School Counselors. https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

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This conference proceeding discusses ethical dilemmas a school counselor might face when discussing student needs with other school staff. It can be difficult to inform teachers of student needs, without divulging too much and breaking confidentiality. This paper provides the reader with recommendations and steps to take to ensure no issues or dilemmas arrise.

Iyer & Baxter-MacGregor. (2010). Ethical dilemmas for the school counselor: Balancing student confidentiality and parents’ right to know. NERA Conference Proceedings 2010. Paper 15. https://opencommons.uconn.edu/nera_2010/15/?utm_source=digitalcommons.uconn.edu%2Fnera_2010%2F15&utm

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Document Type

Conference Proceeding

Abstract

Professional School Counselors have a variety of roles and responsibilities to students, teachers, parents, and administrators. School counselors collaborate with both the students and other stakeholders - in this case, usually parents and teachers. Consultation and collaboration with stakeholders can be carried out through team meetings or child study teams, with all relevant parties present. Such gatherings, while beneficial to everyone involved, can potentially bring about ethical dilemmas for school counselors. This article examines the function of child study teams, the counselor's role as consultant within the team, and what ethical issues might arise in this role. Recommendations for avoiding and resolving such potential dilemmas are provided.

Recommended Citation

Iyer, Nithya N. and Baxter-MacGregor, Julia, "Ethical Dilemmas for the School Counselor: Balancing Student Confidentiality and Parents' Right to Know" (2010). NERA Conference Proceedings 2010. 15.
https://opencommons.uconn.edu/nera_2010/15

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Ethical Dilemmas for the School Counselor: Balancing Student Confidentiality and Parents' Right to Know

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Professional School Counselors have a variety of roles and responsibilities to students, teachers, parents, and administrators. School counselors collaborate with both the students and other stakeholders - in this case, usually parents and teachers. Consultation and collaboration with stakeholders can be carried out through team meetings or child study teams, with all relevant parties present.

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#13 Bulleted list of Recommendations / Best Practices for Compliance

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#13 Bulleted list of Recommendations / Best Practices for Compliance

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Throughout my research, I learned about several laws that protects student confidentiality. These laws are at the federal, state, and local level. While students do have a right to confidentiality, it is important that school counselors understand informed consent and any laws in regards to the student being a minor, and what information should be made privy to their parents. Below I have provided some recommendations to ensure schools and their school counselors remain in compliance.

At the beginning of the school year, create a permission slip that parents sign to provide consent that will allow their child to participate in activities the school counselor provides. Parents should be made aware of student confidentiality at this time.

Host a staff meeting to discuss and inform teachers and school staff of the importance of confidentiality, refraining from discussing student information with colleagues that are not on a need to know basis, and how to refer students to the school counselor.

If you must discuss a student with another staff member via email, use the students initials only and take time to schedule a private meeting with the other staff member.

Take time to familiarize yourself with laws regarding confidentiality and reviewing ethical standards set forth by the American School Counselor Association and your district every year, as things can change.

When a student visits with a school counselor, information shared should not be added to their educational records. However, it is important to keep a log of when students visit, and for how long. In this log, you may choose to take notes on conversations discussed so that you can review them prior to meeting with the student again. This log should only be viewed by the school counselor and locked away when not in use.

While it is very important to verbally inform students of what cannot remain confidential, a written reminder in your office, easily viewed by the student is recommended.