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School counselors need to build trust with their students to be able to help them academically and mentally, which comes from a student understanding that the information shared with a school counselor is kept confidential. Parents do have the right to information in any educational records of their student. It is my perspective that students are informed of the limits of confidentiality during their time with the student, but also helping the student understand the reasoning for that limit and creating a plan with the student to deal with the issue.

I chose this topic because it is going to be a topic I will face during my time as a school counselor. I want to be fully informed of my rights and limitations.

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A governing agency over the ethical standards for a school counselor is the American School Counselor Association (ASCA). According to the ASCA (2022), school counselors “recognize their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of parents’/guardians’ legal and inherent rights to be the guiding voice in their children’s lives.” School counselors are required to follow the ethical standard provided by the ASCA and can be held accountable when the standards are broken.

Reference:
American School Counseling Association (2022). ASCA Ethical standards for school counselors. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Legal-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

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U.S. Constitutional Law:

U.S. Const. amend. XIV, § 2

“The Supreme Court has at times suggested that the privacy right protected by the Constitution encompasses a right to informational privacy or confidentiality” (Constitution Annotated, n.d.).

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

Texas Law:

Tex. Const. art. 1, § 19. This law states that privileges cannot be deprived, such as the right to privacy as stated in the U.S. Constitution.

The potential consequence of not adhering to these laws is a risk of court/legal actions or a loss of certification.

https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm#:~:text=Sec.-,1.,unimpaired%20to%20all%20the%20States.

Reference:
Constitution Annotated. (n.d.) Amdt 14.S1.6.3.3 informational privacy, confidentiality, and substantive due process. https://constitution.congress.gov/browse/essay/amdt14-S1-6-3-3/ALDE_00013818/

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Statue:

Federal: The Family Educational Rights and Privacy Act [FERPA], (1974) impacts the confidentiality school counselors have in their practice. This law states that parents “have the right to inspect and review the student’s education records maintained by the school” (FERPA, 1974). This includes school counseling records.
https://www.ecfr.gov/current/title-34/subtitle-A/part-99

State: The Texas Education Code (2 Tex Educ. Code §33.005) states that a school counselor implement a program that conforms to the Texas Model for Comprehensive School Counseling Program. The Texas Model (TEA, 2018), states that school counselors adhere to the ethical standards from the ASCA.
https://statutes.capitol.texas.gov/Docs/ED/htm/ED.4.htm

Not adhering to this could bring legal consequences or revocation of certification.

Administrative Law:

Federal: The Department of Education ensures privacy of confidential information through the policies of the department, such as the Freedom of Information Act. 5 U.S. Code § 552
https://www.justice.gov/oip/freedom-information-act-5-usc-552#:~:text=Except%20to%20the%20extent%20that,Register%20and%20not%20so%20published.

State: 25 Tex. Admin. Code.§448.210

It states that “providers shall protect the privacy of individuals served and shall not disclose confidential information without express written consent, except as permitted by 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=25&pt=1&ch=448&rl=210#:~:text=Texas%20Administrative%20Code&text=The%20provider%20shall%20protect%20the,except%20as%20permitted%20by%20law.

Reference:
The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g (1974).  https://www.govinfo.gov/app/details/USCODE-2011-title20/USCODE-2011-title20-chap31-subchapIII-part4-sec1232g

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The Office of the Federal Register publishes documents on behalf of Federal agencies but does not have any authority over their programs. We recommend you directly contact the agency responsible for the content in question.

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A lawsuit (Child & Parental Rights Campaign v. Clay County School District) was brought against Clay County Schools in Florida. The parents are suing the district stating that they were unaware of meetings between the school counselor and their minor child. They were not informed until the student attempted suicide on campus. The parents also stated that the school counselor failed to inform the parents of the student’s gender identity confusion.  A news report, Joe Mclean (2022), states that the school district argued there was not a specific right violated.

Reference:
McLean, J. (2022, March 3). Clay county schools asks judge to dismiss lawsuit filed in gender identity case. https://www.news4jax.com/news/local/2022/03/02/clay-county-schools-asks-judge-to-dismiss-lawsuit-filed-by-anti-lgbtq-parents-lawyer/

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GREEN COVE SPRINGS, Fla. - Attorneys for the Clay County School District responded to a lawsuit brought by the attorney for two parents, who claim a school counselor coached their elementary-aged child in a gender identity transition without their knowledge or approval.

In a 25-page motion, the district's lawyers asked the judge to dismiss the lawsuit for a litany of reasons including the non-specific nature of the complaints, the "murky" legal grounds on which they were filed and a lack of any specific rule or policy that the plaintiffs claim the district breached.

"Many of Plaintiffs' claims are disputed, refuted by the evidence, or are demonstrably untrue," the district's motion said.

News4JAX has made the editorial decision to refrain from disclosing the identities of the parents who brought the lawsuit, in order to protect the identity of their child.

The parents claim that the administration of the Clay County elementary school their child attends overstepped its authority in discussing and supporting their child's request to be referred to by a different name and gender and, in doing so, that the district violated the parents' rights to direct the education of their child.

After the child told the school counselor about two separate suicide attempts in early January, the parents were notified and later filed the lawsuit that month. The parents told News4JAX that the concept of changing one's gender identity is inconsistent with the family's catholic Christian beliefs and referred to the scenario as "a mental health problem."

In its motion to have the lawsuit dismissed, attorneys for the district argued that the case is an example of "shotgun pleading," a legal term describing a case with multiple defendants and/or multiple claims that don't point to any specific wrongdoing.

"Plaintiffs point to no policy promulgated by the School Board, nor do they allege any statement, edict, pattern, or practice of the School Board," the motion said. "Instead, they appear to rely solely on alleged statements by [an administrator]."

The district's lawyers said even if the parents' claim that the school counselor engaged in a conversation about the child's gender identity is true, it doesn't break any established rules, particularly because both parties said that the child approached the school counselor about the subject and not vice versa.

Though the parents claimed that their rights were violated when the district failed to tell them about the alleged conversations about gender identity, the district argued that they did not identify any specific right that was violated.

"There is no protected constitutional right to receive such notification that these discussions were occurring, or for Defendants to obtain consent from Plaintiffs to engage in them, presuming they even occurred, which is disputed," the district's motion said. "Plaintiffs' already high burden faces an additional hurdle, as "in [civil rights] cases asserting violations of parental liberty interests, 'we are venturing into the murky area of unenumerated constitutional rights,'" it states.

A school district employee does not have any legal obligation to reinforce a student's family's religious teachings in a public institution and therefore, the district argues that the parents' claim of a rights violation is invalid.

The district also pointed out that the target of the lawsuit, Superintendent David Broskie, is not supposed to be named in these types of cases.

"In Florida, the School Board, not the Office of the Superintendent, is the government entity with the power to contract, to sue, and be sued," the motion said.

Vernadette Broyles is the attorney representing the parents in this case, and also serves as the president and general counsel for the Child & Parental Rights Campaign, a law firm focused on anti-LGBTQ litigation.

"Clay County School District's Motion to Dismiss is the predictable response of school officials trying to avoid liability for their actions," Broyles said in an emailed statement. "We will respond as needed in court."

The Clay County School District released the following statement about the case, specifically addressing what can and cannot be disclosed publically.

"Clay County District Schools has performed a thorough and complete investigation into this matter as it was presented to us and has determined that the allegations made by this out-of-state organization are completely false, fabricated, and appear to be intended solely for the purpose of inciting the public.

The beginning of litigation, in general, is based on one side of a story and not based on all of the facts. Furthermore, there is a lot of information that we cannot publicly disclose due to the Federal Educational Rights and Privacy Act (FERPA) and therefore, the full story is not portrayed in the media. All employees of the district consistently work to ensure that the best interests of all students are served."
Laura Christmas, Clay County School District spokesperson

The lawsuit comes as the Parental Rights in Education bill, nicknamed the "Don't Say Gay" bill by critics.

The bill recently received approval from the Florida House of Representatives and is being referred to the state Senate where a similar bill is already being considered.

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Clay County Schools asks judge to dismiss lawsuit filed in gender identity case

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GREEN COVE SPRINGS, Fla. - Attorneys for the Clay County School District responded to a lawsuit brought by the attorney for two parents, who claim a school counselor coached their elementary-aged child in a gender identity transition without their knowledge or approval.

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The overarching regulation on school confidentiality the ASCA Ethics Standards that all school counselors must follow. In Texas, The Texas Education Code (2 Tex Educ Code §33.005) states that a school counselor implement a program that conforms to the Texas Model for Comprehensive School Counseling Program. In the Texas Model (TEA, 2018), it states that school counselors adhere to the ethical standards from the ASCA.

This impacts the topic of confidentiality as a school counselor and the parental rights by laying out the limits on confidentiality for students.

Reference:
Texas Education Agency. (2018). The Texas model for comprehensive school counseling programs (5th ed.). Texas Counseling Association. https://tea.texas.gov/sites/default/files/Pub_2018_Texas-Model_5th-Edition.pdf.

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Slide 7: Local Administrative Law/ Policy/ Rule

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Slide 7: Local Administrative Law/ Policy/ Rule

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San Antonio ISD (2007) states the district is not required to release student records, except for conformity with FERPA. The reason for the policy is to inform the public of their public information rights and what is not allowed to be shared. It also describes that students records will be kept confidential, unless required by law.

https://www.saisd.net/upload/page/0047/docs/GBALEGAL.pdf

Reference:
San Antonio Independent School District. (2007, October 5). Public information program access to public information. https://www.saisd.net/upload/page/0047/docs/GBALEGAL.pdf

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-If confidentiality is broken, the school counselor can be subject to ethical liability. Also, if a school counselor does not provide the parents with the education school records of their student, the school counselor can be subject to legal consequences.

-It is unethical to share information about students’ counseling sessions with others in the school. Doing so could lead to reporting to the administration and, if severe, revoked certification.

-If a school counselor refuses to provide parents with confidential information provided during a counseling session, the parents can bring legal matters against the school. To prevent this from happening, the school counselor must provide the student with the limits of confidentiality. The school counselor can make sure all records kept are factual and do not have information on others included in session notes.

https://www.researchgate.net/profile/H-Glosoff/publication/234700799_Privacy_and_Confidentiality_in_School_Counseling/links/0f31753c545050206f000000/Privacy-and-Confidentiality-in-School-Counseling.pdf

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Client confidentiality is the requirement that therapists, psychiatrists, psychologists, and most other mental health professionals protect their client's privacy by not revealing the contents of therapy.

WHAT IS CLIENT CONFIDENTIALITY?

Confidentiality includes not just the contents of therapy, but often the fact that a client is in therapy. For example, it is common that therapists will not acknowledge their clients if they run into them outside of therapy in an effort to protect client confidentiality. Other ways confidentiality is protected include:

Not leaving revealing information on voicemail or text.

Not acknowledging to outside parties that a client has an appointment.

Not discussing the contents of therapy with a third party without the explicit permission of the client.

For licensed mental health professionals, confidentiality is protected by state laws and the Health Insurance Portability and Accountability Act (HIPAA). Therapists who break confidentiality can get in trouble with state licensing boards. They can also be sued by their clients in some cases.

Some people working in mental health, such as phone crisis counselors or life coaches, are not licensed by their state. These people may not be legally required to protect client confidentiality. Yet most agree not to reveal identifying information about their clients anyway.

EXCEPTIONS TO CONFIDENTIALITY RULES

Licensed mental health professionals can break confidentiality in some circumstances. One of the most common scenarios is when a client is a threat to himself/herself or others, in which case a therapist must notify the person in danger or notify someone who can keep the client safe. In these circumstances, therapists often seek hospitalization for their clients.

It is important to note that a therapist will not automatically break confidentiality if a client reports thoughts about suicide. Typically, a client needs to state an intent to act on those thoughts and have a specific suicide plan before hospitalization is considered. An individual will not be hospitalized against their will for simply seeking help.

Most therapists are happy to go over any confidentiality concerns before starting therapy. A therapist may also be required to break client confidentiality if they believe a child or disabled person is being abused. For example, if a child has unexplained injuries and acts frightened of their parent, a therapist may have reasonable suspicion of abuse. As a mandated reporter, they have a legal duty to report their suspicions to authorities.

In rare cases, therapists can be forced to testify against their clients through a subpoena. However, it is much more difficult to force a therapist to testify than it is to force a non-licensed mental health professional. Laws governing therapists are much stricter about confidentiality.

Confidentiality for Children

Confidentiality for children is a hotly contested issue. In many jurisdictions, minors are not considered developed enough to consent to treatment, so parents are expected to consent on their behalf. Thus, minors do not have the strong confidentiality rights that most adults have in those places. However, in states like Washington, minors 13 or older do have comparable or even identical rights to seek health care (including mental health care) and to have their privacy protected as adults.

A lack of confidentiality can interfere with the therapeutic relationship. A child may be reluctant to disclose information to a therapist if they know their parents will eventually learn about it. To promote trust with the minor in therapy, many clinicians seek the permission of the clients' parents to keep therapy confidential.

Even when parents do not agree to confidentiality, therapists will not typically reveal details about their discussions in therapy. Instead, they will give information about broad treatment goals and progress. For example, a therapist may report that a child has anxiety and is being treated with cognitive behavioral therapy. However, they would not have to report that the child is stressed about getting low grades in school.

Confidentiality Forms

At the beginning of treatment, a therapist may offer a client paperwork detailing their privacy policy. This information may be part of the informed consent form, or it could be its own paper.

Most confidentiality forms start off with a small paragraph explaining how the information shared in therapy will be kept private. The form may then list scenarios when confidentiality may be broken, such as if a person declares suicidal intent.

If a therapist takes insurance, they may ask for a client's permission to share relevant information with the insurer. Typically, the information revealed is limited to the diagnosis being treated and any medications required. According to HIPAA, therapists should not reveal any more information than is necessary to ensure coverage. If an individual refuses to give permission, they may still go forward with therapy, but they will not be able to get insurance to pay for it.

Most therapists are happy to go over any confidentiality concerns before starting therapy. You can find a licensed therapist here.
References:

1. Behnke, S. H., & Warner, E. (n.d.). Confidentiality in the treatment of adolescents. American Psychological Association. Retrieved from http://www.apa.org/monitor/mar02/confidentiality.aspx

2. Confidentiality agreement template. (n.d.). Retrieved from https://psychology-info.com/confidentiality-agreement-template

3. Confidentiality. (n.d.). Retrieved from http://www.4therapy.com/therapy/about-therapy/confidentiality-1841

4. Does a parent have a right to receive a copy of psychotherapy notes about a child's mental health treatment? (2017, September 12). Retrieved from https://www.hhs.gov/hipaa/for-professionals/faq/2094/does-parent-have-right-receive-copy-psychotherapy-notes-about-childs-mental-health-treatment.html

Last Updated: 12-14-2020

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Client Confidentiality - GoodTherapy.org Therapy Blog

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Client confidentiality is the requirement that therapists, psychiatrists, psychologists, and most other mental health professionals protect their client's privacy by not revealing the contents of therapy. WHAT IS CLIENT CONFIDENTIALITY? Confidentiality includes not just the contents of therapy, but often the fact that a client is in therapy.

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The Code of Ethics for school counselors are from the American School Counselor Association (ASCA). ASCA (2022) states their standards are the ethical responsibility of all school counseling professionals. This states that all students have the right to confidentiality within legal parameters. School counselors are ethically required to inform students of their limits of confidentiality.

Reference:
American School Counseling Association (2022). ASCA Ethical standards for school counselors. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Legal-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

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As a future school counselor, most local policies for my school district will relate to state-level and federal-level policy. This means that I will need to make sure that I am aware of all levels of the policies and laws that affect my role as a school counselor. It is my responsibility to stay current on any new laws in my profession.

I feel confident in my ability to understand the laws and regulations that affect my job. Understanding these laws pave a way for me to stand up for wrongs in my profession. I will be able to identify when a stakeholder is not following policy or the law, which will allow me to speak up and get it corrected.

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Slide 11: Recommendations/Best Practices for Compliance

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Slide 11: Recommendations/Best Practices for Compliance

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- When talking with students as a school counselor, make sure to provide the student with an age-appropriate understanding of the limits of confidentiality.

-Parents have a right to the educational records of their child, which includes school counseling notes.

-School counselors can consult with other school counseling professionals or the American School Counselor Association on ethics within the profession when making decisions.

-The best practice for a school counselor and confidentiality is to always protect the private information of the student from school staff. Never speak about what the student says during a session.

-A school counselor should keep all counseling notes confidential and factual. They can be subpoenaed.

-It is best practice to get consent forms completed yearly by parents for counseling services. A school counselor should also, as a courtesy, inform the parents when the student is seeking counseling or participating in small group counseling.