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Professional Perspective

School counselors are required to safeguard information communicated with students and at times must disclose information discussed to parents and other stakeholders such as school officials. The ethical issue in confidentiality resides in the breaching of confidential information when legally required to or instructed to by the school administration, ultimately risking the trust built with the student and potentially violating confidentiality rights. Breaking such trust can prevent students from engaging in honest communication, thus preventing the school counselor from efficiently helping the student (The School, 2018).

Therefore, the topic of this guide is confidentiality with the primary audience being school teachers, administrators, counselors, students, and parents. This set of audience members is typically involved in situations that require the disclosure or breaching of confidentiality. Therefore, it is important for the stakeholders to understand the limits of confidentiality.

This topic was chosen due to the frequent exposure of instances that involve the protection and disclosure of confidentiality information as a school counselor. Consequently, counselors encounter instances where maintaining legal standards creates or leads to ethical issues when keeping confidentiality. When counseling students that involve counseling services, parents are interested in knowing the information and communication exchanged between the counselor and their child.

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The State Board for Educator Certification (SBEC) is responsible for overseeing the “preparation, certification, and standards of conduct of public school educators”, including school counselors (SBEC,2023). The Texas Education Agency, which oversees public schools in Texas, provides the guide known as the Texas Model for Comprehensive School Counseling Program to ensure school counseling programs fulfill Texas Education Code requirements and properly meet the academic, social, and emotional needs of students (School Counseling, 2023).

• SBEC governs both confidentiality and holds accountable any instances of dual relationships.

• First allowed local district officials to evaluate school counselors' performance and conduct (Texas school, 2009).

• School counselors must abide by legal and ethical practices as mandated by the Code of Ethics and Standard Practices for Texas Educators.

The Texas Education Agency, which oversees public schools in Texas, provides the guide known as the Texas Model for Comprehensive School Counseling Program to ensure school counseling programs fulfill Texas Education Code requirements and properly meet the academic, social, and emotional needs of students (School Counseling, 2023).

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Slide #3: Federal and State Constitutional Laws

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Slide #3: Federal and State Constitutional Laws

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Confidentiality

U.S Constitutional Law:(U.S. Const. amend. XIV)

-no state or law can abridge the privileges of a citizen

-Link: Click Here

Impact: Amendment XIV to the U.S. Constitution broadly ensures all citizens have the right to the privacy of their information, specifically through the Family Educational Rights and Privacy Act (FERPA) for students.

Consequence: Violating FERPA can result in the school losing funds and the educator being fined up to 500 dollars for each violation (Muscad, 2022).

Texas Constitutional Law: (Tex. Const. art. 1, § 19)

- No Texas Citizen can be deprived of liberty, privileges, life, property, or immunities unless by due course of the law of the land.

-Link: Click Here

Impact: Article 1, Section 19, of the Texas Constitution impacts school counseling as school counselors must not deprive students of privileges and property such as confidential information regarding the student, unless required by law.

Consequence: SBEC is responsible for disciplinary action against educators who violate the Educator Code of Ethics Standard 3.1 as per 19 Tex. Admin. Code §249.15. Breaking the confidentiality of a student can result in disciplinary action from SBEC for the educator and the State for the school district or campus.

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Slide #4: Statue and Administrative Laws

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Slide #4: Statue and Administrative Laws

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Confidentiality

Federal Statute Family Educational Rights and Privacy Act

(20 U.S.C. § 1232g; 34 CFR Part 99)

Link: Click Here

Texas Statute

(7 Tex. Health and Safety Code §611.02)

Link: Click here

Impact:

● Sets forth privacy of education records for students and parents; allows school counselors to withhold student records from parents as long as school counselors have sole possession of the files.

● Allows for transfer of rights from parents to student upon turning 18

● Communications between student and school counselor are to be kept confidential

Federal Administrative Law

(5 U.S. Code § 552a)

Link: Click here

Texas Administrative Law

(19 Tex. Admin. Code §247.2)

Link: Click Here

Impact:

● Requires that the information of an individual be used fairly

● Prevents information from being released to public without prior consent

● Educators can not reveal a student’s confidential information unless required by law

Consequences:

● Withdrawal of Federal funds from School that violated FERPA confidentiality

● SBEC disciplinary action against educator

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Eisel v. Board of Education

ruled that school counselors have a duty to make reasonable attempts to prevent suicide and must contact parents regarding suicidal comments of their child (1991).

Link: Click here

Confidentiality

Eisel v. Board of Education (1991) impacts the confidentiality of school counseling as not all information can stay confidential. School counselors must state limits of confidentiality to students and understand such limits themselves.

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Disciplinary Action by State Board for Educator Certification or 19 Tex. Admin. Code §249.15, lays the consequences for the breach of confidentiality. The presence of this regulation ensures that educators maintain confidentiality but also break it as required by law.

Link: Click here

Consequences regarding this regulation include the following (9 Tex. Admin. Code §249.15):

● restrict issuance or renewal of a certificate

● inscribed or non-inscribed reprimand

● suspension or revoking of certificate

● impose any conditions or restrictions to the certificate of the educator at fault that the SBEC believes is necessary

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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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Local Policy: Reporting Child Abuse and Neglect

This policy allows educators to use reasonable cause to report potential abuse or neglect and are required to write a written report within 48 hours ( Student Welfare, 2021).

ensures students who are being abused or neglected are immediately removed from harm

impacts confidentiality as confidentiality between counselor and student must be broken.

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Policy Code FFG - Student Welfare: Child Abuse and Neglect - Eagle Pass ISD Board Policy Manual - Policy Online

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Slide #8: Three Risk Management Strategies

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Slide #8: Three Risk Management Strategies

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School counselors are obligated to maintain confidentiality with students as it is a form of privileged communication (The School, 2018). However, confidentiality is required to be broken by the school counselor if required by law for the safety of the child. Therefore, potential legal liabilities occur when a school counselor does not break confidentiality when ordered by law or does not maintain confidentiality due to carelessness in managing privileged communication.

Risk Management Steps can include:

1. Any information or notes written must be kept in secure storage

2. If a student's safety or life is in danger, understand that confidentiality will need to be broken when ordered by law

3. Always disclose confidentiality exceptions to students before beginning counseling session

4. Write down contact information, events, and dates, in which school administration orders you to break confidentiality

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Slide #9: Ethical Principle: Educator Code of Ethics

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Slide #9: Ethical Principle: Educator Code of Ethics

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The Code of Ethics and Standard Practices for Texas Educators outlines all standards which educators must fulfill and follow such as ensuring to “comply with state regulations, written local school board policies, and other state and federal laws” (19 Tex. Admin. Code §247.2 ).

Link: Click here

Confidentiality

19 Tex. Admin. Code §247.2- Educators can only reveal confidential information of students if disclosure serves a lawful purpose or is required by law

Ensures that information concerning the safety of a student is always accessible, especially if it can save their life.

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Code of Ethics and Standard Practices for Texas Educators, 19 Tex. Admin. Code §247.2

Disciplinary Action by State Board for Educator Certification, 19 Tex. Admin. Code §249.15

Eisel v. Board of Education, 324 Md. 376, 597 A.2d 447 (Md. 1991).https://casetext.com/case/eisel-v-board-of-education

Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 CFR Part 99

Student Welfare: Child Abuse and Neglect. (2021) Eagle Pass ISD Board Policy Manual. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=854&code=FFG#localTabContent

Mental Health Records, 7 Tex. Health and Safety Code § 611.02

Muscad, O. (2023). The ultimate guide to FERPA: Everything you need to know about school privacy laws.DATAMYTE. https://datamyte.com/blog/guide-to-ferpa/#:~:text=Schools%20that%20fail%20to%20comply,%24500%20for%

20each%20FERPA%20violation.

Records maintained on individuals. 5 U.S. Code § 552a

SBEC principles. (2023). Texas Education Agency. https://tea.texas.gov/about-tea/leadership/state-board-for-educator-certification/sbec
-principles

School Counseling. (2023). Texas Education Agency. https://tea.texas.gov/academics/college-career-and-military-prep/school-counseling

Tex. Const. art. 1, § 3

Texas school counselors aim for own evaluations. (2009). Counseling Today, 52(1), 47.

The school counselor and confidentiality. (2018). ASCA School Counselor. https://www.schoolcounselor.org/Standards-Positions/Position-
Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality

U.S. Const. amend. XIV

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Slide #10: Connection to the Legal and Ethical Issue

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Slide #10: Connection to the Legal and Ethical Issue

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Learning about the legal and ethical principles and laws regarding school counseling, helped me better differentiate between the teacher and school counseling role in education. Being able to apply the context of the law to specific school counseling scenarios, such as confidentiality, allowed me to better understand laws and regulations. Additionally, the exposure to laws at the federal and state levels allowed me to better differentiate between them, increasing my skills in identifying them. my emotions regarding the laws are as follows:

My increase in confidence when interpreting federal and state laws regarding school counseling issues will ultimately help me in making the best decisions when faced with legal and ethical dilemmas.

Understanding these connections the school counseling role and responsibilities have with the law will allow me to fulfill my duties and responsibilities with the greatest care and regard for the law possible.

Having learned about some of the multitude of laws that apply to my teaching profession and the school counseling profession, has truly motivated me to continue learning about educational law as changes ill occur in the future.

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Slide #11: Recommendations / Best Practices

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Slide #11: Recommendations / Best Practices

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1. Ensure to occasionally review the law and research the enactment of any new statutes or laws in education.

2. Confidentiality is essential for educators, therefore educators must follow and abide by all laws regarding information and should safely and securely store any confidential information.

3. When unsure about the confidentiality of a privileged communication, refer to legal and ethical guidelines provided by state and federal law.

4. Just as school counselors should understand laws of privacy and confidentiality, and ensure students understand their privacy and confidentiality rights when engaging in counseling sessions.

5. Always ensure confidential case decisions are per the law to avoid being held liable in court.

6. Establish guidelines and rules about the confidentiality of a student with the parents or guardians of the student and with the school administration.

7. Request a yearly refresher as a school counseling department to review legal and ethical principles of school counseling and to understand and interpret new upcoming laws.