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Confidentiality and Informed Consent in School Counseling by E. Kathleen Burnett for EDG 6305 Legal and Ethical Principles

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Confidentiality and Informed Consent in School Counseling by E. Kathleen Burnett for EDG 6305 Legal and Ethical Principles

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TOPIC AND AUDIENCE

An appropriate audience for the topic of confidentiality and its limitations in school counseling is students and parents, in addition to all stakeholders, such as teachers, principals, and other administrators.

PROFESSIONAL PERSPECTIVE

I chose confidentiality and the issue of informed consent because it forms the basis of a counseling relationship. As a teacher for ten years, I know how important it is to form connections with students and gain their trust. I can only imagine the personal and ethical struggle created when breaching privileged communications becomes necessary. Students can feel betrayed and their trust destroyed. Instead of being a resource to help them, our actions, whether intentional or forced, may exacerbate mental health issues. Thus, it is important that school counselors fully understand confidentiality and informed consent, and continue to stay current with changes or updates in laws, rules, and policies regarding consent.

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STATE GOVERNING AGENCY

The state governing agency for confidentiality issues is the State Board of Educator Certification (SBEC) which is a division of the Texas Education Agency (TEA) (2017). It is responsible for handling disciplinary hearings for educators, of which school counselors are included (Texas Education Agency, 2017). Compliance hearings are addressed in Chapter 249 of the Texas Administrative Code (Texas Education Agency, 2017).

FEDERAL GOVERNING AGENCY

The federal governing agency is the U.S. Department of Education. It is responsible for violations of the Family Educational Rights and Privacy Act [FERPA] (1974). The Student Privacy Policy Office (SPPO) is the division that conducts proceedings for violations of FERPA (FERPA 34 CFR PART 99, n.d.).

KNOWLEDGE GAINED

The layers of laws, rules, and policies can be confusing because, while one may set the standard, another sets the consequences for violations. Many school district websites attempt to simply the issue of governing laws and rules by incorporating them as part of their employee handbook. For example, Brownwood ISD adopts the Texas Educator Code of Conduct and states that violations may result in termination (Brownwood ISD, 2024, p. 36). School counselors follow all laws, rules, and policies for educators, as well as special ones for school counselors. Violations can be as severe as losing school funds, a civil lawsuit, or revocation of one's licensure (or in the case of a school counselor, a certificate) (22 Tex. Admin. Code § 681.203, 2020).

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STATE LAWS

The Texas Education Code and the Texas Family Code both address consent and confidentiality. The Texas Education Code requires school counselors to maintain confidentiality of mental health records but does give parents access to counseling records (§ 26.004, 2017). The link is as follows: https://statutes.capitol.texas.gov/docs/ed/htm/ed.26.htm

A parent is entitled to access to all written records of a school district concerning the parent's child

Including counseling records

However, The Texas Health and Safety Code allows the school counselor to prohibit access if they believe it will result in harm to the student (§ 611.0045, 2001). The links is as follows: https://statutes.capitol.texas.gov/Docs/HS/htm/HS.611.htm

The professional may deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient's physical, mental, or emotional health.

The Texas Family Code also explains consent to counseling in certain situations for minors (§ 32.004, 1995). The link is as follows: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.32.htm

A child may consent to counseling for suicide prevention or sexual or physical abuse

Finally, the Texas Family Code also addresses the confidentiality of communications between a victim and their advocate (§ 93.002, 2017). The link is as follows:https://statutes.capitol.texas.gov/Docs/FA/htm/FA.93.htm#:~:text=September%201%2C%202017.-,Sec.,communication%20described%20by%20Section%2093.002

A written or oral communication between an advocate and a victim made in the course of advising, advocating for, counseling, or assisting the victim is confidential and may not be disclosed

While several statutes address confidentiality and its limits, the American School Counselor Association (2022) explicitly addresses informed consent with student-clients (A.2).

FEDERAL LAW

The Family Educational Rights and Privacy Act [FERPA] (1974) applies to student privacy and impacts confidentiality issues. The link is as follows: https://studentprivacy.ed.gov/ferpa

FERPA affects school counselors because they must keep student records confidential, releasing information only with explicit permission (20 U.S.C. § 1232g). If schools violate FERPA, the Department of Education has the power to withdraw funds provided to schools (20 U.S.C. § 1232g(b)(1)–(2), 2012).

Parents can inspect records

Disclosure of information prohibited without written permission

Counseling records are kept confidential and accessed by school personnel only if there is a legitimate interest in accessing them (Stone, 2013).

Loss of funding for violations

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STATUTE

The Texas Health and Safety Code outlines confidentiality and addresses the issue of fully informing clients about its limits (§ 611.001-004, 2021).

Sec. 611.002. CONFIDENTIALITY OF INFORMATION AND PROHIBITION AGAINST DISCLOSURE.

(a) Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.

(b) Confidential communications or records may not be disclosed except as provided by Section 611.004, 611.0041, or 611.0045.

(b-1) No exception to the privilege of confidentiality under Section 611.004 may be construed to create an independent duty or requirement to disclose the confidential information to which the exception applies.

(c) This section applies regardless of when the patient received services from a professional.

The link for the above law is as follows: https://statutes.capitol.texas.gov/Docs/HS/htm/HS.611.htm

ADMINISTRATIVE LAW

The Texas Administrative Code has addressed the need for professional counselors to maintain and explain confidentiality in sections 465.12 (2020) and 239.15 (2017).

Section 465.12 - Privacy and Confidentiality

(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.

The link for the above law is as follows: 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#:~:text=(a)%20Licensees%20utilize%20business%20practices,applicable%20state%20and%20federal%20law.

Section 239.15 - Standards Required for the School Counselor Certificate

(f) Standard V. Learner-Centered Communications: The certified school counselor, an advocate for all students and the school, demonstrates effective professional and interpersonal communication skills. The certified school counselor must:

(11) adhere to best practices connected to ethical and legal considerations around appropriate use of technology and email, documentation, record keeping, privileged communication, and informed consent process; and...

The link for the above law is as follows: 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=19&pt=7&ch=239&rl=15

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SIGNIFICANT CASE

Eisel v. Board of Education (1991) is a significant case that addressed breaching confidentiality. The results of the case illuminate the reality of the concept of limited confidentiality. The case involved a 13-year-old who died by suicide (Eisel v. Bd. of Educ. of Montgomery County, 1991). The student's father sued the school district because the father claimed that the school counselors knew of the threat of suicide and failed to tell the father (Eisel v. Bd. of Educ. of Montgomery County, 1991). Thus, breaking privilege is crucial in certain situations. The link to the law is as follows: https://casetext.com/case/eisel-v-board-of-education.

The Maryland Appellate court held that school the counselor should have warned a suicidal student's parents after she made threats to end her life to her classmates.

The Court held that they violated their school policy regarding suicide prevention

The standard is "reasonable means" to prevent suicide

Limited legal protection to the school

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LOCAL SCHOOL DISTRICT POLICY

Brownwood ISD addresses confidentiality in their district's Employee Handbook. The handbook states that employees are expected to “[m]aintain confidentiality in all matters relating to students and coworkers” (2024, p. 36). The handbook also references the Texas Educator’s Code of Conduct which includes Standard 3.1 which prohibits the educator from revealing confidential information concerning students “unless disclosure serves lawful professional purposes or is required by law” (2024, p. 39).

The link to BISD's Employee Handbook is as follows: https://resources.finalsite.net/images/v1723575710/brownwoodisdorg/zpdrfbiugrn76wrbxry1/2024-2025BISDEmployeeHandbookAugust2024.pdf

Employee Conduct and Welfare Standards of Conduct

Policy DH

• Recognize and respect the rights of students, parents, other employees, and members

of the community.

• Maintain confidentiality in all matters relating to students and coworkers

Electronic Communications between Employees, Students,

and Parents

Policy DH

The employee continues to be subject to applicable state and federal laws, local policies, administrative regulations, and the Texas Educators’ Code of Ethics including:

Compliance with the Public Information Act and the Family Educational Rights and Privacy Act (FERPA), including retention and confidentiality of student

records.

Texas Educator's Code of Conduct

3. Ethical Conduct toward Students

Standard 3.1 The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law

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OVERARCHING FEDERAL REGULATION

The overarching federal regulation dealing with student privacy and confidentiality is Part 99 of the Code of Federal Regulations which corresponds with the Family Educational Rights and Privacy Act. The provisions of the code explain privacy and student and parent rights (34 Code Fed. Reg. Part 99, 2024).

The link is as follows: https://www.ecfr.gov/current/title-34/subtitle-A/part-99?toc=1

Applicable provisions are as follows:

§ 99.5 What are the rights of students?

(a)

(2) Nothing in this section prevents an educational agency or institution from disclosing education records, or personally identifiable information from education records, to a parent without the prior written consent of an eligible student if the disclosure meets the conditions in § 99.31(a)(8),(a)(10), § 99.31(a)(15), or any other provision in § 99.31(a).

Schools can disclose a student's educational records to their parent without the student's consent if the disclosure falls under specific conditions outlined in other parts of the law

There are specific situations where parental access to student records is allowed

EXCEPTION

However, a school counselor's notes, which are kept in the sole possession of the maker and used only as a personal memory aid, are not accessible to any other person except a temporary substitute for the maker of the record. This exempts a school counselor's private notes from being accessible to a parent (20 U.S.C. 1232g(b)(3), (b)(5)).

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RISK MANAGEMENT STRATEGIES

The American School Counselor Association (2022) lists requirements for informed consent, such as being developmentally appropriate (A.2 (e)). Stone (2014) explains the intricacies of gaining informed consent by stating that it "is not a static ritual but a culturally and developmentally appropriate process" that "enables [students] to rationally appreciate the facts, breadth and consequences of entering into the counseling agreement" (para. 4).

Risk management steps are necessary to ensure that the informed consent is understood by the student-client. It has to be age-appropriate, cognitive development-appropriate, and culturally appropriate.

STRATEGIES:

Create a script and written handout explaining informed consent that is age-appropriate for each grade level

Give examples or scenarios of when it is necessary to reveal privileged communications

Give reminders during sessions

Stop periodically to assess understanding of the limits of confidentiality

Explain in an age-appropriate way why it might be necessary to breach confidential communications

Invite questions about the limits of confidentiality

Ask the student to repeat back to you in their own words what limited confidential communications means

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ETHICAL PRINCIPLES

An ethical dilemma regarding confidentiality and explaining the limits of confidentiality arises with students having limited cognitive ability. The American School Counselor Association's Ethical Standards (2022) requires school counselors to consider that a student's understanding of consent requires "competence, voluntariness, and knowledge on students’ part" which means it may be difficult

to obtain it from students with special needs" (A.2 (c)). The counselor must take precautions to ensure the student can understand limits to confidentiality.

The link is as follows: https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

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PERSONAL CONNECTION TO ETHICAL AND LEGAL PRINCIPLES

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PERSONAL CONNECTION TO ETHICAL AND LEGAL PRINCIPLES

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PERSONAL CONNECTION

Confidentiality in the school setting is a complex issue because of the intertwining stakeholders. Teachers often complain that they are not given full information about students they interact with daily. In an article by school counselor and therapist Phyllis Fagell for the KAPPAN continuing education site, Fagell shared a question from a teacher who expressed frustration because students with behavioral issues are placed in classrooms without the counselor giving any background information (2018). As a teacher, I have been in the situation of wanting to know why a student has behavioral issues, excessive absences, sleeps in class, or often asks to go to the nurse. I have felt the frustration of being told that they are having a hard time and to give them grace. It was not until I started the school counseling program that I began to understand the ethical obligations of school counselors.

PERSONAL EXPERIENCE

I have also been on the other side of a confidentiality issue when I felt that a school counselor breached my confidential communication. While teaching at a North Texas school, I told the school counselor that a student scared me because he seemed irritated, angry, and often glared at me. I was shocked when the counselor informed me that she brought the student in and told him what I said. She explained that the student had nothing against me, and that was just his normal demeanor. While our connection was tenuous to begin with, the student and I never had the same relationship after that. The counselor should never have told him what I said. She breached my confidentiality and I never felt the same way about her; I no longer trusted her.

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Recommendations for Best Practices Concerning Confidentiality and the Limitations of Confidentiality

Strictly adhere to the American School Counselor Association’s Ethical Standards (2022) with regard to confidentiality and informed consent, paying particular attention to A.2, subsections (b)-(d)

Ensure that explanations of the limits of confidentiality are tailored to the student’s cognitive ability and age by using a variety of methods to explain

Be mindful of cultural and language barriers when explaining confidentiality its limits

Become familiar with the protections of FERPA

Be cautious when taking notes about student sessions in the course of counseling as they may be discoverable by a parent or guardian. Notes that are used for a memory aid only are not considered records for disclosure under FERPA (20 U.S.C. 1232g(b)(3), (b)(5)).

Be vigilant in safeguarding student information, particularly with electronic communications

Be familiar with the consequences of breaching confidentiality without a legitimate reason to do so

Establish an ethical decision making model per ASCA (2022) for resolving ethical dilemmas

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American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01-3a5d657c6743/Ethical-Standards.pdf

Brownwood ISD. (2024). Brownwood ISD 2024-2025 employee handbook. Brownwood ISD. https://resources.finalsite.net/images/v1723575710/brownwoodisdorg/zpdrfbiugrn76wrbxry1/2024-2025BISDEmployeeHandbookAugust2024.pdf

Eisel v. Board of Education, 324 Md. 376, 597 A.2d 447 (Md. 1991)

Eisel v. Bd. of Educ. of Montgomery County, 597 A.2d 447, 452–53 (Md.1991).

Fagell, P.L. (2018). Teacher is upset with counselor for withholding information - Career confidential. KAPPAN. https://kappanonline.org/fagell-teacher-counselor-withholding-information-troubled-student/

Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (1974); 34 Code Fed. Reg. Part 99 (2024)

FERPA 34 CFR PART 99—Family and educational rights and privacy. (n.d.) Protecting Student Privacy U.S. Department of Education.

https://studentprivacy.ed.gov/ferpa

5 Tex. Gov’t Code § 552.114 (2015)

National guidelines for behavioral health crisis care best practice toolkit-SAMSA substance abuse and mental health service administration. (2020). SAMSA. https://www.samhsa.gov/sites/default/files/national-guidelines-for-behavioral-health-crisis-care-02242020.pdf#:~:text=The%20Substance%20Abuse%20and%20Mental%20Health%20Services,abuse%20and%20mental%20illness%20on%20America's%20communities.

19 Tex. Admin. Code 239 (2017)

19 Tex. Admin. Code § 247 ( 2018)

19 Tex. Admin. Code § 249 (2019)

7 Tex. Health & Safety Code § 611.001-004 (2021)

7 Tex. Health & Safety Code § 611.0045 (2001)

Stone, C. (2014). Informed consent: Is it attainable with students in schools? American School Counselor Association.

https://www.schoolcounselor.org/Magazines/September-October-2014/Informed-Consent-Is-it-Attainable-With-Students-in

Stone, C. (2013). FERPA: The ever-changing federal statute. American School Counselor Association. https://www.schoolcounselor.org/Magazines/July-August-2013/FERPA-The-Ever-Changing-Federal-Statute#:~:text=FERPA%20helps%20you%20advocate%20for,they%20have%20legitimate%20educational%20interests.%E2%80%9D

Texas Education Agency. (2017). Disciplinary policy and mission statement - State Board for Educator Certification.

https://tea.texas.gov/texas-educators/investigations/disciplinary-rules-and-guidelines

22 Tex. Admin. Code § 465.12 (2020)

22 Tex. Admin. Code § 681.203 (2020)

2 Tex. Educ. Code § 26.004 (2017)

2 Tex. Family Code § 32.004 (1995)

2 Tex. Family Code § 93.002 (2017)