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American School Counselor Association (ASCA)

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American School Counselor Association (ASCA)

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The ASCA website offers many ethical and legal resources specific to school counselors, within the headings of Legal and Ethical Articles, Ethical Tips for School Counselors, the  Position Statement on Confidentiality, ASCA Ethical Standards for School Counselors, and Legal and Ethical Frequently Asked Questions (FAQ). Counselors should adhere to ethical and legal boundaries in order to prevent liability, avoid negative consequences, and remain focused on the best interest and success of every student. For example, counselors should keep student information confidential unless the student or others face serious and foreseeable harm, is being abused, or is involved in a court case where the counselor is subpoenaed (American School Counselor Association, 2018).The ethical and legal situations counselors face are numerous, varying vastly in detail and scope. However, the general trends of confidentiality, parental rights, gender issue rights, dual relationships, biases, referrals, appropriateness of duties, and acceptance of gifts, appear throughout the website.

Focusing specifically on confidentiality, ASCA shares expert answers to scenarios that counselors experience, offering best practice guidance based on ethical standards and legal precedence. One example involves a counselor's responsibility to interpret whether an anorexic student in the middle of a volatile breakup with her boyfriend is in serious and foreseeable harm, which would allow for confidentiality breach in the best interest of the child (Stone, 2013). Concerning parental rights, the website offers counsel and guidelines designed to protect students and counselors from civil and legal battles involving custody issues. Counselors should refer to court orders before disclosing information to non-custodial parents, and should consult with other counselors, administration, and legal counsel when extra support is needed (American School Counselor Association, n.d.).

References
American School Counselor Association. (n.d.). Ethical and legal FAQ.  Retrieved from: https://www.schoolcounselor.org/school-counselors-members/legal-ethical/legal-ethical-faq
American School Counselor Association. (2018) The school counselor and confidentiality. Retrieved from:  https://www.schoolcounselor.org/asca/media/asca/PositionStatements/PS_Confidentiality.pdf
Stone, C. (2013, July 13). Serious and foreseeable harm or clear, imminent danger [Web log post]. Retrieved from: https://www.schoolcounselor.org/magazine/blogs/july-august-2011/serious-and-foreseeable-harm-or-clear,-imminent-da

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Association of Texas Professional Educators (ATPE)

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Association of Texas Professional Educators (ATPE)

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The ATPE website provides many resources, one of which is an explanation of the Educators' Code of Ethics found in the Texas Administrative Code. This code serves as a protection to all educators, including administrators and school counselors. The ATPE's guide addresses a wide variety of topics within the headings of Practices and Performance, Conduct Toward Colleagues, and Conduct Toward Students. The website discusses unethical practices such as falsifying records, accepting gifts, breaching confidentiality, inappropriate communication with students, and irresponsible use of social media.

Specifically referring to appropriate interaction with students as well as responsible social media communication, school counselors need to ensure proper relationships with students, remaining within secure boundaries designed to protect students from exploitation. Particularly important for the student/counselor relationship in which students can be vulnerable as they share personal feelings and information, counselors need to establish and maintain professional relationships. Due to their compassionate nature and desire to help students to the fullest extent possible, counselors need to exercise wisdom and caution to ensure that communication remains appropriate and limited to school hours. For example, counselors should avoid meeting with students in the evenings or early mornings, and limit communication to face-to-face meetings and emails sent through the official school email system. Counselors should also adhere to appropriate standards of social media use, both professionally and personally, being careful to avoid posting confidential, controversial or potentially defaming or confidential material (Educators' Code of Ethics, n.d.)

Reference
Educators' Code of Ethics. (n.d.). Retrieved from: https://www.atpe.org/en/Protection/Legal-Guide/Educators-Code-of-Ethics

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Login | American School Counselor Association (ASCA)

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Ethical Tips for School Counselors | American School Counselor Association (ASCA)

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The third section governs the educator's conduct toward students. It is probably no surprise that educators run afoul of the code most regularly in this area. This category is also the most strictly interpreted and enforced by SBEC. So, it is critically important that educators know the expectations set out in the nine standards.

SBEC amended this portion of the code in 2010 to add standards related to interacting with students via newer technologies.

Here, the code prohibits:

Revealing confidential information concerning students, absent a lawful purpose.

Intentionally, knowingly or recklessly treating a student or a minor in a manner that adversely affects or endangers the learning, physical health, mental health or safety of the student or minor.

Intentionally, knowingly or recklessly misrepresenting facts regarding a student.

Excluding a student from participation in a program, denying benefits to a student or granting an advantage to a student on the basis of race, color, sex, disability, national origin, religion, family status or sexual orientation.

Intentionally, knowingly or recklessly engaging in physical mistreatment, neglect or abuse of a student or minor.

Soliciting or engaging in sexual conduct or a romantic relationship with a student or minor.

Furnishing alcohol or illegal/unauthorized drugs to any person under 21 years of age, unless the educator is a parent or guardian of that child, or knowingly allowing any person under 21 years of age, unless the educator is a parent or guardian of that child, to consume alcohol or illegal/unauthorized drugs in the presence of the educator.

Again here, not all the standards are prohibitions. There are also required actions:

Maintaining appropriate professional educator-student relationships and boundaries based on a reasonably prudent educator standard.

Refraining from inappropriate communication with a student or minor, including but not limited to, electronic communications via cell phone, text messaging, email, instant messaging, blogging or other social network communication.

Factors that may be considered in assessing whether the communication is inappropriate include but are not limited to:

The nature purpose, timing and amount of the communication;

The subject matter of the communication;

Whether the communication was made openly or the educator attempted to conceal the communication;

Whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship;

Whether the communication was sexually explicit; and

Whether the communication involved discussion(s) of the physical or sexual attractiveness or the sexual history, activities, preferences, or fantasies of either the educator or student.

SBEC is sensitive to the number of cases in which educators have been found guilty of engaging in sexual or romantic relationships with students or ex-students. SBEC has reacted to the fact that these relationships are usually both secret and deniable by both educator and student by looking at conduct that infers the possibility that either an educator is engaging in a sexual relationship or a relationship is leading down that path.
Educators need to know that flirting with a student, even if there is no actual physical contact, can lead to sanctions and a loss of the educator's career because it is viewed as potentially preparing or "grooming" a student for an inappropriate relationship.

This puts pressure on educators-particularly new educators who might not be that much older than their students-to maintain an appropriate professional relationship with their students at all times. Flirting, commenting on physical appearance (especially in a suggestive way) or even paying an inordinate amount of attention to a particular student can send up red flags and force educators to defend themselves.

Social media

Texting, Facebook and new forums for communication such as SnapChat have increased opportunities for personal, private communication between educators and students. In some situations, questions arise as to whether this private communication is evidence of an inappropriate relationship between an educator and student.

When this communication becomes the focus of a TEA investigation, investigators often find themselves stymied because both teacher and student have deleted texts or messages. All that remains are records indicating the number of messages and the time they were sent.

Because the actual substance of the messages is often unavailable, SBEC has modified the rules. The subject matter of a communication remains important, but now, the board can also determine that communications were inappropriate based only on the timing or number of messages:

SBEC considers it more likely that messages sent in the evening or late at night are inappropriate.

It is also assumed that subject matter was more likely inappropriate if there are many messages as that increases the likelihood that the communications were personal rather than academic.

The bottom line: Be mindful of appearances when messaging students. It is possible that those chats are going to look suspicious to an investigator.

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The third section governs the educator's conduct toward students. It is probably no surprise that educators run afoul of the code most regularly in this area. This category is also the most strictly interpreted and enforced by SBEC. So, it is critically important that educators know the expectations set out in the nine standards.

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Counselors must maintain confidentiality in order to ensure student trust. However, legally there are times when confidentiality must be breached. When abuse is suspected or implied, if the student or others are perceived to be in serious and foreseeable harm, or if the court subpoenas the counselor, the counselor must breach confidentiality to the appropriate authorities. In those instances, the counselor should share the least amount of information required to ensure student safety. Counselors should protect themselves and their students by clearly and regularly addressing these exceptions to confidentiality (Turner, n.d.).

School counselors do not receive the immunity that clergy and licensed professional counselors experience. In determining whether a breach is necessary, the counselor should consider legal and ethical standards as well as federal, state, and district policies. Texas school counselors must follow the Texas Educators' Code of Ethics as well as American School Counselor Association (ASCA) standards. Counselors need to think about what course of action is in the best interest of the student. Each circumstance will determine what information should be shared, as well as who needs to know the information (Turner, n.d.). Counselor-specific ethical and legal standards focused on the best interest of every student can cause difficulties when student, parent, and district rights compete in certain circumstances, or when there is no clear directive for counselors to follow. Examples of such situations include a teacher demanding to know specific information about a student, or a campus principal requesting a list of all the students with whom the counselor is working. (Dansby-Giles, 2014).

Counselors must maintain relationships of trust. However, due to legal consequences for neglecting to report certain information, counselors need to remain vigilant in knowing confidentiality rules and disclosing them to those with whom they work. Difficult decisions arise from complicated scenarios involving minors' and parents' rights as well as the necessity for administrators and other educators to know certain details. Some examples of such situations include a student confiding in a counselor about off-campus drug use, pregnancy, or suspicion of having a sexually transmitted disease. Counselors must be informed of their obligations and their rights, so they can best serve their students while also protecting themselves from liability (Turner, n.d.)

References
Dansby-Giles, D. (2014).  Informed consent, confidentiality, and duty to warn with school counselors. VISTAS, 38, 1-15. Retrieved from: https://www.counseling.org/docs/default-source/vistas/article_38.pdf?sfvrsn=70a07c2c_12
Turner, H. (n.d.). Legal and ethical considerations for school counselors [PowerPoint presentation]. Retrieved from: http://www4.esc13.net/uploads/cssc/docs/Legal_and_Ethical_Considerations_for_Counselors.pdf

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Top Five Things I learned from Jo Hawk, Lead Counselor at Lake Creek High School

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Top Five Things I learned from Jo Hawk, Lead Counselor at Lake Creek High School

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1. School counselors should stay informed about legislative proceedings in order to ensure continual legal compliance. Ms. Hawk suggested belonging to at least one professional organization in order to receive important email updates. For example, she recently received an email from the Texas Education Agency (TEA) announcing the passage of Senate Bill 30 - The Community Safety Education Act. Beginning with incoming freshmen in the 2019-2020 school year, students will be required to participate in a new curriculum teaching high school students how to safely interact with police officers (Texas Education Agency, 2018). To ensure proper implementation of this legislation which affects each student's official transcript, Ms. Hawk has already commenced planning meetings with the school resource officers.
2. Bullying has become a prominent legal issue, requiring school counselors to know proper protocol to ensure student safety and avoid liability. Whenever Ms. Hawk hears of an incident involving bullying, she immediately follows district procedure by reporting the incident to the appropriate assistant principal for investigation.
3. School counselors often encounter unexpected and difficult ethical situations, which may not have a definitively correct solution. Regardless of the particular nature and scope of the issue, Ms. Hawk weighs legal statutes and ethical standards, erring on the side of caution, and trying to choose the course of action in the best interest of the student.
4. Ethically, a school counselor needs to recognize and overcome personal biases. The counselor should remove him/herself from the situation if he/she is unable to move beyond those biases. Even though Ms. Hawk is a conservative Christian with strong moral convictions, she looks past her personal beliefs to serve the best interest of each student. One issue she repeatedly experienced at a previous school involved sexual orientation and identity issues. Leaving her biases at the door, Ms. Hawk focused on successfully meeting the needs of each child who entered her office.
5. In working with students experiencing gender issues, it is important for counselors to know and comply with the current laws, communicate with the student and parents, and follow documented procedures and accommodations for each student. Ms. Hawk worked with a transgender student who wanted to be called by a different name during the graduation ceremony. To act in the best interest of the student, she familiarized herself with the most current gender protection legislation, and then communicated with the student and the parents to reach a solution acceptable to all involved parties. (J. Hawk, personal communication, October 22, 2018).

Reference
Texas Education Agency. (2018).

Implementation of Senate Bill (SB) 30, Community Safety Education Act. Retrieved from: https://tea.texas.gov/About_TEA/News_and_Multimedia/Correspondence/TAA_Letters/Implementation_of_Senate_Bill_(SB)_30,_Community_Safety_Education_Act/

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I chose the ethical and legal issue of confidentiality, and circumstances which require counselors to share information about students. As a future counselor, this topic is of great concern to me because even though maintaining a relationship of trust is paramount to students' willingness to share feelings and concerns with counselors, situations arise when the best interest of the student necessitates a breach in confidentiality to protect the child or others involved.

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After completing my Master's Degree in Guidance and Counseling this December, I hope to serve as a high school counselor next year, preferably at one of the two high schools between which I currently travel each day as the district French Teacher.

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Legal and Ethical FAQs

From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work.

Subpoenas/Case Notes

What do I do if I receive a subpoena for my testimony or case notes?
This is a common part of being a school counselor. Remember, most courts are not looking to attack educators and operate under the general thought that you are attempting to do what is best for students and families. Let your principal know, and ask for assistance to contact your district legal team to get advice on how to proceed. If possible, work with the district legal team to get the subpoena quashed. If you are not able to do this, then you are compelled to testify. When giving a testimony, provide only facts and omit any subjective information that may make room for doubt. A few states give students privileged communication, which means they can render the school counselor incapable of testifying about their communications. Check your state statutes. In most of cases, the courts are entitled to your testimony, and even in the states awarding privilege communication to minors, judges can often exercise discretion if they need the information for the safety and health of the minor.

What is best practice regarding case notes? How do I know if my personal notes meet the criteria for case notes?
Parents/guardians have a federal right to see anything you write down or record that refers to their child so, as a general rule of thumb, keep your notes in a way you would be comfortable with a parent reading. Personal notes should really be more like memory-joggers for you professionally. Anything that refers to a student, even using initials, ID numbers or personal descriptors, if specific enough, is an educational record that belongs primarily to the parent/guardian. Other student names can be omitted, but the parents/guardians have a right to see the rest. You can keep personal notes if you feel the need to be more specific, but the law has been clear that if anyone knows the notes exist they are then covered under the Family Education and Privacy Act (FERPA). According to FERPA, case notes are "sole-possession records" and not educational records if they meet specific criteria. They must: serve as a memory aid, not be accessible or shared in verbal or written form, be a private note created solely by the individual possessing it and include only observations and professional opinions.

I have taken a job in another district. What do I do with my personal case notes? What notes should I keep?
Personal notes, as in those notes only you are aware of, are kept for the purpose of supporting the student through long-term knowledge of a student's experience. If you are comfortable with your school counseling replacement, you may choose to leave the notes with the new school counselor. Case notes can always be purged except when there is knowledge that a subpoena is likely or the notes may be needed to help the courts convict a perpetrator such as in the case of child sexual abuse. Exercise judgment as to when notes need to remain and when they can be purged. If in doubt, consult.

Confidentiality

When do I share information about students with parents or families and with administrators or other school staff?
Sharing information with parents/guardians is important when a student's safety is in question. This may be sexual behaviors, self-harm, drug use or threats to self or others. Ultimately, open communication with parents/guardians is important and will help with overall programming in the school.

Notify administrators of any threats to self or others and when a human services report has been made or the police have been called. If you do not already have a protocol in place for this situation, check with a few neighboring districts for their protocols and bring them to administration for approval. Sharing information with the remainder of your team, such other school counselors, psychologists or social workers, is helpful for consultation but also provides additional eyes on students in case you are out of the building when a student needs assistance. This is particularly important regarding social/emotional interventions. Otherwise, a sharing of general information when you are concerned about a student - such as a student who has been struggling with a loss or depression -- can be helpful so teachers can notify you of changing behavior in class or with peers. Typically, just asking teachers to notify you if they see any behaviors from the student that are different from the student's normal behavior is enough.

What do I do if my administrator asks for the names of the students I see and the reasons I'm working with them?
Your administrator may be curious about who is seeing you and for what reasons. Prepare that information in a general way, using descriptors such as "academic," "career" or "social/emotional" or in another way where personal information is de-identified. If the administrator wants to know more specifics, this is a good time to process your legal and ethical pull between FERPA's "legitimate educational interest" and your ethical obligation to protect the information. If the information is relevant to building safety or school programming, it is important to share that with administration. However, remind administration the information is sensitive and that it must be kept confidential to preserve the student's dignity and rights, as well as your relationship with the students.

My central office supervisor wants me to provide copies of the action plans we create for students who express suicidal ideation. Is that breaking confidentiality?
Because of the health and safety concerns, districts have the right to require school counselors to follow policy regarding providing copies of action plans for suicidal students. The confidentiality breach comes when these plans are indiscriminately kept without regard to when they should be purged, where they should be kept and if they are necessary beyond just the district's need to ward off liability. The action plan is an educational record, but the plan should be kept outside the actual folder for certain eyes only and purged at the appropriate time.

What do I do if a student tells me she thinks she is pregnant?
It is important to know your state laws around this topic (i.e., what is the age of consent, issues around pregnancy decision-making, etc.) as well as your school board policies regarding the issue and community norms. Find out how or if the student has confirmed her pregnancy. Other issues to consider include whether the sex was consensual and the age difference of both parties. Understanding the student's relationship with her parents/guardians will provide insights for how you might advise the student to tell her parents/guardians.

What do I do if a student tells me he was inappropriately touched by an adult several years earlier or by another student more recently?
If the student tells you he was inappropriately touched, follow your school district's protocol regardless of the amount of time that has passed. You still have a duty to report. Remember that child offenders often offend many times before they are actually caught. You may be preventing future offenses. Also, remember that if the adult is anyone but a family member living in the home, you should call the police department. If the student was touched by another student, you will go through a Title IX protocol. Contact your administration and local police department to investigate; your district may have an identified Title IX officer at the district level who can assist. In the case of young children, you may need to call child protective services. A principal recently lost her job when three 5 year olds were caught simulating sex acts on each other, and the principal called the parents and not child protective services. Do not ever question if the student is being honest. It isn't a school counselor's job to investigate, only to report and support the student.

My principal and central office supervisor want to know the names of all the students I report to child protective services for possible abuse or neglect. Am I required to tell them?
School counselors are mandated reporters, and good-faith reporting is assumed when a professional reports child abuse. The term good-faith reporting refers to the assumption that the reporter, to the best of his or her knowledge, had reason to believe the child in question was being subjected to abuse or neglect. A mere suspicion of abuse is all that is necessary when reporting child abuse. The school counselor is acting legally and ethically when reporting and does not require anyone's permission to report child abuse. Following district or administration policy regarding notifying after the fact the students for whom you called in child abuse is legal and ethical.

Due to COVID concerns, students aren't allowed to come to my office for any reason. I'm only allowed to speak with students in the hallway directly outside their classroom. What do I do?
According to the ASCA Ethical Standards for School Counselors schools present competing interests, including the safety of students, parental rights and the best interest of students, but it is critical to respect students' privacy to the greatest extent possible and to adhere to laws, policies and ethical standards around confidentiality and disclosure in the school setting. Students need a safe, private space to talk, and the school must consider what the plan will be in case of a crisis, if abuse is suspected or if the student is considering harm to self or others. A student in crisis may not feel comfortable opening up when peers are nearby. If students can move around the building to see other school staff, they should be able to see the school counselor. In the past six months, many students have experienced trauma and stress related to the pandemic and racialized trauma following the death of George Floyd and the related protests. A safe, supportive and equitable learning environment requires us to provide structures for physical and emotional safety. Providing student physical and psychological safety includes ensuring specialized support personnel, including school counselors, school psychologists and school social workers, have an adequate space to meet with students confidentially while being able to be physically distant. When schools and school districts do not plan for these safety concerns, the school counselor should advocate for change. Ethical standard A.2.m states school counselors advocate for safeguards and protocols to protect student confidentiality, and A.10.b states school counselors advocate for student safety at school. School counselors can use the above points and the ASCA Ethical Standards in their advocacy efforts. The ASCA position statements The School Counselor and Confidentiality, The School Counselor and Safe Schools and Crisis Response and The School Counselor Student Mental Health may provide additional advocacy support. As a school counselor, you need to understand how to negotiate your school's political landscape. Advocacy efforts that come across as adversarial may do more harm than good. Diplomacy is an important skill to employ when advocating.

VIRTUAL: What confidentiality considerations should I keep in mind during virtual individual and group counseling?
The same limits of confidentiality apply (serious and foreseeable harm) virtually as well as in-person, and you should discuss them with students before counseling begins. To limit others overhearing you and your students, you should be in a private space and use a headset if possible. Also be sure to use a district-approved, secure platform. Be aware that you don't know who else is on the other side of the computer screen, and make sure the student understands you can only control confidentiality on your end. If a parent, sibling, family member, friend, repairman or anyone else is on their end, that person potentially can hear what the student is saying. The same goes for a group setting. You don't know who else may be in the room with other members, so encourage students to wear headphones for some privacy.

Do I need to provide notification to parents and families when a student is involved in a small group I lead?
School counselors want to build, not erode, credibility and maintain a strong working relationship with parents/guardians. This mission is forwarded when school counselors inform parents their child is to be a group member, as some parents/guardians may view small-group counseling as moving away from classroom instruction to a social/emotional focus; therefore, you should inform parents/guardians. This notification gives you a chance to explain the connection small groups have to academic success, and it gives parents/guardians a chance to opt out.

VIRTUAL: Can school counselors conduct group counseling in a virtual setting? Am I still required to get parent/guardian consent?
Under the best circumstances, legal and ethical complications are acutely present in small-group delivery. This is especially problematic in the virtual world. Confidentiality for groups in a brick-and-mortar situation is fragile because the school counselor can never feel secure that students will abide by it or understand all the nuances. Remember, anything said in the group can be tweeted, posted on social media or discussed in the hallway within seconds or minutes. School counselors must be vigilant in what they allow one student to talk about in front of their classmates. Ensuring confidentiality in a virtual world is even more difficult. You can't know who is listening in each student's household. It might be impossible for a student to seek a private place, have headphones or keep family members out of earshot. Informed consent is even more important when providing group counseling services. Many legal and ethical complications in small-group counseling settings are more pronounced in a virtual context, particularly in regard to ensuring confidentiality. Students may disclose sensitive or personal information in front of classmates or household members, and school counselors should take the perspective that confidentiality likely will be breached. As a result, you should inform parents/guardians when their child is participating in a small group. Parent/guardian notification allows you to share the group's purpose, focus and goals and inform them about the challenges of maintaining confidentiality in a virtual format. Informing parents/guardians of the benefits and limitations of group counseling provides them an opportunity to make an informed decision and opt their child out of services if they choose. It is helpful to share this information both verbally (video or phone) and in writing. While best practice is to obtain written consent from parents, it can be challenging in a virtual setting. At minimum, school counselors should obtain verbal consent and document it is received from parents/guardian before students begin attending virtual small group sessions.

VIRTUAL: Is it necessary to get parent/guardian consent for individual counseling in a virtual setting?
Challenges exist in obtaining parent/guardian consent in a brick-and-mortar school setting and are even more pronounced in a virtual context. Despite the complications of providing virtual school counseling services, it is important to adhere to the same ethical guidelines as you would in person. Some school districts have specific policies and procedures around parent/guardian consent. If your district previously required consent for school counseling services when you worked in person, you should continue to adhere to those policies in a virtual setting unless they have been softened or amended. Similarly, you must comply if your district enacted a new policy for obtaining parental permission when providing virtual school counseling services. Best practice is to inform parents/guardians when you are providing individual counseling for a student over more than one or two sessions. Currently it may be challenging to simply inform parents/guardians without adding the need for a parental signature. Nevertheless, you should make every effort to inform parents/guardians about the risks and benefits of providing individual virtual school counseling services, including limits of confidentiality in a video or electronic format. It is impossible to guarantee confidentiality in an online setting; therefore, both students and parents need to be informed of these limitations.

My school and district have an electronic management system and want me to include the names of the students I see and the reasons I am working with them. Does that break confidentiality?
It is in your best interest to maintain these records as well. And, if you keep the reasons vague enough, you are still protecting student confidentiality while also informing parents/guardians, teachers and/or administrators that the student is accessing you for support. It's also a reminder to administrators of the need for your position. The ASCA Ethical Standards for School Counselors state: Section A.2n. Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and currently acceptable algorithms to be utilized for data in transit. Avoid using software programs without the technological capabilities to protect student information based upon currently acceptable security standards and the law.

VIRTUAL: What FERPA and HIPPA guidelines should school counselors follow in virtual school counseling?
School counselors have expressed much angst regarding whether or not the platform they're being asked to use is Health Insurance Portability Accountability Act (HIPAA) compliant. HIPAA does not apply to elementary or secondary schools except in "in a few limited circumstances" (USDOE and USDHHS, 2019, p. 8). Schools that receive federal funds are not HIPAA-covered entities, because the health information maintained on a student's record is an education record and covered by Family Educational Rights and Privacy Act (FERPA). Use the platform your district has assigned because this is safest for you. If the district did not vet the platform for privacy, you may need to advocate for a change, but you do not have to worry about whether the platform is HIPAA compliant; even mental health providers who are under contract and control of the district are covered under FERPA, not HIPAA. If your school is private and receives no federal funds, you may encounter an unusual case in which someone who bills for health care might fall under HIPAA. For example, "if a private elementary or secondary school not subject to FERPA employs a physician who bills a health plan electronically for the care provided to students (making the school a HIPAA-covered entity), the school must comply with the HIPAA rules regarding the individually identifiable health information of its patients" (USDOE and USDHHS, 2019, p. 8). Get all the information you need on how HIPAA and FERPA intersect and an easy-to-read chart.

VIRTUAL: What are some things I can do to ensure confidentiality?
It is important to note that we cannot completely "ensure" confidentiality in an online setting given our limitations. We cannot know the student is alone, for example. However, these practices can help work toward this ideal:

Use headphones with a microphone, and suggest students do as well.

Use a white noise machine to help prevent others from overhearing private conversations

Identify a separate or private room. (You may think you are starting with an academic topic, but the discussion may venture into other areas.)

VIRTUAL: My school wants school counselors to record phone calls or virtual meetings with students and families. Is this something I should do?
It depends. For academic advising or college-related topics, this may be okay as long as you let the student and family know ahead of time that the session is being recorded. Obviously, you will not be able to have private (confidential) conversations with students given that these will be recorded and made available to administration.
Working With Administrators and Other Staff

On several student IEPs, the special education director has noted that weekly counseling be provided. This prevents me from fully implementing a comprehensive program. What do I do?
It can be difficult to curtail the process of writing school counselors into IEPs. Explain that the teacher or the inclusive classroom can better handle interventions targeting social skills and anger management due to the constant need to reinforce or extinguish behavior in the authentic context of the classroom where the behaviors occur. You can support regular education and special education students in brief group counseling or behavior management programs, but a long-term approach that interferes with the student's education is an inappropriate use of school counselors' time.

IEP teams need leadership, communication and clarity regarding the appropriate use of IEPs. The team leader should ensure every team member understands that the school counselor's role must be realistic and relevant as defined by ASCA. School counselors serve all students in their charge; it is unethical and professionally questionable when others define school counselors' role as acting outside their scope of practice and serving a small percentage of their population to the exclusion of hundreds of other students in their caseload.

The educators in my state are planning to strike. Am I required to participate? Would my participation be considered student abandonment?
You are not required to do anything that isn't federal, state or county law, district or school policy, or mandated by your supervisor. This means you are not required to participate in any strikes unless you feel compelled to do so. As for student abandonment, if you believe the safety and wellbeing of your students will suffer in your absence, that may be something to consider. Consider the length of the absence, whether the family provide appropriate support in your absence and other resources that may be available to students if you chose to strike.

Student Harmful Behavior

My district recently purchased a software package that sends alerts to the school and district when students engage in potentially harmful behavior online. As the school counselor, I'm expected to follow up with all the students for whom alerts were received. This is taking all my time. What do I do and what are the liabilities?
Those who favor this type of software argue that it can save lives. However, if schools choose to use this type of software, it's important to bypass the school and send alerts directly to the parents, guardians or family members if a student's online activity yields red flags. This direct line of communication should also convey to parents the reason the software generated concern and possible referral resources. Some school districts use parts of the software to limit access to particular websites but don't activate the alerts. However, if schools use the alert functionality, it's likely school counselors will be assigned to follow up on the alerts. If the software developers continue to put educators into the loop instead of going straight to parents/guardians with alerts, the school district and its designees could face unneeded and unwarranted liability. In a hypothetical example, a student makes a suicide attempt Saturday night, but 24 hours earlier at 11 p.m. on a Friday night, when the school counselor wasn't working, the student's online activity indicated suicidal ideation. The student's online activity was not detected because the school district used the software to block certain sites but opted out of the self-harm alerts. Or, the school district did accept alerts, but the alert came in when the school counselor wasn't working. Could this create liability? Possibly. The argument is weak that liability would follow because a school district's actions or lack of action would have to be the actual cause of the death, but do school districts really want to test the argument?

A student at my school sent me an email indicating another student is expressing suicidal thoughts. What are my obligations?
Suicide reporting does not hinge on certainty of harm or your discretion. Waiting until you have certainty is dangerous. The only knowledge you need to meaningfully act is an expressed, implied, veiled, peer-reported or rumored suicidal ideation. The consequence of the risk - death of a child - is too great. We must err of the side of caution. School counselors should never rely on a student's denial of suicide intent. Students who are bent on self-harm will escape our scrutiny by telling us what they think we want to hear. If something prompted you to question a student about suicide, then you should talk to the parents/guardians as well. In-school suicide assessments are dangerous if relied on for conclusive answers. If a school district performs suicide assessments, these assessments should only be used to alert parents/guardians to the need to monitor their child's safety and to get them professional mental health care to evaluate and, if necessary, treat the suicide risk. The standard of care for school counselors when informally assessing students who are identified as a potential suicide risk is to employ these assessments with extreme caution, with a follow-up assessment completed by a mental health professional who has been trained to assess the risk. School counselors who rely on an in-school suicide assessment for definitive answers are not only negligent but reckless in their evaluation.

A student told me she cuts herself. Do I need to tell her parents?
Self-harm can feel like a tricky situation because research is unclear of the intent or impact. Ultimately, cutting is a form of self-harm, and best practice and the ASCA Ethical Standards for School Counselors advise school counselors to inform parents/guardians so they have the opportunity to intervene. This helps ensure the student's overall safety and can help the student get additional help outside of school.

What do I do if a student tells me she has heard another student brought a firearm to school?
As a school employee, your obligation is to the safety of all students. Inform administration and the school resource officer or police, and allow them to move forward from there.

What is the school counselor's responsibility when a student may be a risk to self and a parent/guardian cannot be located?
ASCA's position statement The School Counselor and Suicide Risk Assessment indicates our primary responsibility is to notify parents/guardians. Educators and school counselors stand in loco parentis, meaning we stand in the parent's place when the student is at school. In a brick-and-mortar setting, good practice is to keep the student with you until you can make contact with the parent. At times, the student may have to stay with you after school until the parent/guardian can be reached. As ASCA's position statement indicates, students may say things to avoid scrutiny; therefore, parent contact is imperative. If the school day has ended and all attempts to contact a parent have been unsuccessful, it may be necessary to contact law enforcement and/or child protective services to take custody of the student and keep the student safe.

VIRTUAL: If counseling is being provided remotely, it is critical to always know the physical address of your student's location. In the event of risk of harm to self or another, the school counselor should attempt to keep the student online while simultaneously trying to contact a parent or guardian. In the event a parent or guardian is unable to be reached, law enforcement should be sent to the student's location to ensure the student's safety.

What do I do if my school district requires me to indicate a student's level of risk on suicide risk assessment paperwork?
A school counselor's role in working with students at-risk for suicide is complex. You must navigate your legal and ethical responsibilities toward students, parents/guardians and the school district. You have a duty of care and legal obligation to make every attempt to prevent a student's suicide and have the responsibility to notify parents/guardians anytime you conduct a suicide risk assessment with a student. It is impossible for a school counselor to know a student's level of suicide risk with certainty, but some districts still require school counselors to document a student's level of risk as low, medium, or high. Although it is important to comply with mandated district procedures, do not document or indicate to a parent/guardian that a student is low risk for suicide since you have no way of knowing with assurance that this is the case. Remembe, FERPA grants parents/guardians the right to access anything you write down. Therefore, if you do not directly tell a parent you believe the child is at low risk but indicate so on a suicide risk assessment form, the parent still will access to that information. The best approach is to consider noting "unable to determine" if a child falls under the low risk category on a district suicide risk assessment form. In addition, always notify a parent/guardian that you conducted suicide risk assessment on a student (at any risk level) and support parents/guardians in obtaining mental health services for the child.

Dual Relationships

I live in a small, rural community and have my LPC and run a private practice after school hours. Does it create a dual relationship if I see current or previous students in my private practice?
The ASCA Ethical Standards for School Counselors state: Ensure there is not a conflict of interest in providing referral resources. School counselors do not refer or accept a referral to counsel a student from their school if they also work in a private counseling practice.

My son will be a student at my school next year. What do I need to do to avoid a dual relationship?
If a dual relationship is unavoidable, the school counselor is responsible for taking action to eliminate or reduce the potential for harm to the student through use of safeguards, which might include informed consent, consultation, supervision and documentation. The best way to minimize any negative impact is to assign the family member to a different school counselor. If the school counselor is the only one in the building, then the school counselor must work to ensure there isn't even an appearance of gaining any unfair advantages for the school counselor's son.

My principal has asked me to teach a class and assign grades to the students. Is that permitted? Does that create a dual relationship?
Sadly, this isn't uncommon. Your administrator is legally your supervisor and determines your role. However, be careful of going down this road and setting precedence. Remind your administrator that teaching a class puts students at risk as you will need to prioritize any crisis or suicidal ideation over the class you're teaching, which could leave your classroom students unsupervised and potentially unsafe. Additionally, being responsible for assigning grades to students leads to a dual relationship and should be avoided to minimize potential harm to students.

Do I need a signed release before meeting with a student virtually?
It is recommended to follow the policies of your school. If students do not sign releases to meet with you in your typical role on site at your school, it may not be necessary to get additional permission. However, it is important to follow the policies established by your school district, particularly in relation to the move to online learning.

Can school counselors take home educational records if asked to do so by an administrator?
There is no prohibition against teachers and school counselors taking home educational records, assuming the school counselors/teachers are school officials with legitimate educational interests, which they probably are. They should just be sure to protect the information they take home and ensure other people who are not school officials or parents don't see the information.

Our school provided laptops to our students. Through a monitoring system our school district uses, we are seeing some of the things students are searching. These include issues such as substance use, rape and suicide. What is our legal obligation when we see these searches?
An internet search doesn't necessarily indicate serious and foreseeable harm to self or others but could. If the monitoring system is in place, always alert parents if a suicide topic is being researched, and provide community resources and ask the parents to seek outside resources to address what is going on with their child. The district needs to determine a way to respond to serious concerns without burdening the school counselors and also determine which topics will trigger a call to parents. Perhaps an administrator could be responsible for this since the monitoring system is already in place anyway. The administrator and school counselor could collaborate about issues requiring outreach from the school to the student and families. The school district may want to see if the software has an alert that will skip the school and go right to the parent/family. Districts may also consider working with parents and families about how to appropriately monitor their child's online activity.

Technology

VIRTUAL: My district wants me to use one type of online conferencing technology, but I'd rather use a different kind. Is this okay?
It is far safer to use what the district suggests. The district has likely vetted the program to make sure it will interface and integrate with the district's system and security approach. For example, one large urban district requires Microsoft Teams because it is part of the larger group of software applications fully adopted and integrated with the district's systems and security. This protects the educator against false accusations and the student against exploitation because the district can review activity occurring in Teams. It is not a matter of which program or app is superior but rather which online program offers the best layer of protection for all as determined by the district.

VIRTUAL: What are some considerations when using a specific platform for virtual/distance school counseling?

Read the privacy policies of the platforms your school system uses.

Know limitations of the district's platform.

Advocate for a change if the platform is thought to be detrimental.

Don't select or use a platform without district approval.

Can I use my personal cell phone to talk with students and families?
It is recommended to use school-issued devices. However, if the school has not provided you with devices, you may need to discuss the possibility of using your own devices. If it is decided that you will use your personal device, it's important to develop boundaries around your working hours and communicate this to students and families. In addition, be sure you maintain these boundaries, such as not answering the phone at times you are not able to assist a student. It would be helpful to use away messages or other communications to direct students to where they may get help outside of your available working hours.
If you want to block a phone number, you can follow these steps:

Enter *67.

Enter the number you wish to call (including area code).

Tap Call. The words "Private," "Anonymous" or some other indicator will appear on the recipient's phone instead of your mobile number.

Do I have to use the computer the school issued me, or can I use my much superior laptop?
You must use the school-issued computer unless the district offers you an exception. Again, it is about safety and security. There are privacy settings that protect district computers that your personal computer may not have. Advocate for your equipment needs, but be careful not to go against school district dictates regarding equipment.
Appropriate Duties

I am being asked to make home visits for those students who have not responded to their virtual classes. Am I unreasonable to want out of this dictate?
Dictates that would be considered unheard of in the everyday life of a brick and mortar school counselor's day are suddenly appearing in virtual schools. You are right to feel uncomfortable. Use all your powers of persuasion to get out of this. If you're in a state with a shelter-in-place order, these visits might even be illegal. Students have to be reached without putting educators at risk. Robo calls, news reports, public service announcements, etc., can be used to emphasize to the school community the importance of responding to the school. If a school counselor does end up making house calls, he or she should never go alone. Try to pair up with the school resource officer, use COVID-19 safety precautions, have a set plan as to what should be accomplished and take any resources, such as a laptop, you may need. Again, home visits should not be on the school counselor's shoulders.

What do I do if I'm asked to help with health screening?
In the current, unprecedented environment, school counselors may be tasked with participating in functions that are not typically part of their role - whether instruction is occurring virtually or in person. Advocating for appropriate responsibilities is important, but flexibility will be required. School counselors may be assigned to participate in health and safety efforts (taking temperatures, enforcing mask wearing, etc.). Given that all staff likely will be engaged in these or similar functions, this should be considered a fair-share responsibility.

What if I'm asked to teach a class to lower classroom ratios?
Classroom instruction is part of the ASCA National Model; however, teaching a course is not. Reference your school or district's job description for school counselors to determine if this is addressed. Also, it's important to know if a teaching certification is required for serving in this role. You should discuss with your administration about the student needs that may not be met or addressed as a result of teaching. Share data about the impact of your school counseling work. Ask what would be the contingency plan if you needed to deal with a school emergency. That said, at the end of the day, if a district wants to require this and there is no policy, you must comply.

VIRTUAL: How can I provide a school counseling program for all students in a virtual or hybrid setting that addresses students' academic, career and social/emotional development?
You have an ethical responsibility to deliver a school counseling program that addresses the students' academic, career and social/emotional needs. Delivering school counseling services through a virtual or hybrid setting should include all three of these domains and should not be limited by meeting platforms the district has put in place. A wide variety of resources are available on the ASCA website, www.schoolcounselor.org, for school counselors to access so they can deliver an evidence-based, effective program online.
Similar to the brick and mortar setting, school counselors should continue to rely on the data obtained from needs assessments, program evaluations, and outcome data to inform them about student needs and the effectiveness of interventions. Data obtained from these assessments can be analyzed and reported to school administrators, faculty and parents in ways that highlight the current program's accomplishments and limitations. Findings from these reports will provide the evidence needed to determine whether all three school counseling domains are addressed in the virtual or hybrid setting.

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Legal & Ethical FAQ | American School Counselor Association (ASCA)

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Legal and Ethical FAQs From student safety and confidentiality to interactions with parents/guardians and administrators, school counselors encounter a range of legal and ethical issues every day. Here we've gathered some frequently asked legal and ethical questions to help guide you in your daily work.

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Dansby-Giles, D. (2014).  Informed consent, confidentiality, and duty to warn with school counselors. VISTAS, 38, 1-15. Retrieved from: https://www.counseling.org/docs/default-source/vistas/article_38.pdf?sfvrsn=70a07c2c_12

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Dansby-Giles, D. (2014).  Informed consent, confidentiality, and duty to warn with school counselors. VISTAS, 38, 1-15. Retrieved from: https://www.counseling.org/docs/default-source/vistas/article_38.pdf?sfvrsn=70a07c2c_12