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1. Professional Perspective/ Audience/ Topic

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1. Professional Perspective/ Audience/ Topic

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Confidentiality in the school setting is a major issues that affects school counselors. Understanding the limits of confidentiality in self-harm, abuse, and other situations is crucial in counseling. Section A2 of the ASCA Model for Ethical Standards for School Counselors outlines confidentiality and its limits in great detail, specifically in sections e and f (ASCA, 2022).

As a school counselor, I feel that the issue of confidentiality is extremely important. This is a principle that a counselor should be crystal clear on, in terms of what is expected and ethical, and what the limitations are. Being transparent with students with regard to confidentiality is of extreme importance from the moment a counseling relationship with a student begins. I chose this topic to further my own research and ensure my complete and total understanding of confidentiality and any limitations involved as a school counselor.

My guide is geared towards fellow school counselors and serves as a reminder and information source regarding the topic of confidentiality.

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

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In the instance of confidentiality in schools, there are responsibilities from the United States  Department of Education and under the Federal Education Rights and Privacy Act (FERPA) for confidentiality and a student’s right to privacy (Ramesh, 2023). The Texas Education Agency (TEA) is the state governing body for education. Additionally, counselors are to uphold the standards set forth by the American School Counselor Association Ethical Standards (ASCA, 2022).  Ultimately, the laws and mandates set forth by these entities are enforced and overseen at the district level.

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

Ramesh, R., Sharma, B., & Chaudhari, P. (2023). Privacy Matters. Orange Books. https://www.google.com/books/edition/Privacy_Matters/OI_rEAAAQBAJ?hl=en&gbpv=1&pg=PP1&printsec=frontcover

The Family Educational Rights and Privacy Act. (20 U.S.C. § 1232g; 34 CFR Part 9). https://www2.ed.gov/policy/gen/guid/fpco/ferpa

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3. Federal & State Constitutional Laws that Align

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3. Federal & State Constitutional Laws that Align

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US Law - The fourteenth amendment of the United States Constitution discusses a citizen's right to privacy and encompasses confidentiality of citizens. This general law of the right to confidentiality is spelled out in great detail within other laws (U.S. Const. amend. XIV, § 1). For example, 42 U.S. Code § 13031 is a provision of the Victims of Child Abuse Act of 1990. This law states that ALL child abuse must be reported under this law, regardless of rules of confidentiality. This is an area where a counselor must breach confidentiality for the benefit of a student (42 U.S.C § 13031).

Counselors are mandatory reporters in instances of abuse.

Confidentiality is not the main priority when dealing with abuse situations.

ALL child abuse must be reported.

Texas Law - The Texas Constitution protects the privacy of an individual and shields them from unreasonable intrusion (Tex. Const. art. 1 § 19). There are other Texas laws that relate to confidentiality. One is Family Code Section 261.101. This is a Texas law that reiterates a professional’s duty to report abuse, but adds a timeline in which this reporting must be completed. This is a crucial point that counselors and school personnel must understand so that they are compliant with this additional mandate regarding mandatory reporting.  (Tex. Family Code  §  261.101).

Counselors have a duty to report abuse.

This law adds a timeline for reporting. Counselors/ school personnel have 48 hours to report suspected abuse and remain in compliance with the law.

42 U.S.C § 13031. https://uscode.house.gov/view.xhtml?req=granuleid:USC-2000-title42-section13031&num=0&edition=2000

Tex. Const. art. 1 § 19. https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1/CN.1.19.htm

Texas Family Code  §  261.101. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.261.htm

U.S. Const. amend. XIV, § 1. https://www.law.cornell.edu/constitution/amendmentxiv

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Statutes

Federal level - FERPA, the Federal Education Rights and Privacy Act,  affords parents the right to some control over and access to a child’s educational records.

FERPA also allows parents some discretion over who may have access to a child’s records.

While limits of confidentiality in terms of mandatory reporting supercede FERPA in many instances, understanding this law and adhering to it is crucial for educators.

State level - TEC § 33.006 lays out the role of a school counselor in Texas.

Subsection B reiterates that nothing shall exempt a school counselor from being a mandatory reporter, no matter the rules/laws of confidentiality.

This provision explains there are instances when confidentiality must be breached.

Administrative law

Federal level - The Privacy Act of 1974 was initially established to protect confidential information of individuals.

The purpose was to curb the illegal collection and use of personal information.

This law is important to be aware of in a school setting where much personal information is available about students.

State level -  TEC § 26.004 deals with access to student records in Texas.

This law explicitly states what records a parent has a right to have access to.

Parents have a right to ALL written records, including counseling records.

Tex. Educ. Code §26.004 https://statutes.capitol.texas.gov/Docs/ED/htm/ED.26.htm

Tex. Educ. Code. §33.006 https://statutes.capitol.texas.gov/Docs/ED/htm/ED.33.htm#33.006

The Family Educational Rights and Privacy Act. (20 U.S.C. § 1232g; 34 CFR Part 9). https://www2.ed.gov/policy/gen/guid/fpco/ferpa

The Privacy Act of 1974. 5 U.S.C. § 552a (1974). https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1279

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Ellis v. Cleveland Municipal School District - This is a court case where it was determined that FERPA was not violated in an instance of an altercation with a substitute teacher and student (20 U.S.C. § 1232g; 34 CFR Part 9). The incident reports related to this do not have to be kept confidential as FERPA is for the protection of student information, not that of employees (Ellis v. Cleveland Municipal School District, 2006).

FERPA protects the information of students.

Substitute teachers (and potentially other employees) are not protected under FERPA.

Ellis v. Cleveland Municipal School District, 55 F.3d 690 (6th Cir. 2006). https://law.justia.com/cases/federal/district-courts/FSupp2/309/1019/2310995/

The Family Educational Rights and Privacy Act. (20 U.S.C. § 1232g; 34 CFR Part 9). https://www2.ed.gov/policy/gen/guid/fpco/ferpa

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6. Federal Regulation or Mandate that Aligns

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6. Federal Regulation or Mandate that Aligns

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FERPA is a law that protects students by requiring that all documents pertaining to their education and personal information be kept confidential (20 U.S.C. § 1232g; 34 CFR Part 9).

FERPA helps to ensure that consent is received in the event of information sharing.

FERPA violations could result in a loss of federal funding by the school district.

FERPA does not apply to parents wanting records pertaining to their child; therefore, counselors must take care when taking case notes.

The Family Educational Rights and Privacy Act. (20 U.S.C. § 1232g; 34 CFR Part 9). https://www2.ed.gov/policy/gen/guid/fpco/ferpa

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7. Local Administrative Law/ Policy/ Rule

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7. Local Administrative Law/ Policy/ Rule

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Section FFG of the Ennis ISD Board Policy states that, “ Any person who has reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as required by law” (EISD, 2023b). This in compliance with Family Code 261.101. It goes on to state that a mandatory reporter has 48 hours to report an incident of suspects abuse and that no one else may be delegated to make the report other than who the outcry was made to. This policies follows and reiterates the state and federal laws discussed in this document.

Child abuse or neglect must be reported immediately.

Mandatory reporters have 48 hours to make a report.

This policy is in line with federal and state laws.

Ennis ISD: Board Policy Manual,(2023, November 9). Student welfare: Child abuse and neglect. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=426&code=FFG#legalTabContent

Texas Family Code  §  261.101. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.261.htm

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Review ASCA Standards (often) and ensure compliance. Section A2 of the ASCA Model for Ethical Standards for School Counselors outlines confidentiality and its limits in great detail, specifically in sections e and f (ASCA, 2022).

Ensure district level compliance of confidentiality requirements by studying board policy, district or campus handbooks, etc. Counselors and education staff MUST ask questions and get clarification on anything they are unsure of or not clear on in the realm of confidentiality.

Professional Development - seek opportunities to grow in your knowledge and expertise in the area of confidentiality to ensure best practices and gain additional information.

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

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Section A2 of the ASCA Ethical Standards for School Counselors deals specifically with confidentiality as it pertains to school counselors. A2f states, that a counselor must "Keep information confidential unless legal requirements demand confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student or others" (ASCA, 2022). Schools counselors must use discernment and judgement, as well as their skills to determine when it is appropriate or necessary to breach a student's confidentiality. This will vary for counselors who work with different age groups, types of populations, etc. This part of the job can be very subjective so it is imperative for a counselor to not only follow these ethical standards but adhere to the laws mentioned in this guide.

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

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10. Personal Connection to the Legal & Ethical Standards

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10. Personal Connection to the Legal & Ethical Standards

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Working with students both in the classroom and now in the counseling setting, I can say that there are facets to confidentiality that I had not considered prior to being faced with the individual scenarios I have seen in my short time as a counselor. Learning about what is mandatory to report, what parents have the right to know, etc. is much more clear to me now than before taking this class. I feel that as a result of the knowledge gained in this course, I am much better prepared to take on my job as a high school counselor this school year. By learning the laws (and where to find them when I cannot remember them exactly), I feel equipped to do my job with excellence in this area.

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11. Recommendations/ Best Practices for Compliance

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11. Recommendations/ Best Practices for Compliance

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1. Know the law. Understand the federal and state level laws that are pertinent to you and your role.

2. Study these laws and learn how they are incorporated into the daily activities within your job.

3. Know local board policies forward and backward. Knowing the law is crucial, but understanding the details on a local level is an added level of protection for a counselor, and benefits the school and the students involved.

4. Follow the news. Stay up to date on current events within your field. Follow stories involving students and education professionals to continue learning with real world examples.

5. Stay up to date on changes (or proposed) changes within your field to laws that pertain to your area of expertise.

6. Ask questions. When you are unsure of something, ask someone with more experience or expertise than you. If you question their response, ask someone else.

7. Using the information from #6, find a knowledgeable mentor to teach you real world skills in your field.

8. Be an advocate. Advocate for yourself and your students in ALL that you do.