Legal and Ethical Application by Debra Luna

Slide 1 Professional Perspective

dluna132 — 2024-03-02 01:55:01 UTC

As a student in the field of school counseling, one may recognize that a parent wanting to know about their child’s visit will happen at any point. Despite the want to assist parents, counselors must remember that they must keep session information confidential. As a counselor it is of utmost importance to understand confidentiality, and convey the legal realms of confidentiality with students, parents, and colleagues. Sharing the pertinent information on confidentiality with those needing information from the counselor will create a relationship of mutual understanding when information is needed. Confidentiality with students and student records is the cornerstone of school counseling.

Slide 2 Governing Agency

dluna132 — 2024-03-03 00:23:21 UTC

Confidentiality in school counseling is governed by the Texas Education Agency and the United States Department of Education. Both agencies work to provide oversight on laws created that affect school counseling, confidentiality one of the legal applications. The Texas Education Agency (TEA) governs the practices that school counselors must adhere to in addressing student confidentiality. The agency provides districts with a framework for accountability in the area of confidentiality. When an incident arises questioning confidentiality, local human resource offices are notified along with TEA. The Texas Education Agency looks at what has been disclosed and determines exceptions that may lend themselves to a confidentiality exemption (TCTA, 2012).

The United States Department of Education administers and enforces privacy laws that affect students. The department provides states with new laws or updates to previously enacted laws that affect education. The federal agency provides school districts with technical assistance to assist in safeguarding student data and records (United States Department of Education, 2020).

A state and federal agency working to protect student confidentiality provides comprehensive protection of the right. The agencies working together ensure that all relevant laws and regulations are enacted and enforced. The protection of confidentiality in collaboration by both agencies is a safeguard effective response to challenges of the right and sharing of resources.

Counselors making the right call. TCTA. (2012). https://www.tcta.org/legal-updates/counselors-making-the-right-call

United States Department of Education. (2020). Home: Protecting student privacy. Home | Protecting Student Privacy. https://studentprivacy.ed.gov/

Slide 3 Federal and Constitutional Laws

dluna132 — 2024-03-03 14:11:03 UTC

The fourth amendment of the United States Constitution protects individual confidentiality (U.S. Const. amend. IV).

The fourth amendment protects the following instances of privacy and confidentiality...

Physical space - Search warrants are needed for the protection for the reasonable expectation of privacy.
Personal Communication - Individuals have a reasonable expectation of privacy in electronic communication,.
Personal information - Protects financial documents, educational records, and medical records

The Texas Constitution does not explicitly provide for the right of privacy or confidentiality. Texas Const. art. I § 19 known as the Due Process Clause, ensures that the citizens of Texas have to right to privacy and confidentiality.

Art 1 - sec 19. Justia Law. (2021). https://law.justia.com/constitution/texas/sections/cn000100-001900.html

Legal Information Institute. (2022). Fourth amendment. Legal Information Institute. https://www.law.cornell.edu/constitution/fourth_amendment

Slide 4 Statute and Administrative Law

dluna132 — 2024-03-03 14:39:12 UTC

Texas Education Code 28 Section 28.058 dictates that all student information is confidential.

Tex. Educ. Code § 28058 details that all information obtained by an educational institution is confidential.

The Texas Mental Health Code addresses confidentiality in counseling sessions.

Tex. Ment. Code §611.002 states:

Informed consent must be provided to patients
Records and communication between a counselor and client are confidential, unless certain circumstances exist

Health and Safety Code Chapter 611. Mental Health Records. (2023). https://statutes.capitol.texas.gov/Docs/HS/htm/HS.611.htm#:~:text=1%2C%201991.-,Sec.,by%20a%20professional%2C%20are%20confidential.

Legislature, Tex. (2022). Tex.. Educ. code § 28.058 – confidentiality. Texas Education Code Section 28.058 – Confidentiality. https://texas.public.law/statutes/tex._educ._code_section_28.058

Slide 5 Case Law

dluna132 — 2024-03-03 14:51:45 UTC

Doe v. University of Michigan, 721 F.3d 768 (6th Cir. 2013). In this case a

student sued the university over the handling of student records. The case

reaffirmed prior rulings stating that FERPA establishes confidentiality in the

disclosure of student records and information.

Planned Parenthood of Cent. Mo. V. Danforth, 428 U.S. 52 (1976), in this case a student disclosed personnel medical information to school personnel. The case established that confidentiality must be maintained despite parent consent for treatment in the school setting.

Doe v. Univ. of Mich., no. 22-1654 | casetext search + citator. (2021). https://casetext.com/case/doe-v-univ-of-mich-17

usa.gov. (2020). U.S. reports: Planned Parenthood of missouri V. Danforth, 428 U.S. 52 (1976). The Library of Congress. https://www.loc.gov/item/usrep428052/

Slide 6 Federal Regulation

dluna132 — 2024-03-03 15:01:57 UTC

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is the legal framework that sets forth confidentiality laws for the protection of student information.

20 U.S.C. § 1232g details guidelines for the protection of confidentiality:

Parents and students have the right to inspect student records - fees may be charged for copies of records
Students and parents have the right to ask for the correction of student records.
Schools must have written consent to release student records.

US Department of Education (ED). (2021, August 25). Family educational rights and privacy act (FERPA). Home. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Slide 7 Local Policy

dluna132 — 2024-03-03 22:24:42 UTC

San Felipe Del Rio Board Policy FL addresses confidentiality of student records.

San Felipe Del Rio Board Policy FL details the following:

Superintendent will determine how student records are stored.
Each student must have a cumulative record for school records.
Principal is the custodian of student documents on each campus.
Details the documents that are viewed as educational records, counseling records are included.
Parents are allowed to view documents as permitted by law.
A school official may view records if and when they have a legitimate educational interest.
To amend school records a written request must be submitted.

TASB. (2022). Board policy manual. TASB. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1180&code=FL#localTabContent

Slide 8 Risk Management

dluna132 — 2024-03-03 22:28:20 UTC

Maintaining confidentiality of student information in the area of school

counseling is crucial in protecting students. There are several steps that can be

taken in the area of risk management.

● The first is to understand the legal and ethical standards pertaining to

confidentiality. School counselors must be versed in The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) and professional ethical codes like those established by the

American School Counselor Association (American School Counselor Association,

2022). These resources are the basis of the legal and ethical standards which

must be upheld.

● Secure record keeping must be in place. Counseling records should be kept in locked

areas, if digital encrypted and password protected programs should be used.

● Develop risk assessment to identify potential risks.

American School Counselor Association. (2022). Ethical standards for school counselors. Alexandria, VA: Author.

US Department of Education (ED). (2021, August 25). Family educational rights and privacy act (FERPA). Home. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Slide 9 Ethical Principle

dluna132 — 2024-03-03 22:33:56 UTC

Chapter 33 of the Texas Education Code detailed the standards to which school counselors must adhere. In 2 Tex. Educ. Code § 33.002 to 2 Tex. Educ. Code § 33.009 details the role and responsibilities of the school counselor. The American School Counselor Association provides a code of ethics detailing the guidelines for confidentiality and diversity (American School Counselor

Association, 2022).

American School Counselor Association. (2022). Ethical standards for school counselors. Alexandria, VA: Author.

FindLaw.com - Texas Education Code - EDUC § 33.002. Certified School Counselor - last updated April 14, 2021 |

https://codes.findlaw.com/tx/education-code/educ-sect-33-002/

Slide 10 Personal Connection

dluna132 — 2024-03-03 22:51:43 UTC

Confidentiality is the cornerstone of building relationships with students in the counseling world. The understanding of confidentiality allows me to provide assistances to my students in a safe space. Comprehending the scope of confidentiality allows for safety and protection of myself and student when faced with varying crisis. A student feeling safe to come to the counselor when is crisis is important. As a counselor, I want the student to understand that it is a safe place to look for help, as I can use facts needed to assist and keep certain confidential. Ensuring that students feel that a counselor's office cultivates a culture of trust and without judgement or fear of breach of privacy is important.

Slide 11 Best Practices for Compliance

dluna132 — 2024-03-03 23:02:01 UTC

School counselors can implement practices to ensure confidentiality is maintained when working with students.

Ensure that clear practices are in place to outline the limits of confidentiality and the circumstances when information can be shared.
Obtain informed consent from every student before sharing any information divulged in the counselor's office.
Inform students of the limits of confidentiality. Detail the instances that will require the counselor to share information with parents or others.
Keep accurate and detailed notes of student visits securely stored and accessible only to authorized individuals.
Seek consultation with experienced professionals or legal counsel if a challenging or ethical dilemma arises.
Attend professional development to fully comprehend legalities of confidentiality.
Stay informed on laws and changes to laws that involve confidentiality and school counseling.