Legal & Ethical Guide: Confidentiality by Carson Robertson

Slide #1: Professional Perspective / Audience / Topic

crobertson222 — 2024-07-23 18:53:36 UTC

As a school counselor, my professional perspective on confidentiality is that it is critical to creating trusting relationships with students, which is the foundation of an effective counseling relationship. It is also important that when working with students we act with their best interests at heart, which sometimes includes sharing information that is given to us. It is important to do this in an ethical way, which includes informing students of the possibility that information will be shared ahead of time, and giving them the conditions it might be occur under. It is also important that information is only shared when it is absolutely necessary, and only with the individuals that would need to know. The target audience for a legal guide on this topic includes school counselors, administrators, and policymakers, aiming to clarify the ethical and legal standards that protect student privacy while addressing issues of harm and parental rights. This topic is essential due to the ethical dilemmas and legal challenges it presents, ensuring counselors can navigate these situations with the best interest of the student at the center.

Slide #2: Governing Agency

crobertson222 — 2024-07-23 18:56:01 UTC

At the federal level the United States Department of Education ensures that schools comply with the Family Educational Rights and Privacy Act (1974) [FERPA]. This law protects the privacy of student's educational records. On each campus school administrators would be the first line of defense in ensuring that the counselor and other staff members are following FERPA. All educators must be aware of FERPA regulations to ensure that they are only sharing information that is allowed. Counseling notes that are kept only by the school counselor and not accessed by any other individual are not considered part of the student's educational records and therefore do not have to be shared with parents. This is where it would be critical for the school counselor to use their best judgment on when information may need to be shared. The American School Counselor Association (2022) also puts forth ethical guidelines for counselors around the country surrounding confidentiality. They clarify when it would be important for the school counselor to share information, as well as how to inform students of this before working with them in their Code of Ethics.

At the state level, the Texas Education Agency (TEA) sets the standards for confidentiality among educators, including school counselors, through the Texas Education Code § 26.004 (2 TEC § 26.004). This code aligns with FERPA and further clarifies parents' rights when it comes to accessing their children's educational records, while still requiring schools to protect the confidentiality of these records. Additionally, the Texas Administrative Code Title 19, § 61.1051, outlines the responsibilities of school personnel in maintaining student confidentiality and reporting suspected child abuse or neglect (19 TAC § 61.1051).

References:

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (1974)
Parental Rights and Responsibilities, 2 Tex. Edu. Code § 26.004
Reporting Child Abuse or Neglect, Including Trafficking of a Child, 19 Tex. Admin. Code §61.1051

Slide #3: Federal & State Constitutional Laws

crobertson222 — 2024-07-23 18:56:30 UTC

US Constitutional Law: Amendment IV to the U.S. Constitution protects individuals for unreasonable searches, which is ensuring every individuals right to privacy (U.S. Const. amend. IV).
- This amendment lays the foundation for the right to privacy that students have in their educational records, including their counseling records.
- Violation of this law can lead to legal actions being taken against the individual sharing confidential information, or the school/school district.
- https://constitution.congress.gov/browse/amendment-4/

Texas Constitutional Law: Article I, Section 9, of the Texas Constitution further emphasizes the right to privacy, such as unwarranted searches and seizures, that is written in the fourth amendment of the U.S. Constitution (TX Const. art. I, § 9).
- This supports the same right to privacy within Texas schools, and reinforces the need for school counselors to maintain confidentiality with their students.
- Violations of this law can lead to legal repercussions, disciplinary action from professional boards, and a loss of professional credibility.
- https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

References:

Tex. Const. art. I, § 9
U.S. Const. amend. IV

Slide #4: Statute & Administrative Law

crobertson222 — 2024-07-23 18:57:06 UTC

State Statute: Title 2 of the Texas Education Code § 26.004 outlines parents' rights to access their children's educational records and the school’s duty to ensure the confidentiality of these records (2 TEC § 26.004).
- It aligns with FERPA by reinforcing the need for confidentiality in the handling of educational records within Texas schools.
- Violations of this statute could include legal action, corrective actions from administrators, fines or penalties, and a loss of professional credibility.
- https://statutes.capitol.texas.gov/Docs/ED/htm/ED.26.htm

State Administrative Law: Texas Administrative Code Title 19, §61.1051 provides guidelines for a time where it is necessary for the school counselor to break confidentiality (19 TAC §61.1051).
- This administrative law provides definitions, as well as guidelines for when it would be necessary to break confidentiality in the situation that a students discloses that they may be experiencing abuse or neglect.
- As the school counselor, if you suspect an individual is experiencing abuse or neglect this law legally requires you to make a report.
- Violations of this law could include legal action, corrective actions from administrators, fines or penalties, and a loss of professional credibility.
- https://tea.texas.gov/about-tea/laws-and-rules/commissioner-rules-tac/coe-tac-currently-in-effect/ch061ee.pdf

References:

Parental Rights and Responsibilities, 2 Tex. Edu. Code § 26.004
Reporting Child Abuse or Neglect, Including Trafficking of a Child, 19 Tex. Admin. Code §61.1051

Slide #5: Common / Case Law

crobertson222 — 2024-07-23 18:58:08 UTC

Case Law

In the case of Eisel v. Board of Education, 597 A.2d 447 (Md. 1991), Nicole Eisel, a 13-year-old student, committed suicide. Prior to her death, her friends told the school counselors that Nicole had been expressing suicidal thoughts. The counselors, however, did not report this information to her parents or take to anyone who could take action to help Nicole. Nicole's parents subsequently sued the Board of Education, alleging that the counselors did not do their duty to protect Nicole by not breaching confidentiality to report her suicidal ideations. The Maryland Court ruled that it is the responsibility of the school counselor to due their due diligence to take steps to prevent students from harming themselves, which can include breaking confidentiality to notify parents what their students are expressing.
This case emphasized that while confidentiality is paramount in the counseling relationship, student safety should be the number one priority. There is a critical balance between maintaining confidentiality and ensuring student safety. The decision highlights the legal and ethical obligations of school counselors to prioritize student welfare over confidentiality in certain circumstances.

References:

Eisel v. Board of Education, 597 A.2d 447 (Md. 1991). https://www.leagle.com/decision/1991700324md3761672

Slide #6: Federal Regulation / Mandate

crobertson222 — 2024-07-23 18:58:48 UTC

https://www.ecfr.gov/current/title-34/subtitle-A/part-99?toc=1

The Family Education Rights and Privacy Act (1974) protects the privacy of student education records and grants parents and eligible students certain rights regarding their access and control over these records (Family Education Right and Privacy Act, 1974).
It ensures that schools protect the confidentiality of student records and only disclose information with proper consent or under specific circumstances.
Failure to adhere to this statute can lead to legal actions, fines, and loss of professional credibility.

References:

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (1974)

Slide #7: Local Administrative Law / Policy / Rule

crobertson222 — 2024-07-23 18:59:11 UTC

Local Policy
The Leander ISD Board Policy Manual (2023) deals with student records and their confidentiality.
- This policy ensures that the school district maintains the privacy of student education records and outlines the circumstances under which these records can be disclosed as laid out in FERPA.
- The primary reason for this policy is to emphasize the privacy standards that the federal law holds educators to, and ensure district employees are following those guidelines. By clearly defining the requirements for access and disclosure of student records, the policy aims to maintain trust between students, parents, and the school district.
- This helps to create a secure environment where students feel safe to share personal information, knowing it will be protected.
Leander ISD. (2023). Board policy manual. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1248&code=FFG#legalTabContent

Slide #8: Risk Management

crobertson222 — 2024-07-23 18:59:29 UTC

Some potential risk management steps include:

Regular Training, Education, and/or Information about the Role of the School Counselor
1. Continually educate and inform stakeholders on the nature of the school counselor's role. As stated in the American School Counselor Association (ASCA) Ethical Standards (2022) the school counselor should, "Act to eliminate and/or reduce the potential for harm to students and stakeholders in any relationships or interactions by using safeguards, such as informed consent, consultation, supervision and documentation." By being clear with your boundaries prior to a problem arising, you are able to provide clear communication and rely on what you have already communicated as guidance through the situation.
Establish a Reporting System
1. In the event that confidentiality needs to be broken it is critical that there is a clear procedure in place to protect the privacy of the student and maintain trust. Many of the situations that also involve breaking confidentiality are a mandatory reporting situation. As stated in the ASCA ethical standards (2022), it is the responsibility of the school counselor to identify situations where a student may be in harms way and act accordingly. It is critical that the campus has a procedure in place for this to protect the student and the school counselor.
Obtain Informed Consent/Assent from all Students
1. It is important that students understand that they can trust the school counselor, but also that there are times that the school counselor must act in the best interest of students and break confidentiality. Obtaining informed consent is a pillar of school counseling as laid out by ASCA's Ethical Standards (2022). This allows the school counselor to maintain a trusting relationship with students, while still protecting the student and acting in their best interest.

References:

American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

Slide #9: Ethical Principle

crobertson222 — 2024-07-23 18:59:42 UTC

"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. Serious and foreseeable harm is different for each minor in schools and is determined by a student’s developmental and chronological age, the setting, parental/guardian rights and the nature of the harm. School counselors consult with appropriate professionals when in doubt as to the validity of an exception" (American School Counselor Association, 2022).
American School Counselor Association. (2022). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)
This ethical standards ensure that school counselors uphold the trust placed in them by students. By maintaining confidentiality, counselors create a safe environment where students feel secure sharing personal and sensitive information. However, counselors must also be prepared to breach confidentiality when necessary to protect the student or others from harm, balancing ethical obligations with legal requirements.

Slide #10: Personal Connection to the Legal and Ethical Standards

crobertson222 — 2024-07-23 19:00:15 UTC

Understanding the way that the law and ethical guidelines impact my role as a school counselor is critical to being an ethical and effective school counselor. These documents provide an outline of what is required and expected of a school counselor and give a clearer picture of the framework we should use to make decisions. In every situation, regardless of how simple or complex it may be, these documents should be used as a guideline for the correct next step to protect students.

Law and ethics are strongly tied to the everyday role of the school counselor. Understanding the impact of law and ethics in my current educational journey is critical in becoming the most effective and best counselor I can be. These standards and laws have been created for a reason, and they are a guiding document into protecting and serving students to the best of my ability.

Slide #11: Recommendations / Best Practices for Compliance

crobertson222 — 2024-07-23 19:00:36 UTC

Make sure to obtain informed consent/assent from students prior to beginning counseling. This involves being clear with students about the purpose of school counseling, as well as being clear about when confidentiality will be broken.
Clearly communicate the purpose of the school counselor, as well as their ethical obligations with confidentiallity to parents.
Establish clear boundaries with staff members around confidentiality. Make sure that they are aware that there will be information that is not disoclsed to them, but if there is something they need to know they will be invovled in the conversation. When you run into challenging situations, stay firm on these boundaries.
Prioritize student safety in all decisions. If a student shares something with you that makes you question their safety, act on the side of caution and in the best interest of the student.
Ensure there are clear reporting procedures for whn confidentiality does need to be broken. While you may have information that does need to be reported, the privacy of the student can still be respected.
Keep clear documentation about the decision making process in the event that confidentiality does need to be broken. Be sure to include the rationale and who the information was shared with.