Legal and Ethical Guide to Student Confidentiality by Meagen Baldauf

Slide #1 My Professional Perspective

mbaldauf1 — 2024-07-19 13:33:51 UTC

I began my career in education as a high school English teacher before pivoting into school counseling. As a high school teacher, I had the privilege of working with students from very diverse backgrounds. From serving in a low socioeconomic community to working exclusively with English language learners, I have seen firsthand the struggles and obstacles that so many students face while working towards achieving their high school diploma. I feel passionate about helping students identify areas of need and working with them to meet those needs so that they can achieve their goals.

This guide is intended to support professional school counselors as they navigate legal and ethical issues in their field. I chose to focus on the topic of confidentiality because I feel as though issues or problems related to confidentiality occur frequently, and counselors should have reliable resources available to assist in deciphering the best and most informed approach to handle such situations.

Slide #2 Governing Agency

mbaldauf1 — 2024-07-19 13:34:20 UTC

Issues of confidentiality are governed on the federal level by the U.S. Department of Education; specifically, the Family Policy Compliance Office is responsible for administering and enforcing the Family Educational Rights and Privacy Act (FERPA) (U.S. Department of Education, n.d.).

Reference

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

Slide #3 Constitutional Law

mbaldauf1 — 2024-07-19 13:34:46 UTC

While there is not a federal constitutional law that directly addresses student confidentiality, privacy issues fall under the 4th amendment which prohibits unreasonable search and seizure (U.S. Const. amend. IV). Additionally, Texas does not have constitutional laws that directly address student privacy or confidentiality.

Reference

U.S. Const. amend. IV

Slide #4 Statute & Administrative Law

mbaldauf1 — 2024-07-19 13:35:29 UTC

At the federal level, student privacy and confidentiality is directly addressed by the Family Educational Rights and Privacy Act [FERPA] (1974). This law prohibits the disclosure of student records without parental consent. Additionally, it provides parents with the right to access their child’s educational records at any time (20 CFR § 99.31). At the state level, we can look to the Texas Administrative Code and Texas Education Code for mandates related to student privacy and confidentiality (19 Tex. Admin. Code § 61.107; 2 Tex. Educ. Code § 26.04). Like FERPA, these state statutes require parental consent for the disclosure of student educational records.

References

2 Texas Educational Code § 26 (2017)

19 Texas Administrative Code § 61 (2020)

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

Slide #5 Case Law

mbaldauf1 — 2024-07-19 13:35:42 UTC

The ruling in Eisel v. Board of Education of Montgomery County (1991) set the precedent that school counselors must inform parents/guardians of any suicidal thoughts expressed by a student during a school counseling session. The ruling establishes the fact that counselors must err on the side of caution when considering the limits of confidentiality. Student safety should be placed above protection of privacy in the case of foreseeable harm (Eisel v. Board of Education of Montgomery County, 1991).

Reference

Eisel v. Board of Education of Montgomery County, 216 Md. 492, 589 A.2d 1114 (1991).

Slide #6 Federal Mandate

mbaldauf1 — 2024-07-19 13:36:08 UTC

The Family Educational Rights and Privacy Act (FERPA) safeguards the privacy of student educational records, and allows parents or guardians to access their child's records at any time. Additionally, it prevents the sharing of these records without prior parental consent. In professional school counseling, FERPA ensures that counselors obtain consent before disclosing any confidential information from student educational records except in the case of foreseeable harm to the student or others.

Reference

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

Slide #7 Local Policy

mbaldauf1 — 2024-07-19 13:36:32 UTC

The Round Rock ISD Board Policy is aligned with both federal and state laws regarding student confidentiality. Except where required by law or to avoid foreseeable harm, all student records are to be kept private and confidential (Round Rock ISD, 2023).

Reference

Round Rock ISD. (2023). Board Policy Manual. Student records. https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1245&code=FB#legalTabContent

Slide #8 Risk Management

mbaldauf1 — 2024-07-19 13:36:44 UTC

Professional school counselors can mitigate the risks of confidentiality issues by maintaining open communication and clear boundaries with stakeholders. Counselors should inform students and parents about the limits of confidentiality and obtain informed consent for sharing sensitive information. They must implement strict and thorough record-keeping practices, ensuring that student information is securely stored and accessed only by authorized individuals (Stone, 2020). Additionally, counselors must adhere to ethical standards as set forth by the ASCA. Specifically, counselors strive to maintain student privacy to the fullest extent possible while balancing student safety (ASCA, 2022).

Counselors should undergo regular training on legal and ethical standards in order to stay informed and avoid negligence. Awareness and adherence to professional standards is a crucial component to protecting oneself against legal ramifications including loss of one’s job or facing costly litigation.

Reference

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

Stone, C. (2020). Legal & ethical: Collaborating with stakeholders: Cautionary tales from the courts. ASCA School Counselor. Retrieved from https://www.schoolcounselor.org

Slide #9 Ethical Principle

mbaldauf1 — 2024-07-19 13:37:01 UTC

The American School Counselor Association (ASCA) Ethical Standards for School Counselors provide detailed guidance with regard to student confidentiality. According to these standards, professional school counselors should honor the private and confidential nature of the therapeutic relationship to the greatest extent possible. However, if student welfare is called into question, confidentiality should be broken in order to prevent foreseeable harm to any individual (ASCA, 2022).

Reference

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

Slide #10 Personal Ethical Connection

mbaldauf1 — 2024-07-19 13:37:18 UTC

Upholding student confidentiality is crucial for building a strong student/counselor relationship as students are more likely to seek guidance and support if they feel their privacy will be protected. This level of trust is essential for effective counseling, allowing counselors to better understand and address students' academic, personal, and social challenges. Understand federal, state, and local laws and policies will play a crucial role in my ability to uphold student confidentiality.

Slide #11 Best Practices

mbaldauf1 — 2024-07-19 13:37:48 UTC

· Ensure students understand confidentiality and its limits. Explain informed consent/assent at the outset of each counseling session.

· Engage in professional development and training with regard to legal issues/confidentiality.

· Maintain personal counselor notes that are separate and apart from the student's official educational record.

· Remain informed about any changes in applicable federal, state, or local laws/mandates as well as ASCA ethical guidelines.