I recently wrapped up my first year as an intern school counselor at an elementary school campus. At the culmination of this course, I will complete my degree and embark on my second year as a fully certified counselor.

This Padlet aims to help school counselors working in K-12 schools understand the legal and ethical guidelines on confidentiality.

The ethical term used to describe the information shared within the counseling relationship is confidentiality (ASCA, 2022). The school counselor is ethically required to maintain the confidentiality of the information received within the counseling relationship unless legal obligations or school board policies necessitate its disclosure or a breach is necessary to prevent serious and foreseeable harm to the student or others (ASCA, 2022).

Confidentiality is a concept school counselors deal with in every aspect of their work, making it essential to fully understand the limitations of the law. School counselors often find themselves in challenging situations where they must share complex information about a student with their parents. Additionally, it can be challenging to navigate when and how much private information a school counselor should disclose to teachers and administrators. It is essential to recognize that school counselors often find themselves in compromising positions and gaining a better understanding of this concept could help prevent such situations.

School counselors commonly use technology to save data, allowing them to communicate, store information, and use digital software and hardware. Email, text messaging, electronic records, cloud-based storage, applications, and assessments are all now accessible as information-delivering services (Lustgarten et al., 2020). Previously, professionals saved all data on local devices. Technology has enabled school counselors to be more productive. However, incorporating these advancements has implications for digital privacy and may heighten the risk of unintentional breaches of confidentiality for students (Lustgarten et al., 2020).

References

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

Lustgarten, S. D., Garrison, Y. L., Sinnard, M. T., & Flynn, A. W. (2020). Digital privacy in mental healthcare: current issues and recommendations for technology use. Current opinion in psychology, 36, 25–31. https://doi.org/10.1016/j.copsyc.2020.03.012

Parents have the right to access information about their children.

Any statements indicating suicidal thoughts must be taken seriously due to the potential for harm.

Students expressing suicidal thoughts should be given appropriate support.

For students who are 18 years old and have expressed suicidal thoughts, it is advisable to encourage them to communicate with their parents or guardians.

Information about a student should only be shared with teachers and staff who have a genuine educational interest.

Schools are required to comply with subpoenas and court orders when disclosing information.

FERPA (Family Educational Rights and Privacy Acts) 

Federal Administrative Law  

FERPA, or the Federal Educational Rights and Privacy Act, is a federal law that protects the privacy of student education records. It gives parents certain rights concerning their student's education records, which transfer to the students when they reach 18. FERPA restricts access to students' education records, ensuring that a student’s information remains confidential. Schools must obtain written consent from parents or eligible students before disclosing personally identifiable information from education records. Nevertheless, there are certain conditions under which prior consent is not needed.

FERPA allows schools to disclose records, without consent, to the following parties or under the following conditions:

• School officials with legitimate educational interest

  • Other schools to which a student is transferring

  • Specified officials for audit or evaluation purposes

  • Appropriate parties in connection with financial aid to a student

  • Organizations conducting certain studies for or on behalf of the school

  • Accrediting organizations

  • Compliance with a judicial order or lawfully issued subpoena

  • Appropriate officials in cases of health and safety emergencies

  • State and local authorities within a juvenile justice system, under specific state law (34 C.F.R. § 99 (2023))

Schools may disclose, without consent, directory information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance (34 C.F.R. § 99 (2023)). However, schools must inform parents and eligible students about this disclosure and allow them a reasonable amount of time to request that the school not disclose directory information about them (34 C.F.R. § 99 (2023)). Furthermore, schools must provide access to records within 45 days of receiving a request. Parents or eligible students can request the amendment of records they believe are inaccurate, misleading, or violating the student's (34 C.F.R. § 99 (2023)). If the school decides not to amend the record, the parent or eligible student has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student can place a statement with the record commenting on the contested information (34 C.F.R. § 99 (2023)).

U.S. Code: https://www.govinfo.gov/app/details/USCODE-2011-title20/USCODE-2011-title20-chap31-subchapIII-part4-sec1232g

Code of Federal Regulation: https://www.ecfr.gov/current/title-34/subtitle-A/part-99

References

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

34 C.F.R. § 99 (2023)

Owasso Independent School District v. Falvo (2002)

Judicial Law

The case involves a dispute over whether student peer grading violates the Family Educational Rights and Privacy Act (FERPA). The court ruled that peer grading does not violate FERPA, as student-graded papers are not considered "education records" under the Act. The definition of "education records" under FERPA was a point of contention, with one party arguing that an assignment becomes an education record as soon as another student grades it. However, the court ruled in favor of the interpretation that education records include only institutional records, such as student grade point averages, standardized test scores, and records of disciplinary actions. This case was vital in narrowing the scope of the records protected under FERPA, thus making the confidentiality guidelines more explicit concerning educational records.

References

Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002)

Texas Attorney General Opinion

Administrative Guidance

The Texas Attorney General has determined that parents generally have access to all student records. Only in very specific and uncommon situations can a minor child's school counseling records be kept from a parent. In accordance with the Federal Family Educational and Privacy Rights Act, a public school may only withhold a minor child's counseling records from a parent if the records are solely kept by the counselor, used as the counselor's personal memory aid, and are not accessible to anyone else except for a temporary substitute for the counselor (Tex. Att'y Gen. Op. No. JC-0538 (2002)). Within this limited category, state law allows the counselor to withhold a minor child's records only if the counselor meets the definition of a "professional" as outlined in section 611.001(2) of the Health and Safety Code, and if the counselor "determines that release" of such record "would be harmful to the patient's physical, mental, or emotional health" (Tex. Att'y Gen. Op. No. JC-0538 (2002)). In cases where the counselor does not meet the criteria of a licensed professional under section 611.001(2) of the Health and Safety Code, section 26.004 of the Education Code takes precedence, and the parent "is entitled to access to all written records" of the school district "concerning the parent's child, including . . . counseling records" (Tex. Att'y Gen. Op. No. JC-0538 (2002)).

References

Tex. Att'y Gen. Op. No. JC-0538 (2002)

Texas Education Code

Statutory Law

The law stipulates that a school district, its employees, the board of trustees, or any other individual are prohibited from compelling a child to conceal information from their parent (Tex. Educ. Code § 26.005 (2023)). This law upholds the rights of parents to access their child's educational records and emphasizes that the school and its staff should not keep information about the child confidential (Tex. Educ. Code § 26.005 (2023)). It emphasizes the principle that parents have the right to complete information about their child's education, highlighting the importance of transparency and the parental role in the educational process (Tex. Educ. Code § 26.005 (2023)).

References

Tex. Educ. Code § 26.005 (2023)

The Student Records Policy 

Administrative Law

The privacy of student records is of utmost importance and must be safeguarded against unauthorized access. It is the responsibility of all employees to ensure the confidentiality of student records (Ector County Independent School District, 2024). Generally, only parents (whether married, separated, or divorced, unless parental rights are legally terminated and the school has the court order) and students themselves (those who are 18 years old or enrolled in post-secondary education) have access to student records (Ector County Independent School District, 2024).

References

Ector County Independent School District. (2024). Employee handbook. https://www.ectorcountyisd.org/departments/human-resources/employee-handbook