ethical and legal issues for school counselors counseling association code of ethics zamerican...

Ethical and Legal Issues for School Counselors

Presented ByJohn A. Kazen

Kazen, Meurer & Pérez, L.L.P.January 27, 2012

Copyright 2012

Topics

Prevention of BullyingReporting Child AbuseParental right to access student’s informationDisclosing Information About Disease or Violence

Prevention of Bullying

What conduct is inappropriate “bullying” instead of acceptable adolescent behavior?When do you have a duty to report it to school officials or law enforcement?If you do report it, do you identify the victim or even the alleged bullies?What can be done to help a victim of bullying?

“Bullying” means engaging in written or verbal expression of physical conduct that:

(1) will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or,

(2) is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student. Tex. Educ. Code 25.0342(a); Board Policy FFI (Local); Board Policy FDB (Legal).

Bullying of a student may include:hazing, threats, taunting, teasing, confinement, assault, demands for money, destruction of property, theft of valued possessions, name calling, rumor spreading,

and ostracism. Board Policy FFI (Local).

Any District employee who receives notice that a student has or may have experienced bullying shall immediately notify the campus principal or designee.

If a report is made orally, the campus principal or designee shall reduce the report to written form.

The campus principal or designee shall determine whether the allegations in the report, if proven, would constitute prohibited conduct as defined by policy FFH (Student Welfare-Freedom from Discrimination, Harassment, and Retaliation), and if so proceed under that policy instead. Board Policy FFI (Local).

To the greatest extent possible, the District shall respect the privacy of the complainant, persons against whom a report is filed, and witnesses. Limited disclosures may be necessary in order to conduct a thorough investigation. Board Policy FFI (Local).

A professional may disclose confidential information to “medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient.”

Tex. Health & Safety Code § 611.004(a)(2)

(a) A professional may disclose confidential information only:

(4) to a person who has the written consent of the patient, or a parent if the patient is a minor […]; Tex. Health & Safety Code § 611.004(a)(4)

(n) A licensee may take reasonable action to inform medical or law enforcement personnel if the licensee determines that there is a probability of imminent physical injury by the client to the client or others or there is a probability of immediate mental or emotional injury to the client. Title 22, Tex. Admin. Code, Chapter 681.

The professional school counselor:

a. Informs parents/guardians or appropriate authorities when the student’s condition indicates a clear and imminent danger to the student or others. This is to be done after careful deliberation and, where possible, after consultation with other counseling professionals.


b. Will attempt to minimize threat to a student and may choose to 1) inform the student of actions to be taken, 2) involve the student in a three-way communication with parents/guardians when breaching confidentiality or 3) allow the student to have input as to how and to whom the breach will be made.


b. Informs appropriate officials in accordance with school policy of conditions that may be potentially disruptive or damaging to the school’s mission, personnel and property while honoring the confidentiality between the student and counselor.

The professional school counselor:a. Informs parents/guardians of the counselor’s role with emphasis on the confidential nature of the counseling relationship between the counselor and student.b. Recognizes that working with minors in a school setting may require counselors to collaborate with students’ parents/guardians.

The professional school counselor has the primary obligation to the student, who is to be treated with respect as a unique individual. Ethical Standards for School Counselors, A.1.a.

The professional school counselor keeps information confidential unless disclosure is required to prevent clear and imminent danger to the student or others or when legal requirements demand that confidential information be revealed. Ethical Standards for School Counselors, A.2.a.

The professional school counselor:c. Provides parents/guardians with accurate, comprehensive and relevant information in an objective and caring manner, as is appropriate and consistent with ethical responsibilities to the student.

d. Makes reasonable efforts to honor the wishes of parents/guardians concerning information regarding the student, and in cases of divorce or separation exercises a good-faith effort to keep both parents informed with regard to critical information with the


c. Respects the confidentiality of parents/guardians.d. Is sensitive to diversity among families and recognizes that all parents/guardians, custodial and noncustodial, are vested with certain rights and responsibilities for the welfare of their children by virtue of their role and according to law.

On the request of a parent or other person with authority to act on behalf of a student who is a victim of bullying, the Board or its designee shall transfer the victim to:

1. Another classroom at the campus to which the victim was assigned at the time the bullying occurred; or

2. A campus in the District other than the campus to which the victim was assigned at the time the bullying occurred. Tex. Educ. Code 25.0342(b); Board Policy FDB (Legal)

Reporting Child Abuse

Reporting Child Abuse:

A “professional” who has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect must make a report within 48 hours after you first suspect abuse. Tex. Fam. Code § 261.101(b).

Professional “means an individual who is licensed or certified by the state …. Id.

What “proof” is required?

Those reporting are not required to have proof that a child is being abused, but must have “reasonable cause” to know or suspect abuse. Id.

The report should be made in good faith.

The Report should be addressed to:

A local or state law enforcement agency;The Texas Department of Family and Protective Services (Formerly the Texas Department of Protective and Regulatory Service), Child Protective Services Division;A local office of Child Protective Services; orThe State agency that operates, licenses, certifies, or registers the facility in which

Oral or written report?

The regulations say that a report may be “oral or written.” 19 Tex. Admin. Code § 61.1051(a)(1).

However, it is highly recommended that all reports be done in writing.A writing will help ensure that the report is legally sufficient.A writing will document what you know and what you saw, and may be useful as evidence. See Tex. R. Evid. 803(5) (Hearsay exception).

You can make a written report over the internet.

The report shall contain:

If known, the name and address of the child;The name and address of the person responsible for the care of child, if available; andAny other pertinent information concerning the alleged or suspected abuse or neglect. Tex. Fam. Code § 261.104.

You cannot “pass the buck”

Reporting your suspicion to a principal or to another staff member does NOT fulfill your responsibilities to report under the law. Tex. Fam. Code § 261.101(b).

Laws provide that a school district may not require that school personnel report suspicions of child abuse or neglect to a school administrator prior to reporting to an agency.

Is there a downside to reporting?

No.A person who in good faith reports or assists in the investigation of a report of child abuse or neglect, without malice, is immune from any civil or criminal liability. Tex. Fam. Code § 261.106.

State law requires that the identity of a person making a report of suspected child abuse or neglect be kept confidential. Tex. Fam. Code § 261.101(d).

Thus, free from disclosure under the Public Information Act!

However …

There is no immunity from civil or criminal penalties if the report is made:

By a person who is reporting his or her own conduct;By a person who acts in bad faith – dishonesty of belief or purpose;By a person who acts with malice – intent to cause harm.

What if I fail to report?

You may be risking the safety of the child.You are violating the law and may be subject to criminal penalties.

A person commits a Class B misdemeanor for failing to report. Tex. Fam. Code § 261.109

An employee who convinces another not to report suspected child abuse commits a Class C misdemeanor. Tex. Penal Code § 39.06(a)(3).

What if I fail to report?

You are violating Board policy FFG(Legal).Your certification may be suspended, revoked or cancelled. 19 Tex. Admin. Code § 61.1051.

A failure to report might subject you to a civil lawsuit. See Nash v. Perry, 944 S.W. 2d 728 (Tex. App.—Austin 1997) (negligence per se).

Hypothetical

A sixteen year-old female student tells you she is having sexual relations with her boyfriend.Does the age of the boyfried matter?Yes.

Texas Penal Code § 21.11

(a) A person commits an offense if [the person does sexual activities] with a child younger than 17 years and not the person’s spouse.(b) It is an affirmative defense to prosecution under this section that the actor:(1) was not more than three years olderthan the victim and of the opposite sex;(2) did not use duress, force, or a threat against the victim at the time of the ff d [ ]

Summary

Eighteen year old boy (adult) with sixteen year old girl, not a crime.Twenty year old boy (adult) with sixteen year old girl, a crime and may be reportable “child abuse”.

Parents Right to Access Information

Applicable Ethical Standards

American Counseling Association Code of EthicsAmerican School Counselor Association Ethical Standards for School CounselorsTexas State Board of Examiners of Professional Counselors Code of Ethics

American School Counselor Ethical Guideline B.1:

The professional school counselor:c. Respects the confidentiality of parents/guardians.d. Is sensitive to diversity among families and recognizes that all parents/guardians, custodial and noncustodial, are vested with certain rights and responsibilities for the welfare of their children by virtue of their role and according to law.


The professional school counselor:a. Informs parents/guardians of the counselor’s role with emphasis on the confidential nature of the counseling relationship between the counselor and student.b. Recognizes that working with minors in a school setting may require counselors to collaborate with students’ parents/guardians.


The professional school counselor:c. Provides parents/guardians with accurate, comprehensive and relevant information in an objective and caring manner, as is appropriate and consistent with ethical responsibilities to the student.d. Makes reasonable efforts to honor the wishes of parents/guardians concerning information regarding the student, and in cases of divorce or separation exercises a good-faith effort to keep both parents informed with regard to critical information with the exception of a court order.

American School Counselor Ethical Guideline A.8:

The professional school counselor:a. Maintains and secures records necessary for rendering professional services to the student as required by laws, regulations, institutional procedures and confidentiality guidelines.b. Keeps sole-possession records separate from students’ educational records in keeping with state laws.

Texas State Board of Examiners of Professional Counselors Code of Ethics

(x) A licensee shall comply with the requirements of Texas Health and Safety Code, Chapter 611, concerning the release of mental health records and confidential information.

Three statutes:

FERPA;Texas Education Code § 26.004; andTexas Health and Safety Code §611.0045.

What is FERPA?

The Family Educational Rights and Privacy Act of 1974, as amended, is a federal statute that governs the availability of “student records” and the release of “personally identifiable information.”

It is sometimes referred to as the “Buckley Amendment,” and it is foundat 20 U.S.C. § 1232g.

The administrative regulations are promulgated by the U.S. Department of Education. Found at 34 C.F.R. Part 99

FERPA:

Provides that parents and students have a right to inspect and review “education records.”Provides that “education records” and “personally identifiable information” (other than directory information) are not to be disclosed to third parties without prior written consent.

But there are exceptions.

What are the exceptions?

34 C.F.R. § 99.31 lists fifteen exceptions.Other school officials with “legitimate educational interests.”

This includes outside legal counsel.

Officials of another school (including postsecondary schools) where the student intends to enroll.The disclosure is in connection with financial aid.The disclosure is in connection with a health or safety emergency.

What are “education records”?

They are records that are 1) directly related to a student and 2) maintained by an educational agency.They are not records of the counselor that are in the sole possession of the counselor and are not accessible to any person, except a substitute.They are not records maintained by law enforcement for law enforcement purposes.For a more complete definition, see 20 U.S.C. §1232g(a)(4) or 34 C.F.R. § 99.2.


The professional school counselor:c. Recognizes the limits of sole-possession records and understands these records are a memory aid for the creator and in absence of privilege communication may be subpoenaed and may become educational records when they 1) are shared with others in verbal or written form, 2) include information other than professional opinion or personal observations and/or 3) are made accessible to others.

Who is a “parent”?

It includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.

Divorced Parents and Custody Disputes

But a divorce decree or custody order can change a parent’s rights! Not checking to see if there has been a divorce decree or other legally binding document could mean the release of information protected under FERPA.The school attorney should review any divorce decree or other legal document.

Posting grades and peer grading:

The public posting of grades either by the student’s name, institutional student ID number, etc., without written permission is a violation of FERPA.But peer grading does not violate FERPA. Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002).

Texas Education Code § 26.004, Access to Student Records

“A parent is entitled to access all written records of a school district concerning the parent’s child, including:… (5) counseling records;… (6) psychological records;… (9) teacher and counselor evaluations ….

Texas Education Code § 26.004

“Parent” is a “person standing in parental relation.” It does not include a person as to whom the parent/child relationship has been terminated. Tex. Educ. Code § 26.002.

Texas Health and Safety Code §611.0045

“(b) The professional may deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient’s physical, mental, or emotional health.”

Texas Health and Safety Code §611.0045

A “professional” is:A person authorized to practice medicine in any state or nation;A person licensed or certified by Texas to diagnose, evaluate, or treat any mental or emotional condition or disorder; orA person the patient reasonably believes is authorized, licensed, or certified as provided by this subsection. Tex. Health & Safety Code § 611.001(2)

Statutory Conflict

Yes.Luckily, the Texas Attorney General has resolved this conflict and concluded “that only under very narrow and unusual circumstances may such records be withheld from the parent.”

Op. Tex. Att’y Gen. JC-0538 (2002) (emphasis added).

Resolving the conflict:

Step #1: Does FERPA apply?Remember, FERPA does not apply to counseling records if the records are:

Kept in the sole possession of the counselor;Are used only as the counselor’s memory aid; ANDAre not accessible or revealed to any other person except a temporary substitute for the counselor.


Step #2: Is the counselor a “professional”?A “professional” is:

A person authorized to practice medicine in any state or nation;A person licensed or certified by Texas to diagnose, evaluate, or treat any mental or emotional condition or disorder; orA person the patient reasonably believes is authorized, licensed, or certified as provided by this subsection. Tex. Health & Safety Code § 611.001(2)


Step #3: Assuming FERPA does not apply and the counselor is a “professional,” a counselor may withhold the information if and only if he or she determines that the release of the records would be harmful to the patient’s physical, mental, or emotional health.

In reality, FERPA determines the outcome.

Realistically speaking, it would be unusual for substantive information to be kept in the sole possession of the counselor and used only as the counselor’s memory aid. In most circumstances, FERPA will apply.As such, this means that a parent has the right to the student’s information.

Grievances and § 26.004

“The Board shall adopt a grievance procedure under which the Board shall address each complaint that it receives concerning a violation of a right guaranteed by” Texas Education Code Chapter 26.

Tex. Educ. Code § 26.011.

The Board shall provide for procedures to consider complaints that a parent’s right has been denied.

Tex. Educ. Code § 26.001(d).

Liability under the Health and Safety Code:

(a) A person aggrieved by the improper disclosure of or failure to disclose confidential communications or records in violation of this chapter may petition the district court of the county in which the person resides for appropriate relief, including injunctive relief. The person may petition a district court of Travis County if the person is not a resident of this state. (b) In a suit contesting the denial of access under Section 611.0045, the burden of proving that the denial was proper is on the professional who denied the access. (c) The aggrieved person also has a civil cause of action for damages.

Tex. Health & Safety Code § 611.005

Subpoena Duces Tecum:

A Subpoena Duces Tecum requires the production of books, papers, documents and other tangible items. It is a command that comes from a court and is used to gather information in a lawsuit.A Subpoena Duces Tecum is NOT a parent’s request for his or her child’s records.A Subpoena Duces Tecum is directed at the Custodian of Records, and should go to legal counsel as soon as possible.

Subpoena Duces Tecum & Student Records:

FERPA also governs the release of student records under a subpoena.The District shall release student records to an entity or persons designated in a subpoena.The District shall not disclose to any person the existence or the contents of the subpoena if a court orders the District to refrain from such disclosure. Unless the court or other issuing agency orders the District to refrain from such disclosure, the District shall notify the parents and the student of all such subpoenas in advance of compliance

Disclosing Information About Disease or Violence

Hypothetical:

Student comes into the counselor’s office and says, “I’m thinking about killing my ex-girlfriend.”Counselor takes no action.Two months later, student kills ex-girlfriend.

Applicable Law

A professional may disclose confidential information to “medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient.”

Tex. Health & Safety Code § 611.004(a)(2)

Applicable Law

(a) A professional may disclose confidential information only:(4) to a person who has the written consent of the patient, or a parent if the patient is a minor […];


The professional school counselor:a. Informs parents/guardians or appropriate authorities when the student’s condition indicates a clear and imminent danger to the student or others. This is to be done after careful deliberation and, where possible, after consultation with other counseling professionals.


The professional school counselor:b. Will attempt to minimize threat to a student and may choose to 1) inform the student of actions to be taken, 2) involve the student in a three-way communication with parents/guardians when breaching confidentiality or 3) allow the student to have input as to how and to whom the breach will be made.

Ethical Standards for School Counselors, A.2. Confidentiality

c. In absence of state legislation expressly forbidding disclosure, considers the ethical responsibility to provide information to an identified third party who, by his/her relationship with the student, is at a high risk of contracting a disease that is commonly known to be communicable and fatal. Disclosure requires satisfaction of all of the following conditions:

Conditions for Disclosure to a Third-Party

Student identifies partner or the partner is highly identifiableCounselor recommends the student notify partner and refrain from further high-risk behaviorStudent refusesCounselor informs the student of the intent to notify the partnerCounselor seeks legal consultation as to the legalities of informing the partner

American School Counselor Ethical Guideline D.1:

The professional school counselor:b. Informs appropriate officials in accordance with school policy of conditions that may be potentially disruptive or damaging to the school’s mission, personnel and property while honoring the confidentiality between the student and counselor.


The professional school counselor:a. Respects the rights and responsibilities of parents/guardians for their children and endeavors to establish, as appropriate, a collaborative relationship with parents/guardians to facilitate the student’s maximum development.b. Adheres to laws, local guidelines and ethical standards of practice when assisting parents/guardians experiencing family difficulties that interfere with the student’s effectiveness and welfare.


The professional school counselor:a. Has the primary obligation to the student, who is to be treated with respect as a unique individual.

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