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Legal and Ethical Technology Imperatives
Carolyn Stone, Ed.D.
Friday January 01, 2016
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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Your district expects you to answer e-mail after school hours. You are concerned about the legal and ethical implications of being available 24 hours a day/seven days a week. Should you be concerned?

Work/life boundaries can easily be blurred as school counselors use communication methods that serve both their personal and professional lives. Having the Internet in the palm of your hand with continuous access to e-mail, social media, student information and web resources has the potential of extending the workday long past school hours. More than half of the respondents (53 percent) in a 2013 study responded that they check e-mail outside of school hours between “moderate” to a “great deal.” Only 4 percent of the respondents reported they never check e-mail outside of regular work hours.

There are legal and ethical implications regarding student safety when creating an expectation for students, parents and administrators that you’ll be available electronically during nonworking hours. Sixty-two percent of respondents in the 2013 study reported they have never received an electronic message from a student after work hours that triggered a safety concern. Ninety percent of those who did receive such an outcry responded immediately. Even though the vast majority of school counselors responded immediately, it is of grave concern that there are those who did not as the consequence of the risk is too great.

It’s unlikely but possible that an argument can be made in a court of law that a legal duty was owed by the school counselor who established a pattern of responding after hours, broke that pattern, and an injury or death occurred. Case history tells us it’s highly unlikely the school counselor would be found guilty of negligence in a student’s suicide, but avoiding the dereliction of duty charge in the first place is best practice by not establishing an around-the-clock pattern of availability.

The normal practice for school counselors when a student is suicidal is constant supervision, but after school hours, the school counselor can’t physically supervise a student while waiting for parental or resource help. For the protection of the school counselor and student, it’s best practice to establish an “away message” on e-mails that clearly communicates available hours and includes emergency resources such as a suicide hotline number. Any practice that involves the potential of harm needs to be consistently implemented, and since it is unsustainable and unfair to expect a school counselor should be available at all hours of the day, the next best thing is to give detailed off-hour resources. Hyper-alertness all hours of the day is the antithesis of downtime, which is necessary for school counselor effectiveness. 

Your school district has recently purchased software for the new requirement that school counselors keep electronic case notes. The argument from administration is that for educational reasons they need to know which students are receiving individual counseling and the presenting issue or problem. Should you worry about confidentiality?

The practice of districts requiring school counselors to keep electronic case notes is on the rise. Ten percent of respondents in a 2013 survey said their district required them to keep electronic case notes, and an additional 7 percent said they did so by choice. Depending on district procedures, administrators, teachers, paraprofessionals and others may be able to access these case notes if it is successfully argued that they have legitimate educational interest under the Family Educational Rights and Privacy Act (FERPA). School counselors’ valid concerns come from their awareness that even though educators might have legitimate education interest under FERPA they may not have the same understanding or responsibility to maintain the level of confidentiality case notes require.

If you’re required to keep electronic case notes on students, best practice would be to protect the case notes with a password only known by you and possibly a few select others who may have an educational need to know information on the student. Ideally, only a few educators would have access, and they would be carefully vetted to determine solid reasons and needs for acquiring the information. Another protection is to implement the practice of simple codes to describe the presenting problem such as A for academic, P for personal issues or CCR for college and career readiness and perhaps a similar system if intervention notations are required. Vague case notes are almost always acceptable in the nature and function of school counseling as the work doesn’t involve detailed clinical therapeutic notes. Detailed notes are needed in just a few situations, such as self-harm or child abuse, and details this sensitive should never be part of electronic records.

Your colleague brags about her refusal to learn anything about technology. She does not access student data in determining program goals nor does she use online technology for even simple approaches such as e-mail. This technology-free practice causes additional work for the office staff and the other school counselors. Are there legal and ethical implications for her behavior? 

Communication and information sharing through online technology are fast becoming integral components of school counselors’ ethical practice. To be effective, school counselors have to work diligently to be competent and efficient with online communication and information technology. The ASCA Ethical Standards for School Counselors encourage school counselors to “promote the benefits of and clarify the limitations of various appropriate technological applications” (A.10.a.). Online communication can offer school counselors a diverse set of effective modes of remote interaction to support professional development, networking and consultation. 

In a 2013 study, nearly half of the school counselors responding reported using online technology at least occasionally in the areas of professional development, consultation, collaboration, program management and operations. One out of four respondents indicated using online technologies at least occasionally in delivering classroom lessons, events, activities and student planning tasks such as advising. An important part of the school counselor’s job, data-driven decision making, is enhanced when using software specific to collecting, disaggregating and reporting data. Important communication with students can be facilitated through online technologies rather than relying solely on infrequent, isolated, individual appointments or access to classrooms for lessons. Continually seeking professional development in technology tools to enhance capabilities is the standard of care and ethical practice required of school counselors.

Teachers in your school routinely send you e-mails with sensitive details about students. Teachers are so busy you hate to burden them by asking them not to contact you about a student in e-mail. You know you have to act, but you want to do keep in mind the realities of busy teachers/school counselors while protecting students’ confidentiality. What is best practice?

E-mail is an accepted form of communication among educators, but it might not be fully confidential. Maintaining students’ privacy and confidentiality with online communications is a serious concern for school counselors and never more so than the common practice of sending or receiving identifying information about students in an e-mail.

School districts are putting policies into place about the use of the school district server for e-mails. Language is appearing that says no identifying information can be used. The School District of Philadelphia policy says: Users shall not reveal personal information to other users on the network, including chat rooms, e-mail, social networking websites, etc. Personal information includes, but is not limited to, name, e-mail address, home address, telephone number, school address, work address, pictures or video clips.

Also, policies often suggest informing students and parents about the limits of confidentiality in e-mail communications and including this statement as a part of the e-mail signature or footer. 

Amy’s divorced parents have been incarcerated at various times. Amy alternately lives in a homeless shelter or her mother’s car. This and other sensitive information is kept in Amy’s electronic educational records. Because of prior breaches you worry Amy’s information could fall into the wrong hands. You wonder if there is anything you need to know to support your district’s practice of managing the security of student information?

As technology evolves, districts must continue being proactive and predict and safeguard against possible privacy breaches. School officials must make informed choices about how to protect student information they collect, store and process on their data management systems. School counselors aren’t responsible for the security of student information management systems, but the more information they have the better equipped they are to advocate effectively for privacy assurance for Amy and all students.

There are organizations such as iKeepSafe that provide an independent, third-party review of K-12 technology products and websites to determine if they meet state and federal student privacy regulations. The iKeepSafe organization recently developed the California Student Privacy Assessment, a standard for education technology companies to demonstrate their products comply with federal and state privacy laws. A privacy assessment will likely become the norm for districts that must reassure the public of their efforts to protect students’ information. If you have doubts, it’s perfectly appropriate for you to question whether or not the district has had a privacy assessment.

Carolyn Stone, Ed.D., is a professor at the University of North Florida and the chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.