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Issues and Lessons Emerging  from COVID-19
5/1/2020
Carolyn Stone, Ed.D.
Friday May 01, 2020
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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In March 2020, thousands of school counselors were suddenly thrust into online school counseling. Myriad questions followed as school counselors found themselves wrestling with the legal and ethical implications of moving from in-person school counseling to providing school counseling virtually. Even though online school counseling has been a part of our profession for decades, new issues have emerged as school counselors ramped up to support students whose world had shifted. Three major themes emerged: student confidentiality, appropriate technology and unrealistic demands. 

At the beginning of the move to virtual schools from the COVID-19 pandemic, many school counselors felt a burden to find ways to continue their work. School counselors were especially concerned about the technology platforms they were using, which is a legitimate concern. Our profession is based on the trusting relationship born out of confidentiality. However, it is too burdensome for school counselors to have to figure out all the encryptions and privacy protections of the school district platform and software. The school district, not the school counselor, is responsible for ensuring the software adheres to the federal laws governing privacy. 

School counselors frequently voiced their concerns about respecting confidentiality as they learned to work in this new normal. School districts were providing directives more applicable to teacher success and, in some cases, disastrous to school counselor/student confidentiality. Confidentiality does not have the same meaning for administrators and teachers, and this has been very apparent. School counselors have been consulting and collaborating with their administrators to state their cases and make their needs known. 

Student Confidentiality
Is my written communication and video communication with students in platforms such as Google Hangout considered an educational record? 

Yes, both written and video communications are educational records if we “maintain them,” according to the Family Educational Rights and Privacy Act (FERPA). Anything we “maintain” that is directly related to a student is an educational record. If you erase the conversation, then it is not a record and not maintained, therefore, not an educational record. It must be maintained to be an educational record. 
 
Can parents request access to any video recording I am using to virtually communicate with my students? Who else can have access to the video?

Yes. If the video is maintained, it is an educational record. It is easier to maintain confidentiality in a brick and mortar setting. If you are writing or recording conversations, check in advance if you’ll be able to erase conversations after the session. 

Use informed consent, and make sure students understand the limits of confidentiality in a virtual world. Anyone who is under contract and control of the district and has been designated as having legitimate educational interest (LEI) for a particular student’s information can have access. In other words, if the administration has been deemed LEI for all students in the school, then they can have access to the video. The same goes if teachers or paraprofessionals are allowed to access records of students in their charge. Advocate for a limited number of educators to have LEI for your students’ archived counseling sessions or, better yet, advocate that all counseling sessions be erased following the exchange. 
 
Is it necessary for me to have each parent sign a consent form now that we have moved to virtual counseling? 

No. If your district required this in your previous setting, you would continue the practice virtually, unless they have softened or amended the policy. If the district enacts a new policy for parental permission for virtual school counseling, you must comply; otherwise, proceed without parental consent as you would have in person. Best practice is usually to inform parents when working with their child over time in individual counseling. However, currently even informing can be a challenge without adding the need for a parental signature to proceed. 
 
What are some things I can do to ensure confidentiality in the virtual world of school counseling?

Ask students to use a private room and headphones with a microphone if possible. Additionally, a white noise machine in the room will help further limit the risk of others overhearing the student’s conversation.
 
I am being instructed to carry educational records and my case notes home. Is this even legal? 

Yes, it’s legal. According to the U.S. Department of Education Student Privacy Policy Office, which governs  FERPA, there is no prohibition against teachers and school counselors taking home educational records, assuming they are school officials with legitimate educational interests. However, be sure to protect the information you take home so others in your house don’t have access to it. 
 
My district is forbidding me from working one-on-one with a student and instructing everyone in the district that we must work with students in pairs or groups. They are citing FERPA. Can this be correct? 

FERPA governs educational records and doesn’t address access to students. However, the district has a right to determine access to students. Some states have statutes prohibiting educators from ever being alone with a student or out of sight of others when with one student. However, the very nature of school counselors’ work is one-on-one, so this is another policy that doesn’t take into consideration our unique need to work with students individually. Some states, such as Louisiana, prohibit educators from being alone with students but make an exception for school counselors. 

If you cannot find legal muscle to support you, advocate and compromise until you find an agreeable solution. One possible compromise, and last resort, may be to agree to videotape the sessions and archive them should any future questions or accusations arise. However, you must follow district policy while advocating for what really needs to be in place so you can do your job. 

Keep in mind that the virtual world can have a disinhibiting effect on parties. One case of many in which an educator lost his job because of his behavior in the virtual world was Spanierman v. Hughes (2008). When the teacher sued to get his job back, the courts sided with the district because the teacher’s communication had become “peer like” and had destroyed the professional distance and created an environment in which he could no longer do his job. 
 
I have been running small groups on social skills, and sometimes the conversations are of a personal nature. Can I continue my groups in the virtual school counseling office?

Legal and ethical complications are acutely present in small-group delivery in the best of circumstances but especially problematic in the virtual world. Confidentiality for groups in a brick and mortar situation is fragile because a school counselor can never feel secure in the fact that a student understands all the nuances of confidentiality and abides by it. We should always remember that whatever is said in the group can be tweeted, posted on social media or discussed in the hallways within seconds or minutes. This awareness heightens school counselors’ vigilance as to what they allow one student to talk about in front of other students. 

Ensuring confidentiality in a virtual world is even more difficult. You can’t know who is listening in each student’s household. It might be impossible for a student to seek a private place, have headphones or keep family members out of earshot. Informed consent is even more important for groups than individual counseling, as disclosing sensitive information happens in front of other students. The current reality of informed consent in virtual as well as brick and mortar schools falls far short of its stated goals. The reality and safest approach when working with minors in groups is to come from the posture that confidentiality will be breached. The best approach in the virtual world is to stay with topics that have less likelihood of spinning off into the private world of students and their families. Stress the need for students to seek you individually if they have something of a personal nature they must share. 

Technology
My district wants me to use one type of online conferencing technology, but I’d rather use a different kind. Is this okay? 

It is far safer to use what the district suggests. The district has likely vetted the program to make sure it will interface and integrate with the district’s system and security approach. For example, one large urban district requires Microsoft Teams because it is part of the larger group of software applications fully adopted and integrated with the district’s systems and security. This protects the educator against false accusations and the student against exploitation because the district can review activity occurring in Teams. It is not a matter of which program or app is superior but rather which online program offers the best layer of protection for all as determined by the district. 
 
Do I have to use the computer the school issued me, or can I use my much superior laptop? 

You must use the school-issued computer unless the district offers you an exception. Again, it is about safety and security. There are privacy settings that protect district computers that your personal computer may not have. Advocate for your equipment needs, but be careful not to go against school district dictates regarding equipment. 
 
Does the platform I’m using have to be Health Insurance Portability Accountability Act (HIPAA) compliant? I have been receiving mixed messages about school counselors’ obligation to ensure our platforms and software are HIPPA-compliant. Must they be?

HIPAA doesn’t apply to elementary or secondary schools except in a few limited circumstances. Schools receiving federal funds are not a HIPAA-covered entity; the health information maintained on student records is educational records and covered by FERPA. Billing for health care services is when HIPAA applies.

Use the platform your district has assigned, as this is safest for you and students. If your school is a private school and receives no federal funds, there may be the unusual case where someone who bills for health care might fall under HIPAA. For example, “if a private elementary or secondary school not subject to FERPA employs a physician who bills a health plan electronically for the care provided to students (making the school a HIPAA-covered entity), the school must comply with the HIPAA rules regarding the individually identifiable health information of its patients” (USDOE and USDHHS, 2019, p. 8). You can find all the information you need about HIPAA and FERPA on the U.S. Department of Health and Human Services website.

Unrealistic Demands
My principal wants me to do suicide risk assessments over the phone when we have reason to believe a student might be at risk. 

Requiring school counselors to conduct suicide risk assessments is problematic on so many levels, not the least of which is the fallibility of assessing suicidal risk. Add to this complication the fact that the virtual world puts a barrier between the school counselor and student; sometimes there are no verbal or nonverbal cues through a computer monitor. The standard of care for school counselors when being required by others to assess students for suicide is to employ these assessments with extreme caution, with a follow-up assessment completed by a mental health professional who can spend the amount of time needed to more accurately address what is happening with the student. Quantifying the risk (high risk, medium risk or low risk) based largely on student response is a dangerous practice; the information gleaned should be considered unreliable. To tell a parent the risk is low is to convey what you cannot possibly know with certainty. 

Get in touch with the parents as soon as possible, and tell them to seek professional help for their child. If a student expresses suicidal ideation while you are talking to him/her, proceed as you would in a brick and mortar situation. Stay with the student. Keep the student talking. Have the student “take you” virtually to his/her parent. It that isn’t possible, alert the parent by another means. If you cannot reach the parents, have the police do a welfare check. Establish a protocol for virtual response to suicide ideology.
 
I am being asked to make home visits for those students who have not responded to their virtual classes. Am I unreasonable to want out of this dictate? 

Dictates that would be considered unheard of in the everyday life of a brick and mortar school counselor’s day are suddenly appearing in virtual schools. You are right to feel uncomfortable. Use all your powers of persuasion to get out of this. If you’re in a state with a shelter-in-place order, these visits might even be illegal. Students have to be reached without putting educators at risk. Robo calls, news reports, public service announcements, etc., can be used to emphasize to the school community the importance of responding to the school. If a school counselor does end up making house calls, he or she should never go alone. Try to pair up with the school resource officer, use COVID-19 safety precautions, have a set plan as to what should be accomplished and take any resources, such as a laptop, you may need. Again, home visits should not be on the school counselor’s shoulders.

Carolyn Stone, Ed.D., is a professor at the University of North Florida and chair of ASCA’s Ethics Committee. Contact the author for references in this article. To submit your questions for a future column, e-mail them to ethics@schoolcounselor.org.