December 2018

Legal and Ethical Questions Asked and Answered

By Carolyn Stone, Ed.D., and Samantha Haviland, Ph.D.
School counseling legal and ethical issues can run the gamut of topics. Here we’ve gathered some of the more frequently asked legal and ethical questions to help guide you in your daily work.

Notification and Confidentiality

When do I share information about students with parents or families? With administrators or other school staff?

Sharing information with parents/guardians is important when a student’s safety is in question. This may be sexual behaviors, self-harm, drug use or threats to self or others. Ultimately open communication with parents/guardians is important and will help with overall programming in the school.

Administrators should be notified of any threats to self or others and when a human services report has been made or the police have been called. If you do not already have a protocol in place for this, check with a few neighboring districts for their protocols and bring them to administration for approval. Sharing information with the remainder of your team, such other school counselors, psychologists or social workers, is helpful for consultation but also provides additional eyes on students in case you are out of the building when a student needs something. This is particularly important regarding social/emotional interventions. Otherwise, a sharing of general information when you are concerned about a student, say a student who has been struggling with a loss or depression, can be helpful so teachers can notify you of changing behavior in class or with peers. Typically, just asking teachers to notify you if they see any behaviors from the student that are different from the student’s normal behavior is enough.

Do I need to provide notification to parents and families when a student is involved in a small group I lead?

School counselors want to build, not erode, credibility and maintain a strong working relationship with parents/guardians. This mission is forwarded when school counselors inform parents their child is to be a group member, as some parents/guardians may view small-group counseling as moving away from classroom instruction to a social/emotional focus; therefore, you should inform parents/ guardians. This notification gives you a chance to explain the connection small groups have to academic success, and it gives parents/guardians a chance to opt out.
 
What is best practice regarding case notes? How do I know if my personal notes meet the criteria for case notes?

Parents have a federal right to see anything you write down or record that refers to their child so, as a general rule of thumb, keep your notes in a way you would be comfortable with a parent reading. Personal notes should really be more like memory-joggers for you professionally. Anything that refers to a student, even using initials, ID numbers or personal descriptors if specific enough, is an educational record that belongs primarily to the parent. Other student names can be omitted, but the parents have a right to see all the rest. You can keep personal notes if you feel the need to be more specific, but the law has been clear that if anyone knows they exist they are then covered under the Family Education and Privacy Act (FERPA). According to FERPA, case notes are “sole-possession records” and not educational records if they meet specific criteria. They must: serve as a memory aid, not be accessible or shared in verbal or written form, be a private note created solely by the individual possessing it and include only observations and professional opinions.

My school and district have an electronic management system and want me to include the names of the students I see and the reasons I am working with them. Does that break confidentiality?

It is in your best interest to maintain these records as well. And, if you keep the reasons vague enough, you are still protecting student confidentiality while also informing parents, teachers and/or administrators the student is accessing you for support. It’s also a reminder to administrators of the need for your position. The ASCA Ethical Standards for School Counselors state: Section A.2n. Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and currently acceptable algorithms to be utilized for data in transit. Avoid using software programs without the technological capabilities to protect student information based upon currently acceptable security standards and the law.

Student Scenarios

What do I do if a student tells me she has heard another student brought a firearm to school?

As a school employee, your obligation is to the safety of all students. Inform administration and the school resource officer or police, and allow them to move forward from there.

What do I do if a student tells me he was inappropriately touched by an adult several years earlier? By another student more recently?

If the student tells you he was inappropriately touched go through your school district’s protocol regardless of the amount of time that has passed. You still have a duty to report. Remember that child offenders often offend many times before they are actually caught. You may be preventing future offenses. Also, remember that if the adult is anyone but a family member living in the home you should call the police department. If the student was touched by another student, you will go through a Title IX protocol. Contact your administration and local police department to investigate; your district may have an identified Title IX officer at the district level who can assist. In the case of young children, you may need to call child protective services. A principal recently lost her job when three 5-year-olds were caught simulating sex acts on each other, and the principal called the parents and not child protective services. Do not ever question if the student is being honest. It isn’t a school counselor’s job to investigate, only to report and support the student.

A student at my school sent me an e-mail indicating another student is expressing suicidal thoughts. What are my obligations?

Suicide reporting does not hinge on certainty of harm or your discretion. Waiting until you have certainty is dangerous. The only knowledge you need to meaningfully act is an expressed, implied, veiled, peer-reported or rumored suicidal ideation. The consequence of the risk, death of a child, is too great. We must err of the side of caution.

School counselors should never rely on a student’s denial of suicide intent. Students who are bent on self-harm will escape our scrutiny by telling us what they think we want to hear. If something prompted you to question a student about suicide, then you should talk to the parents as well. In-school suicide assessments are dangerous if relied on for conclusive answers. If a school district performs suicide assessments, these assessments should only be used as a segue to convey to parents the urgency to monitor their child’s safety and to get them professional mental health care to evaluate and, if necessary, treat the suicide risk. The standard of care for school counselors when informally assessing students who are identified as a potential suicide risk is to employ these assessments with extreme caution, with a follow-up assessment completed by a mental health professional who has been trained to assess the risk. School counselors who rely on an in-school suicide assessment for definitive answers are not only negligent but wanton and reckless in their evaluation.

A student told me she cuts herself. Do I need to tell her parents?

Self-harm can feel like a tricky situation because research is unclear of the intent or impact. Ultimately, cutting is a form of self-harm, and best practice and the ASCA Ethical Standards for School Counselors tell us to inform parents so they have the opportunity to intervene.

This helps ensure the student’s overall safety and can help the student get additional help outside of school.

What do I do if a student tells me she thinks she is pregnant?

There are many issues to consider when dealing with this difficult situation. It is important to know your state laws around this topic (i.e., what is the age of consent, issues around pregnancy decision- making, etc.) as well as your school board policies regarding this issue and community norms. Find out how or if the student has confirmed her pregnancy. Other issues to consider include whether the sex was consensual and the age difference of both parties. Understanding the student’s relationship with her parents will help you initiate how to approach having the student tell the parents.

I work with a student whose parents are divorced. One of the parents does not want me to see the student any longer. There are no other school counselors in my building. What do I do?

If a student needs counseling, a 504, special education or any other special services there are court cases supporting one parent’s decision for the service even though the other parent disagrees. However, if the counseling services will cause tension between parents and student the downside could outweigh the benefits of counseling. As hard as it is to back away from a student in need it might be best for all involved. Providing outside resources might be more beneficial for the family.

Determining Duties

On several IEPs, the special education director at my school has included that weekly counseling be provided to students. This prevents me from fully implementing a comprehensive program. What do I do?

It can be difficult to curtail the process of writing school counselors into IEPs. School counselors can stand secure in the explanation that the self-contained teacher or the inclusive classroom can better handle interventions targeting social skills and anger management due to the constant need to reinforce or extinguish behavior in the authentic context of the classroom observing the actual behaviors. You can support regular education and special education students in brief group counseling or behavior management programs, but behavior interfering with a student’s education requiring a long-term approach is an inappropriate use of school counselors’ time.

IEP teams need leadership, communication and clarity as to the appropriate use of IEPs. The team leader should ensure every team member understands in advance that the school counselor’s role must be realistic and relevant as defined by ASCA. School counselors hold a certificate and serve all students in their charge; it is unethical and professionally questionable when others define school counselors’ role as acting outside their scope of practice and serving a small percentage of their population to the exclusion of hundreds of other students in their caseload. Download the ASCA position statement on The School Counselor and Students with Disabilities.

My principal has asked me to teach a class and assign grades to the students. Is that permitted? Does that create a dual relationship?

Sadly, this isn’t as uncommon as we would hope. Your administrator is legally your supervisor and decides what your role is; however, be careful of going down this road and setting precedence. Remind your administrator that teaching a class puts students at risk as you will need to prioritize any crisis or suicidal ideation over the class you’re teaching, which could leave your classroom students unsupervised and potentially unsafe. Additionally, being responsible for assigning grades to students leads to a dual relationship and should be avoided to minimize potential harm to students.

The educators in my state are planning to strike. Am I required to participate? Would my participation be considered student abandonment?

You are not required to do anything that isn’t federal, state or county law; district or school policy; or mandated by your supervisor. This means you are not required to participate in any strikes unless you feel compelled to do so. As for student abandonment, if you believe the safety and wellbeing of your students will suffer in your absence, that may be something to consider. With that consideration is how long the absence may be, can the family provide appropriate support in your absence and what other resources may be leveraged if you chose to strike.

Carolyn Stone, Ed.D., is a professor at the University of North Florida and chair of ASCA’s Ethics Committee. Contact her at cstone@unf.edu. Samantha Haviland, Ph.D., is director of counseling, Denver Public Schools, Colo., and can be reached at havilandsl@gmail.com.