Students are supported by school, family and agency personnel – student service providers communicate, collaborate and serve as liaisons between these groups. Increasingly student information is being stored and communicated electronically. How does the student service professional work efficiently with student data and yet meet the ethical and legal requirements for confidentiality?
* parents have the right to access all materials relating to the education of their child regardless of the medium – this would include all electronic information as it would be hard to demonstrate that the information included in electronic files met the standard of “case notes” which would be the only documented items protected by “privileged communication”.
FERPA 1974 “threatens the loss of federal funds to any educational entity that allows the dissemination of information from a student’s educational records to most third parties without parental consent”.
directory information, subject to disclosure without written permission, may not include the student’s SS # or other identification # but may include a user id or electronic identifier that acts as a “name”
an institution that determines that there is “an articulable and significant threat to the health or safety of a student or other individuals, ..may disclose information to appropriate persons.”
Matters related in official capacity; exceptions to privilege
Sec. 1. Matters communicated to a counselor in the counselor’s official capacity by a client are privileged information and may not be disclosed by the counselor to any person , except under the following circumstances:
In a criminal proceeding involving a homicide if the disclosure relates
If the communication reveals the contemplation or commission of a crime or a serious harmful act :
Every organization, including the local educational agency, is required to assign someone the duties of the security officer, in order to assure compliance with the law. Every organization is required to set up safeguards to protect records, and monitor their use, as well as report any disuse.
A student health file managed by a school nurse is part of the “educational record” and therefore governed by FERPA.
Most recent NASW Code of Ethics for the first time addressed directly the issues related to technology:
“ SWs should take precautions to ensure and maintain confidentiality of information transmitted …through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology. Disclosure of identifying information should be avoided whenever possible.” (NASW 1.07 Privacy and Confidentiality l & m)
Ethical Standards for School Counselors: ASCA 2004
“ Protects the confidentiality of students’ records and releases personal data in accordance with prescribed laws and school policies. Student information stored and transmitted electronically is treated with the same care as traditional student records.
c. Takes appropriate and reasonable measures for maintaining confidentiality of student information and educational records stored or transmitted over electronic media including although not limited to fax, electronic mail and instant messaging.
e. Who is engaged in the delivery of services involving technologies such as the telephone, videoconferencing and the Internet takes responsible steps to protect students and others from harm.
Handling Confidential Information in the Age of Technology
Concerns regarding computerized record keeping:
“ all of the information in all of the files is potentially available to anyone with a computer terminal – all without the consent of clients” Soler and Peters (1993)
Chicago Public Schools Superintendant Anne Duncan recently came under fire from the Chicago Teachers Union after 2 laptops, containing the names and social security numbers of about 40,000 teachers, were stolen.
About 120,000 computers were stolen from schools in the US in 2007. 75% of computers with a theft recovery program are returned.
IPS superintendent writes a letter of apology regarding a breach of security that unintentionally exposed student, teacher, and employee information that was housed in the school districts intranet site.
Best Practices for Securing Computerized Information
If progress notes are to be maintained on-line,
knowing that security may be breached, and using professional judgment guided by ethical practice, and in consultation with the security expert, decide:
- what to leave in/out?
- how/where to record/store information in the system?
Discourage e-mail referrals from parents/teachers/administrators by e-mail.
Do not include any information in a client computer file that would be identifiable in the event that the computer file got into the wrong hands. Computers (particularly laptops) are stolen every day from schools! Code files so that only you can identify the client. Only when information enters the student record is the client identified.
Do not include any information in an electronic student file that would be confidential to the student/client. An electronic student file meets the definition of “student record” and may be accessed by parents (FERPA).
Include information about transmittal of information to third parties on the “informed consent” form.
Have available for staff and parents a document outlining the parameters of the sharing of personal student information
A counselor e-mails you from another school wanting information about a student who has come to the school’s attention….
You know that a student you have been working with would benefit from counseling services at the school s/he will be attending next year..
You have been subpoenaed to court and have been asked for confidential information…
A teacher e-mails you requesting your assistance with a student, detailing the student’s family circumstances in the message..
A parent wants to know what their child has revealed in the course of counseling and what you have documented.
What to do in the event that you have been subpoenaed to court.
Consult your school district attorney. That person may choose to be the intermediary with the court.
If attending bring all requested documents including case notes and be willing to describe why such notes meet the criteria for personal case notes.
Bring a copy of the law that stipulates that the requested information is privileged under IC 25-23.6-6-1
Have a copy of the relevant section of the ASCA Code of Ethics.
Hand this to the judge when asked for privileged information, whether written or spoken.
Keep a copy of any correspondence/legal documents, related to the subpoena.
What to do in the event that a parent demands information regarding the content of counseling sessions
If possible prevent this from occurring by discussing the boundaries of confidentiality ahead of time with the parent.
Agree ahead of time with the parent and client what would constitute information about “counseling progress”.
If it is the non-custodial parent requesting information explain the legal and ethical limits to your ability to reveal this information
Listen to and validate the feelings leading to the parent’s request for information – specific concerns may be addressed without the necessity of revealing confidential information, or permission may be obtained from the student
If all avenues have been explored and fail to resolve the issue – the options are breach confidentiality or remain silent. Always undertake an Ethical Decision Making Process before choosing a course of action.
See article: Professional School Counseling: “When parents want to know: responding to parental demands for confidential information”. December 2002.
What to do when there is a request for client information from a colleague
Ask for a copy of the release of information
If the issue is consultation regarding a specific issue, colleagues may discuss a case “hypothetically” without revealing personal information.
If the context is a counselor’s need to transition a student to a counselor at a receiving school choices may include - informing the parent/student of the opportunities at the receiving school re. counseling,
- providing the family/student with a referral letter to a specific counselor,
- ask a counselor at the receiving school to introduce the
student to opportunities at the receiving school for