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Pre-Conference: Relevant Ethics and Court Cases
 

Pre-Conference: Relevant Ethics and Court Cases

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    Pre-Conference: Relevant Ethics and Court Cases Pre-Conference: Relevant Ethics and Court Cases Presentation Transcript

    • 2012 Le gal & Ethical Update for LPCsSaturday,PSCs Nov. 17, 2012 & 1:00-4:00 PM,Tennessee Counseling Association’s 55th Annual ConferencePre-conference workshop: Jeri Lee, Ed.D., J.D., Licensed Professional School Counselor; Licensed Teacher; Licensed Counseling Psychologist, HSP; Licensed Attorney Associate Professor/Coordinator Professional School Counseling Tennessee State University
    • Proactive Steps toDealing with:  Cyberbullying  After hours (Non-dischargeable) duties  Pregnant minors  Dual licensure conflicts  Assessing lethality
    • Hierarchy for AllDecisions  Legal  Ethical  (Moral)  5 L’s:  Life  Liberty  License  Livelihood (current position)  Likeability
    • Cyber-. bullying
    • What would you do.. If your client/student told you he had been threatened and harassed on several occasions while in school, on the school bus, at sports events, & at a school dance, & that he had been bumped, tripped, called names, threatened with beatings and was threatened to have others beat him up. He & his parents had already told the director of schools, the principal, the asst. principal, & several of his teachers; bully was warned to stop and some effort made to separate them, but the bullying just continued.
    • These were the actualfacts in a 2011Tennessee Court Case re:Bullying  Moore v. Houston County Board of Moore v. Houston County Board of Education, 358 S.W.3d 612 (Tenn. Ct. App., M.S., Dinkins, 2011)
    • Trevor bullied by Tyler  Threatened and harassed on several occasions 2006-7 in school, on bus, at sports events, & at a school dance. Bumped, tripped, called names, threatened to beat him up and to have others beat him up. He & his parents told the director of schools, principal, asst. principal, & teachers; bully was warned to stop and some effort made to separate them.
    • Tyler paid Bradley tobeat up Trevor  Jan. 2007: Bradley severely beat Trevor for $5 that Tyler paid him, resulting in a broken nose and jaw, surgery, mouth wired shut, and sustained trouble breathing and severe headaches.
    • Student assaulted atHouston County MiddleSchool while schoolwas in session5 defendants named:Houston County Board of EducationBradley who committed the assault;Tyler who paid for the assault (therefore his agent)Mothers of the two students (vicarious liability)
    • Bench trial found:  $ 50,578.97 in damages;  The boys & their mothers 75% at fault; and  The school board 25% at fault but immune under the discretionary function exception of the Tennessee Governmental Tort Liability Act
    • On appeal, the schoollost defenses of  Non-responsibility for the non- governmental, intentional tortfeasors’ financial obligations because there were more non-governmental, intentional tortfeasors than there were governmental, negligent tortfeasors and  Governmental Immunity
    • Can the school asmerely a NEGLIGENTtortfeasor be heldresponsible for anINTENTIONALtortfeasor? harm arising from the  Yes, because the attack against Trevor was a foreseeable risk created by the negligence of the Board, so the school is jointly and severally liable, & the school may be called upon to pay 100% of the
    • Court relied on: Limbaugh v. Coffee Medical Center, 59 S.W.3d 73, 85 (Tenn.2001)  Rule of Law: Where the intentional actor and the negligent actor are both named defendants and each is found to be responsible for the plaintiff’s injuries, each defendant will be jointly and severally responsible for the plaintiff’s total damages.
    • When are schoolsdenied governmentalimmunity? Negligent hiring Negligent supervision Negligent Breach of Duty to Protect when at school and on notice of foreseeable harm (applied to PSC in Gammon)
    • 2012 Change in the law to expand immunity (=statutory immunity) Chapter 687, Public Act 2012, amending TCA 49-6-4016 eff. July 1, 2012: “It is a defense against a civil action for damages [for assault] under this section that a teacher, principal, school employee or school bus driver in the exercise of the person’s lawful authority used reasonable force under TCA 49- 6-4107 that was necessary to restrain the student or to prevent bodily harm or death to another person.”
    • What is cyberbullying? utilizing any type of electronic device such as computers and cellular phones to harass another person, including sending text messages, utilizing the various social media web cites, and using video to humiliate other people (Cyberbullying, 2012).
    •  Amanda Todd, the lonely B.C. 12 year old whose Oct. 10th suicide after “privately” flashing her breasts at the urging of a stranger online resulting in the YouTube presentation of her (with 11 million viewings) Alexis Pilkington, Long Island, N.Y. Seth Walsh, California Phoebe Prince, Massachusetts Megan Meier, Missouri Jamey Rodemeyer, Buffalo Asher Brown, San Antonio, Tex. James Hubley, Ottawa
    • Precise statistics arehard to come by  with the number of teens reporting they were cyberbullied varying wildly from 20 per cent to 75 per cent in various U.S. and British studies The Gazette Montreal, October 27, 2012
    • What would you do… if your middle school principal called you in to ask what to do regarding a suspension decision: Student had created, on a weekend and on her home computer, a MySpace "profile" making fun of him, with adult language and sexually explicit content, such as, “HELLO CHILDREN: yes, it’s your oh so wonderful, hairy, expressionless, sex addict […] PRINCIPAL. I have come to myspace so I can pervert the minds of other principals to be just like me.” The site was not viewable at school and had as of yet caused no disruption in school because the student had limited access to her 22 close friends. She used the principals picture from a website, not his name, school, or location.
    • Ask: Is it a violation of:  School policy?  State penal code?  State civil code?  (Why not a civil rights issue?)
    • "on-campus" vs. "off-campus" speech Today, students commonly carry cell phones with internet capabilities onto school grounds; 66 % of students receive a cell phone before the age of 14; 75 % of high school students have cell phones; 23 % of teenagers between the ages of 12 and 17 who own cell phones use them to access social networking sites like MySpace and Facebook; and Most students believe their hostile and offensive online speech directed at school officials will not reach the school.  Lenhart, et al., (2010).
    • Lenhart, et al, 2011 found: 95% of 12-17 year olds are online; 80% of these use social media; 88% of teens using social media have witnessed someone being mean or cruel to someone else; 41% experienced at least one negative outcome on a social network site; and 15% report being the target of harassment.
    • When offensive and maliciousspeech is directed at schoolofficials and disseminatedonline to the student body, it is reasonable to anticipate an impact on the classroom environment.
    • Student’s FirstAmendment rights vs.jeopardizing schoolsability to maintain anorderly learningenvironment whileprotecting teachers andschool officials againstharmful attacks:  .
    • J.S. v. Blue Mountain School Distr. (2011). (US Ct of Appeals 3 rd Circuit, USSCt denied certiorari) J.S was suspended for creating, on a weekend and on her home computer, a MySpace "profile" making fun of her middle school principal, with adult language and sexually explicit content. But, it indisputably caused no substantial disruption in school and could not reasonably have led school officials to forecast substantial disruption. The student limited access to her and her friends. She used the principals picture, not his name, school, or location. It was never taken seriously and was not viewable at school. J.S. made the profile "private" & limited access to 22 friends from school. The School Districts computers block access to MySpace, so no Blue Mountain student was ever able to view the profile from school. The principal learned of it through a student and he included the 2 school counselors in on determining how to handle the situation.
    • Appellate Court Finding J.S’s suspension was not upheld because the school’s undifferentiated fear of disturbance was insufficient to overcome the students First Amendment free speech rights. The school policy was upheld because her Fourteenth Amendment claim failed. The student handbook was explicitly limited to in-school speech, thus, the policies were not unconstitutionally overbroad or vague. The policies clearly defined when and where they applied, with specific examples, and articulated a comprehensible normative standard.
    • J.S. used Tinker Standard for allowing 1 st amendment deprivation for a substantial disruption in school Standard: Conduct closely akin to pure speech is entitled to comprehensive protection under the First Amendment, absent facts that might reasonably have led school officials to forecast substantial disruption of or material interference with school activities.
    • What would you do… if a student asked for your assistance when repeatedly bullied by 8 students and also denied migraine headache medicine by teachers and school nurse?
    • Follow school policy  And if no relevant policy, help write it.
    • Reyna v. Putman City Schools, 2012. A victim of bullying at Middle School sued the school superintendent, an assistant superintendent, the principal, an assistant principal, a school counselor, a nurse, and four teachers. 8 students bullied K.M.R. at school and at non-school events by subjecting her to taunting, threats, battery, vandalism, forming a hate club, and other acts of bullying, which caused K.M.R. to suffer depression and severe migraine headaches. School employees, including the school counselor, failed in various ways to assist K.M.R. and her mother in efforts to stop the bullying. Also, three teachers and the nurse allegedly denied K.M.R. timely access to medication for migraine headaches, a condition to which she was susceptible due to a prior illness, despite two letters from treating physicians. Ms. Reyna alleges she was forced to quit a job to care for K.M.R., and abandon her home and move to a rental house in another school district so that K.M.R. could attend a different school because a psychotherapist diagnosed K.M.R. with severe depression and recommended that she be removed from school. Ms. Reyna obtained homebound status for K.M.R. until enrolling her in a private school for the remainder of the school year. Plaintiff argued DeShaney v. Winnebago County Dept of Social Services, (1989), arising under the Due Process Clause. Specifically, an individuals right to substantive due process may entitle the individual to governmental protection from third parties or to governmental aid in limited circumstances.
    • Special Relationship Plaintiffs claimed K.M.R. was entitled to assistance with accessing her medications under the "special relationship" doctrine, so when prevented from accessing the medications by school policies that prohibited self-administration by K.M.R. and required her to obtain them from the school nurse, they blocked her access to the medications & limited K.M.R.s ability to care for herself.
    • No “special relationship” in schools The Court was not persuaded by this argument because although the special relationship doctrine is not limited to custodial prisoners and mental patients, "[t]his doctrine applies when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual. There is no legal authority, however, for the proposition that middle school children attending public school enjoy a special relationship with their teachers or other school employees. Instead, federal appellate courts addressing the issue have found no special relationship between school officials and students, even elementary school children, entrusted to their care. ( Maldonado v. Josey, 975 F.2d 727, 733 (10th Cir. 1992) ("the state does not confine school children in the same way that it confines prisoners, the institutionalized, or children in foster homes").
    • § 1983 State Created Danger To state a prima facie case, under Civil Action for Deprivation of Rights (§ 1983), show:  (1) state actors created the danger or increased the plaintiffs vulnerability to the danger  (2) plaintiff was a member of a limited and specifically definable group,  (3) defendants conduct put the plaintiff at substantial risk of serious, immediate, & proximate harm,  (4) the risk was obvious or known,  (5) the defendants acted recklessly in conscious disregard of that risk, and  (6) the conduct, when viewed in total, shocks the conscience.
    • No state created danger in this case Plaintiff asserted she was entitled to protection from bullies under the “danger creation” exception:  State actors (schools) may only be held liable under § 1983 for their own acts, not the acts of third parties (bullies). The "danger creation" exception to this rule applies only when a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence. “The facts don’t support that employee consciously disregarded a substantial risk of serious harm to K.M.R. Further, Plaintiffs have failed to present properly-supported facts to establish conduct by school employees that would satisfy the conscience-shocking standard established by existing case law.”
    • No Deliberate Indifference to Known Threat Based on Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 122 , the court of appeals held that the plaintiff in that case, the mother of a severely disabled child who was sexually abused by another student, stated a § 1983 claim against a school principal under a "danger creation" theory, based on the principals failure to adopt a protective policy and his inadequate training of school employees "so as to enhance the danger of sexual assault to [the victim]." The court found that, “Clearly, school officials who were aware of some incidents described by K.M.R., or who were subsequently informed by her mother, might have done more to assist her.” However there are insufficient facts from which
    • What would you do if…  A student/client told you a nude picture of her was being circulated at school resulting in bullying?
    • Logan v. Sycamore, 2012May 5th: Jessica Logan & a friend told her PSC Intern that her nude picture was being circulated at school; PSC intern referred her to PSC Fisher who referred her to the Resource Officer Payne. (Fisher did not recall the meeting, but it was notated on her calendar.); they claim they told RO the names of the harassing students & he said he’d make them erase the pictures off their phones. He filed an incident report.May 6: They approached PSC Canter who was unavailable so referred them to RO Payne who investigated the bullies (although he later denied that the bullies had been identified) and reported the incidents to the principals.May 7th: They approached PSC Warm who was unavailable that day.Later Jessica was interviewed on tv as a victim of sexting turned into harassment; bullying increased & students even threw things at her during her graduation. She then committed suicide.
    • From Sexting to Harassment to Suicide to Lawsuit, 2012Students settled; Resource Officer was granted Qualified ImmunityNo report after trial scheduled for Aug., 2012 re: Title IX & Section 1983 claim to determine if: School officials knew that a naked photograph of plaintiff’s daughter was circulated at the high school; Whether appropriate persons had actual notice of the harassment; and Whether the school board was deliberately indifferent to the harassment.
    • Court denied Negligent Infliction of Emotional Distress claim Due to school’s immunity as a political subdivision, and the 5 exceptions do not apply:  negligent operation of a motor vehicle;  negligent performance of a proprietary function;  negligent failure to keep public roads open & in repair;  negligence of employees due to physical defects in grounds or buildings; and  express imposition of liability by statute.
    • In 2012, Tennessee expanded Criminal Harassment Law to cover images Chapter 992, Public Acts 2012, amending TCA 39- 17-308 eff. July 1, 2012: “[A person commits an offense who intentionally] [c]ommunicates with another person or transmits or displays an image without legitimate purpose with the intent that the image is viewed by the victim by any method described in subdivision (a)(1) and the person:  (A) Maliciously intends the communication to be a threat of harm to the victim; and  (B) A reasonable person would perceive the communication to be a threat of harm.”
    • § 39-17-308. Harassment (a) A person commits an offense who intentionally: (1) Threatens, by telephone, in writing or by electronic communication, including, but not limited to, text messaging, facsimile transmissions, electronic mail or Internet services, to take action known to be unlawful against any person and by this action knowingly annoys or alarms the recipient; (2) Places one (1) or more telephone calls anonymously, or at an hour or hours known to be inconvenient to the victim, or in an offensively repetitious manner, or without a legitimate purpose of communication, and by this action knowingly annoys or alarms the recipient; (3) Communicates by telephone to another that a relative or other person has been injured, killed or is ill when the communication is known to be false; or (4) Communicates with another person or transmits or displays an image without legitimate purpose with the intent that that the image is viewed by the victim by any method described in subdivision (a)(1) and the person: (A) Maliciously intends the communication to be a threat of harm to the victim; and (B) A reasonable person would perceive the communication to be a threat of harm.
    • What would you dodifferently if…A child with a disability reported being bullied?
    • T.K. & S.K. v. New York City Dept. of Ed. 2011 This case: Contains a good description of bullying, even cyber bullying and bullying of students with disabilities; Presents the largely unresolved issue of the extent to which bullying by other students inhibits a disabled child from being educated appropriately, and what her school must do about it. Child was diagnosed as autistic, then learning disabled and was bullied, which her parents claim made her emotionally unable to learn.
    • Plaintiff’s twoarguments First, that bullying made L.K.s educational environment hostile — a factor not properly taken into account during the administrative process. Second, that the school improperly predetermined her Individualized Education Plan ("IEP“)
    • The test for determining if a school district is liable for sexual harassment of a student Davis v. Monroe County Bd. of Educ., (1999): Title IX Private damages against a school board for student- on-student violence only when:;  1) school board acted with deliberate indifference to known acts of harassment  2) harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit
    • In this case, the court found that The Plaintiff was subjected to repeated bullying at school as a result of her disability; The school was aware of this conduct; and the school stonewalled her parents attempts to address the issue, establishing its deliberate indifference. The court found that where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE. Whether bullying rose to this level is a question for the fact finder (and in this case not appropriate for a summary judgment.)
    • Bullying of studentswith disabilities may .constitute a denial ofFAPE under IDEA
    • Second, that the school improperly predetermined her Individualized Education Plan ("IEP") and did not provide a meaningful opportunity for her parents to participate by withholding and failing to discuss bullying as it related to her IEP. The court found that there was a meaningful discussion about what was the best plan for L.K.
    • What actions, if any, is a school required to take to stop bullying of students with disabilities? The Due Process Clause forbids the state from itself depriving citizens of life, liberty, and property rights. BUT generally, the Due Process Clause of the Constitution does not require that the state "protect the life, liberty, and property of its citizens against invasion by private actors." Deshaney v. Winnebago County (1989), because its purpose
    • After hours (Non- dischargeable) duties .
    • Non-dischargeable duties Due to its imminent nature, the Duty to Warn of the danger your client presents to self or to others is non-dischargeable, and must result in the safety of a potentially self-harming client OR the actual notification to the identifiable victim (or if a minor, to their responsible guardian). You may not leave the office until this is accomplished.
    • Pregnant minors .
    • WHY DO WE NEED TOBE AWARE OF THERISKS OF SEXUALLYACTIVE STUDENTS? Because of its medical & psychological implications Because of its litigious nature
    • What to KNOW before working with sexually active values & limitations; Your own students… Litigious nature of sex/reproductive counseling; Your population’s sexual behavior trends; Your school’s position on intervention & parental notification; Prevailing community standard regarding sexually active students; Consultation sources for you; Referral sources for students; Your school board policies; and Tennessee law
    • U.S. has highest rate of teen pregnancy,. birth & abortion (UNICEF, 2001)
    • Princeton Survey http://msnbcmedia.msn.com/i/msnbc/Sections/TVNews/Dateline %20NBC/NBCTeenTopline.pdf 3 in 10 13-16 year olds are sexually active. 68% report being in love before having sex is very important. 54% believe you can be a virgin if only having oral sex, but only 30% use protection. 75% of students participate in oral sex because “the other person wanted to”
    • Relevant ASCA EthicalStandards  Disclose limits of confidentiality up front (A.2.a)  Consult before breaching confidentiality (A.2.b)  Inform parents/authorities when student’s sexual behavior is danger to self/others (A.7.a)
    • Sexual activity mustbe reported to parentsif  A health risk is present.  Find out if:  Pregnant (always a health risk to minors)  Protection used (if not, std health risk)  Consensual (if not, criminal act)  Age of partner (could indicate a criminal act)
    • What would you do… Your vice principal asks you for a list of all students in the school that you know are pregnant. He says he wants to notify these students about an alternative school for pregnant and parenting teens and encourage them to go there. The vice principal tells you the school board doesn’t want pregnant girls on the school campus, and board members have adopted a policy of transferring pregnant students out of the regular school program.
    • These were the facts in: Holt vs. Bellflower Unified School District., CA, 2002 Mary Beth Holt, a school counselor, filed suit against the Bellflower Unified School District for wrongful termination after she refused to disclose the names of pregnant students at her high school. Holt wasn’t re-hired, and the district did not make a case for not rehiring her.
    • In appeals court,  Holt’s complaint was remanded back to the lower court to be heard again. The results of the lower court’s decision are not published and the case may have been settled.
    • How can PSCs avoid such emotional and monetary cost & still maintain credibility & ethical obligations to students? First, give your opinion & assist in writing the school policy on referrals to the academic program provided by the alternative school, hopefully BEFORE a conflict arises. Then, tell administrators you will consult with the students and seek the students’ permission to be included on a list to the administration & that you will make certain these students know transferring is not mandatory but optional and, depending on the context of the situation.
    • Pregnant teencounseling mustbalance: A pregnant girl’s reproductive rights (Supreme Court’s No Undue Burden Standard) Parents’ right to control their children’s upbringing and to have a voice in the abortion decision
    • Consent for Abortion by Minors Act (TCA 37-10-301– 37-10- 307) Parental consultation is usually desirable and in the best interests of the minor. Based on: (1) Protecting minors against their own immaturity; (2) Fostering the family structure and preserving it as a viable social unit; and (3) Protecting the rights of parents to rear children who are members of their household.
    • Rationale (1) Immature minors often lack the ability to make fully informed choices & grasp short & long-range consequences; (2) The medical, emotional & psychological consequences of abortion are serious and can be lasting; (3) The capacity to become pregnant and the capacity for mature judgment concerning abortion are not necessarily related; (4) Parents ordinarily possess information essential to a physician; and (5) Parents who are aware that their minor daughter has had an abortion may better ensure medical attention after the abortion.
    • Consent of parents or legal guardian; waiver 37-10-303 (a)(1) (2) No person shall perform an abortion (Note: includes U-486) on an un- emancipated minor unless such person or such persons agent first obtains the written consent of parent or the legal guardian of the minor. Failure of the person performing the abortion to obtain or retain the documentation and consent is a Class B misdemeanor, punishable only by a fine, unless the failure of the person performing the abortion to retain the required documentation was due to a bona fide, imminent medical emergency to the minor, in which case there is no violation. A person commits a Class A misdemeanor who impersonates the parent or legal guardian of an un-emancipated minor for the purpose of circumventing the requirements.
    • Bypasses If neither a parent nor a legal guardian is available to the person performing the abortion or such persons agent, or the party from whom consent must be obtained pursuant to this section refuses to consent to the performance of an abortion, or the minor elects not to seek consent of the parent or legal guardian whose consent is required, then the minor may petition, on the minors own behalf, or by next friend, the juvenile court of any county of this state for a waiver of the consent requirement. (c) If a criminal charge of incest is pending against a parent, the written consent of such parent is not required.
    • Ayotte v. Planned Parent. U.S. Supreme Court found a law requiring parent notification for minors seeking an abortion, that offered judicial bypass and a narrow life of the mother exception (but no health exception) unconstitutional because due process requires…
    • finding a law unconstitutionalwhen  parental notification is required without exception for medical emergencies, remedies, permanent injunction against enforcement or injunction prohibiting unconstitutional applications.
    • Ohio v. Akron Center for4 criteria for Parental Consent laws: Minor’s opportunity to show maturity to make own decision; Abortion is in her best interests; Anonymity is guaranteed; and Bypass procedure is expeditious.
    • Tennessee & JudicialBypass  Judicial bypass of parental consent requirement to petition juvenile court in minors county of residence or in county in which abortion was sought did not impose undue burden on minor seeking judicial bypass in violation of due process. Memphis Planned Parenthood, Inc. v. Sundq
    • May school counselorsbe held liable forabortion advice? Arnold v. Board of Education of Escambia County, 1989  Kay Rose, the PSC Counselor & the Asst. Principal of the school were accused of depriving free will, coercing to get abortion and not tell parents, slavery (students worked at school to earn money to pay for abortion) under Section 1983 which creates a private right of action when: 1) defendant’s conduct causes a constitutional violation; 2) under the color of state law.
    • The Court found theschool responsible for:  invasion of familial privacy rights;  violation of female’s privacy rights; and  violation of both minors’ equal protection and free exercise rights.
    • May PSCs (& LPCs) beheld liable forabstinence onlyguidance? ACLU Foundation of Northern California  filed a lawsuit earlier this year on behalf of two parents, the American Academy of Pediatrics California District IX and the Gay-Straight Alliance Network because the textbook LIFETIME HEALTH did not meet the legal requirements of a 2003 law requiring public schools provide medically accurate AIDS prevention.
    • The adopted textbookLIFETIME HEALTH instructs that only abstinence, respecting yourself, going out in group, and getting “plenty of rest” can help prevent STDs; does not mention condoms; and compares a non-virgin female to a dirty shoe.
    • Resulting in a $1Million Settlement  against Clovis Independent School District.
    • Ethically, evidence-basedtreatment is required ofPSCs & LPCs,  & congressionally mandated research has found that abstinence-only instruction does nothing to reduce teen sexual activity, and has resulted in students who were less likely to believe that condoms are effective than students who had no sex education at all.  Burlingham, 2012
    • Duties of LPC vs. PSCre: pregnant minors  Both should treat according to medical model as it is an inherently risky condition & litigious issue  LPCs will counsel  PSCs usually will refer
    • PSCs refer pregnant teens because:enlisting other trusted members of the community to assist pregnant teenagers should: 1) prevent PSC from extending beyond their scope of practice (Lee & Putman, 2008); 2)“assuage those who want to guarantee that adolescents consult with an adult in a time of crisis, while also protecting teenagers who reasonably fear discussing pregnancy with their parents” (Manian, 2012).
    • This referral processis even more critical inthe four states thatallow … girls to obtain consent from a healthcare professional in lieu of parental consent or judicial bypass.
    • Dual licensure conflicts .
    • Why require licensure?  PROTECTION OF THE PUBLIC  Minimal assurances of provider competency  Malpractice reporting mechanism  PROTECTION OF THE PROFESSION  Identity & status of profession  Economic competitiveness, resulting in restrictions on the use of a title (title act) or on the specific practice (practice act)  Policing of colleagues’ unethical actions
    • Licensure Differences:LPC vs. PSC  Setting  Referral vs. Treatment  Conflict of interest  Ethical Standards (ACA v. ASCA)  Licensure Standards/Licensing Board (Board of Licensed Professional Counselors, Licensed Marital & Family Therapists and Licensed Pastoral Therapists v. Board of Education)
    • Avoid problems with dual licensure as LPC and PSC: Avoid confusing the public Don’t overlap populations or hang shingle in your school district; Adhere to the higher standard; and Don’t overreach your scope of practice in the setting in which you are practicing (don’t offer long-term therapy in the school setting or refer to your LPC status).
    • What are the limitations ofindividual counseling in theschool setting?  Can promote counselor’s caregiver needs rather than student’s autonomy;  Is not in right setting for complex issues or long-term intervention;  Requires abbreviated MSE to determine if brief, solution-oriented intervention or referral is best;  Monopolizes time for a few rather than including all students;  Must recognize parents’ right to lead their children in decision-making;  Should avoid counselor’s personal values; and  Allows for little documentation or measure of effectiveness.  (Lee, J. & Putman, S., 2008)
    • Paradox of PSC’straining  A Professional School Counselor’s training prepares them to screen for DSM IV-TR (soon to be DSM-V) diagnoses for REFERRAL not TREATMENT;  Our professional observations should remain IN OUR HEADS as RULE-OUTS, not as diagnoses and not written.
    • Statutory privilegedcommunication for LPCs 1. T. C. A. § 63-22-114: The confidential relations and communications between licensed marital and family therapists, licensed professional counselors or certified clinical pastoral therapists and clients are placed upon the same basis as those provided by law between attorney...
    • But no statutoryprivilegedcommunication for:  Tennessee Professional School Counselors
    • Assessing lethality .
    • School systems and schoolfaculty and staff may be legallyresponsible for failing tointervene with students whoare at-risk for suicidalbehaviors (Ward & Odegard,2011).  Because of this legal liability, the state of Tennessee has enacted legislation that requires annual in-service training in suicide prevention for school personnel.
    • LPC’s vs. PSC’s Role insuicide & schoolviolence prevention?  LPCs focus on individual assessment & treatment, while the PSCs focus on screening to identify and serve the highest risk students.
    • Ward & Odegaro, 2011 School based suicide assessment & intervention strategies help ensure school safety. All school personnel are responsible to ensure school safety by assessing the potential for suicide and responding to crisis through:  suicide education/prevention programs  crisis management programs, and  coordinating services with community mental health agencies to address at-risk behaviors.
    • Latzman, et al, 2010 found that the rates of self injurious behaviors vary greatly as a function of gender, race/ethnic background and availability of services. Recommended:  1) designing & implementing more targeted prevention & intervention efforts especially in rural areas or other areas with limited resources; and 2) identifying the highest risk groups to facilitate the appropriate allocation of resources.
    • Scott, et al, 2009 advocate the use of voluntary universal screening as a method of early identification of students at risk for suicide by: 1). Monitoring issues that can be associated with suicidal behavior such as school absences, substance abuse and behavioral problems to bring students to the attention of school staff; and 2). Implementing universal screening using the Columbia Suicide Screener so personnel can identify the students at elevated risk for suicide even though their symptoms are less overt.
    • Joe & Bryant, 2007 Suicide prevention screening in the schools must be evidence based 3 main categories of programming: curriculum programs, in-service training for teachers and staff, & school-wide suicide screening. Resistance to suicide screenings due to concerns that suicidal thoughts and behaviors will increase.
    • 2012 Update:. New TennesseeLaws & Court Cases re: minors
    • 2011 Tennessee Court Case re: Bullying Moore v. Houston County Board of Education, 358 S.W.3d 612 (Tenn. Ct. App., M.S., Dinkins, 2011) discussed earlier
    • Re A.M.K., 36 TAM 35- 11 (Tenn. Ct. App., E.S., Swiney, Aug. 11, 2011 FACTS: The father filed a petition to establish parentage and co-parenting time and to have the child bear his surname. FINDING: A supportive, unmarried father can get his surname added to the birth certificate as a hyphenated name if it is determined by the court to be in the best interest of the child, such as affirming his bond to his father.
    • Chapter 811, Public Acts 2012, amending T.C.A. § 10-7-504(a) eff. Apr. 25, 2012 “All records containing the results of individual teacher evaluations administered pursuant to the policies, guidelines, and criteria adopted by the State Board of Education under 49-1-302 shall be treated as confidential and shall not be open to the public. Nothing in this subdivision shall be construed to prevent the LEA, public charter school, State Board of Education, or Department of Education from accessing and utilizing such records as required to fulfill their lawful functions.”
    • Chapter 670, Public Acts 2012, adding T.C.A. § 49-6-1030 eff Apr. 10, 2012 “prohibit any [the school system shall not] teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and weaknesses of existing scientific theories covered in the course being taught within the curriculum framework developed by the state board of education. (cont.)
    • Cont.  This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.”
    • Chapter 690, Public Acts 2012, adding T.C.A. § 49-6-2907 eff “Apr. 10, 2012 (a) LEAs and school administrators may not prohibit personnel from participating in religious activities on school grounds that are initiated by students at reasonable times before or after the instructional day so long as such activities are voluntary for all parties and do not conflict with the responsibilities or assignments of such personnel. (cont.)
    • (b) Nothing in this section shall prohibit LEAs and school administrators from allowing personnel to participate in other constitutionally permissible religious activities on school grounds.”
    • Ethical PSCs recognize Freedom OF religion:  The student’s freedom of religion  The student’s family’s upbringing right to oversee religious decision Freedom FROM religion, which involves the PSC protecting students from:  All adults’ religious beliefs and  Other students’ religious beliefs that are proselytizing, sectarian, or coercive
    • Ethical LPCs recognize Freedom OF religion:  Their minor client’s freedom of religion  Their minor client’s family’s upbringing right to oversee religious decisions Freedom FROM religion, which involves the LPC not imposing personal religious beliefs on clients
    • Chapter 781, PublicActs 2012, addingT.C.A. § 49-6-4018 eff.July An LEA shall include in its student  “(a) 1, 2012. discipline code a provision prohibiting students from wearing, while on the grounds of a public school during the regular school day, clothing that exposes underwear or body parts in an indecent manner that disrupts the learning environment.  (cont.)
    • Cont.  (b) an LEA shall specify in its student discipline code the disciplinary actions that shall be taken against a student for a violation of subsection (a).  (c) Subsection (a) shall not be enforced in a manner that discriminates against a student on the basis of race, color, religion, sex, disability, or national origin.”
    • 2012 Change in the law to expand immunity (=statutory immunity) Chapter 687, Public Act 2012, amending TCA 49-6-4016 eff. July 1, 2012: Discussed earlier.
    • ReferencesArnold v. Board of Education of Escambia County , US Court of Appeals 11th Circuit, 880 F. 2d 305; 1989 U.S. App.Ayotte v. Planned Parenthood of Northern New England , 2006, 126 S.Ct. 961.Burlingham, P. (2012). Resources for parents and community members about sex education in California, ACLU of Northern California Website, August 21, 2012.Chapter 670, Public Acts 2012, adding T.C.A. § 49-6-1030 eff Apr. 10, 2012.Chapter 690, Public Acts 2012, adding T.C.A. § 49-6-2907 eff Apr. 10, 2012.Chapter 781, Public Acts 2012, adding T.C.A. § 49-6-4018 eff. July 1, 2012.Chapter 811, Public Acts 2012, amending T.C.A. § 10-7-504(a) eff. Apr. 25, 2012.Cyber bullying. (2012). Retrieved from http://www.stopbullying.gov/topics/cyberbullying/index.html on February 22, 2012.Gammon v. Edwardsville Community Unit School District , 82 Ill. App.3d 586 (1980) 403 N.E.2d 43.Genshaft, J. & Wisniewski, J. (1988). Present credentialing and prospects for the future, Professional School Psychology, 3 (3), 187-194.Holt v. The Superior Court of the State of California , 2002 WL 1399106.
    • References, continuedJoe, S. & Bryant, H. (2007). Evidence Based Suicide Prevention Screening in Schools. Children and Schools, 29(4), 219-227.J.S. v. Blue Mountain School District , 650 F.3d 915; 2011 U.S. App. LEXIS 11947 (2011).Latzman, R.D., Gratz, K.L., Young, J., Heiden, L.J., Damin, J.D., and Hight, T.L. (2010). Self Injurious Thoughts and Behaviors Among Youth In An Underserved Area of the Southern United States: Exploring and Moderating The Roles of Gender, Racial/Ethnic Background and School Level. Journal of Youth and Adolescence, Vol. 39, 270-280.Lee, J. & Putman, S. (2008). Individual counseling as intervention in the schools. In H.L.K. Coleman and C. Yeh (Eds.), Handbook of school counseling (pp. 397-408). New York: Taylor & Francis Group, LLC.Lenhart, A., Madden, M., Smith, A., Purcell, K., Zickuhr, K., & Rainie, L. (2011). Teens, kindness, and cruelty on social network sites. Pew Internet & American Life Project. Retrieved November 12, 2012.Lenhart, A., Purcell, K., Smith, A., & Zickuhr, K. (2010). Social media & mobile Internet use among teens and young adults. Pew Internet & American Life Project. Retrieved October 30, 2012 from http://pewinternet.org/Reports/2010/.Lepage, M. (2012). Cyber-bullies cower behind fists of anonymity. The Gazette Montreal, October 27, 2012).Logan v. Sycamore Cmty. Sch. Bd. of Educ., 780 F. Supp. 2d 584, 2011 U.S. Dist. LEXIS 10505 (S.D. Ohio, 2011).Maldonado v. Josey, 975 F .2d 727, 733 (10th Cir. 1992).
    • References, continuedManian, M. (2012). Functional parenting and dysfunctional abortion policy: Reforming parental involvement legislation. Association of Family and Conciliation Courts Family Court Review, 50 Fam. Ct. Rev. 241, April, 2012, 241-250.Memphis Planned Parenthood v. Sundquist, 97-6239, United States Court of Appeals for the Sixth Circuit, 184 F. 3d 600; 1999 U.S. App. LEXIS 18895, 1999.Moore v. Houston County Board of Education, 358 S.W.3d 612 (Tenn. Ct. App., M.S., Dinkins, 2011). Education,Re A.M.K., 36 TAM 35-11 (Tenn. Ct. App., E.S., Swiney, Aug. 11, 2011. A.M.K.,Reyna v. Independent School District Number 1 of Oklahoma County, Oklahoma, commonly referred to as PUTNAM CITY SCHOOLS, Case No. CIV-09-1223-D UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA U.S. Dist. LEXIS 41863, 2012.Schneider, S. K., ODonnell, L., & Stueve, A. (2012, January). Cyber bullying, School Bullying, and Psychological Distress: A Regional Census of High School Students. American Journal of Public Health, 102(1), 171-177. Health, 102(1),Scott, M., Wilcox, H., Schonfeld, I.S., Davies, M., Hicks, R.C., Turner, J.B., and Schaffer, D. (2009). School Based Screening To Identify At-Risk Students Not Already Known to School Professionals: The Columbia Suicide Screen. American Journal of Public Health, 99(2), 334-339. Health,Tennessee Code Annotated 63-22-114.Tinker et al. v. Des Moines Independent Community School District et al. 393 U.S. 503; 89 S. Ct. 733, 1969.T.K. & S.K. v. New York City Dept. of Ed., 10-CV-00752, 779 F. Supp. 2d 289; 2011 U.S. Dist. LEXIS 44682.UNICEF INNOCENTI RESEARCH CENTRE, A League Table of Teenage Births in Rich Nations, 2 (2001). CENTRE,Ward, J. and Odegaro, M.A. (2011). A proposal for increasing student safety through suicide prevention in schools. The Clearing House, 84(4), 144-149. House,