A Guide for School CounselorsElaine DanielAngelo State University
Parent Disclosure • TEC 26.001 Parents are considered “partners with educators, administrators,and school district boards of trustees in their child’s education.” • TEC 26.004 & 26.006 Parents are entitled to “all written records” in regards to theirchild. These records include attendance records, test scores, counselingrecords, reports about behavioral patterns, and teaching materials.Parents are given access to their child’s records,including counseling session notes, upon request.
Confidential Counselor-Patient Relationship • Attorney General John Cornyn ruled in 2002, that counseling records can be withheld from a parent under certain circumstances. 1. A licensed professional counselor (LPC) is in possession ofthe records, not a certified school counselor. 2. According to the Family Educational Rights and Privacy Act(FERPA), these records are not disclosed to any other person (solepossession records). 3. The LPC determines that the release of the records would beharmful to the student’s physical, mental, or emotional health.Parents are not entitled to confidential records provided the person inpossession of such records is a licensed professional counselor.
Higher Degree of Confidentiality • Texas Health and Safety Code 611.004 (a) Counseling records are to be kept confidential,but may be released for disclosure to a governmentalagency provided the disclosure is required or authorizedby law.Because FERPA allows release of confidential informationto those with legitimate educational interest, disclosure ispermitted by the Texas Health and Safety Code.
Duty to Disclose ConfidentialInformationTarasoff v. Regents of the University of California (1976) The Supreme Court of California held that a legal duty touse reasonable care to protect third parties from serious bodilyinjury or death does exist.Eisel v. Montgomery County Board of Education School counselors have a duty to use reasonable means toattempt to prevent a suicide when they are on notice of a child oradolescent student’s suicidal intent.
Duty to Disclose ConfidentialInformation • TFC 32.004 (b) (2) with or without the consent of a childwho is a client, advise the child’s parents or, ifapplicable, managing conservator or guardian of thetreatment given to or needed by the child;A counselor has a duty to notify parents of a child’sintent to do harm to themselves.
Parental Consent to Treat • TFC 32.004 Parental consent is not needed if thecounseling concerns physical, emotional, or sexualabuse, drug dependency, or suicide prevention.A counselor does not have to have written consentto treat a student when counseling is sought for anyof the reasons above.
Suspected Abuse • TFC 261.101 Suspected abuse should be reported within 48 hoursof discovery. • TFC 261.106 “Professional” encompasses any person who islicensed or certified by the state, or who works for a facilitywith children.As a professional, a counselor has the responsibility toreport suspected abuse. It is better to be safe and report thesuspected abuse, and be wrong, than do nothing. Failure toreport suspected abuse may lead to criminal liability.
Wrongful Disclosure of ConfidentialInformation • Gonzaga University v. Doe, 2002 No private right of action to sue for damagesunder FERPA. However, an institution could forfeitfederal funds and the individual could lose his/herjob. • McGilvray v. Moses, 1999 Termination for wrongful disclosure ofconfidential information was upheld.
Release of Information to aNonparent • TFC 153.377 Allows a nonparent who is appointed as thepossessory conservator (the parent with visitation rights) thesame right of access to medical, dental, psychological, andeducational records of the child as the managing conservator(the one with custody), without regard to whether the right isspecified in the court order (Walsh, Kemerer, & Maniotis, p.369). • Page v. Rotterdam-Mohonasen Central School District Unless a court order is in place, non-custodialparents enjoy the same rights as custodial parents.
Maintained Records • Owasso Public Schools v. Falvo Under FERPA guidelines, homework,tests, and grades are not educational recordsuntil they are maintained by the school or itspersonnel. Once the grades are recorded in thegrade book, they are considered part of thestudent’s educational record and therefore,maintained.
Release of Personal IdentifiableInformation • 34 C.F.R. 99.3 Personally identifiable information includesnot only information directly related to the student,but also indirect identifiers such as the student’sdate and place of birth, mothers’ maiden name,presence on campus, participation invideoconference, satellite, Internet, or otherelectronic information and telecommunicationstechnologies.
Release of Personal IdentifiableInformation • 34 CFR 99.30(b)Requires a signed and dated consent form by the parent oreligible student and: 1. specify the records that may be disclosed 2. state the purpose of the disclosure, and 3. identify the party or class to whom the disclosure may be made.
Release of Personal IdentifiableInformation Tips• Verify the identity of persons requesting information using reasonable methods.• The Texas Public Information Act incorporates FERPA’s provisions, so the TPIA must be read in harmony with the federal statute.• If a situation arises and the release of the information is placed in question, it is best to request an open records decision from the Texas Attorney General. (Walsh, Kemerer, & Maniotis, 2010)
Common Sense Tips• When releasing personal identifiable information consult the law and use common sense.• Do not release information to parent about a student other than their own child.• If a legitimate educational interest in the student is not established, do not release any information.
Sharing of Confidential Information • FERPA allows for the sharing of information provided a legitimate educational interest is shown.Counselors may share information withadministrators and fellow teachers, provided thereis a legitimate educational interest. If theinformation is needed to best serve the student, theinformation may be shared without parentalconsent.
Higher Education • TEC 33.007 (a) Counselors shall advise students and their parents or guardiansregarding the importance of higher education, coursework designed to preparestudents for higher education….Sain v. Cedar Rapids School District A guidance counselor has a duty to provide accurate information tostudents when advising students about college entrance requirements. Providinginaccurate information when knowing the student is counting on the correctinformation, may result in negligent misrepresentation.Brown v. Compton Unified School District Courts are reluctant to find educational malpractice based oninaccurate guidance information.
Letters of Recommendation• Counselors can include any information in the letter that is common knowledge or observable.When writing letters of recommendation forstudents, it is best to leave out confidential orsensitive information about the student,unless parental permission is obtained. (Stone)
ResourcesDoe v. Rains County Independent School District No. 94-41113 (1995). Retrieved from http://caselaw.findlaw.com/us-5th-circuit/1321079.htmlEisel v. Montgomery County Board of Education Retrieved from http://www.4school.com/torts/eisel/shtmlGonzaga University v. Doe (01-679) 536 U.S. 273 (2002). Retrieved from http://www.law.cornell.edu/supct/html/01McGilvray v. Moses No. 2-99-092-CV, 8 S.W. 3rd 761, 141 (1999). Retrieved from http://www.campus.westlaw.com.easydb.angelo.edu/result/documenttext.aspx ?method=TNC&dbOswasso Public Schools v. Falvo 534 U.S. 426 (2002). Retrieved from http://www.law.cornell.edu/supct/html/00-1073.ZS.htmlPage v. Rotterdam-Mohonasen Central School District 109 Misc.2d 1049, 441 N.Y.S. 2d 323 (1981). Retrieved from http://www.campus.westlaw.com.easydb.angelo.edu
ResourcesSain v. Cedar Rapids School District 626 N.W.2d 115 (2001). Retrieved from http://www.campus.westlaw.com.easydb.angelo.eduStone, C. (n.d). Case studies: legal and ethical issues in working with minors in schools. Unpublished manuscript. Department of Education, University of North Florida, Jacksonville, Florida. Retrieved from http://www.wsca.timberlakepublishing.comTexas Constitution and Statutes, Texas Education Agency. (n.d.). Texas education code Retrieved from http://www.statutes.legis.state.tx.us/Index.aspxTexas Constitution and Statutes, Texas Family Code. Retrieved from http://www.statutes.legis.state.tx/Docs/FA/htm/FA.261.htmU. S. Department of Education, Family Policy Compliance Office. (Nod). Family educational rights and privacy act ((20 U.S.C. 1234g; 34 CFR Part 99). Washington, DC: Government Printing Office. Retrieved from http://www2.ed.gov/print/policy/gen/guid/fpco/ferpa/index.htmlWalsh, J, Kemerer, F, & Maniotis, L. (2010). The educators guide to Texas school law: seventh edition. Austin, Texas: Univ of Texas Pr.