Ethical Issues in Record Keeping for School Social Workers

1. Ethical Issues in Record Keeping for School Social Workers Kendra J. Garrett Ph.D. March 7, 2012 MSSWA & MDE Spring Conference Roseville, MN

2. The Plan……. • Records in School Social Work Practice • Practice Issues • Framework for Ethical Decision Making • Exploring Options • Ethical standards, values, and principles • Legal Issues • Some Case Examples • Some Recommendations

3. School Social Work Record Keeping • Ethical Dilemmas around principles of • Confidentiality • Privacy • Student rights • Parent rights • Safety

4. Record Keeping Should Be

5. Purpose of Records in Practice • Improve quality of practice • Think through practice issues • Link assessment information to practice decisions • Identify missing information • Keep goals current • Discuss with supervisor • Maintain information (Kagleand Koepels, 2008)

6. Practice Decisions • What needs to be included in records? • What should I keep out of records? • What form should my records be in? • Who should see/know what is in records? • How much time do I have to record? • How confidential are my records? • How much should I tell student, teachers, parents about the kinds of record keeping I do?

7. Good practice records are…. • Accurate • Unbiased • Concise • Clear • Jargon free • Organized • Current • Legible

8. To keep track of practice include… • Documentation of contacts with students and parents • Assessment information • Rationale for service • Goals • Intervention plans • Outcomes

9. And… • Termination information • Critical incidents • Progress notes • Release of information forms • Contacts with third parties (including teachers and outside agencies)

10. But they should not include… • Unsubstantiated hypotheses • Intuition • Hunches • Judgments • Inaccurate information • Intimate details • Clients’ personal views (unless relevant) • Gossip (Kagel & Koepels, 2008)

11. Also…. • Include reasoning used in decision making • Keep records neutral (showing both sides) (Strom-Gottfried, 2008)

12. Natural Tension • Need to be brief • Need to be thorough

13. Questions for Discussion • Sometimes I want to keep a private record for myself that is not a part of the formal record. • Should I keep a personal record for my own use?

14. Questions for Discussion • What kind of discussion is warranted with students regarding social work records? • With parents? • With teachers? • With principals?

15. Social Work Practice with Minors • Viewed as in need of protection • Parents/guardians viewed as being better able to make decisions than the minor children. • Evolving capabilities • Understanding • Decision making ability • Reasoning (Strom-Gottfried)

16. Developmental Capacities • Younger children rarely assume confidentiality (Rossi & Berman Rossi, 1990) • Child’s capacity for decision making evolves gradually. • Brain development • Ability to think abstractly • Ability to give consent • (Strom-Gottfried, 2008)

17. Minor Clients • May wish to keep information private • May request confidentiality from worker • May request that information not be placed in a record

18. Parents/Guardians • May wish to keep information from their children • May wish for information to be kept out of record

19. Clinical Considerations • Maintain Therapeutic Relationship (Strom-Gottfried, 2008) • Maximize self-determination • Involve clients in decision making (Raines, 2004) • Informed consent • Confidentiality (Strom-Gottfried, 2008)

20. Record Keeping Should Be

21. Ethics • That branch of philosophy dealing with values relating to human conduct, • with respect to the rightness and wrongness of certain actions • and to the goodness and badness of the motives and ends of such actions

22. Ethical Dilemma • Achoice between two (or more) goods/rights choices. • A corollary is that both choices often carry negative consequences. • Note: It is not a choice between doing the right thing and doing what you would rather do that is easier but not right! • To have an ethical dilemma, you really need two right choices.

23. Ethical Record Keeping • Doing the morally correct thing regarding record keeping • Including the appropriate information • Excluding inappropriate information • Maintaining appropriate confidentiality • Using the records appropriately

24. Process of Ethical Decision Making • A—Access options • B—Be mindful of the process • C—Consult • D—Document • E—Evaluate • Per Strom-Gottfried, 2008

25. Access Options • Ethical theories and principles • Laws and policies • Values • Information available • Standards (e.g., Code of Ethics)

26. Case example • Jenny is a 15 year old student at High Achievement High School. She has shared with you in the past that she is sexually active with her boyfriend. She asked you to keep that information confidential and you have agreed, although you and she have discussed the limits confidentiality. She now informs you that her boyfriend has told her that he has a sexually transmitted disease. Jenny is looking for a referral for treatment. What do you write about Jenny in the record you keep about her?

27. Access OptionsEthical Theories and Principles • What Ethical Theories and Principles Apply? • Philosophical perspectives • Ethical Principles in Social Work

28. Theories of Ethical Reasoning • Deontological Thinkers—Believe some things are always right or always wrong. • One should make decisions according to the rules or standards. • Utilitarian Thinkers—Believe one should consider the outcomes or consequences as the most important element in making decisions. • Short-term consequences • Long-term consequences • Unknown results that might happen

29. So For Jenny’s Case Notes • Are there any rules that might apply in this situation to give us guidance? • Like those that would always apply? • Or should we look at outcomes or consequences?

30. Ethical Principle Ranking(Dolgoff, Harrington& Lowenberg) • Protection of life • Equal treatment (access, opportunities, resources) • Autonomy/freedom • Least harm • Quality of life • Privacy and confidentiality • Truthfulness and full disclosure

31. So For Jenny • Do any principles apply to guide what we should put in the record? • Practice concerns? • Ethical concerns?

32. Ethical Principle Ranking

33. Confidentiality Principles with children • Rules for Confidentiality with Children • Everyone is safe • Everything is confidential • If I have to choose, safe wins. • (Raines, 2004)

34. Assess Options • Ethical Standards and Principles • Laws and Policies • Values • Information • Standards • (Strom-Gottfried, 2008)

35. Access OptionsLaws and Policies • Federal Laws • State Laws • Board of Social Work Standards of Practice and Ethical Conduct

36. FERPA School Records • (1) Directly related to a student and • (2) Maintained by an educational agency of institution or party acting for the agency or institution” Federal Education Rights and Privacy Act(§99.3)

37. FERPA • Cannot release records to third parties without parent permission • Can release records to a school where a student is transferring (without parent consent) • Schools must develop policies about what information can be shared with other schools routinely

38. FERPA • Parents and guardians have a right to view educational records. • Including school social work records • Even when those records are kept in the social worker’s office • When students become 18, that right transfers to the student.

39. Sole Possession Records • Teachers may keep private records as a memory aid. • These records must remain private (shown only to a substitute teacher). • Should these records be disclosed to anyone other than a substitute teacher, they become part of the educational record.

40. School Social Work Records • Records maintained by school social worker are education records • Even if they are privately maintained • They do not qualify as “sole possession records.” • (National Forum on Educational Statistics, 2004)

41. Health Insurance Portability and Accountability Act • Applies to any agency that is billing insurance (or Medicaid or Medicare) electronically • HIPAA recognizes that psychotherapy notes as different from personal health information and may be kept separate from other health information • The HIPAA Privacy Rule specifically excludes from its coverage those records that are protected by FERPA

42. HIPAA • So under HIPAA, school social work records are still education records and still subject to FERPA • HIPAA creates no wiggle room about not disclosing records to parents • (Overcamp-Martini,2006)

43. IDEA • Special Education File contains assessment information (including social work assessment) • Contains IEPs (may include social work goals and objectives and ways of measuring progress) • Districts must contact parents when information in SPED files is no longer needed. Parents my request that the information be destroyed. • When records contain information on more than 1 child, parents only have access to information on their own child only.

44. MN Minor Consent Law • Minors (under 18) can give their own consent for treatment to • Prevent or diagnose pregnancy • Diagnose or treat problems with drugs or alcohol • Prevent sexually transmitted diseases • Minors 16 and over may admit themselves to a hospital for treatment of mental illness §144.341-347

45. Laws on Privileged Communication • Licensed social worker cannot disclose any information acquired in a professional capacity without consent of the client. • Except regarding the abuse or neglect of a child • Except when the client waives permission by filing charges against the professional

46. MN Social Work Records Must Contain • Assessment information • Service plans • Progress notes • Fees • Information release authorizations • Any other relevant information. (§148D.225 Subd.4)

47. Social Work Records Must Be Kept • A minimum of 7 years after termination with the client (§148D.225 Subd.4)

48. MDE Ruling on School Social Work Records • Records created or held by school social workers are considered educational records under Minnesota law. • Records cannot be released without parental consent. • Records are accessible by parents upon request.

49. MDE on Records (2009) • Records may be accessible without parental consent by school officials, including teachers, contractors, and volunteers, who have a legitimate educational interest in accessing the records. Schools must use reasonable methods to ensure that school officials obtain access to only those education records in which they have a legitimate educational interest, and that physical, technological, or administrative controls are in place to restrict access to records

50. More MDE Ruling on SSW Records • Social work records may be stored in a location separate from the central educational record, such as the social work office, in order to increase privacy protections and facilitate the use of the records by the school social worker. • If the social work records are stored separate from the student’s central educational record, the central educational record should contain a notation that the records are stored elsewhere, including a basic description of the type and nature of the data and the location of the data.