Ethical and Legal Issues for School Counseling

Ethical and Legal Issues for School Counseling By: Juan J. Cruz Escamilla & Poneck,Inc.

What We’ll Discuss Today… • State laws • Counselor’s Duties • Parental Consent • Outside Referrals • Child Abuse Reporting • Important Legislation • Federal laws • Title IX • FERPA

We’ll also be discussing… • Ethically Speaking… • Role of counselor AND school employee • Code of Ethics • Liability Issues • Immunity • Q & A • Scenarios…

State Laws Affecting School Counselors… • Counselor’s duties are defined in Texas state law • Also look to school board policy, administrative procedures, and job description

Primary Responsibility: • Counsel students to fully develop each student’s abilities in areas of: • Academics • Career • Personal • Social

Additional Responsibilities: • Participate in: • Planning • Implementing • Evaluating • Comprehensive Development Guidance Program • To serve all students AND

To address the special needs of students who are… • At risk • Need Modified Instruction strategies • Gifted and Talented • Consultation & Coordination • Standardized Testing • Classroom Guidance

At Risk Students: • Of dropping out of school • Becoming substance Abusers • Participating in Gang Activity • Committing Suicide

Consultation & Coordination: • With student’s parent or guardian & make referrals as appropriate in consultation with them • Consult with school staff, parents, & other community members to help increase effectiveness of student education & promote student success • Coordinate people & resources in school, home & community

Standardized Testing • With the assistance of school staff, interpret results & other assessment data that help a student make educational and career plans

Classroom Guidance • Deliver classroom guidance activities or • Serve as a consultant to teachers conducting lessons based on the school’s guidance curriculum

Whew! What Else? • Before implementing comprehensive and developmental guidance & counseling program, school shall conduct an annual preview of the program for parents & guardians. • Materials must be available for review during school hours • May not use materials or curriculum not allowed to be previewed.

Eligible for Accelerated or Compensatory Education Services: • Students defined as “at risk of dropping out of school” Board Policy EHBC (LEGAL) • Students who are not performing at grade level EHBC (LOCAL) • Students who did not perform satisfactorily in state administered assessment instrument EHBC (LOCAL)

Developmental Guidance & Counseling Programs • Work with school faculty, staff, students, parents & community • 4 point program • State law – TEC 33.005 • Applies to all school counselors with SBEC certification

Program should include: • Guidance curriculum to help students develop full educational potential, including interests and career objectives • Responsive services component for intervention when personal concerns put continued educational, career, personal or social development at risk • Individual planning system for student self-guidance • System support for efforts of teachers, staff, parents, & community members in promoting educational career, personal and social development of students

Counseling Public School Students Regarding Higher Education • Importance of higher education including workforce education, liberal arts studies, science education, graduate education, and professional education • Further student’s intellectual and academic development AND • Offer students more career choices and a greater potential earning power

Educational Malpractice? • Scott v. Savers Prop. & Casualty Ins. Co., No. 01-2953 (Wis. June 19, 2003) • Guidance counselor erroneously advised student regarding NCAA eligibility requirements • Student lost college athletic scholarship • Wisconsin Supreme Court

Good Time to Talk About Immunity! • Texas Education Code 22.051 • A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position and that involves the exercise of judgment or discretion on the part of the employee, EXCEPT...

Texas Immunity Statute • Use of excessive force in the discipline of students or negligence resulting in bodily injury to students • Counselor = professional employee

But Be Careful… • Askew v. Desoto I.S.D., TEA Dkt. No. 014-R2-1202 • Contract termination of counselor • Counselor prepared list of students in danger of not graduating • Incorrectly included one student on list of those needing only to pass all classes • Student did not have enough credits to graduate • Allegations -- Created grade change form, including 6 weeks grades, final exam grade and semester grade • Teacher’s name forged

State Board for Educator Certification • The board may order disciplinary action against a person or certificate over which the board has jurisdiction upon a determination based on satisfactory evidence that: • (1) the person has conducted school or education activities in violation of law; • (2) the person is unworthy to instruct or to supervise the youth of this state; • (3) the person has violated a provision of the educator's code of ethics;

SBEC… • Educator’s Code of Ethics • 19 TAC 247.2 • Amended in August 2002 • Also statewide testing violations! • 19 TAC 101.65 • Inside scoop - TEA has been sending more and more testing violators to SBEC for disciplinary action!

Violation of Confidentiality or security of any test required by TEC • Any person who violates, assists in the violation of, or solicits another to violate or assist in the violation of test security or confidential integrity, and any person who fails to report such a violation are subject to the following penalties: • Restrictions • Inscribed or non-inscribed reprimand • Suspension of a Texas teacher certificate for a set term; • Revocation or cancellation of a Texas teacher certificate

Licensed Professional Counselor • Also governed by the rules of the Texas State Board of Examiners of Professional Counselors • 22 Texas Administrative Code 681 • General Ethical Requirements • Inform in writing prior to 1st session: counseling purposes, goals, and techniques • Limits on confidentiality • Must take reasonable precautions to protect individuals from physical or emotional harm resulting from group or individual interaction in group or individual counseling setting • Comply with requirements of Tex. Health & Safety Code 611 concerning release of mental health records

LPC Ethics… • May take reasonable action to inform medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the client to the client or others or there is a probability of immediate mental or emotional injury to the client

Texas Education Code 33.00719 Texas Administrative Code 61.1071 • Information to student and parent or guardian • During first year enrolled in high school • Advantages of completing the recommended HS curriculum or higher • Advantages of HS diploma over GED • Financial aid eligibility + how-to + additional info. • Automatic admissions policy (top 10%) • TEXAS grant program info.

Standard School Counselor Certificate • Implemented 9/1/02 • Supercedes all conflicting provisions on 9/1/03 • Counselor • Special Education Counselor • Vocational Counselor

Standard Counselor Certificate • 19 Texas Administrative Code 239.20 • Successfully complete a school counselor preparation program • Successfully complete required assessments • Masters degree • Two years of classroom teaching experience in a public or accredited private school

Referrals to Outside Counseling • May not refer a student to outside counseling for care or treatment of a chemical dependency or an emotional or psychological condition unless the district:

Referrals to Outside Counseling • (1) Prior written consent • (2) Disclosure of any relationship between the district and the outside counseling • (3) Informs student & parent of any alternative public or private source of care or treatment reasonably available in the area • (4) Approval of appropriate school district personnel before referral is suggested or student is referred AND • (5) Specifically prohibits disclosure of student record that violates state or federal law (FERPA)

More State Laws… • Keep required parental consent as part of student’s permanent record • School districts with > 500 students in elementary shall employ SBEC certified counselor for each elementary school. 1:500

Child May Consent to Counseling: • Suicide prevention • Chemical addiction or dependency OR • Sexual, physical or emotional abuse • Texas Family Code 32.004

Licensed School Counselor • May not counsel if consent is prohibited by court order unless consent is obtained as otherwise allowed by law • Not liable for damages except for negligence or willful misconduct

In such a situation, the licensed counselor: • May counsel the child without the consent of the child’s parents or, if applicable, managing conservator or guardian; • With or without the consent of the child, who is a client, advise the child’s parents or, if applicable, managing conservator or guardian of the treatment given to or needed by the child; AND • Rely on the written statement of the child containing the grounds on which the child has capacity to consent to the child’s own treatment under the section

Law Regarding Psychotropic Drugs • Prohibits school district employees from: • Recommending that a student use a psychotropic drug • Suggesting any particular diagnosis OR • Using the refusal by a parent to consent to the administration of a psychotropic drug or psychiatric evaluation or examination as ground, by itself, for prohibiting student from attending a class or participating in a school related activity.

This statute does not… • Prevent an appropriate referral under the child find system required under 20 U.S.C. Section 1412, as amended; • Prohibit a school district employee who is a registered nurse, advanced nurse practitioner, physician, or certified or appropriately credentialed mental health professional from recommending that a child be evaluated by an appropriate medical practitioner; or • Prohibit a school district employee from discussing any aspect of a child’s behavior or academic progress with the child’s parent or another school district employee

Psychotropic Drugs? • A substance that is: • Used in the diagnosis, treatment or prevention of a disease or as a component of a medication AND • Intended to have an altering effect on perception, emotion, or behavior

Child Abuse Reporting Requirements • Texas Education Code 38.004 requires each school district to provide child abuse anti-victimization programs in elementary and secondary schools • Texas Family Code requires professionals having cause to believe abuse or neglect to report within 48 hours • No delegation of this duty

Who Must Report? A person having cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect by any person must immediately make a report to TDPRS or local law enforcement agency. Tex. Fam. Code 261.101(a)

But Remember…as a Professional • 48 hours • No delegation • Any individual who is licensed or certified by the state…AND • who, in the normal course of official duties for which a certificate is required, has direct contact with children • 1-800-252-5400

Abuse… • Mental or emotional injury to a child that results in observable and material impairment in the child’s growth, development, or psychological functioning • Permitting mental or emotional injury - Causing or permitting a child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;

Abuse… Physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent or legal guardian that does not expose the child to a substantial risk of harm

Abuse… • Failure to prevent harm – Failure to make a reasonable effort to prevent physical injury that results in substantial harm to the child • Harmful sexual conduct – Sexual conduct harmful to a child’s mental, emotional, or physical welfare and failure to make a reasonable effort to prevent sexual conduct harmful to a child

Abuse… • Encouraging sexual conduct - Compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Texas Penal Code • Pornography - Causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child in an obscene manner as defined by Section 43.21, Texas Penal Code, or in a pornographic manner • Substance abuse - Causing, expressly permitting, or encouraging a child to use a controlled substance.

Neglect… • Failing to arrange for necessary care - Leaving a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for child care, and a demonstration of the parent’s or legal guardian’s intent not to return • Placing or failing to remove a child from harm -Placing a child in or failing to remove a child from a situation that results in bodily injury or a substantial risk of immediate harm to the child

Neglect… • Failure to Obtain Medical Care - Failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child

However…Another Law Related to Psychotropic Drugs… • Employee of a school district cannot use or threaten to use… • Refusal of parent, guardian, or managing or possessory conservator of a child to administer or consent to administration of central nervous system stimulant or other drug for the treatment of ADHD or • To consent to any testing or treatment of the child for ADHD • As sole basis for making a report of neglect unless..

Employee Must Believe… • That refusal presents a substantial risk of death, disfigurement or bodily injury to the child OR • Has resulted in an observable and material impairment to the growth, development, or functioning of the child

Family Educational Rights and Privacy Act • A person standing in parental relation. • Eligible students • Parents have right to access student’s education records • Counseling records are specifically addressed…

What are Education Records? • Records, files, documents, and other materials which… contain information directly related to a student; and are maintained by an educational agency or by a person acting for the agency

Ethical and Legal Issues for School Counseling