Confidentiality Issues in

School Counseling

OC CASC
March 17, 2015

The Relationship

The Mental Health Practitioner:

Psychologists
Clinical Social Workers
Marriage & Family Therapists
School Counselors
Interns, Assistants, Associates working under the
supervision of one of the above licensed
professionals

(CA Bus. & Prof. Code 4980, 4986; CA Ed Code 49600; CA Code of
Regulations, 622-626;)

The Relationship

The Client:

Parent, legal guardian or conservator: seeking consultation,

diagnosis, treatment, examination or other assistance on behalf of
his or her child

Minor child: may consent for self in certain situations, if 12 years

of age or older

Note: In all cases, the mental health practitioner should

include the involvement of the parent/guardian, unless
such involvement, in the opinion of the practitioner,
would be inappropriate, or is otherwise prohibited by
law

The RelationshipWho Gives

Consent for Services?
For Minors Right to Consent, look to Family
Code sections 6920 6924 and Health
and Safety Code section 124260
In all other cases, parent/legal guardian
consent is required.

Family Code vs. Health & Safety

CodeMinors Consent
To what services do these provisions apply?
Both apply to "Mental health treatment or
counseling services" defined as the
provision of mental health treatment or
counseling on an outpatient basis
*See Minor Consent for Mental Health Services
chart

What are the rights of

parents/legal guardians?

Best efforts to notify

Involve parent/guardian unless
involvement would be inappropriate
Parents/guardians are not liable for
payment for services provided unless they
participate (and then, only for services in
which they participate)

When may parents/guardians

access mental health records
related to these services?

For records related to services to which the

minor consented, the minor must authorize
the disclosure to the parent/guardian
The minors representative may not inspect
records, even with authorization, if the health
care provider determines access to the
requested records would have a detrimental
effect on the provider's professional
relationship with the minor patient or the
minor's physical safety or psychological wellbeing.

The Relationship

Minors Right to Consent Without Parent Knowledge or

Permission

Mental Health Treatment or Counseling (Cal. Family Code 6294)

Medical care and counseling relating to the diagnosis and/or treatment of a

drug or alcohol-related problem - (Cal. Family Code 6929)

Medical care related to the prevention or treatment of pregnancy, or infectious,

contagious, communicable, or sexually transmitted disease
(Cal. Family Code 6925 & 6926)

Abortion - A minor may consent to an abortion without court order and without
parent authorization - (See American Academy of Pediatrics v. Lungren 16 Cal.
4th 307 (1997) where the California Supreme Court held that the law requiring a
minor obtain parent consent to get an abortion violates the California Constitution

The Relationship

Responsibilities of the School Mental Health

Practitioner:

Treat all clients with dignity; value clients as individuals

Advocate for the welfare of the client
No discrimination: Respect differences based on race,
gender, national origin, age sexual orientation, disability,
socioeconomic or marital status
Avoid conflicts of interest (individual and group)
Ensure client has entered relationship with informed
consent
Protect and maintain the privacy and confidentiality of client
information (unless required to do otherwise by law)
Maintain knowledge of current professional standards;
understand and practice under the laws, rules & policies of
your license and of your employing agency
Document your work

Hypothetical #1
Carrie approaches her counselor at school.
She says she is having problems and
wants to set up a meeting with the
counselor.
What should the counselor do?

Hypothetical #1
What if Carrie tells the counselor she is
thinking about suicideand Carrie is 11?

What if Carrie tells the counselor she

thinks she might be pregnant?

What if Carrie tells the counselor she feels

like she is about to explode? Carrie is 12.

Pupil Records:
Protecting Privacy and Confidentiality of Student
Information

Confidentiality of and access to pupil record information

are governed by the Family Educational Rights and
Privacy Act (FERPA) (20 U.S.C. section 1232g) and the
California Education Code
A pupil record is any information directly related to an
identified pupil that is maintained by an educational
institution
Pupil records may be maintained in any medium
Records kept in the sole possession of the maker which
are not accessible or revealed to others except a
substitute are not pupil records and are therefore not
subject to the provisions of FERPA

Pupil Records:
What about case notes?
Case notes are not educational records if:
serve as a memory aid
not be accessible or shared in either verbal or written form
be a private note created solely by the individual
possessing it
include only observations and professional opinions
Filter what you write through the lens that it can be read in
a court of law (if your students do not have privileged
communication). Write down what you need to advocate for
your students especially if it is a child sexual abuse case.
ASCA Ethical Standards

Directory Information

Directory information is information designated by each

school district that may be distributed to persons
approved by that districts governing board

DIRECTORY INFORMATION IS NOT PUPIL RECORD

INFORMATION FOR PURPOSES OF FERPA

Parents may deny access to all or part of directory

information to any of the recipients listed in the Districts
board policy

Access to Pupil Records

Parents / legal guardians of currently enrolled or

former pupils have an absolute right to access
any and all pupil records relating to their children
Students 16 years or older, or who have
completed 10th grade, have the right to access
their pupil record information upon request
Absent a court order to the contrary (e.g.,
conservatorship), once the student becomes and
adult (18 years or older), the student has the
right to grant or deny third parties access to their
pupil record information

Pupil Records Access and Confidentiality

California Education Code sections 49076 and 49077 provide access to
pupil records by certain third parties for legally stated purposes.
Who doesnt need a valid order or parent/guardian consent?
New school/district student is enrolling in
School and school district officials/employees - must have
legitimate educational interest
SARB members
Appropriate persons in connection with an emergency if the
knowledge of the information is necessary to protect the health
or safety of a pupil or other persons.
Case-managing social worker from DCFS (Uninterrupted
Scholars Act)
Local law enforcement agency - for purposes of investigating a
kidnapping
Any child protective services agency may received contact
information when investigating a child abuse claim

Pupil Records Access and Confidentiality

Who needs a valid order or parent/guardian
consent?
Everyone else! (e.g., except for what is noted
above, this includes law enforcement, district
attorney, public defender, DPSS, DSS, city
and county offices and commissions,
community-based organizations, District
employees without a need to know, neighbors,
friends, etc.)
*Check District policy for more information.

Pupil Records Access and Confidentiality

What is a valid court order?
Examples include a minute order (juvenile court),
subpoena, warrant, custody order, court
appointed attorney order. The order MUST state
the childs name, the records requested, and the
recipient of the records (agency or individual).

Pupil Records Access and Confidentiality

What is parent/guardian consent?
Authorization by parent/guardian to share pupil record
information.
Obtain consent/authorization to disclose
records in writing (although the law allows for oral
authorization, having written authorization ensures we only
share what the parent/legal guardian authorized).
Authorization is valid until revoked by parent.

Pupil Records Access and Confidentiality

Education Code section 49075
(a) A school district may permit access to pupil records to
any person for whom a parent of the pupil has executed
written consent specifying the records to be released and
identifying the party or class of parties to whom the
records may be released. The recipient must be notified
that the transmission of the information to others without
the written consent of the parent is prohibited. The
consent notice shall be permanently kept with the record
file.
(b) Notwithstanding subdivision (a), school lunch
applications and information shared pursuant to Section
49557.2 shall be retained by any school district in the
manner most useful to the administration of the school
lunch program.

The Emergency Exception

California Education Code section 49076 (b)
School districts may release information
from pupil records to the following:
(1) Appropriate persons in connection with
an emergency if the knowledge of the
information is necessary to protect the
health or safety of a pupil or other
persons.

HIPAA Records v Pupil Records

Under HIPAA, protected health information identifies the

student (name, address, age, sex SSN, DOB) and
relates to past, present and/or future medical or physical
conditions, or the receipt of payment for treatment of
services

These records must be kept confidential

Parent (or student 18 years or) may provide written

authorization to disclose HIPAA record information.
Authorization is valid for one year.

HIPAA Records v Pupil Records

Under certain circumstances, student may receive

HIPAA directly (e.g., victim of abuse or domestic
violence)

HIPAA records may be disclosed if serious and imminent

threat to health or safety of student or other individual, so
long as:
Health care professional has verified the threat

Disclosure is made to someone who can prevent

or lessen the threat

When parent/guardian consent is

a factor
Parents/guardians of students under 18 may
authorize third parties to access pupil record
information (FERPA) or health information
(HIPAA).
Parents/guardians of students under 12 consent to
treatment (Fam. Code section 6550extends to
related caregivers).
Parents/guardians may also authorize a caregiver
to provide consent for medical/dental services
(Fam. Code section 6910).

Custody Issues
Legal Custody: right to make decisions for the child; includes
educational rights
Physical Custody: where the child resides
Joint Custody: default; both parents have equal rights and either can
make decisions if joint legal custody
NOTE: California Family Code section 3025 allows noncustodial
parents access to pupil record informationif there is no order
limiting access, noncustodial parents may see records. We have
five business days to comply with parent requests.

Custody Issues (cont)

School personnel have no legal obligation to provide

letters of support/recommendation for parents involved in
custody battles

For parents with joint legal and physical custody who

split time during the school week, you may want to have
each fill out an emergency card

For parents with joint legal custody, either parent can

consent to services, etc., unless otherwise noted in the
custody order

If there is no custody order (e.g., separation, never

married), both parents retain full rights

Hypothetical #2

A case manager from a community-based

organization says she is working with
Tommy. The case manager asks the
school mental health professional about
Tommy, whether he seems happy, is
making friends, etc. The case manager
then says she wants to talk to Tommys
teacher to find out if he is out ill often.

What do you do?

Hypothetical #2
FERPA protects pupil record information, so
unless this case manager has an order or
parent/guardian consent authorizing
disclosure, the school mental health
professional must keep comments to a
minimum. Attendance information and
medical information (under FERPA or
HIPAA) would be included in this
protection.

What is Informed Consent?

FACTORS

Clear communication

Discuss rules of the relationship, including: confidentiality, duty of care,

when it might be necessary or appropriate to disclose confidential
information

Consider client capacity to understand (e.g., age, mental capacity,

language barriers, etc)

Determine that the client understands consent and voluntarily accepts the
conditions of the counseling relationship

Confirm consent in writing and review written document with the client

Retain copy of consent form

What is Confidentiality?

The duty to maintain the privacy of information

obtained in the course of the professional/client
relationship

Confidential information may be obtained from sources

other than the client, such as the parent, or other
professionals

Information owned by the client - who has a right to

agree (or disagree) to its disclosure

The core of the trust relationship established

between the professional and the client

This obligation, under the mental health professionals

license, goes beyond FERPA or HIPAA

Confidentiality

The Duty to Warn and/or Disclose: When

Confidentiality May/Must Be Breached

To report child abuse or neglect

To avert a clear and present danger to the health,

safety or welfare of the client, or to others

When a crime has been, or will be committed

When the client has executed a written waiver

In response to a court order to aid in the investigation

of a criminal investigation, or when ordered to testify
(subject to the assertion of privilege as specified in the
CA Evidence Code)

Confidentiality

Tarasoff: The Duty to Warn

Tarasoff v Regents of the University of California, 17 Cal. 3d 425

(1976) - Established the psychotherapists duty to warn a
reasonably identifiable potential victim (or family) of anticipated
harm. This duty far exceeds the professionals obligation to
disclose information to police

During the past three decades, Tarasoff has been expanded,

through case law or statute, to include almost every category of
mental health professional

In California, Tarasoff has been extended to threats to kill or

commit grave bodily injury reported to the mental health
professional by an immediate family member of the clientthese
are deemed patient communications for purposes of Civil Code
section 43.92 - Ewing v. Goldstein, 120 Cal. App 4th 807 (2004)

Confidentiality and Duty to Warn

Ewing standards:
1.
Existence of psychotherapist-patient
relationship;
2.
Patient poses serious risk of inflicting
grave bodily injury;
3.
Reasonably identifiable victim(s);
4.
Undertake reasonable efforts to warn
victim(s) and law enforcement.

Hypothetical #3
Sandy is a new counselor assigned to your school.
She tells you, as a mentor, about a counseling
session with a student. Sandy says before the
counseling session started, the student asked if
what was said would be confidential. The
student then mentioned her older brother killed
someone last week and she thinks hell do it
again. Sandy isnt sure what to do.
What do you do?

Hypothetical #3

Issue: Promising confidentiality

Issue: Duty to warn

Confidentiality of Suspected
Child Abuse/Neglect Reports
In Cuff v. Grossmont Union High School
District, the Court of Appeal held that a
school counselor was not immune from
liability under the Child Abuse and Neglect
Reporting Act for making an alleged
improper disclosure of known or suspected
child abuse to an unauthorized person (the
suspected victims father).

Hypothetical #4
A new teacher tells the school psychologist that he
wants to talk to her. The teacher later sends a
student to the school psychologist with a folded
note. The school psychologist unfolds the note,
which reads, This student told me her uncle is
sexually molesting her. What do I do?
What do you do?

Hypothetical #4
All District employees are mandated reporters and
must report once they have reasonable
suspicion of suspected child abuse
Mandated reporters do not fulfill their duties under
the law by asking someone else, even another
mandated reporter or a more experienced
mandated reporter, to file the report for them

Case #1

Patty Johnson
A school counselor set up a project to work
with at risk youth. First, she asked all
teachers at the school to identify at-risk
students. After receiving lists of students
from teachers, the counselor sent letters
home with the identified students notifying
parents/guardians that their child would be
seen for group counseling sessions.
Parents/guardians were advised that they
could contact the counselor if they had
further questions.

Review of
Patty Johnson Case

Issue: Informed Consent versus Notice

The school psychologists letter to parents does not meet the
requirement of informed consent. Parents who do not receive
the letter, obviously, cannot deny consent. NASPs Principles
of Professional Ethics III C 2: School psychologists recognize
the importance of parental support and seek to obtain that
support by assuring that there is direct contact prior to seeing
the child on an ongoing basis. (Emergencies and drop-in selfreferrals will require parental notification as soon as
possible)

Case #2

Dr. Hyde
Prior to Lisas weekly counseling session with Dr. Hyde,
psychiatric social worker from School Mental Health, Lisas
mother phoned Dr. Hyde. Her voice was shaky as she
revealed to the therapist that Lisa had confided to her that
she planned to bring a knife to the nearby park to attack
another student she doesnt like. Dr. Hyde shared Lisas
mother's concern, thanked her for the information and
assured her that she would follow up with Lisa.
What are Dr. Hydes responsibilities?

Review of Dr. Hyde Case

Issue: Duty to Warn

California Civil Code section 43.92 adopts the Tarasoff Mandated
Reporting Standard. The California Civil Code states, "where the
patient has communicated to the psychotherapist a serious threat of
physical violence against a reasonably identifiable victim or victims."
The psychotherapist's duty (to warn), in such situations, is to make a
"reasonable effort to communicate the threat to the victim or victims
and to a law enforcement agency." Failure to act may result in civil
liabilities.
In July 2004, a California Appellate Court in Ewing v. Goldstein
extended the Tarasoff standard to include family members who, upon
communication to a therapist of a serious threat of physical violence
against a reasonably identifiable victim, would trigger a duty to warn.

Case #3

Melissa
Melissa, a 13 year old high school freshman, seeks guidance from
Ms. Thomas, a school counselor. Melissa tells Ms. Thomas that she
believes she may have gotten a STD from her boyfriend, another
student. Melissa also tells Ms. Thomas she fears that if she tells her
parents, they will kick her out of the house (as they did with her 16
year old sister two years ago when they caught her having sex with
her boyfriend). One week after Melissas meeting with Ms. Thomas,
Melissas mother found Ms. Thomas name and phone number in
Melissas backpack. She calls to speak to Ms. Thomas and asks to
meet with her to talk about why Melissa seems to be acting funny.
What are Ms. Thomas legal and ethical obligations? What should
Ms. Thomas say to Melissas mother?

Review of Melissas Case

Issues: Minors Right to Consent; Duty of School

Counselor; Confidentiality
Under section 6924 (b) of the California Family Code, a minor
who is 12 years of age or older may consent to mental health
treatment or counseling without parent authorization if: 1) in the
opinion of the professional, the minor is mature enough to
participate intelligently in the counseling services and 2) the minor
would present a danger of serious physical or mental harm without
the services. Under Health & Safety Code section 124260, a minor
may consent by meeting only the first prong.
In this case, Melissa is 13, independently seeks professional
assistance and clearly articulates the fear that her welfare may be in
jeopardy if her parents are told. Under these circumstances, a
professional may determine that both criteria have been met and
allow Melissa to consent to counseling without parent authorization.

Review of Melissas Case

Issues: Minors Right to Consent; Duty of School Counselor;

Confidentiality
Assuming Ms. Thomas has a license or certification qualifying her as a
professional person under Family Code section 6924, she may make the
determination to accept Melissa as a client. If Ms. Thomas does not
possess the requisite license or certification, she may wish to discuss
Melissas ability to consent with a licensed school counselor, psychologist,
MFT, or other authorized mental health professional.
California Education Code section 49602 provides:
Any information of a personal nature disclosed by a
pupil
12 years of age or older in the process of
receiving counseling
from a school counseloris
confidential.

Review of Melissas Case

Issues: Minors Right to Consent; Duty of School Counselor;

Confidentiality
Ms. Thomas is obligated to fully explain the purpose and goals of
counseling and the nature of the confidential relationship (including when
and to whom disclosure of private information may be necessary). Ms.
Thomas should also explain to Melissa that as a counselor, she will seek to
encourage a collaborative relationship with Melissas parents, whenever
appropriate.
According to the ASCA Ethical Standards for School Counselors, Ms.
Thomas must carefully balance Melissas right to privacy with the parents
inherent and legal rights to guide their child. In this case, when meeting or
speaking with Melissas mother, Ms. Thomas may not reveal the substance
of her meetings with Melissa, unless Melissa has authorized her to do so.
However, she may explain the role of the counselor and the nature of the
confidential relationship. She may also wish to acknowledge the parents
rights and seek to gain support and collaboration.

Reference Materials

ASCA Ethical Standards for School Counselors, 1984; revised

2010

NASP Principles of Professional Ethics, 2000

NASW Code of Ethics, 1996; revised 1999

California Business & Professions Code

California Code of Regulations

California Education Code

California Evidence Code

California Family Code

Thank you for your

participation and for all that
you do for our students!