Hi Clancydog ~
What an interesting question you have asked ... and what a can of
worms it must present to counselors with ethical confidentiality
concerns!
As you no doubt know, the Family Educational Rights and Privacy Act
(FERPA) is a federal law that affords parents the right to have access
to their children's education records, the right to seek to have the
records amended, and the right to have some control over the
disclosure of personally identifiable information from the education
records.
This right transfers to the student when he reaches 18 years of age or
enters postsecondary institution - the exception being that the
parents still have rights if they claim the student as a deduction.
Under some circumstances, such as the use of alcohol or controlled
substances, the school is required to notify parents (and in some
districts, law enforcement authorities) of those situations.
Therein lie some of the problems of confidentiality to which you no
doubt refer.
The FERPA statute is found at 20 U.S.C. ยง 1232g and the FERPA
regulations are found at 34 CFR Part 99.
To date, there is no case law specifically addressing the issue of
counselor confidentiality upon which we can formulate a pat answer
with clear cut instructions for you.
Some information which must be disclosed without prior notification is
discussed in the U.S. Department of Education's Website on FERPA,
-- http://www.ed.gov/offices/OM/fpco/faq.html
Their informational booklet is reproduced online at:
-- http://www.ed.gov/offices/OM/fpco/pubs/sharing_info.html
Exceptions for law and juvenile justice are discussed here:
-- Disclosures Under the Law Enforcement Unit Records Exception
http://www.ed.gov/offices/OM/fpco/pubs/sharing_info.html#6
-- Disclosures Under the State Law Juvenile Justice System Exception
http://www.ed.gov/offices/OM/fpco/pubs/sharing_info.html#9
All of that covers disclosure. Basically anyone other than a casual
passerby with a legitimate reason can probably obtain the student's
records unless there are strict prohibitions by the parents or
student.
This does nothing about the matter you asked about ... how does that
affect your confidentiality requirement?
The American School Counselor Association has adopted Ethics
considerations. Under "Confidentiality", it states:
"The professional school counselor:
a. Informs the counselee of the purposes, goals, techniques, and rules
of procedure under which she/he may receive counseling at or before
the time when the counseling relationship is entered. Disclosure
notice includes confidentiality issues such as the possible necessity
for consulting with other professionals, privileged communication, and
legal or authoritative restraints. The meaning and limits of
confidentiality are clearly defined to counselees through a written
and shared disclosure statement.
b. Keeps information confidential unless disclosure is required to
prevent clear and imminent danger to the counselee or others or when
legal requirements demand that confidential information be revealed.
Counselors will consult with other professionals when in doubt as to
the validity of an exception.
c. Discloses information to an identified third party who, by her or
his relationship with the counselee, is at a high risk of contracting
a disease that is commonly known to be communicable and fatal. Prior
to disclosure, the counselor will ascertain that the counselee has not
already informed the third party about his or her disease and he/she
is not intending to inform the third party in the immediate future.
d. Requests of the court that disclosure not be required when the
release of confidential information without a counselee's permission
may lead to potential harm to the counselee.
e. Protects the confidentiality of counselee's records and releases
personal data only according to prescribed laws and school policies.
Student information maintained in computers is treated with the same
care as traditional student records.
f. Protects the confidentiality of information received in the
counseling relationship as specified by federal and state laws,
written policies, and applicable ethical standards. Such information
is only to be revealed to others with the informed consent of the
counselee, consistent with the counselor's ethical obligation. In a
group setting, the counselor sets a high norm of confidentiality and
stresses its importance, yet clearly states that confidentiality in
group counseling cannot be guaranteed."
-- American School Counselor Association, "Ethical Standards for
School Counselors", Rev. June 25, 1998
http://www.schoolcounselor.org/content.cfm?L1=103
It seems clear that whatever you put into the student's records can be
seen by someone else. This can be the parents themselves, to a third
party for perfectly legitimate reasons (such as school admission or
the like) with the parents' or student's permission, and to others
without specific permission by law. It should thereby follow that what
is put in the student's records should be weighed against the certain
prospect that someone other than the student will eventually see the
records, and therefore an amount of circumspection is required.
Your confidentiality requirements allow you to consider the greater
good of the school or community and the health of your counselee,
which would preclude confidentiality under certain circumstances.
A logical approach to circumvent the possibility of conflict would be
to inform the counselee of your confidentiality boundaries, including
the facts that (a) the student's records are available to others under
certain circumstances; and (b) that there are certain legal
considerations under which you are bound.
While it may not be conducive to total candor, it is an honest
disclosure of the constraints under which you must operate.
Other information on FERPA which you might find helpful can be found
here:
-- U.S. Code - Title 20 Chapter 31 Sec. 1232g.
http://www4.law.cornell.edu/uscode/20/1232g.html
-- USC Office of Academic Records and Registrar, FERPA Tutorial
http://www.usc.edu/dept/ARR/ferpa/TutorialIntro
Search terms used -
- FERPA
- high school counselor confidential matters
Yours ever so,
Serenata |
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