Ethical and Legal Issues for School Counseling

By: Juan J. CruzEscamilla & 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 & AScenarios…

State Laws Affecting School Counselors…

Counselor’s duties are defined in Texas state lawAlso 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 ProgramTo serve all students AND

To address the special needs of students who

are…At riskNeed Modified Instruction strategiesGifted and TalentedConsultation & CoordinationStandardized TestingClassroom Guidance

At Risk Students:

Of dropping out of schoolBecoming substance AbusersParticipating in Gang ActivityCommitting Suicide

Consultation & Coordination:

With student’s parent or guardian & make referrals as appropriate in consultation with themConsult with school staff, parents, & other community members to help increase effectiveness of student education & promote student successCoordinate 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 hoursMay 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 & community4 point programState law – TEC 33.005Applies to all school counselors with SBEC certification

Program should include:Guidance curriculum to help students develop full educational potential, including interests and career objectivesResponsive services component for intervention when personal concerns put continued educational, career, personal or social development at riskIndividual 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

EducationImportance of higher education including workforce education, liberal arts studies, science education, graduate education, and professional educationFurther student’s intellectual and academic development ANDOffer 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 requirementsStudent lost college athletic scholarshipWisconsin Supreme Court

Good Time to Talk About Immunity!

Texas Education Code 22.051A 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 studentsCounselor = professional employee

But Be Careful…

Askew v. Desoto I.S.D., TEA Dkt. No. 014-R2-1202Contract termination of counselorCounselor prepared list of students in danger of not graduatingIncorrectly included one student on list of those needing only to pass all classesStudent did not have enough credits to graduateAllegations -- Created grade change form, including 6 weeks grades, final exam grade and semester gradeTeacher’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 101.65Inside 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 TECAny 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 Counselors22 Texas Administrative Code 681General 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 guardianDuring first year enrolled in high schoolAdvantages of completing the recommended HS curriculum or higherAdvantages of HS diploma over GEDFinancial aid eligibility + how-to + additional info.Automatic admissions policy (top 10%)TEXAS grant program info.

Standard School Counselor Certificate

Implemented 9/1/02Supercedes all conflicting provisions on 9/1/03CounselorSpecial Education CounselorVocational Counselor

Standard Counselor Certificate

19 Texas Administrative Code 239.20Successfully complete a school counselor preparation programSuccessfully complete required assessmentsMasters degreeTwo 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 recordSchool districts with > 500 students in elementary shall employ SBEC certified counselor for each elementary school. 1:500

Child May Consent to Counseling:

Suicide preventionChemical addiction or dependency ORSexual, physical or emotional abuseTexas 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 lawNot 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; ANDRely 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; orProhibit 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 schoolsTexas Family Code requires professionals having cause to believe abuse or neglect to report within 48 hoursNo 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 hoursNo delegationAny 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 children1-800-252-5400

Abuse…

Mental or emotional injury to a child that results in observable and material impairment in the child’s growth, development, or psychological functioningPermitting 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 childHarmful 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 CodePornography - 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 mannerSubstance 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 returnPlacing 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 ADHDAs 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 ORHas 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 studentsParents have right to access student’s education recordsCounseling 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

What are Not Considered Education Records?

Sole possession recordsLaw enforcement recordsEmployee recordsMental health records

Parent has a Right to Access

Attendance recordsTest scoresGradesDisciplinary recordsCounseling recordsPsychological recordsApplications for admissionsHealth & immunization info.Teacher & counselor evaluationsReports of behaviors patterns

Right to Full Information Concerning Student

Except as provided by TEC 38.004 (abuse reporting provision)Attempt by district employee to encourage or coerce child to withhold info. = ground for discipline

Custody Issues Parent has right of access to student information even if parent does not have custody of child.State law – HB 1314 created TEC 37.0091 requiring a district to honor a written request by a noncustodial parent to receive any copies of written notification related to student misconduct related to daep placement or expulsion Valid for school year requested

Sole Possession Notes…

Records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker, and which are not accessible or revealed to any other person except a temporary substitute for the maker of the record20 USC 1232g(a)(4)(B)(I)

Counseling Notes?

Texas Attorney General Opinion JC-0538 (August 2002)Determination that release of such records would be harmful to the patients physical, mental or emotional health ANDMeets Health & Safety Code 611.001 definition of “professional”

Title IX of the Education Amendments of 1972, as

amended

Prohibits gender based discriminationEqual educational opportunitiesDo you know who is District’s Title IX Coordinator?

Title IX also Prohibits sexual harassment of

students Student on StudentDistrict must not be deliberately indifferentAs District employee or volunteer, your knowledge = District’s knowledgeDo not ignore sexual harassment!New trend – cyber bullying

Employee/Student Sexual Harassment is also

ProhibitedWelcome or unwelcome conductRomantic relationships are not allowedState law – State jail felonyEmployees with knowledge…State Board for Educator Certification (SBEC)

New Legislation From the 79th Legislative Session

HB 283 -- Bullying

Requires transfer of student who is victim of bullyingAlso allows attendance of student not residing in district boundaries but whose grandparent resides within district IF: grandparent provides a substantial amount of after-school care for the person as determined by the board

HB 283 – Bullying

Parent must request transfer of victimPerson with authority to act on student’s behalf may also make the request“Bullying” is definedLimitations on transferBoard of trustees must verify that bullying did occur

HB 283 continued…

Transportation not requiredPast behavior of student bully is specifically as consideration to decision as to whether bullying did occurTransfer hearings and appeal set forth in state statute do not apply to these transfersAdditional requirements set forth in Student Code of Conduct

HB 283

SCOC must prohibit bullying, harassment and making hit listsAlso requires assurances that district employees are enforcing these prohibitions and must include options for student management,discipline, and prevention and intervention Reiterates federal law regarding special education students

New definitions

Harassment – Hit List –Also requires discipline management program to provide for the prevention of and education concerning unwanted physical or verbal aggression, sexual harassment, and other forms of bullying in school, on school grounds, and in school vehicles

HB 308

Allows same type of transfer for victim of sexual assaultIf victim does not wish to transfer – requires that the perpetrator be transferredConviction or deferred adjudication is requiredRegardless of where conduct occurred

HB 308

Again – transfer hearing and appeals do not applyNo transportation requiredPerpetrator must be placed in DAEP or JJAEP in the event that student victim does not wish to transferNo limitations on length of placement apply

SB 658 – UIL Prohibitions

Requires State Board of Education to prohibit participation in UIL competition during the week of TAKS testingNo exemptions allowedSome concessions for situation in which testing in completed earlierRetake dates do not affect competition schedule

HB 126 -

This is a reduction in former more stringent penaltyClass C misdemeanor for tampering with a governmental recordIf record is required for enrollment of student in school district and was used by the actor to establish residency

HB 2109 –

Significantly changes the requirements for early high school graduation

SB 30

Requires the State Board of Education to establish a pilot program under which participating institutions of higher education award incentives to students who contract to graduate from the institution in a timely mannerAlso must fulfill other terms of the agreementOnly first year college students may apply

SB 1146

Requires an early college education program for at-risk students to provide for courses of combined high school and college level courses for grades 9-12Also allows a participating student who receives a high school diploma on or before the 5th anniversary of the date of the student’s 1st day of high school to also earn an associates degree or at least 60 semester credit hours toward graduation.

SB 111

Allows commissioner of education to develop a standard method of computing grade point averageProvides for weighted grades for higher level classesIf such a standard is developed – new law requires districts to use that methodApplicable to entering 9th graders for 2007-2008 school year

SB 151 – Concurrent Enrollment

Establishes a pilot program in which tuition and mandatory fees will be waived for certain students who are enrolled in dual credit coursesStudent must be “educationally disadvantaged” as defined by state lawFree textbooks

More SB 151…

Texas Academy of International StudiesResidential program at Texas A & M UniversityFor academically gifted and highly motivated junior and senior high students who have the potential to excel in international studiesLaw requires that adequate space be set aside on the university campus in Laredo for this program

HB 984 – Care of Students With Diabetes

Requires a diabetes management and treatment plan for each student with diabetes who seeks care for the diabetes while the student is at schoolPlan must be developed by parent or guardian and physicianMust ID health care services that the student may receive at schoolMust evaluate student’s ability to manage the diabetes and the student’s level of understanding of the diabetes

More on new diabetes care legislation…

School must review plan within designated deadlinesIndividualized health plan must be developed by principal, one or more teachers and school nurseSchool employee who is not a health care provider must be designated as an “unlicensed diabetes care assistant” for each campus with at least one student with diabetesEmployees who provide transportation to students with diabetes must also receive certain information

HB 25 - Requires TEA to develop systems to assist with transfer of education records of military dependentsAgain, requires admission into district if person does not reside in district,but grandparent who provides substantial after school care does reside in districtRequires records transfer within 10 working days after request is made

HB 25

Requires District to notify parents that an unofficial copy of records may be picked up for hand delivery to the new districtRequires commissioner to adopt one or more nationally recognized alternative norm referenced assessment instruments to allow a student to qualify for a high school diploma under certain circumstances.

HB 3297

Requires the first written notice of a student’s performance that the district gives (first report card) to include most recent performance ratingNo later than the 10th day after the first day of instruction of each school year, district that maintains an Internet website must post performance ratings of each campus

HB 492

Requires instruction in “personal finance literacy” Economics classesBeginning with the 2006-2007 school year

SB 851

Requires TEA to establish and implement a financial literacy pilot programTo teach students in participating districts to be self-supporting adultsRequired components are set forth in law and include avoidance and elimination of credit card debt“To the extent funding is available”

HB 3468Allows commissioner of education to establish a pilot program in which intensive reading and language intervention is provided to participating students.Campuses that have failed to improve student reading performance to be selected as participantsCampus principal in consultation with classroom teachers to select participating students

SB 42

Requirement that enriched health curriculum have an emphasis on proper nutrition and exerciseExtends daily physical activity requirement to students in middle and junior high schoolCredit for private league or club participation or extracurricular activities is allowed under certain circumstances

SB 42“Lauren’s Law”Requirement that handbook and internet website state physical activity requirementsRequires coordinated health programs to extend to older studentsRequires commissioner to develop criteria for evaluation of district’s compliance with FMNV policies Requires district to report certain data to TEA

The End