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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….

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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
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
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
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
Primary Responsibility:
  • Counsel students to fully develop each student’s abilities in areas of:
    • Academics
    • Career
    • Personal
    • Social
additional responsibilities
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
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
At Risk Students:
  • Of dropping out of school
  • Becoming substance Abusers
  • Participating in Gang Activity
  • Committing Suicide
consultation coordination
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
Standardized Testing
  • With the assistance of school staff, interpret results & other assessment data that help a student make educational and career plans
classroom guidance
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
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
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
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
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
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
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
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
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
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
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;
  • 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
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
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
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 33 007 19 texas administrative code 61 1071
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
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
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
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 counseling1
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
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
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
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
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
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
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
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
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
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
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
  • 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;

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

  • 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
  • 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.
  • 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
  • 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
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
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
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
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
What are Not Considered Education Records?
  • Sole possession records
  • Law enforcement records
  • Employee records
  • Mental health records
parent has a right to access
Parent has a Right to Access
  • Attendance records
  • Test scores
  • Grades
  • Disciplinary records
  • Counseling records
  • Psychological records
  • Applications for admissions
  • Health & immunization info.
  • Teacher & counselor evaluations
  • Reports of behaviors patterns
right to full information concerning student
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
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
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 record
  • 20 USC 1232g(a)(4)(B)(I)
counseling notes
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 AND
  • Meets Health & Safety Code 611.001 definition of “professional”
title ix of the education amendments of 1972 as amended
Title IX of the Education Amendments of 1972, as amended
  • Prohibits gender based discrimination
  • Equal educational opportunities
  • Do you know who is District’s Title IX Coordinator?
title ix also prohibits sexual harassment of students
Title IX also Prohibits sexual harassment of students
  • Student on Student
  • District must not be deliberately indifferent
  • As District employee or volunteer, your knowledge = District’s knowledge
  • Do not ignore sexual harassment!
  • New trend – cyber bullying
employee student sexual harassment is also prohibited
Employee/Student Sexual Harassment is also Prohibited
  • Welcome or unwelcome conduct
  • Romantic relationships are not allowed
  • State law – State jail felony
  • Employees with knowledge…
  • State Board for Educator Certification (SBEC)
hb 283 bullying
HB 283 -- Bullying
  • Requires transfer of student who is victim of bullying
  • Also 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 bullying1
HB 283 – Bullying
  • Parent must request transfer of victim
  • Person with authority to act on student’s behalf may also make the request
  • “Bullying” is defined
  • Limitations on transfer
  • Board of trustees must verify that bullying did occur
hb 283 continued
HB 283 continued…
  • Transportation not required
  • Past behavior of student bully is specifically as consideration to decision as to whether bullying did occur
  • Transfer hearings and appeal set forth in state statute do not apply to these transfers
  • Additional requirements set forth in Student Code of Conduct
hb 283
HB 283
  • SCOC must prohibit bullying, harassment and making hit lists
  • Also 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
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
HB 308
  • Allows same type of transfer for victim of sexual assault
  • If victim does not wish to transfer – requires that the perpetrator be transferred
  • Conviction or deferred adjudication is required
  • Regardless of where conduct occurred
hb 3081
HB 308
  • Again – transfer hearing and appeals do not apply
  • No transportation required
  • Perpetrator must be placed in DAEP or JJAEP in the event that student victim does not wish to transfer
  • No limitations on length of placement apply
sb 658 uil prohibitions
SB 658 – UIL Prohibitions
  • Requires State Board of Education to prohibit participation in UIL competition during the week of TAKS testing
  • No exemptions allowed
  • Some concessions for situation in which testing in completed earlier
  • Retake dates do not affect competition schedule
hb 126
HB 126 -
  • This is a reduction in former more stringent penalty
  • Class C misdemeanor for tampering with a governmental record
  • If record is required for enrollment of student in school district and was used by the actor to establish residency
hb 2109
HB 2109 –
  • Significantly changes the requirements for early high school graduation
sb 30
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 manner
  • Also must fulfill other terms of the agreement
  • Only first year college students may apply
sb 1146
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 9-12
  • Also 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
SB 111
  • Allows commissioner of education to develop a standard method of computing grade point average
  • Provides for weighted grades for higher level classes
  • If such a standard is developed – new law requires districts to use that method
  • Applicable to entering 9th graders for 2007-2008 school year
sb 151 concurrent enrollment
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 courses
  • Student must be “educationally disadvantaged” as defined by state law
  • Free textbooks
more sb 151
More SB 151…
  • Texas Academy of International Studies
  • Residential program at Texas A & M University
  • For academically gifted and highly motivated junior and senior high students who have the potential to excel in international studies
  • Law requires that adequate space be set aside on the university campus in Laredo for this program
hb 984 care of students with diabetes
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 school
  • Plan must be developed by parent or guardian and physician
  • Must ID health care services that the student may receive at school
  • Must evaluate student’s ability to manage the diabetes and the student’s level of understanding of the diabetes
more on new diabetes care legislation
More on new diabetes care legislation…
  • School must review plan within designated deadlines
  • Individualized health plan must be developed by principal, one or more teachers and school nurse
  • School 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 diabetes
  • Employees who provide transportation to students with diabetes must also receive certain information
hb 25
HB 25 -
  • Requires TEA to develop systems to assist with transfer of education records of military dependents
  • Again, requires admission into district if person does not reside in district,but grandparent who provides substantial after school care does reside in district
  • Requires records transfer within 10 working days after request is made
hb 251
HB 25
  • Requires District to notify parents that an unofficial copy of records may be picked up for hand delivery to the new district
  • Requires 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
HB 3297
  • Requires the first written notice of a student’s performance that the district gives (first report card) to include most recent performance rating
  • No 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
HB 492
  • Requires instruction in “personal finance literacy”
  • Economics classes
  • Beginning with the 2006-2007 school year
sb 851
SB 851
  • Requires TEA to establish and implement a financial literacy pilot program
  • To teach students in participating districts to be self-supporting adults
  • Required components are set forth in law and include avoidance and elimination of credit card debt
  • “To the extent funding is available”
hb 3468
HB 3468
  • Allows 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 participants
  • Campus principal in consultation with classroom teachers to select participating students
sb 42
SB 42
  • Requirement that enriched health curriculum have an emphasis on proper nutrition and exercise
  • Extends daily physical activity requirement to students in middle and junior high school
  • Credit for private league or club participation or extracurricular activities is allowed under certain circumstances
sb 421
SB 42
  • “Lauren’s Law”
  • Requirement that handbook and internet website state physical activity requirements
  • Requires coordinated health programs to extend to older students
  • Requires commissioner to develop criteria for evaluation of district’s compliance with FMNV policies
  • Requires district to report certain data to TEA