● Sole-Possession Records: Records used only as a personal memory aid that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record and provide only professional opinion or personal observations. Sole-possession records are exempted from the definition of educational records and FERPA protection. ● Virtual/Distance Counseling: Counseling by electronic means. ● See the term assent above that may apply with students incapable of understanding the information required for giving informed consent.
some control over the disclosure of personally identifiable information from the education records. When a student turns 18 years old or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student (“eligible student”). The FERPA regulations are found at 34 CFR Part 99 (U.S. DOE, 2021). ● Informed Consent: Assisting students in acquiring an understanding of the limits of confidentiality, the benefits, facts, and risks of entering a counseling relationship. ● Serious and Foreseeable Harm: When a reasonable person can anticipate significant and harmful possible consequences.
ETHICAL PRACTICE: COMMON AREAS OF CONCERN
No regulations or ethics codes can address or provide guidance for every issue that will occur in practice due to the multifaceted and dynamic process of counseling. In reviewing research, legal regulations, ethics codes, directives, and standards, similar topics of concern emerge. They may differ slightly, but the key areas remain the same when reviewing state law and national association codes. These include confidentiality including Confidentiality Rules in Texas Law One of the most frequent areas in counseling practice that may lead to ethical dilemmas and violations is the breach of confidentiality. Confidentiality in counseling is becoming
informed consent, boundary issues of several types, fraud, and misrepresentation. One rapidly expanding category of ethical concern, receiving extensive focus, is the implementation of technology-assisted practice. This topic has the potential for ethical code violations in all the foregoing areas, and guidelines and strategies to prevent violations are included.
increasingly complex due to the popularity of electronic therapy involving long-distance use of audio and visual communication methods.
Texas Administrative Code: Subchapter B, 681.45, Confidentiality and Required Reporting It is important to be clear on TAC regulations as stated in Subchapter B, 681.45 (Tex.Reg, 2020b), Confidentiality and Required Reporting; however, this section refers to many other regulations found in the Texas statutes and upon review appears quite confusing. These statutes will be reviewed, explained, and clarified for a comprehensive view of the confidentiality rules. In the interest of reporting the TAC as written, Subchapter B, 681.45, Confidentiality and Required Reporting (Tex.reg, 2020b) is stated as follows:
To understand the regulations of Subchapter B, 681.45(Tex.reg, 2020b), the statutes referenced are listed and explained as they relate to confidentiality and required reporting in counseling practice. Chapter 161—Sec. 161.132. Reports of Abuse and Neglect or of Illegal, Unprofessional, or Unethical Conduct (Texas. gov, 2015c). (a) A person, including an employee, volunteer, or other person associated with an inpatient mental health facility, a treatment facility, or a hospital that provides comprehensive medical rehabilitation services, who reasonably believes or who knows of information that would reasonably cause a person to believe that the physical or mental health or welfare of a patient or client of the facility who is receiving chemical dependency, mental health, or rehabilitation services has been, is, or will be adversely affected by abuse or neglect caused by any person shall as soon as possible report the information supporting the belief to the agency that licenses the facility or to the appropriate state health care regulatory agency. This section is straightforward and included under required reporting related to the duty to warn, mandated reporting, which will be covered in other sections of Texas law and regulations. Chapter 181 (Tex.gov, 2015a) Medical Records Privacy. This chapter refers to the HIPAA and Privacy Standards for nondisclosure of protected health information. HIPAA will be summarized in a subsequent session but should be reviewed in its entirety. Due to the length and comprehensive nature of HIPAA, additional courses of study and in-service training are advised. Texas Administrative Code Title 22 Behavioral Health Administrative Council §882.36, Compliance with State and Federal Law (Tex.Reg, 2020c) Licensees comply with all applicable state and federal laws affecting the practice of marriage and family therapy, professional counseling, psychology, or social work. This section emphasizes that the counselor will follow all state and federal laws related to practice and again focus on the duty to report harm, which will be covered subsequently in Chapters 261 and 48. There is reference to the Texas Family Code that will cover the age of consent for minor and parental consent, which will be covered in a separate section of this course.
(a) Communication between a licensee and client and the client’s records, however created or stored, are confidential under the provisions of the Texas Health and Safety Code Chapter 611(Texas.gov, 2021) and other state or federal statutes or rules where such statutes or rules apply to a licensee’s practice. (b) A licensee must not disclose any communication, record, or identity of a client except as provided in Texas Health and Safety Code Chapter 611 or other state or federal statutes or rules. (c) A licensee must comply with Texas Health and Safety Code, Chapters 181(Texas.gov, 2015 a) and 611, concerning access to mental health records and confidential information. (d) A licensee must report information as required by Council §§882.36(Tex.reg,2020c) (relating to Compliance with State and Federal Law) and 884.32(Tex.reg,2020d) (relating to Reportable Legal Action and Discipline) and the following statutes: (1) Texas Family Code Chapter 261, Subchapter B(Texas. gov,2021), concerning report of abuse or neglect of minors. (2) Texas Human Resources Code Chapter 48, Subchapter B(Texas.gov,2015b), concerning reports of abuse, neglect, or exploitation of elderly or disabled persons. (3) Texas Health and Safety Code Chapter 161(Texas. gov,2015c), Subchapter L, concerning abuse, neglect, and unprofessional or unethical conduct in health care facilities. (4) Texas Civil Practice and Remedies Code, §81.006(Texas. gov,2011), concerning duty to report sexual exploitation by a mental health provider; and (5) A licensee must comply with Texas Occupations Code §109.051(Texas.gov,2019c) relating to the release of treatment information concerning the treatment of a sex offender.
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Book Code: PCTX1324
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