ASCA Ethical Standards for School Counselors: Confidentiality (2022) A. Responsibility to Students A.2. Confidentiality School counselors: (parts b, c, d, and g. appear in the next section on informed consent.) a. Promote awareness of school counselors’ ethical standards and legal mandates regarding confidentiality and the appropriate rationale and procedures for
currently acceptable algorithms to be utilized for data in transit. o. Avoid using software programs without the technological capabilities to protect student information based upon legal specifications and currently acceptable security standards. p. Advocate for physical and virtual workspaces that are arranged to protect the confidentiality of students’ communications and records. A7. Group Work h. Communicate the aspiration of confidentiality as a group norm, while recognizing and working from the protective posture that confidentiality for students in small groups cannot be guaranteed. HIPAA and FERPA: Confidentiality in Educational Settings The TAC, including the Family Code, as well as HIPAA and FERPA all address specific exceptions in the laws that allows disclosure of a child’s protected health information in cases of abuse and neglect. The following guidance in this area addresses the school counselor’s role (English, 2019): In a school setting, the HIPAA Privacy Rule requirements must be understood in relation to the requirements of the Family Educational Rights and Privacy Act (FERPA), a federal statute that, with its implementing regulations, controls the disclosure of the educational records of students at most primary, secondary, and post-secondary schools. Health care professionals who provide services in schools often are uncertain whether they must follow the HIPAA Privacy Rule or FERPA. Two federal agencies the Department of Health & Human Services and the Department of Education have issued joint guidance that provides some clarification. While the HIPAA Privacy Rule typically controls release of health information created by health care professionals, the HIPAA Privacy rule explicitly excludes from its purview health records that are part of an “education record” as that is defined under FERPA (HHS, 2008). FERPA defines “education record” in a way that sometimes can include health records created by a health care provider, such as a school nurse, employed by or acting on behalf of a school or university. Thus, health records created by medical professionals employed by a school or university may be part of an “education record” and subject to FERPA rather than HIPAA. The most important implication of this is that parents have access to the education records of their minor children. Young adults, beginning at age 18, control access to their own education records under FERPA, including any health information. Health records created by medical professionals working in a school setting such as a school-based health center but employed by a health entity would usually be covered by HIPAA, not FERPA (HHS, 2008). Counselors working with minors need to navigate these laws to determine which regulations take precedence when making decisions in the best interest of protecting children and providing counseling services to them and their families. The school counselor must also follow state and federal laws for required reporting in cases of neglect and abuse, as well as maintain the standards for confidentiality as set forth in the ASCA Ethical Standards for School Counselors Preamble (ASCA, 2022): All students have the right to: Privacy that is honored to the greatest extent possible, which at times may be limited by school counselors’ balance of other competing interests (e.g., best interests
disclosure of student data and information to school staff. e. Explain the limits of confidentiality in developmentally appropriate terms through multiple methods, such as student handbooks; classroom lessons; verbal notification to individual students; and school counseling department websites, brochures, and social media accounts. f. Keep information confidential unless legal requirements demand confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student or others. Serious and foreseeable harm is different for each minor in schools and is determined by a student’s developmental and chronological age, the setting, parental/guardian rights, and the nature of the harm. School counselors consult with appropriate professionals when in doubt as to the validity of an exception. h. Collaborate with and involve students to the extent possible and use the most appropriate and least intrusive method. to breach confidentiality if such action is warranted. The child’s developmental age and the circumstances requiring the breach are considered and, as appropriate, students are engaged in a discussion about the method and timing of the breach. Consultation with professional peers and/or supervision is recommended. i. Request of the court that disclosure not be required when the school counselor’s testimony or case notes are subpoenaed if the release of confidential information may potentially harm a student or the counseling relationship. j. Protect the confidentiality of students’ records and release of personal data in accordance with prescribed federal and state laws and district and school policies. k. Recognize the vulnerability of confidentiality in electronic communications and only transmit student information electronically in a way that follows currently accepted security standards and meets federal, state, and local laws and school board policy. l. Convey a student’s highly sensitive information (e.g., a student’s suicidal ideation) through personal contact such as a phone call or visit and not less-secure means such as a notation in the educational record or an email. Adhere to federal, state, and local laws and school board policy when conveying sensitive information. m. Advocate for appropriate safeguards and protocols so highly sensitive student information is not disclosed accidentally to individuals who do not have a need to know such information. Best practice suggests a very limited number of educators would have access to highly sensitive information on a need-to-know basis. n. Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and Discussion As listed in the previous sections on HIPAA, Texas law does give exceptions to the parental consent rule but may give parents access to information shared by the child in counseling, especially if the child has indicated they may harm themselves or others. It is common knowledge that children and teens may be more forthcoming and engaged in the counseling process if they believe the information they share will be kept confidential.
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Book Code: PCTX1324
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