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…
Ethically Speaking…
– Role of counselor
AND school employee
– Code of Ethics
– Liability Issues
– Immunity
Q&A
Scenarios…
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:
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 Program
To serve all students
AND
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:
Of dropping out of
school
Becoming substance
Abusers
Participating in Gang
Activity
Committing Suicide
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
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 hours
May 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 & community
4 point program
State law – TEC
33.005
Applies to all school
counselors with SBEC
certification
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
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?
Scott v. Savers Prop. &
Casualty Ins. Co., No. 012953 (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!
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
Use of excessive force
in the discipline of
students or negligence
resulting in bodily
injury to students
Counselor =
professional employee
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
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 101.65
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
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
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…
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
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
Implemented 9/1/02
Supercedes all
conflicting provisions
on 9/1/03
Counselor
Special Education
Counselor
Vocational Counselor
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
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
record
School districts with >
500 students in
elementary shall employ
SBEC certified counselor
for each elementary
school. 1:500
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
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:
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
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; 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?
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 antivictimization 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?
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 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
Abuse…
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;
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 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
Abuse…
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.
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 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
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 ADHD
As 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 OR
Has 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 students
Parents have right to
access student’s
education records
Counseling 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
records
Law enforcement
records
Employee records
Mental health records
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
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 record
20 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 AND
Meets Health & Safety
Code 611.001 definition
of “professional”
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
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
Welcome or unwelcome
conduct
Romantic relationships are
not allowed
State law – State jail felony
Employees 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 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 – 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…
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
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
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
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 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
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 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 –
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 manner
Also must fulfill other terms of the
agreement
Only first year college students
may apply
SB 1146
Requires an early college education program for atrisk 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
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
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…
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
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…
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 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 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
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
Requires instruction in “personal finance literacy”
Economics classes
Beginning with the 2006-2007 school year
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
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
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 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
The End