Chapter 3

Privacy, Informed Consent, Confidentiality, and

Record Keeping

Jacob, Decker, & Hartshorne

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Privacy• The professional obligation to respect

the privacy of clients and other recipients of school psychological services has its roots in the U.S. Constitution, case law, statutory law, and professional ethics.

• Principles and standards regarding privacy are included under NASP’s first broad ethical theme, Respecting the Dignity and Rights of All Persons.

I. Respecting the Dignity and Rights of All Persons

“School psychologists engage only in professional practices that maintain the dignity of individuals. In their words and actions, school psychologists demonstrate respect for the autonomy of persons and their right to self-determination, respect for privacy, and a commitment to just and fair treatment of all persons.”

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Privacy• Siegel defined privacy as "the

freedom of individuals to choose for themselves the time and the circumstances under which and the extent to which their beliefs, behaviors, and opinions are to be shared or withheld from others" (1979, p. 251).

• Every effort is made to minimize intrusions on privacy. Psychologists do not seek or store personal information about pupils, parents, teachers, or others that is not needed in the provision of services. (See NASP-PPE Standard I.2.2).

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Privacy, & Informed Consent

• Ethical codes and law are consistent in respecting the individual’s right to self‑determine whether to share private thoughts, behaviors, and beliefs with others.

• In ethics and law, the requirement for informed consent grew out of deep‑rooted notions of the importance of individual privacy.

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Privacy and Informed Consent

General agreement exists that informed consent is needed for school actions that may result in a significant intrusion on personal or family privacy beyond what might be expected in the course of ordinary classroom and school activities (Corrao & Melton, 1988). With the exception of unusual situations (e.g., it is suspected a student may be suicidal), informed consent should be obtained to establish a school psychologist-client relationship.

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Privacy and Consent

• “School psychologists encourage and promote parental participation in school decisions affecting their children...” (NASP-PPE I.1.1).

• However, school-based practitioners are members of the school’s student educational support team and not all of their services require informed consent.

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Parent Consent is Not Required for Certain Consultative

Activities

It “is ethically permissible to provide school-based consultation services regarding a child or adolescent to a student assistance team or teacher without informed parent consent as long as the resulting interventions are under the authority of the teacher and within the scope of typical classroom interventions” (NASP-PPE I.1.1).

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Standard I.1.1 Continues

“Parent consent is not ethically required for a school-based school psychologist to review a child’s educational records, conduct classroom observations, assist in within-classroom interventions and progress monitoring, or to participate in educational screenings conducted as part of a regular program of instruction.” 9

Informed Consent “Except for urgent situations or self-

referrals by a minor, school psychologists seek parent consent (or the consent of an adult student) prior to establishing a school-psychologist client relationship for the purpose of psychological diagnosis, assessment of eligibility for special education or disability accommodations, or to provide ongoing individual or group counseling or other nonclassroom therapeutic intervention” (NASP-PPE I.1.2).

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Informed Consent• Three elements of informed consent are

that it is knowing (informed), competent, and voluntary.

• “Competent” means that individual is legally competent to provide consent under state law. Consent is typically sought from the parent of a minor child.

• The term parent may be defined in law or district policy. (Also see Definitions in NASP’s code of ethics).

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Elements of Informed Consent

The practitioner describes the nature and scope of services offered; assessment-intervention goals, procedures, and expected duration; any foreseeable risks or discomforts; the cost of the services to the parent or student (if any); the benefits that can reasonably be expected; the possible risks of not receiving services; information about alternative services that may be beneficial; and the extent to which confidentiality of information will be maintained.

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Comments on Informed Consent

• The informed consent information should be provided in a language (or other mode of communication) understandable to the person giving consent.

• Consent is an ongoing process, particularly if the client discloses sensitive information, or there is a significant change in the agreed on assessment/intervention goals or procedures. 13

Special Consent Situations

• Urgent situationsPermissible to provide emergency assistance without parent consent.

• Minors who seek assistance on their ownSchool districts should adopt written policies stating that students may be seen by the school psychologist or other mental health professional without parent notice or consent at least once to ensure the student is not in danger (e.g., child abuse, suicidal) or if it is suspected the student may be a danger to others. (See NASP-PPE footnote I.1.2)

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Autonomy and Self-Determination of Minors

School psychologists encourage a minor student’s voluntary participation in decision making about school psychological services as much as feasible. However, it is ethically permissible to bypass assent to services if the service is considered to be of direct benefit to the student and/or is required by law. If the child’s assent for services is not solicited, psychologists nevertheless honor their right to be informed and involve them as much as feasible in decisions that affect them. (NASP-PPE I.1.4)

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Confidentiality Siegel described confidentiality

as "an explicit promise or contract to reveal nothing about an individual except under conditions agreed to by the source or subject" (1979, p. 251). Confidentiality is primarily a matter of professional ethics, but privileged communication laws make confidentiality a legal issue as well as an ethical issue.16

Confidentiality

Standard I.2.3. “School psychologists inform students and other clients of the boundaries of confidentiality at the outset of establishing a professional relationship. They seek a shared understanding with clients regarding the types of information that will and will not be shared with third parties. However, if a child or adolescent is in immediate need of assistance, it is permissible to delay the discussion of confidentiality until the immediate crisis is resolved.”

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Parameters of Confidentiality

• YOU set the boundaries of confidentiality. Consider:– nature of services, student

characteristics (age, maturity), reason for referral

– what might be disclosed in the school psychologist-client relationship that could create a confidentiality dilemma?

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Confidentiality

Never promise absolute confidentiality. School-based practitioners have a duty to protect students from reasonably foreseeable risk of harm and you cannot keep quiet if:

• The student is a danger to self• You suspect child abuse• The student poses a danger to others

You must also protect students who are not clients.

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NASP Standard I.2.3

“School psychologists recognize that it may be necessary to discuss confidentiality at multiple points in a professional relationship to ensure client understanding and agreement regarding how sensitive disclosures will be handled.”

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Respecting Privacy with Regard to Sexual Orientation, Gender Identity,

and Transgender Status

Standard I.2.6. School psychologists “do not share information about the sexual orientation, gender identity, or transgender status of a student (including minors), parent or school employee with anyone without that individual’s permission.”

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Need-to-Know Principle

• Share information only on need to know basis.– Who needs to know?– Should I seek parent permission to share

this information with other school staff?– What do they need to know to be able to

assist the child?

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Privileged Communication• English law has long recognized a duty for

witnesses to testify in judicial proceedings in order to ensure justice.

• However, the need for information in the determination of justice at times conflicts with the need to safeguard the trust and privacy essential to special relationships (attorney-client, psychotherapist-patient).

• Privileged communication is a legal term that refers to the right of a person in a “special relationship” to prevent the disclosure of information given in confidence in the special relationship.

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Privilege

• Privilege refers to the legal right of the client (the parent of a minor child) to prevent disclosure of information revealed in the psychologist-client relationship to others.

• States may have “professional privilege laws” and/or “evidentiary privilege” laws.

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Comments on Privacy and Privilege

Since the 1996 Jaffee v. Redmond Supreme Court decision and the 1999 revision of the Uniform Rules of Evidence, most states (about 75%) have broadened the scope of their laws governing privilege to include doctoral and non-doctoral school psychologists. Schools psychologists need to be informed of the scope, language, and exceptions of such laws. (See Jacob & Powers, 2009).

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NASP Standard 1.2.2.

“School psychologists recognize that client-school psychologist communications are privileged in most jurisdictions, and do not disclose information that would put the child or family at legal, social, or other risk if shared with third parties except as permitted by the mental health provider-client privilege laws in their state.”

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Comments on Privacy and Privilege

• Privilege applies only to communications that occur in the context of the practitioner-client professional relationship.

• Privilege laws cover communications of the client (and family members who are participating in the diagnosis and treatment of the client) where such persons have an expectation of confidentiality. 27

Comments on Privacy and Privilege

• Typical Exceptions to Privilege:– State-mandated reporting, such as child

neglect or abuse.– Intent to self-harm or harm others.– Proceedings to hospitalize for mental

illness.– Judge may waive in child custody

procedures.

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Privacy and Privilege• Psychologists can be held liable for

unauthorized disclosure to third parties of privileged client communications if the disclosure creates legal, social, or other risk for the client(s).

• Risk? Examples: past student or parent crimes, past violation of school rules, sexual orientation or behaviors, information potentially embarrassing to family.

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FERPA• No federal funds will be made available to

schools unless they adhere to the pupil record-keeping procedures outlined in the law.

• In accordance with FERPA, parents have access to all official school education records of their child, the right to challenge the accuracy of records, and the right to a hearing when disagreements arise regarding the accuracy of records.

• Student education records are to be available only to those in the school setting with a “legitimate educational interest,” and parent consent must be obtained before records are released to agencies outside of the school. 30

“Records”

• Student education records are any records maintained by the school that are directly related to the student.

• Excludes directory information.• Excludes “sole possession

records” defined as records used only as a personal memory aid.

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FERPA• Parents have a legal right to inspect

and review their child’s education records.

• Parents have a right to review their child’s answers on individually-administered test protocols, but not manuals or stimulus materials.

• Student education records protected by FERPA are not subject to the requirements of the Health Insurance Portability and Accountability Act (HIPAA). 32

Parent Request for a Copy of their Child’s Test Protocol

Under FERPA, a school is not legally required to provide copies of a child’s test protocols to parents except when circumstances “effectively prevent the parent from exercising the right to inspect and review the student’s education records. In such situations, the school must provide the parent a copy of the records requested, or make other arrangements for them to inspect and review the requested records (34 C.F.R. § 99.10).” 33

Copies of Test Protocols• Inspect vs. copying protocols: case law

decision in Newport-Mesa Unified School District v. State of California Department of Education (2005)

• Case ruled that providing parents a copy of a child’s completed test protocol is permissible within “fair use” provision of federal copyright protection.

• Court suggested parents be asked to sign a nondisclosure agreement prior to providing them a copy of a protocol.

• Court did not rule on intellectual property rights of test publisher so more litigation is expected.

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Principle II.4 Responsible School-based Record Keeping

“School psychologists safeguard the privacy of school psychological records and ensure parent access to the records of their own children.”

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Privacy and Sensitive Health and Mental Health Information

• School psychologist roles include mental health services.

• Although FERPA, not HIPAA, generally applies to school education records at the elementary and secondary school level, parents now have greater expectation of ownership and control of private sensitive health and mental health information.

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Storage of Sensitive Health or Mental Heath Information

Place third party reports in limited-access confidential student health record (locked files accessible only to licensed or certified health professionals), return written

report to sender or parent, and/or seek parent permission to include specific information in student education records, keep sensitive student counseling notes as

sole possession records.

Is further disclosure of this sensitive health information legally or ethically prohibited? If not prohibited, is it necessary? Consider

state law and district policies protecting sensitive student health information.

Do not share with anyone without parent permission.

With parent permission, share information on a need-to-know basis, share only the

information needed for the benefit of the student.

Sensitive Health or Mental Health Information Received in Context of Practitioner-Client Relationship

Written Report Released by Parents(Report from Health, Mental Health or Social

Services Provider)Oral Communication by Parent or Student

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Storage and Disposal of Psychological Records

Under FERPA and the Individuals with Disabilities Education Act (IDEA), schools must establish policies regarding the storage, retrieval, and disposal of educational records. Under IDEA, parents of pupils with disabilities must be provided a summary of the school’s record-keeping policies. Schools also must notify parents when personally identifiable information is no longer needed for providing educational services and, upon parent request, obsolete records must be destroyed.

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Electronic Record Keeping

• Parents and adult students should be are notified of the electronic storage and transmission of school psychological records and the associated risks to privacy.

• School psychologists should password protect and/or encrypt electronic files under their own control, especially files on laptops and jump drives.

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How long should psychological records be maintained?

• No federal guidance, except may not destroy if outstanding request to review them exists.

• APA (2007) record keeping guidelines suggests 7 years for adults; 3 years beyond age of majority for minors.

• Statute of limitations for filing complaint under IDEA is 2 years.

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Records Storage and Disposal Continued

Practitioners should consult their state education laws and district policies for guidance with regard to what information to store, how to store it and for how long, and procedures for the periodic review of files and destruction of obsolete information.

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Records Storage and Disposal Continued

It is advisable to retain a student’s test protocols until there is a pattern of relatively stable findings across multiple re-evaluations, at which time protocols and other raw data from early evaluations might be destroyed. Parents should be notified in advance of the district’s intent to destroy such records.

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