While I am busily working in my office, I receive a call on my personal cell from an outside agency inquiring about a former student (red flag #1).  The caller was inquiring about a student that I knew many years ago and was asking if I had time to speak about the student in a legal matter (red flag #2).  Because I was busy, I told the caller I would have to speak to him/her at a later time.  Several hours passed and I remembered the call.  Then, it hit me out of the blue…“WAIT, I should not even be speaking to this person without consulting with my administrator!”  Although I had many calls in the past about my former students, those calls were generally from colleges, potential employers, or institutions asking for personal recommendations.  However, this call did not fit into one of these categories and I did not have a good feeling about calling the person back.  So, long story short…I  did not call the person back.  After consulting with my administrator, he informed me that he wanted to call our district’s attorney for some additional guidance about how to handle the call.  A couple of days later, I received a call from the attorney informing me that he did not want me to return the call as the information the agency was requesting may be part of the educational record covered by FERPA.  Now, here is the scary part.  What happened if I had been a novice counselor unaware of  the requirements of FERPA and failed to consult with my administrator???  Henceforth, the purpose of this post is to give a brief overview of FERPA, the confidentiality requirements of FERPA, steps to protect yourself a school counselor, and I will leave you with a questionnaire measuring your legal knowledge.

What is FERPA?

FERPA was initially passed in 1974 to protect student information considered personal and confidential.  FERPA applies to any public or private institution that receives federal funds. The law gives parents, legal guardians, and students (18 years or older), access to and confidentiality concerning educational records. Educational records include: files, documents, and other materials which contain information directly related to a student and maintained by a school district.  Parents, legal documents, and students over the age of 18 have the right to…

  • inspect and review records;
  • challenge and seek to amend records;
  • require consent to prior to disclose personally identifiable information.
The School Counselor and FERPA
As a school counselor, you may or may not be knowledgeable about records covered by FERPA or what information can and cannot be shared. Although the student is our client, we must be aware of exceptions to confidentiality and the appropriate times to divulge student information.  The key is awareness and to put measures in place to protect yourself! So, how does one protect him/herself in our highly litigious society?  Here are some suggestions offered by Susan Hansen (2009):
– Ask your administration to include a statement in the student handbook about school counseling services and confidentiality.  If possible, include a form that students and parents must sign and return at the beginning of the school year (or when they register) that says they have read and understood the handbook and all information contained in it.

Confidentiality Guidelines Under FERPA – includes recommendations, parent/student letter, and poster.

– Post flyers in the counseling office and in your individual office about confidentiality and the exceptions.

– Ask your IT Department to post the confidentiality guidelines and limitations on the school website, and on the guidance page or your own personal page of the site.

– Very important!! When you first meet a student for anything other than scheduling issues, explain confidentiality guidelines and exceptions and have the student sign and date a form indicating that he/she has been informed and understands the limits of confidentiality. Keep the signed form in the student’s file, or in a separate file just for these forms.
Unfortunately, this post will only touch the surface to answer questions regarding limits of confidentiality and FERPA; therefore, you should follow these seven suggested guidelines by Glosoff and Pate (2002).

1. Know your ethical codes.
2. Know the applicable law in your jurisdiction.
3. Know the school system and building policies and procedures.
4. Refresh knowledge through professional reading and workshops (this is imperative when it comes to FERPA).
5. Practice prevention through education and involvement of stakeholders.
6. Work diligently and specifically to make parents partners in the counseling process.
7. Remember the Three Cs: CONSULT–CONSULT–CONSULT.

In addition, I am attaching some resources that may be helpful to protect you when working with students and parents.

ASCA Position Statement: The School Counselor and Confidentiality

FERPA: The Ever-Changing Federal Statute

Steps To Protect Yourself When You are Just, Well for a Better Word, Unsure 

If you find yourself in a situation in which you are not sure what to do, don’t guess.  Here are some practical suggestions that may be helpful.

If you are unsure, try this…

1. Consult with your colleagues about your experience  Often a seasoned colleague may have gone through a similar situation. 

2. If your colleagues are not clear about what you should do, it is helpful to go to your administrator and get his or her insight. Administrators are often well versed in school law and may even reach out to your school attorney for clarity.

3.  Consider consulting with your Student Services Director who may have more experience with FERPA and your role as a counselor. It may be helpful to suggest that your director coordinate training for counselors in the district in this area.

4. Educate yourself!! Consider taking the Are You a Legally Literate School Counselor, a 16 item questionnaire that surveys school counselors’  legal knowledge. Also, view this presentation, What Counselors Need to Know About FERPA, a  legal presentation by attorney, Julie Weatherly.  Weatherly has a lot of knowledge that may be useful to school counselors. Want to know more about FERPA?  Then click out these additional resources for additional information.

School Records and Case Notes

Wrightslaw: Privacy, Confidentiality, & Educational Records

Student Mental Health and the Law

Legal and Ethical Issues

Ethical Dilemmas in School Counseling

Case Studies

Also, check out more from For High School Counselors Blog regarding FERPA.

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