CED614Session III:

Student Rights and Counselor Responsibilities: FERPA, IDEA, Negligence,

504, In loco parentis, confidentiality, records & record keeping

ByHarvey Hoyo, Ed.D.

National University- Costa Mesa

Objectives

Negligence Malpractice Standards of Care

In loco parentis

Confidentiality 504

Negligence

duty

•Counselor owes a duty to a student

Breaches

•Counselor breaches the duty owed

Cause

•Sufficient legal causal connection injury

Injury/

damages

•Assessment is made

A civil wrong done by one to another

Tort

Malpractice

Professional misconduct

Unreasonable lack of

skillMalpractice

Malpractice

Duty to Client

Standard of Care

Injury

Proximate

cause

Loss or damage

Standard of Care“The way you do your

job”

Standard of CareWho defines?

Statues Case laws

Ethical Codes of Professional Associations

Community Standards

In loco parentis (in place of parents)

New Jersey v. T.L.O. (1985)

No unreasonable searches

Reasonable Test

Parent’s RightsParents have no right to withhold education

from children

Schools determine

appropriate curriculum

Parent Rights

Parent Rights

Planning Special

Ed Services

Privacy of

student records

Parent Rights:IDEA

Appropriate education for children with disabilities

Related services

necessary to achieve

Appropriate placement in

least restrictive

environment

Responsibilities to ParentsFamily Educational Rights and Privacy Act of

1973 (FERPA)Governs educational records and protects

student privacyAccess to recordsRight to remedy erroneous information

Student Rights

Awareness of the rules

A Fair Hearing

No arbitrary

Punishments

Goss v.

Lopez(1975)

Student RightsTitle IX

Testing/Guidance Materials

Internal Controls

Disproportionate Classes

Quick Write #1Let’s say you are in middle school counselor who sets up an end of year pizza party for all the migrant education students who improved their GPA by attending the assigned after school support classes. Little Johnny was pulled from school for a week because his grandpa passed in Texas- should he get to attend the party? Why or why not? What legal issues are involved?

Quick Write Response

Whose decision was

it?

Was make up work

provided?

Was make up work

completed?

What was impact on

other students?

Quick Write #2

You are a middle school counselor, Sally tells you in confidence that she feels unsafe at the

school because of bullying. What do you

do?

Confidentiality ChartDisclose to psychotherapist/nurse

Persons under a waiver

Child Abuse

Law enforcement

Clear & present danger

School staff regarding academic program or personal injury or property loss

Counselor liabilityAdministering

drugsGiving birth control

advice

Giving abortion advice

Making defamatory statements

Assisting in locker searches

Violating confidentiality/priv

acy of records

Counselor liabilityCivil

liability

Criminal

liability

Quick Write #3

Go back to your answer from Quick

Write #3, based on the information in the past three slide, how would your answer change?

Student Rights:Section 504: Rehabilitation Act of 1973

No discrimination based on disabilities

SECTION 504

Identification Evaluation

Placement Change of Placement

Quick Write #4

May a student whose disabilities have

resulted in dangerous behavior be given long

term suspension?

May students whose disabilities have resulted in dangerous behavior be given long term

suspension?

Honig v.Doe

What issues do counselors need to be aware of…

● Failing or refusing to communicate andactively coordinate with outside experts

working with a child● Taking a patronizing and/or antagonisticand/or insulting attitude toward parents ●Failing to observe procedural timelines

and notice requirements● Failing to modify an IEP/504 Plan that is

not working● Failing to implement an IEP/504 Plan,and worse trying to cover up that failure

Doe v. Withers (20 IDELR 422, June 1993)

Parents of a student with a

learning disability said a

teacher had refused to provide

their son with oral testing

Oral testing isrequired by his

IEP. The student failed the test &

the class: consequently did

not earn HScredit for the

course.

Doe v. Withers (20 IDELR 422, June 1993)

Jury favored parents

Awarded $5,000 in compensatory damages and $10,000 in punitive damages to the parents (plus attorneys fees andcourt costs).

Summary