Transcript Ethics & Law - Michigan Association of School Psychologists

Ethics & Law
MASP Fall Conference,
2014
Cheryl L. Somers, Ph.D.
See last page for references
Unless otherwise noted, most information was taken from
Jacob, S., Decker, D. M., & Hartshorne, T. (2010). Ethics & law
for school psychologists (6th ed.). Hoboken, NJ: Wiley.
I. Definition of Terms
 Ethics = “a combination of broad ethical
principles and rules the guide the conduct of
a practitioner in his or her professional
interactions with others.”
 Law
= “a body of rules of conduct prescribed
by the state that has binding legal force.”
 Both
APA and NASP ethics require that we
know and respect the law.
II. Questions to Ask Oneself:
 Do I understand my legal obligations
correctly?
 What actions does the law specifically
require or prohibit (must do, can’t do)?
 What actions does the law permit (can
do)?
 Even if an action is legal, is it ethical?
 Do I understand my ethical obligations
correctly?
III. Ethics
A. Review of APA Ethics Code
 First version 1953
 Most recent (10th) version 2002
 General Principles
 Principle A: Beneficence and Nonmaleficence—
responsible caring—work to benefit others—do no
harm
 B: Fidelity and Responsibility—establish trust and
uphold standards
 C: Integrity—promote accuracy and honesty in
science, teaching, and practice of psychology
 D: Justice—promote fairness and justice
 E. Respect for People’s Rights and Dignity—rights to
privacy, confidentiality, and self-determination
 APA
Standard 1: Resolving Ethical Issues
 Misuse
of work
 Conflicts between ethics and law
 Conflicts between ethics and org. demands
 Information resolutions of violations 1st
 Reporting ethical violations
 Cooperating with ethics committees
 Improper complaints
 Unfair discrimination against complainants
 APA
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Standard 2: Competence
Boundaries of competence
Providing services in emergencies
Maintaining competence
Bases for scientific and professional judgments
Delegation of work to others
Personal problems and conflicts
 APA Standard 3: Human Relations
 Unfair discrimination
 Sexual harassment
 Other harassment
 Avoiding harm
 Multiple relationships
 Conflict of interest
 Third-party requests for services
 Exploitative relationships
 Cooperation with other professionals
 Informed consent
 Psychological services delivered to or through orgs
 Interruption of psychological services
 APA
Standard 4: Privacy and
Confidentiality
 Maintaining
confidentiality
 Discussing the limits of confidentiality
 Recording
 Minimizing intrusions on privacy
 Disclosures
 Consultations
 Use of confidential info for didactic or other
purposes
 APA
Standard 5: Advertising and Other
Public Statements
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Avoidance of false or deceptive statements
Statements by others
Descriptions of presentations/trainings
Media presentations
Testimonials
In-person solicitation
 APA
Fees
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Standard 6: Record Keeping and
Documentation of work and maintenance of
records
Maintenance, dissemination, and disposal of
records
Withholding records for nonpayment
Fees and financial arrangements
Barter with clients/patients
Accuracy in reports to payers and funders
Referrals and fees
 APA
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Standard 7: Education and Training
Design of training programs
Descriptions of training programs
Accuracy in teaching
Student disclosure of personal information
Mandatory individual or group therapy
Assessing student and supervisee performance
Sexual relationships with students and supervisees
 APA Standard 8: Research and Publication
 Institutional approval
 Informed consent to research
 Informed consent for recording and photos
 Client, student, subordinate research participants
 Dispensing with informed consent for research
 Offering inducements for research participation
 Deception in research
 Debriefing
 Human care and use of animals in research
 Reporting research results
 Plagiarism
 Publication credit
 Duplicate publication of data
 Sharing research data for verification
 Reviewers
 APA
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Standard 9: Assessment
Bases for assessments
Use of assessments
Informed consent in assessments
Release of test data
Test construction
Interpreting assessment results
Assessment by unqualified persons
Obsolete and outdated test results
Test scoring and interpretation services
Explaining assessment results
Maintaining test security
 APA
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Standard 10: Therapy
Informed consent to therapy
Therapy involving couples or families
Group therapy
Providing therapy to those served by others
Sexual intimacies with current therapy clients
Sexuality intimacies with the relatives or sig. others of
current therapy clients
Therapy with former sexual partners
Sexual intimacies with former therapy clients
Interruption of therapy
Terminating therapy
B. NASP Principles for Professional Ethics
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Most recent version 2010
Essentially contains all of APA ethics code
More direct reference to school role (vs “therapy” or
“research” in APA code) and school contexts and
situations. Will cover here what is different.
Common terms used:
 Client
(whoever the SP establishes professional
relationship with)
 Child (0-18) (“Student” more vague)
 Informed consent and assent
 Parent (includes many)
 Advocacy (does not include insubordination)
 School-based vs private practice
 NASP
 Four
Principles for Professional Ethics
General Principles
1) Respecting dignity and rights of all persons
2) Professional competence and responsibility
3) Honesty and integrity in professional
relationships
4) Responsibility to schools, families,
communities, the profession, and society
[APA has 5 broad principles, but the two really
include the same things when you break the
two codes down—NASP has more school
context specific examples]
 NASP
General Principle #1: Respecting dignity
and rights of all persons
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Autonomy and self-determination (consent and
assent)
Privacy and confidentiality
Fairness and Justice
 NASP
General Principle #2: Professional
competence and responsibility
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Competence
Accepting responsibility for actions
Responsible assessment and intervention practices
Responsible school-based record keeping
Responsible use of materials
 NASP
General Principle #3: Honesty and
integrity in professional relationships
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Accurate presentation of professional qualifications
Forthright explanation of professional services, roles,
and priorities
Respecting other professionals
Multiple relationships and conflicts of interest
 NASP
General Principle #4: Responsibility to
schools, families, communities, the profession, and
society
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Promoting healthy school, family, and community
environments
Respect for law and the relationship of law and
ethics
Maintaining public trust by self-monitoring and peer
monitoring
Contributing to the profession by mentoring,
teaching, and supervision
Contributing to the school psychology knowledge
base
IV. Law Refresher
 Three
basic sources of public school law:
1) Constitution
2) Statutes and regulations
3) Case law
U.S. Constitution
 No fundamental right to an education
 Educational rights carved out of amendments
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10th—powers of the states
14th—a) equal protection clause
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Brown v BOE (1954); PARC v Commonwealth of PA
(1972); Mills v BOE Distr. Of Columbia (1972)
b) procedural due process clause
Goss v Lopez (1975)
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1st—freedom of speech, etc.
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Tinker v. DesMoines Indep School District (1969)
4th—search and seizure
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Merriken v. Cressman (1973)
Statutes and Regulations—select examples:
 Federal Education Legislation
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ESEA 1965—>FERPA/Buckley 1974, PPRA 1975
(Protection of Pupil Rights Act), NCLB 2001
EHA 1975—>IDEA 1990, 1997, IDEIA 2004
 Federal
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Antidiscrimination Legislation
Rehab Act 1973
ADA 1990
CRA 1871 (Civil Rights Act)
V. Lawsuits Against Schools
 Under
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Position of the courts has generally been to stay out
of it.
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state law….
federal law….
IDEA position—attoney fees covered by school if
family wins
Civil Rights Act position—teachers generally not held
personally liable if acting in good faith
Paul D. Coverdell Teacher Protection Act—limits on
liability when teachers acting in good faith
Common Legal Challenges
1) Privacy—not explicitly mentioned in Constitution
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Case Law decisions have balanced interest of
schools (duty to educate) and maintain order and
safety with personal freedoms and rights. Students
don’t get full rights of general adult citizens.
 Merriken
v Cressman (1973)—right to family
privacy/consent
 New Jersey v TLO (1985)—search and seizure
 Sterling v Borough of Minersville (2000)—right to student
privacy re: sexual orientation. No “genuine, legitimate,
and compelling government interest” in disclosing.
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Statutory Law—FERPA and PPRA
2) Informed consent for SP-client relationship
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Importance of this is deeply rooted
What is a “SP-client” relationship
What is not a SP-client relationship
Informed consent=knowing, competent, voluntary
(clear understanding, legally competent, and willful)
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Consent of minors
Parents hold the rights to choose if child receives tx
 Courts have ruled that minors are not competent to
decide if they need tx.
 Minors can access psych or medical tx w/o parent
consent in emergency situations, and for health-related
conditions (STD/Is, substance abuse).
 Research shows more capability esp in 15-17 year olds,
and involving them enables “buy in”.
 Don’t ask for assent if refusal will not be granted.
 Can see them 1-2 sessions w/o parent consent.
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3) Confidentiality
 Primarily a matter of ethics, but could be held
civilly liable.
 3 issues:
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SPs define parameters at the outset,
only disclose to others on “need to know” basis, and
consider sensitive info as belonging to the
student/family an not the school—student and
parent control who knows what.
Direct Services to the Student (e.g., individual counseling)
 Minor generally has no legal right to confidentiality
irrespective of the parent
 Best practices to be clear up front about parameters and
why you might have to disclose to protect the student.
 No clear guidance on what constitutes reasons for
breaking confidentiality with a minor.
 But don’t promise it if it could be broken.
 Disclose when student requests it, when student or others
are in danger, if required by court of law.
 When feasible, get student assent before disclosure
 Enlist partnership with student in problem solving through
the disclosure process.
 Duty to Protect in school-based practice—reasonably
foreseeable risk of harm vs clear and imminent danger.
 Must have good reason, or risk malpractice suit.
Collaboration and Confidentiality (e.g., with parents—
what to share with teachers/admin)
 Establish clear agreement with “client” re:
confidentiality parameters.
 Information shared is discussed only for professional
purposes--on a “need to know” basis.
 Not supposed to share more than needed with
teachers if not relevant to teacher ability to work
with the child effectively.
Confidentiality and Teacher Consultation
 The guarantees of “client confidentiality” apply
here. All shared must be kept confidential unless
one of three reasons to break confidentiality.
 Pressures from admin to give info.
Confidentiality=ethical notion
Privilege=legal notion
4) Privileged Communication
 Must set parameters at the outset (e.g., People v
Vincent Moreno, 2005)
 When info gathered and shared as part of MET,
communications are not privileged (JN v Bellingham
school district, 1994)
 Consult an attorney when unsure b/c if disclose
when shouldn’t, could get sued.
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Subpoenas and court orders
 Subpoena
used by attorneys and individuals to gather
info (usually issued by clerk);
 court order a command by judge to produce
documents, appear in court and answer questions.
 Don’t give up info for subpoena unless client permits
 For court order, have to comply or be held in
contempt of court.
5) Record keeping in the schools
 Pre-1970,
many abuses of school records identified,
e.g., releasing info to police, creditors, employers, etc.,
w/o permission, parents had limited access or
procedures for challenging contents of records, wide
variety of people accessed records, procedures for
regulating access rarely existed.
 Thus, FERPA in 1974—requires schools to have written
policies sent annually to parents re: access to and
confidentiality of education records.
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Education Records=contents maintained by school,
including MET evaluation/spec ed documents such as test
protocols. Does not include a)directory information, b)
medical or related evals NOT used as part of instructional
program, and c) “sole possession records” (aka “memory
aids”), unless they were shared w/ others and then they are
no longer privileged.
Right to inspect and review records
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schools must comply with parent request for access to
records within 45 days of the request.
If they really can’t come, you have to make copies,
including of test protocols.
Best to build good rapport and go over all details in the
first MET.
Right to confidentiality of records
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School can disclose w/o consent to teachers who
have “legitimate educational interests”
Right to request amendment of records
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If inaccurate, is misleading, or violates privacy or
other rights of student.
Parent access to test protocols
 Parents have a right to review records.
 Ideal if rapport built and they are satisfied with your
review with them.
 If not and it goes further, stay calm.
 FERPA does not require notice to parents before
destruction of materials no longer needed (e.g.,
protocols), but IDEA—Part B does require that parents
must be informed before it is done. Don’t destroy things
that parents could want to see.
 Parents have legal right to inspect raw test protocols—
conflicts w/ ethics code re test security.
 If parents can’t get to school for a reasonable time
period, have to make copies of protocols even.
 Some courts have ruled this not copyright violation, but
there is not good consensus yet and testing companies
are fighting.
6) Least Restrictive Environment
 Medical
needs that can be easily trained for nonmedical staff to implement
 Holland (1992) and Sacramento Schools v Rachel H
(1994) established four-part test for determining
compliance with LRE requirement:
1) The educational benefits available in a general education
classroom, supplemented with appropriate aids and services, as
compared with the educational benefits of a special education
classroom,
2) The nonacademic benefits of interaction with children who are
not disabled,
3) The effect of the child’s presence on the teacher and other
children in the classroom, and
4) The cost of educating the child in the general education
classroom.
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The education of the other children must be significantly
impaired to justify exclusion; same for cost—must be
significantly more exnsive to justify exclusion
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Also can’t exclude b/c modifications needed, but Daniel
RR v Texas BOE (1989) established a 5th factor that can be
considered in determining LRE:
5) whether the child can benefit from the general
education curriculum without substantial and
burdensome curricular modifications
—don’t have to “modify the curriculum beyond
recognition.”
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NOTE: Interesting recent input that I received----that our circuit
court(6th circuit court in Cincinnati is our jurisdiction in Michigan) has a
different case as our precedent. The case is Ronkers from the mid1980s. Ronkers has essentially a two-prong decision making guideline,
primarily factoring in the academic and social benefit to the child
himself and not factoring in his/her impact on gender education
students/teachers/ setting. But Susan Jacob only includes the
California case in her book, so wasn’t sure which gets consulted in
Michigan cases, or if it’s both. So, I checked with an attorney who
cited the legal concept of Persuasive Authority. Persuasive authority
means sources of law that the court consults in deciding a case. It
may guide the judge in making the decision in the instant case. But it is
not a binding precedent on the court under common law legal
systems such as English law. Persuasive precedent may come from a
number of sources such as lower courts, horizontal courts, foreign
courts, statements made in dicta, treatises or law reviews. Appellate
courts may look to rulings in other jurisdictions as persuasive authority,
but persuasive authority means that the reasoning advanced in
support of the holding is analytically compelling. [State v. Southers,
1988 Ohio App. LEXIS 4648 (Ohio Ct. App., Pickaway County Nov. 23,
1988)]. So, at this point, I am inferring that the California case (Rachel
H), as a more recent case and more multi-faceted, is likely consulted
in other jurisdictions, such as ours.
Scope of required related services—Tatro
(1984) spina bifida and catheterization
case; Charlene F case (1999) ventilatordependent student and full time nursing
care. Both cases favored parents.
7) Appropriate Education/FAPE
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BOE of Hendrick Hudson Center School District v
Rowley (1982) has shaped subsequent cases by
establishing two prong FAPE test:
1) Were IDEA procedures followed in developing
the IEP?
2) Is the program reasonably designed to benefit
the child?
Can consider cost if 2 equivalent options available
Schools generally have the say in choice if
reasonably calculate to have greater than
minimum benefit.
No guarantee to parents of maximum benefit
8) Implementing RTI
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Both NCLB/ESEA and IDEA push for EBIs.
Courts have supported this in several cases
However, must document an RTI plan, progress
monitor, and adjust instruction.
A 2009 case did award parents compensatory
damages b/c of poor RTI and perceived need for
special education benefit a year prior.
Also cannot require RTI be implemented before
evaluating. Best way to handle “premature”
evaluation requests?
Overall, the implementation of pre-eval
interventions/RTI/MTSS is not likely to be seen as
unreasonable delay of IDEA “child find”
requirements if academic growth is documented
and special ed eval conducted when seems
necessary.
9) Student self-referrals for counseling
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Can provide 1-2 emergency sessions w/o
parents
Must get it after that unless state law/district
policy permits “mature minors” to receive it w/o
parent consent.
For health conditions like substance use,
STD/STIs, pregnancy prevention, teens may be
able to receive community-based help w/o
parent permission (by federal and state laws).
SP can refer. FERPA permits parents to see your
notes, though, so consider whether notes are
necessary.
10) Threats to self
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Take it very seriously and report to parents and
principal after a risk assessment, especially when in
doubt and even if risk is confirmed to be low
(Poland, 1989)
Courts have generally not held schools liable unless
grossly negligent/reckless/careless (e.g., Armijo v
Wagon Mound Public schools, 1998).
11) Threats to others
 Schools should take multidisciplinary approach to
threat assessment (mental health, school admin, law
enforcement, etc.)
 Schools generally not held liable if took seriously,
warned parents, and when propensity to violence
unknown in child.
12) When students disclose criminal acts
What is our legal duty?
13) Pregnancy, birth control, and STD/Is
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Alan Guttmacher Institute www.guttmacher.org
State laws re: parental consent and for which services:
http://www.guttmacher.org/statecenter/spibs/index.html
Jacob text: have to know state and local policies
STD/Is---All states allow teens to access STD testing and tx.
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Pregnancy--Arnold v BOE of Escambia, 1990-- no requirement
for a school to notify parents of the pregnancy of a minor
student under federal or state law
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SPs should refer to local clinic or sensitive physician.
Schools may only have to tell to “safeguard the student’s health
and well-being” (how defined?)
Encourage student to tell.
Access to abortion—34 states require parent consent or notice,
but all provide for “judicial bypass”.
What Michigan permits
14) Assessment and conducting special education
evaluations
 Clash
between organizational demands (e.g.,
what admin wants) and your ethics
15) Miscellaneous
 When
our peers misbehave?
V. Decision-Making Models
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Why needed?
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Eight-step problem-solving model (adapted from
Koocher & Keither-Spiegel, 2008):
1) Describe the parameters of the situation
2) Define the potential ethical-legal issues involved
3) Consult ethical and legal guidelines and district policies
that might apply to the resolution of each issue. Consider
the broad ethical principles as well as specific mandates
involved.
4) Evaluate the rights, responsibilities, and welfare of all
affected parties (e.g., student, teachers, classmates, other
schools staff parents, siblings
5) Generate a list of alternative decisions possible for each
issue.
6) Enumerate the consequences of making each decision.
Evaluate the short-term, ongoing, and long-term
consequences of each possible decision, considering the
possible psychological, social, and economic costs to
affected parties. Consultation with colleagues may be
helpful.
7) Consider any evidence that the various consequences or
benefits resulting from each decision will actually occur
(i.e., a risk-benefit analysis).
8) Make the decision. Consistent with codes of ethics (APA,
NASP), the school psychologist accepts responsibility for the
decision made and monitors the consequences of the
course of action chosen.
2004 APA panel of PhDs and JDs advised psychologists to:
1) Consult with a colleague or ethics expert and consider calling
your state board or state psychology association for additional
assistance.
2) Document the steps you took and those you considered but
didn't take, and your reasoning behind those decisions.
3) Aspire to the general principles in the Ethics Code and consider
whether and how the five principles help inform the decisionmaking process.
4) When the law and the Ethics Code conflict, review Standard
1.02, which allows psychologists to follow the law after first making
known their commitment to the Ethics Code.
5) If a conflict of interest, such as having a relationship with
someone closely associated with a client, can reasonably be
expected to jeopardize your objectivity, carefully consider your
options, most notably refraining from the relationship.
6) Any time you decide to terminate counseling, follow Standard
10.10: Offer the client a referral to another mental health
professional, Kinscherff recommended.
http://www.apa.org/monitor/oct04/bind.aspx
NASP’s model:
What to do when you have to confront an ethical dilemma:
http://www.nasponline.org/standards/EPPC_Procedures.pdf
Visual flow chart of procedures to follow:
http://www.nasponline.org/standards/complaintprocess.pdf
VII. Types of ethical complaints:
Dailor (2007): >90% of survey respondents had
witnessed SPs engage in at least one of nine types
of unethical behavior in the prior year.
 Top
Four in clinical settings….
 Confidentiality
 Blurred,
dual, or conflictual relationships
 Payment sources, plans, settings, and methods
 Academic settings, teaching dilemmas, and concerns
about training
http://www.kspope.com/ethics/ethics2.php
VIII. Common Situations with Implications for Ethical and Legal Knowledge and
Decision-Making:
Cognitive Errors and Boundary Crossing Decisions:
Error #1: What happens outside the psychotherapy session has
nothing to do with the therapy.
Error #2: Crossing a boundary with a therapy client has the same
meaning as doing the same thing with someone who is not a client.
Error #3: Our understanding of a boundary crossing is also the client's
understanding of the boundary crossing.
Error #4: A boundary crossing that is therapeutic for one client will
also be therapeutic for another client.
Error #5: A boundary crossing is a static, isolated event.
Error #6: If we ourselves don't see any self-interest, problems, conflicts
of interest, unintended consequences, major risks, or potential
downsides to crossing a particular boundary, then there aren't any.
Error #7 Self-disclosure is, per se, always therapeutic because it shows
authenticity, transparency, and trust.
http://kspope.com/ethics/boundary.php
IX. Peer Monitoring
 APA
and NASP both state that members must
monitor the behavior of their professional
colleagues in order to ensure ethical conduct.
 Start with informal attempts to resolve. Be direct,
thorough, and honest with the colleague.
Document your efforts, his/her response, and your
rationale for what you did and did not do.
 If effective, consider it a professional success.
 If ineffective, follow next steps in the decisionmaking models
 Apply all of this to intern supervision as well.
Universities need you to share all concerns with us.
X. Self-Monitoring
 Refresh
yourself on ethics and law regularly.
 Talk with colleagues about challenging issues as
they arise, at any stage in your career—we all
need to continually learn and seeking
consultation is a critical part of it.
 Make good and ethical decisions as outlined in
this presentation and beyond!

References
Except where noted otherwise, most material was taken from:

Jacob, S., Decker, D. M., & Hartshorne, T. (2010). Ethics &
law for school psychologists (6th ed.). Hoboken, NJ: Wiley.
And the APA and NASP ethics codes, which are also included
in appendices in Jacob et al.
Contact me if you have any questions: [email protected]