ETHICS AND LAW FOR SCHOOL PSYCHOLOGISTS

Chapters 2, 3, and 4

Chapter 2

Ethics and Law for School Psychologists Law and School Psychology: An Introduction

Laws and the Legal System

Overarching Change Agents Levels State Legislation Federal U.S. Constitution Local Litigation Case Law Federal

U.S. Constitution

 1 st Amendment: Freedom of Speech, Religion, and Assembly  10 th Amendment: Powers not delegated to the U.S. Government is delegated to the states  14 th Amendment: Equal protection (civil rights) and procedural due process

Federal Legislation (Education)

    Elementary and Secondary Education Act (ESEA; 1965)  U.S. Gov’t provides funds and in exchange they can maintain a “floor” for services provided in schools NCLB (2001)   Amended ESEA and added extras Requires AYP through gathering assessment data IDEA; PL 94-142 (1975)  Assured FAPE for all children FERPA (1974)   Parents can say who has access to records Parents have access to child’s records

Federal Legislation (Civil Rights)

 Civil Rights Act (1871)  (Originally known as Ku Klux Klan Act)  Can be sued for damages for discriminatory actions  Rehabilitation Act (1973)  Cannot prohibit anyone from services based on a disability.

 Americans with Disabilities Act (1990)  Equal opportunities in virtually all areas for anyone with a disability.

State Legislation

 It is your obligation to become familiar with the state laws specific to education and civil rights.

 Most of these can be found on the State Department of Education websites.

 Cannot supersede federal law or constitution.

Case Law

   Case laws only apply to the jurisdiction in which the case was decided.

Regional Cases:  Larry P. vs. Riles (State of California)  Tarasoff Federal Cases  Brown vs. Board of Education (1954)  Pennsylvania Association for Retarded Children (PARC) vs. Commonwealth of Pennsylvania (1971)  Mills vs. District of Columbia (1972)

Civil Cases: Malpractice

  Proof needed to win a malpractice suit     Professional relationship between psychologist and person that results in legal duty of care Standard of care exists AND practitioner broke that standard.

Client suffered harm or injury The professionals breach of care is the proximal cause of harm to the client.

Legal duty of care    Ordinary: customary practice Reasonable: use of professional judgment Prudent: maintained adequate safeguards

Chapter 3

Ethics and Law for School Psychologists Privacy, Informed Consent, Confidentiality, and Record Keeping

Definitions

 Privacy: unnecessary intrusions regarding actions or information concerning a person  Informed Consent: agreement that is knowing, competent, and voluntary that requires an action from the person providing agreement  Assent: usually needed for a child; general agreement for services.

 Privileged communications: right held by client to prevent disclosure from any mental health worker.

Privacy Case Law

  New Jersey vs. TLO (Search of property):    Reasonable suspicion (children) NOT probable cause (adults) Cannot be excessively intrusive (closer to body the higher the reasons needed for suspicion) Sterling vs. Borough of Minersville (Gay rights):    School threatened to disclose a gay student’s sexual orientation to his parents. Student committed suicide.

Students have right to privacy unless “genuine, legitimate, and compelling” reason to disclose Student’s sexual orientation should not be disclosed without student’s permission.

Privacy Legislation

  IDEA (1975) Protection of Pupils’ Rights Act (1978)   Rights to privacy (family and child) Cannot require the following information         Political affiliation Mental issues that might embarrass the student Sex behavior and attitudes Illegal or demeaning actions (self-incrimination) Critical appraisals of family members Any legally privileged relationships Religious beliefs or actions Income (except for programs such as free/ reduced lunch)

Privacy Legislation

  FERPA (1974)      Educational Records Defined Right to Inspect and Review Records Right to Confidentiality of Records Right to Request Amendment of Records Complaints Health Insurance Portability and Accountability Act of 1996 (HIPAA)    Privacy Security Transmission of data

FERPA Exceptions

 Appropriate officials for health and safety emergencies  Authorities w/in juvenile justice system  Certain organizations performing studies in certain circumstances.

 Other schools for transferring students  Specified officials for audit and evaluation purposes.

Guidelines for Living: Privacy

 Informed consent needed before any significant intrusion on a person’s privacy.

 Consultation services by school psychologists NOT requiring informed consent  Urgent and/or special situations  Resulting interventions under authority of teacher  Within scope of regular classroom activities  Not intrusive to family and/or child beyond what normal classroom activities would be.

Guidelines for Living: Confidentiality

    Define limits from the onset (and if any changes are made in professional services/relationship with client) Disclose information with third parties (with permission) on a “need-to-know” basis Recognize when disclosure of information will do harm and avoid it.

Limits requiring disclosure    Student/ parents request it Danger to student or others Legal requirement (court testimony)

Guidelines for Living: Records

     Required to keep sufficient records Keep academic and health records separate as a practice.

Progress notes and personal records should be kept separate from other records Keep records for a minimum of 3 years after age of majority (or 7 years after last date of service).

Digital records follow certain guidelines    Double locked Secure email Formatting issues

Chapter 4

Ethics and Law for School Psychologists Ethical-Legal issues in the Education of Students with Disabilities Under IDEA

IDEA Diagnostic Categories

 Autism  Emotional Disturbance  Mental Retardation  Orthopedic Impaired  Other Health Impaired  Specific Learning Disability  Traumatic Brain Injury  Deaf-blindness  Deafness  Hearing Impaired  Visual Impairments (including blind)  Speech/Language  Multiple Disabilities

IDEA: SLD Information

SLD Categories

        Oral Expression Listening Comprehension Written Expression Math Reasoning Math Calculation Basic Reading Reading Comprehension Reading Fluency

SLD Exclusionary Clauses

 Not primarily result of:       Visual, hearing, or motor impairment Mental Retardation Emotional Disturbance Cultural Factors Environmental or economic disadvantage Limited English Proficiency

IDEA: ED Information

What is it… (one or more of following)

     Inability to:   Learn not explained by intellectual, sensory, or health factors Build and maintain interpersonal relationships Inappropriate types of behavior General pervasive mood of unhappiness or depression Tendency to develop physical symptoms or fears Includes psychosis

What it is not…

 Socially maladjusted  Individuals with mild or temporary issues  Covert (must be able to observe it)

Additional Cases of note . . .

    Hobson vs. Hanson  Ruled tracking system (based on culturally biased test data) was de facto segregation Diana vs. State Board of Education  Children must be tested in their native language Larry P. vs. Riles   IQ tests were determined to be too biased to use for African American students (in California) Parents can have these tests used with special permissions.

Hudson vs. Rowley  Defined appropriate education (not ideal)

Discussion Scenario

 A parent refuses to allow for a psychological evaluation. The school went to a due process hearing where an evaluation was approved. The child was diagnosed with TBI due to head injuries obtained from an abusive ex-step-father. During the IEP meeting, the mother wanted the school to pay the child’s bills for specialized, experimental treatments outside of the school. In addition, during the meeting, she reports that she has started seeing the ex-step-father again (they are thinking of getting back together).