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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