Record keeping and the school counselor.
School counselors benefit from the ongoing work of the American School Counselor Association's (ASCA) Ethics Committee. Confidentiality, legal issues, and ethical decision making are frequently covered in journals, books, conferences, and workshops. On occasion, school counselors are called to testify in court, particularly in cases of child custody. Because most school counselors are not licensed as mental health professionals, but are certified as school personnel, the school counselor cannot guarantee confidentiality. Licensed mental health professionals take great care to thoroughly summarize client meetings, both to aid memory between sessions and for the therapist's protection in documenting proposed or actual intervention. Courses and workshops that address the issue of record keeping and confidentiality for school counselors generally warn that keeping detailed notes can lead to the betrayal of any confidentiality the student may have presumed at the time the counseling session began. Another caution is that any records kept in school are the property of the school and are, therefore, subject to subpoena.
This inherent contradiction--the need for confidentiality to properly assist students without the legal protection of confidentiality--has led to some creative solutions for the documentation of one's work with a student. In some cases, these solutions have become common practice, such as maintaining a notebook that is kept on one's person. In order to find clarity on proper documentation that would protect confidentiality, I sought three sources of information: a review of policies and legislation, a literature review, and a survey of school counselors in New Hampshire.
Following are the specific questions that were to be answered through this research: (a) How does one record counseling sessions in accordance with the law and best practices? (b) What are the regulations and guidelines regarding disclosure for counselors when children who have received services make a transition to other schools? (c) What are the practices regarding obtaining parental permission at the elementary and middle school levels? (d) How long should a counselor maintain data after a child has left the school?
POLICY AND LAW REVIEW
In 1974, the United States Congress enacted the Family Education Rights and Privacy Act (FERPA). The purpose of this act is to define the rights of parents and students who are 18 years or older regarding the inspection, disclosure of contents, and making revisions of educational records. A student record is defined as a record that is maintained by an educational institution and contains information that is directly related to a student (National Association of Secondary School Principals, 2001). According to Fischer and Sorenson (1996), the definition of student record does not include counselors' personal files if they are entirely private and not made available to others. AS these files are considered to be private, they may not be passed to someone who will permanently take over the duties of the counselor who made the notations.
In 1997, the U.S. Department of Education released a manual called Protecting the Privacy of Student Records. It summarizes key laws and regulations regarding record keeping, including FERPA and the Individuals with Disabilities Education Act (IDEA). According to this document, handwritten notes about a student written by a counselor, teacher, or administrator are not considered to be an education record under FERPA and are therefore "not subject to access or disclosure rules" (Cheung, Clements, & Pechman, 1997, p. 16).
Regulations under IDEA are very specific regarding special education records. These regulations were reviewed to determine if there might be implications for school counselors. According to these guidelines, parents must be notified when their child's record is no longer needed, and schools must destroy the information in the record at the parent's request (Cheung et al., 1997). No definition or guidelines are offered as to how a school should determine that a record is not needed.
REVIEW OF THE LITERATURE
Confidentiality and Record Keeping
The literature is quite consistent about the nature of confidentiality and privilege as it applies to school counselors (Fischer & Sorenson, 1996; Mitchell, 1991; Swanson, 1983). Confidentiality is the promise to keep what is said private, unless there is a duty to warn. Privilege is a legal status protecting communication from being revealed, even in court. Most states do not grant privilege to school counselors. This has major implications for record keeping.
Swanson (1983) suggested that although counselors' notes are not part of the school record, they are subject to subpoena. Therefore, only data that are necessary should be entered and written in behavioral terms, avoiding "any statements that may be defamatory" (Swanson, p. 35). Counselors are encouraged to do whatever they can to protect a student's confidentiality before releasing information. A successful argument in courts has been that the testimony contained in the record is hearsay, there is no proof supporting the testimony; therefore, it has no legal validity (ASCA, 2001; Myrick, 1997; Swanson).
The unofficial status of the counselors' notes has implications as well. Sorenson and Chapman (1985) suggested that because federal law states that educational records do not include a counselor's private notes, counselors may share their notes at their discretion. However, once they are shared, they are no longer considered private and are required to be released to parents if such a request is made. This change of status from memory aids to part of the record occurs even if these notes were shared with a school teacher in the same building.
A question among counselors that is frequently asked is whether counselor's notes meet FERPA's requirement of being in the sole possession of the maker if they are kept on school property. In this review, no reference to this question was found.
Destruction of Counselors' Notes
School counselors' notes are not part of the school record, but because a counselor may be called to testify in court regarding a student, the question arises of how long a school counselor's notes should be kept. In 1969, the Russell Sage Foundation sponsored a conference of educators, policymakers, and attorneys to study the issue of school records, record-keeping practices, and ethics. The report from this conference, Guidelines for the Collection, Maintenance and Dissemination of Pupil Records (Russell Sage Foundation, 1970), offers clear standards for school counselors to follow when questions arise regarding how long documentation should be retained. These guidelines classify data according to three categories and suggest how long information in each group should be kept. Class A data include basic identifying information, attendance records, and academic achievement data, which would make up the permanent record. Class B data include test data, health records, family background information, and observations or data regarding behavior that would be eliminated either when the student moved to a new school or graduated from high school. Class C information includes counselors' or teachers' notes, or documentation regarding a temporary situation such as disciplinary issues. These would be removed and destroyed after their usefulness had expired.
Some of the literature addresses destruction of school records, but not private notes directly. Sealander, Schwiebert, Oren, and Weekley (1999) reported that, according to federal law, school records may be destroyed after 5 years as long as there is no outstanding request to inspect or review them, or "after they are no longer needed for education purposes" (p. 125). According to an interpretation of FERPA by the National Association of Secondary School Principals (2001), school records can be destroyed when appropriate, with the same conditions as cited by Sealander et al. The implications for the school counselor are difficult to determine.
Literature directly related to therapists offered guidelines concerning mental health law, including agency review, insurance audits, and other factors that are not part of the practice of the school counselor (Mitchell, 1991). Record-keeping guidelines published by the American Psychological Association (APA) suggest that complete records be maintained for 3 years after last contact with the client and summaries maintained for an additional 12 years (APA, 1993).
The national standards of ASCA (Campbell & Dahir, 1997) delineate the various functions of the school counselor, including individual and group counseling. They do not address the issues of documentation, purging records, how long notes should be kept, or even the ongoing question as to whether the location of notes affects whether they are private or part of the school's record. However, the organization released a position statement on the professional school counselor and confidentiality (ASCA, 2002), which recommends that counselors periodically review information obtained from students and retain only what is currently relevant. The paper goes on to recommend that school counselors encourage school district administrators to develop guidelines relevant to all school records and that local counseling associations push for legal guidelines regarding the same. Again, because counselors' notes are not legally educational records according to FERPA, it is hard to know how to develop these policies and laws.
SURVEY OF SCHOOL COUNSELORS
In addition to the literature review and the research on school and mental health laws and policies, a third source of information for this project was 14 interviews (and the author's practices) with school counselors in the state of New Hampshire to determine what their record-keeping practices are and how they interpret policies and guidelines. Participating counselors all demonstrated a commitment to professional development, as evidenced by their leadership in school counseling organizations, frequent participation in workshops and conferences, and/or supervision of interns from local graduate programs in school counseling. Because high school counselors frequently are responsible for the maintenance of school records, which have clearly defined protocols, this survey was limited to counselors working at the elementary or middle school level. These counselors come from 15 schools in 11 school districts around the state.
The counselors were asked the following questions: How do you document your work? How long do you keep your record (notes)? How do you obtain parental permission? And, what type of information is given to or received from other schools? A more complete description of the results can be obtained from the author upon request. A summary of the findings follows.
The sample included counselors with a wide range of experience. Three counselors were in their first 2 years in the field, 4 had worked as school counselors for 3 to 9 years, and 8 had 10 or more years of experience. Two participants were male and 13 female. Eight counselors surveyed worked at the elementary level, 6 at the middle school level, and one split her time at both levels. Four counselors had worked at their current school district for more than 10 years, 6 counselors for 3 to 9 years, and 5 were in their 1st or 2nd year at their school district.
The school counselors surveyed documented their work in seven different ways. Most used more than one method; 2 counselors used three methods. These methods follow, in order of frequency:
* Daily log or planner; file cards; computer file (floppy disk) (n = 10)
* Files that contain some of the following: notes, forms (parental permission or release of information), communication with parents, students' artifacts (drawings), and yearly summaries of work with the child (n = 7)
* A notebook to log students seen, consultations, reason for contact, and outcome (n = 4)
* A student information sheet that includes counseling goals and notes (n = 2)
* Monthly reports regarding students seen, parent contacts, and teacher consultations (n = 1).
Nine counselors reported that they assumed their files or notes could be subpoenaed, and therefore they kept notes very brief, used no quotes, and were careful about what they documented. Four reported that they kept their notes at home or on their person at all times.
Destroying Files or Notes
Nine counselors reported keeping their records until the student leaves the school; 2 reported keeping their notes forever. Others reported keeping their notes for 1 year to 3 years after the student leaves school, for 5 years, or for 10 years. Several mentioned that notes regarding suicide gestures or major behavioral or disciplinary issues would be kept for a longer period.
Eight of the respondents obtained written parental permission. Four telephoned parents if there was to be ongoing contact with a student. Three schools state in their student handbook that counseling is available to all, thereby offering blanket permission for counseling unless the parent contacts the school requesting no services be offered by the counselor. Of these, one counselor contacts the parent if there is to be ongoing contact.
Information Sent to Other Schools
When a student moves to the middle or high school, 8 out of the 15 counselors reported meeting with members of the receiving school to discuss the students with whom they worked. Of these, 2 discussed all of the students from the school. One counselor would make a list of all the students seen, with a statement pertaining to each about the reason services were rendered. Another would send a summary of work upon receipt of parental permission for the same. Two would send their files containing written communication, permission for counseling forms, and a summary; no personal notes would be sent. Three counselors reported sending no information to the receiving school.
Information Received by the Middle School
Two of the middle-school counselors interviewed worked in a school district where an elementary counselor from the same district was included in this survey. However, since they received documentation from more than one school, their responses are included in this section.
Two of the counselors received files from the feeder schools. Some of these schools would send files containing personal notes or a counseling summary. Other schools would send a file on every student; of these, some might be empty. One would meet with the receiving school to review student files and course choices, while in another case, confidential placement cards would be received documenting course placement and notes about work habits and behavior issues. One counselor has done both; one has met regularly with counselors and special education personnel throughout the school year.
An inherent source of confusion is the fact that there are laws and guidelines for school records that do not include counselors' files. Therefore, issues regarding the retention of notes kept by counselors fall into an ill-defined area. The most useful guidelines were offered by the Russell Sage Foundation more than 30 years ago, but they appear to not have been adopted by educational agencies or professional associations.
A surprising outcome of the school counselor survey was the many different ways in which counselors document their work, and the fact that 11 out of 15 have used more than one method in their practice. One might argue that this practice is consistent with the recommendations offered by the Russell Sage Foundation, which offers three levels of record keeping and different time periods for retention of records.
There was a noticeable variety in the methods of obtaining parental permission. Some schools have adopted the philosophy that guidance is an inherent part of the educational experience; therefore, school counselors do not need to seek parental permission for counseling. Others require formal, written permission. The latter may stem from an understanding that these students are minors receiving counseling, whereas the former encompasses the comprehensive aspect of the school counseling program.
The practice of sharing information with other schools ranges from sending personal notes to sharing no information. If, as Sorenson and Chapman (1985) have suggested, information shared by a counselor becomes part of the school record, then the implications of sharing information among school personnel need to be more carefully explored and articulated.
Although it is striking the way interpretations vary about how the school counselor can best keep records that safeguard the practitioner and protect the confidentiality of the student, it should be noted that 15 respondents to a survey is a small sample. All of the respondents worked at elementary and middle schools, an intentional restriction to avoid confusion between student cumulative files and documentation of counselor contact for other than academic review. All of these counselors were employed in the same small Northeastern state, which also limits the generalization of the responses reported.
For all of these areas--parental permission, documentation, retention, and sharing of information--counselors in this survey have availed themselves of information obtained in the literature or at workshops. They have aligned their practice with their interpretation of how best to offer quality counseling services and maintain confidentiality. Most of the counselors surveyed offered at some point during the interview that they were not sure that their practice was correct, but it was consistent with their understanding of their professional ethics and laws. Practicing school counselors would greatly benefit from the adoption of protocols for record keeping by ASCA.
American Psychological Association. (1993). Record keeping guidelines. American Psychologist, 48, 984-986.
American School Counselor Association. (2001).The professional school counselor and confidentiality. In American School Counselor Association 2001-2002 membership directory and resource guide (pp. 47-48). Gainesville, FL: Naylor Publications, Inc.
American School Counselor Association. (2002). Position statement: Confidentiality (Rev.). Retrieved January 25, 2005, from http://www.schoolcounselor.org/content.asp? contentid=198
Campbell, C. A., & Dahir, C. A. (1997). The national standards for school counseling programs. Alexandria, VA: American School Counselor Association.
Cheung, O., Clements, B., & Pechman, E. (1997). Protecting the privacy of student records. Washington, DC: U.S. Department of Education, National Center for Education Statistics.
Fischer, L., & Sorenson, G. P. (1996). School law for counselors, psychologists and social workers (3rd ed.). White Plains, NY: Longman Publishers.
Mitchell, R. W. (1991). Documentation in counseling records (ACA Legal Series, Vol. 2). Alexandria, VA: American Counseling Association.
Myrick, R. D. (1997). Developmental guidance and counseling: A practical approach (3rd ed.). Minneapolis, MN: Educational Media Corporation.
National Association of Secondary School Principals. (2001, Spring). FERPA--The keys to compliance. Legal memorandum. Reston, VA: Author.
Russell Sage Foundation. (1970). Guidelines for the collection, maintenance and dissemination of pupil records. New York: Author.
Sealander, K. A., Schwiebert, V. L., Oren, T. A., & Weekley, J. L. (1999). Confidentiality and the law. Professional School Counseling, 3, 122-127.
Sorenson, G. P., & Chapman, D.W. (1985). School compliance with federal law concerning the release of student records. Educational Evaluation and Policy Analysis, 7, 9-18.
Swanson, C. D. (1983). The law and the counselor. In J. A. Brown & R. H. Pate, Jr. (Eds.), Being a counselor: Directions and challenges (pp. 26-41). Monterey, CA: Brooks/Cole Publishing Company.
Lynn Merlone is a school counselor at Jaffrey Grade School, Rindge, NH. E-mail: firstname.lastname@example.org