Mike Griffin, JD, LCSW, Staff Attorney and Sara Jasper JD, Staff Attorney
The Therapist
March/April 2018
 

This is the final installment of a three-part series called Recommended Practices for School-Based Psychotherapists. The three-part series discusses the Family Educational Rights and Privacy Act (FERPA), the Health Insurance Portability and Accountability Act (HIPAA), state laws and professional codes of ethics and how they apply to the work of school-based psychotherapists. This final installment of the series discusses scenarios that are frequently encountered by psychotherapists who are working in schools, and ideas about how to address those issues based on the application of FERPA, HIPAA, California laws and/or ethical codes.

following scenarios, and the information presented, are relevant to school-based mental health treatment programs. Situations that arise from school guidance counseling programs that are not intended to provide mental health counseling services may be handled differently. The information presented is for educational purposes only and is not intended to be a substitute for independent legal advice.

Every school setting is unique, and the needs and preferences of the school or school district are important considerations when developing a counseling program.

1 When a member of the school staff or administration would like to refer a student for a mental health assessment or treatment, should the child’s parents be contacted before doing so?
It is always necessary for a therapist to obtain the appropriate consent for treatment, prior to rendering services to a minor client. However, it may be unclear whether a student is in need of, or receptive to, mental health counseling. In such circumstances, a therapist may meet with the student for the purpose of conducting a limited “screening” of their needs. For example, a student may ask to speak with a counselor to discuss an issue of concern. Prior to meeting with the student it would be impossible to know whether the student would benefit by, or be interested in, ongoing mental health counseling. Similarly, a member of the school staff or administration may ask a therapist to meet with a student who appears to be in crisis and to inform the student about the availability of counseling services.

Before meeting with the student, it is important to determine whether any policy or procedure exists which may require the therapist to gain consent prior to meeting. Some school districts may have a strict policy that requires formal consent regardless of the situation. If the student is not a current client of the therapist, the therapist should be clear about the purpose of their meeting and the limits of confidentiality. The student should be informed that they are not automatically a “patient” or “client” of the therapist simply by virtue of their meeting together. However, unless otherwise informed, it would be reasonable to assume that the student would have an expectation of privacy in his or her communications with the therapist. Therefore, the therapist should clarify whether he or she may communicate with a third party, such as a school administrator, or the child’s parents, regarding the needs of the student and any recommendations which he or she may have. If treatment is ultimately recommended for the student, the therapist would need to obtain the necessary consent for treatment.

2 How might a therapist respond if a member of the school staff or administration requests information regarding the treatment of a minor?
Some of the most challenging issues for therapists in school settings involve the sharing of confidential information regarding minor clients with other school professionals. As an example, a therapist may be asked about the treatment of a minor client by teachers, school counselors, and administrative staff who are interested in the student’s progress and well-being. In light of the fact that school professionals and mental health counselors often collaborate in the identification and remediation of problems that interfere with the minor’s school adjustment, such requests are not uncommon.

Generally speaking, it is desirable for a school-based therapist to engage in reasonable and appropriate collaboration with school professionals on behalf of his or her minor client. To avoid unpermitted or unwarranted disclosures, it is necessary to establish the parameters of therapist-school staff collaboration and clarify the procedures for disclosing confidential information. Ideally, this should be accomplished at the earliest opportunity in the development of a schoolbased counseling program. Where a program has been in operation for some time, it is always possible to clarify and improve upon existing procedures.

As a general rule, information possessed by the therapist regarding the student’s clinical treatment is confidential and could not be released by the therapist, unless the information in question was subject to a specific exception to confidentiality under California law, HIPAA, and/or FERPA, if applicable, or, where the therapist had obtained the necessary consent to release the information in question. An authorization to release confidential information may be obtained when a particular need arises, or, the therapist may request such authorizations from parents or legal guardians, (or from the minor him or herself, if he or she provided consent to the treatment) at the outset of treatment, in anticipation of their need. For example, if the therapist anticipated that he or she would like to collaborate with members of the student’s Individualized Education Program (“IEP”) team, the parents (or legal guardians, etc.), could be asked to sign an authorization for that purpose, at the start of treatment. Alternately, if the particular school site preferred to involve the input or advice of teachers, counselors, or administrative staff in aspects of the counseling program, the therapist may construct an appropriate authorization for the parent to sign (or the minor, if he or she lawfully consented to the treatment), which allowed for the disclosure of specified information to particular individuals, under designated circumstances. In each of these examples, it would be important to provide the minor’s parent or guardian (or the minor, if applicable) with a sufficient explanation of the need for, and use of such information, and the corresponding right of the parent or guardian (or the minor, if applicable) to decline to provide his or her authorization for such disclosures.

Every school setting is unique, and the needs and preferences of the school or school district are important considerations when developing a counseling program. Where the therapist is an employee of the school or school district, the administrative staff principal or vice principal) may want to have a stronger oversight role in the program than might be the case when services are delivered by an “outside” therapist or agency. There are also challenging circumstances which arise when a client, and/or their parent or guardian, complain to a school official about the conduct of a therapist who is employed by the school. The school official may desire to discuss the complaint with and request information from the therapist. In that situation, the school may wish to consult with school district legal counsel for guidance, and the therapist, depending on the circumstances, may wish to consult with legal counsel available via his or her professional malpractice liability carrier.

3 How might a therapist respond if a member of the school staff or administration asks to see a copy of the client’s treatment record?
If the mental health record is kept separate from the education record and was under the control of the mental health program, the therapist would not be permitted to release any of the information contained in a patient’s treatment record, or to provide any person with access to that record, unless the release of such information was legally permitted, or, pursuant to the consent of the person or persons who possess the legal authority to release the minor’s treatment record. If a school requires that the therapist’s notes be commingled with educational records there may be an argument that the record is an education record subject to FERPA. For more information about FERPA, see Part 1 of the three-part series, “Recommended Practices for School-Based Psychotherapists: How FERPA Applies to School-Based Therapy Programs” in the March/April 2017 issue of The Therapist.

4 How might a therapist respond if an IEP team requests information relevant to the student’s progress in therapy?
When a child is struggling in school due to learning disabilities, emotional issues, or other health conditions, the child may be entitled to special education services under the Individual with Disabilities Education Act (IDEA).¹ A child’s parent or guardian, teacher, or any “other service provider” of the child may initiate an assessment of the child’s suspected disability by submitting a written request to the school.² The assessment, which may be done by a psychotherapist, serves to identify a child’s needs and determine whether the child qualifies for special education resources. This assessment may be shared with members of the team who are responsible for helping determine eligibility for services and developing recommendations to be included in an IEP. If appropriate, the IEP will include goals related to the mental health services a child is to receive as part of the plan.

Although a mental health provider may be part of an IEP team and offer mental health services in accordance with an IEP, the provider’s mere involvement in offering special education-related services does not mean that other members of the IEP team are privy to all of the details of a child’s confidential mental health treatment or have a right to access the child’s mental health record. Under California law, a minor patient receiving mental health services has an expectation of privacy when he or she communicates with a mental health provider.³ This law prohibits psychotherapists from offering confidential information about a child’s mental health treatment without parents or guardians’ written permission, except when a disclosure is legally mandated or permitted.⁴

If it is necessary for psychotherapists to share aspects of a child’s confidential mental health information with the IEP team in order to communicate whether the child is meeting the goals of the IEP, providers should have parents or guardians (or the minor himself or herself, if he or she provided consent to the treatment) give written permission for information to be shared at the outset of treatment. Ideally, the written permission would be given when the therapist is gaining consent for treatment of the minor. The authorization to release form should describe who will have access to the confidential information and for what purpose the information will be used.

5 How might a therapist respond, if a student communicates a threat of violence to him/herself or to others during a counseling session? 
When a therapist is aware that his or her client is at risk of committing suicide, courts have generally held that he or she has a duty to take “reasonable” or “appropriate” steps to prevent the client’s suicide.⁵ However, the definition of what may be considered to be “reasonable,” depends on the facts and circumstances of the case.⁶

A therapist may determine that it would be helpful, or even necessary, to communicate with a third party to provide appropriate treatment for the client. For example, the therapist may wish to speak to the client’s physician, family member, spouse, etc., because he or she believes such communication will yield critical information, or, that it is necessary in order to prevent the client from harming himself. Alternately, a therapist may determine that calling the police is necessary in order to prevent the client from being seriously harmed. In such circumstances, a therapist is permitted to disclose confidential information about his or her client, pursuant to the following sections of the California Civil Code:

Section 56.10(c)(1) of the Civil Code clearly states that: “The information may be disclosed to providers of health care, health care service plans, contractors, or other health care professionals or facilities for purposes of diagnosis or treatment of the patient…”⁷ (This means that a therapist would be permitted to communicate with a client’s physician, or with another mental health care professional (to name just a few examples) without a release, if such communication was for the purpose of diagnosing or treating the client.)

Section 56.10(c) (19) of the Civil Code, specifically states that a psychotherapist can disclose confidential information about the client, “…if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.^{8 9} This means that a therapist would be permitted to communicate with a thirdparty, if the therapist believed that such communication was necessary in order to prevent or lessen a serious or imminent threat of suicide.

CAMFT’s Code of Ethics is also instructive on the issue of disclosure of client’s confidential information to third parties. Section 1.11 states, “When appropriate, marriage and family therapists consult, collaborate with, and refer to physicians, other health care professionals, and community resources in order to improve and protect the health and welfare of the patient.”

The phrase “when appropriate” means it is up to the treating therapist to determine when consulting and collaborating with other health care professions is necessary and in the best interest of the client. Neither the law nor the professional code of ethics requires a psychotherapist who believes a client to be at risk of suicide to notify specific third parties. This means although a provider of care may decide to notify parents or school officials about a student’s suicidality, a provider is not required by law or ethical standards to make that disclosure. ¹⁰

Psychotherapists who provide treatment in schools may at times learn of information, either from the client or from third parties, that causes concern about a client’s potential for killing or physically injuring other people. Whenever a client communicates he or she may harm another person, therapists should conduct a thorough assessment of the client to determine whether a reasonable belief exists that there is a serious risk of loss of life or grave bodily injury to another. ^{11 12}There may be circumstances where the therapist believes disclosure is reasonably necessary in order to protect the victim or victims.¹³ At the outset of therapy, students and parents should be made of aware of any school district policy that may require school personnel or independent contractors working with students to inform school administrators when a student poses a risk of harm to him or herself or others.

Psychotherapists should also be aware of their potential duty to report under Welfare and Institutions Code Sections 8100(b) (1) and 8105(c). The laws require a licensed psychotherapist to report to a local law enforcement agency, within 24 hours, the identity of a patient who communicates a serious threat of physical violence against a reasonably identifiable victim or victims. A therapist whose patient communicates a threat of violence should conduct an assessment for dangerousness and utilize his or her education and training to determine whether the threat the client made is serious in nature. If the therapist believes the threat to be serious, the therapist must report the client’s identity to the police or sheriff’s department.

The intent of the duty to report under the Welfare and Institution Codes is to remove weapons from the hands of dangerous patients. These laws arose in the aftermath of mass shootings which occurred in 2014 in Isla Vista, a suburb of Santa Barbara, and remain especially relevant in today’s climate of violence.