1. Ethical Issues in Record Keeping for School Social Workers
Kendra J. Garrett Ph.D.
March 7, 2012
MSSWA & MDE Spring Conference
Roseville, MN

2. The Plan……. Records in School Social Work Practice Practice Issues
Framework for Ethical Decision Making
Exploring Options
Ethical standards, values, and principles
Legal Issues
Some Case Examples
Some Recommendations

3. School Social Work Record Keeping
Ethical Dilemmas around principles of
Confidentiality
Privacy
Student rights
Parent rights
Safety

4. Record Keeping Should Be
Good Practice
Ethically Sound
Legally Sound

5. Purpose of Records in Practice
Improve quality of practice
Think through practice issues
Link assessment information to practice decisions
Identify missing information
Keep goals current
Discuss with supervisor
Maintain information (Kagle and Koepels, 2008)

6. Practice Decisions What needs to be included in records?
What should I keep out of records?
What form should my records be in?
Who should see/know what is in records?
How much time do I have to record?
How confidential are my records?
How much should I tell student, teachers, parents about the kinds of record keeping I do?

7. Good practice records are….
Accurate
Unbiased
Concise
Clear
Jargon free
Organized
Current
Legible

8. To keep track of practice include…
Documentation of contacts with students and parents
Assessment information
Rationale for service
Goals
Intervention plans
Outcomes

9. And… Termination information Critical incidents Progress notes
Release of information forms
Contacts with third parties (including teachers and outside agencies)

10. But they should not include…
Unsubstantiated hypotheses
Intuition
Hunches
Judgments
Inaccurate information
Intimate details
Clients’ personal views (unless relevant)
Gossip (Kagel & Koepels, 2008)

11. Also…. Include reasoning used in decision making
Keep records neutral (showing both sides) (Strom- Gottfried, 2008)

12. Natural Tension
Need to be brief
Need to be thorough

13. Questions for Discussion
Sometimes I want to keep a private record for myself that is not a part of the formal record.
Should I keep a personal record for my own use?

14. Questions for Discussion
What kind of discussion is warranted with students regarding social work records?
With parents?
With teachers?
With principals?

15. Social Work Practice with Minors
Viewed as in need of protection
Parents/guardians viewed as being better able to make decisions than the minor children.
Evolving capabilities
Understanding
Decision making ability
Reasoning (Strom-Gottfried)

16. Developmental Capacities
Younger children rarely assume confidentiality (Rossi & Berman Rossi, 1990)
Child’s capacity for decision making evolves gradually.
Brain development
Ability to think abstractly
Ability to give consent
(Strom-Gottfried, 2008)

17. Minor Clients May wish to keep information private
May request confidentiality from worker
May request that information not be placed in a record

18. Parents/Guardians May wish to keep information from their children
May wish for information to be kept out of record

19. Clinical Considerations
Maintain Therapeutic Relationship (Strom-Gottfried, 2008)
Maximize self-determination
Involve clients in decision making (Raines, 2004)
Informed consent
Confidentiality (Strom-Gottfried, 2008)

20. Record Keeping Should Be
Good Practice
Ethically Sound
Legally Sound

21. Ethics
That branch of philosophy dealing with values relating to human conduct,
with respect to the rightness and wrongness of certain actions
and to the goodness and badness of the motives and ends of such actions

22. Ethical Dilemma A choice between two (or more) goods/rights choices.
A corollary is that both choices often carry negative consequences.
Note: It is not a choice between doing the right thing and doing what you would rather do that is easier but not right!
To have an ethical dilemma, you really need two right choices.

23. Ethical Record Keeping
Doing the morally correct thing regarding record keeping
Including the appropriate information
Excluding inappropriate information
Maintaining appropriate confidentiality
Using the records appropriately

24. Process of Ethical Decision Making
A—Access options
B—Be mindful of the process
C—Consult
D—Document
E—Evaluate
Per Strom-Gottfried, 2008

25. Access Options Ethical theories and principles Laws and policies
Values
Information available
Standards (e.g., Code of Ethics)

26. Case example
Jenny is a 15 year old student at High Achievement High School. She has shared with you in the past that she is sexually active with her boyfriend. She asked you to keep that information confidential and you have agreed, although you and she have discussed the limits confidentiality. She now informs you that her boyfriend has told her that he has a sexually transmitted disease. Jenny is looking for a referral for treatment. What do you write about Jenny in the record you keep about her?

27. Access Options Ethical Theories and Principles
What Ethical Theories and Principles Apply?
Philosophical perspectives
Ethical Principles in Social Work

28. Theories of Ethical Reasoning
Deontological Thinkers—Believe some things are always right or always wrong.
One should make decisions according to the rules or standards.
Utilitarian Thinkers—Believe one should consider the outcomes or consequences as the most important element in making decisions.
Short-term consequences
Long-term consequences
Unknown results that might happen

29. So For Jenny’s Case Notes
Are there any rules that might apply in this situation to give us guidance?
Like those that would always apply?
Or should we look at outcomes or consequences?

30. Ethical Principle Ranking (Dolgoff, Harrington& Lowenberg)
Protection of life
Equal treatment (access, opportunities, resources)
Autonomy/freedom
Least harm
Quality of life
Privacy and confidentiality
Truthfulness and full disclosure

31. So For Jenny
Do any principles apply to guide what we should put in the record?
Practice concerns?
Ethical concerns?

32. Ethical Principle Ranking
Protection of life
Equal treatment (access, opportunities, resources)
Autonomy/freedom
Least harm
Quality of Life
Privacy and confidentiality
Truthfulness and full disclosure

33. Confidentiality Principles with children
Rules for Confidentiality with Children
Everyone is safe
Everything is confidential
If I have to choose, safe wins.
(Raines, 2004)

34. Assess Options Ethical Standards and Principles Laws and Policies
Values
Information
Standards
(Strom-Gottfried, 2008)

35. Access Options Laws and Policies
Federal Laws
State Laws
Board of Social Work Standards of Practice and Ethical Conduct

36. FERPA School Records (1) Directly related to a student and
(2) Maintained by an educational agency of institution or party acting for the agency or institution” Federal Education Rights and Privacy Act(§99.3)

37. FERPA
Cannot release records to third parties without parent permission
Can release records to a school where a student is transferring (without parent consent)
Schools must develop policies about what information can be shared with other schools routinely

38. FERPA Parents and guardians have a right to view educational records.
Including school social work records
Even when those records are kept in the social worker’s office
When students become 18, that right transfers to the student.

39. Sole Possession Records
Teachers may keep private records as a memory aid.
These records must remain private (shown only to a substitute teacher).
Should these records be disclosed to anyone other than a substitute teacher, they become part of the educational record.

40. School Social Work Records
Records maintained by school social worker are education records
Even if they are privately maintained
They do not qualify as “sole possession records.”
(National Forum on Educational Statistics, 2004)

41. Health Insurance Portability and Accountability Act
Applies to any agency that is billing insurance (or Medicaid or Medicare) electronically
HIPAA recognizes that psychotherapy notes as different from personal health information and may be kept separate from other health information
The HIPAA Privacy Rule specifically excludes from its coverage those records that are protected by FERPA

42. HIPAA
So under HIPAA, school social work records are still education records and still subject to FERPA
HIPAA creates no wiggle room about not disclosing records to parents
(Overcamp-Martini,2006)

43. IDEA
Special Education File contains assessment information (including social work assessment)
Contains IEPs (may include social work goals and objectives and ways of measuring progress)
Districts must contact parents when information in SPED files is no longer needed. Parents my request that the information be destroyed.
When records contain information on more than 1 child, parents only have access to information on their own child only.

44. MN Minor Consent Law
Minors (under 18) can give their own consent for treatment to
Prevent or diagnose pregnancy
Diagnose or treat problems with drugs or alcohol
Prevent sexually transmitted diseases
Minors 16 and over may admit themselves to a hospital for treatment of mental illness §

45. Laws on Privileged Communication
Licensed social worker cannot disclose any information acquired in a professional capacity without consent of the client.
Except regarding the abuse or neglect of a child
Except when the client waives permission by filing charges against the professional

46. MN Social Work Records Must Contain
Assessment information
Service plans
Progress notes
Fees
Information release authorizations
Any other relevant information. (§148D.225 Subd.4)

47. Social Work Records Must Be Kept
A minimum of 7 years after termination with the client (§148D.225 Subd.4)

48. MDE Ruling on School Social Work Records
Records created or held by school social workers are considered educational records under Minnesota law.
Records cannot be released without parental consent.
Records are accessible by parents upon request.

49. MDE on Records (2009)
Records may be accessible without parental consent by school officials, including teachers, contractors, and volunteers, who have a legitimate educational interest in accessing the records. Schools must use reasonable methods to ensure that school officials obtain access to only those education records in which they have a legitimate educational interest, and that physical, technological, or administrative controls are in place to restrict access to records

50. More MDE Ruling on SSW Records
Social work records may be stored in a location separate from the central educational record, such as the social work office, in order to increase privacy protections and facilitate the use of the records by the school social worker.
If the social work records are stored separate from the student’s central educational record, the central educational record should contain a notation that the records are stored elsewhere, including a basic description of the type and nature of the data and the location of the data. 

51. More from MDE
The Minnesota Board of Social Work outlines the minimum records that social workers must maintain
School social workers should follow the school’s record retention schedule, which must be in compliance with Minn. Stat. § 13.32, for guidance as to how to maintain their social work records.

52. So Does This Help with Jenny?
Jenny is under 18
Her parents have a right to see a school record
The SSW record is a part of the school record
Jenny has requested confidentiality
A referral to a clinic might be important information for the future
Students have a right to privacy with regard to sexually transmitted diseases

53. Assess Options Values Social Work Values Acceptance Individualization
Non-judgmental attitude
Objectivity
Self-Determination
Access to Resources
Confidentiality
Accountability
Cultural Sensitivity
Miley et al. (2011)

54. Consider Personal Values
Identify personal biases
E.g., beliefs about whether sexually active teens should have access to medical care.
Identify personal values
Personal Codes of Conducts
Religious or moral principles
Identify conflicts between personal and professional values
Improper to serve personal values at the expense of those of the profession or client (Strom-Gottfried, 2008)

55. So for Jenny
What personal values do you bring to the decision about what to put in a record regarding Jenny’s situation?
What social work values might fit in here?

56. Assess Options Information
What do we know about the situation?
What do clients want?
Who are the clients?
Are there competing wants and interests among clients?
What are the decision-making abilities of the clients (especially if one is a minor)

57. Jenny…. Wants confidentiality Are there other clients in this system?
What is our responsibility to parents of minor children?
How mature is Jenny to make decisions on her own behalf?
What do we know about how parents might react to learning about Jenny’s concern about STDs?

58. Assess Options Standards
NASW Code of Ethics (2008)
NASW Standards for School Social Workers (2002)
School Social Workers’ Association of America Position Paper on Confidentiality (2001)

59. Does the NASW Code apply to me?
The NASW Code of Ethics is considered standard of practice
Even non-NASW members should follow NASW Code of Ethics

60. What does the NASW Code say about record keeping?
“ Include sufficient documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future” (NASW, 2008, p. 20)
Clients should have reasonable access to records
Exception: When access to records would cause harm
Requests to view and rationale for withholding access to parts of records should be documented (in the records).

61. When giving clients access to records, protect the confidentiality of any other party discusses in the records.
Inform clients about the limits of confidentiality.
Avoid derogatory language.

62. Code: Records should… Be accurate Be timely
Contain sufficient information to ensure continuity for future services
Include only relevant information
Protect privacy
Be kept for a reasonable length of time after services cease
Maintain privacy when transferred or destroyed

63. What does the NASW Code say about school social work?

64. NASW Standards for School Social Workers (2002)
In schools only disclose to others information that is relevant to education (NASW, 2002).
(Could we infer that if it isn’t relevant to education, do not put it in the record?)

65. What does the NASW Code say about minor clients?
When client lacks capacity to provide informed consent,
Seek permission from a qualified third party
Inform client according to level of understanding
Safeguard the interest of clients who lack decision- making capacity

66. SSWAA Position on Confidentiality
Information should be shared with other school personnel only on a need-to-know basis, and only for compelling professional reasons (SSWAA, 2001).
Corollary: Only place information in reports that is needed by anyone who has access to that report.
Avoid sending written material by fax unless in emergency

67. Position Paper (SSWAA, 2001)
Sole possession records
Social workers’ personal notes kept for use by only the social worker are not considered education records
Records kept on a computer become education records only if shared orally with another staff person.
Sole possession records kept on a computer are not considered part of the education record and are confidential (SSWAA, 2001).
Note: this contradicts MDE interpretation of FERPA

68. So how do these standards help with Jenny
Does recording this situation protect Jenny’s privacy?
Is STD information relevant to Jenny’s education?
Is documentation of this part of our work with Jenny needed to “facilitate the delivery of services and to ensure continuity of services provided to clients in the future?”
Could you keep a “sole-possession record” with this information?

69. Review Access Options Ethical theories and principles
Laws and policies
Values
Information available
Standards
Strom-Gottfried, 2008

70. Case example
As you do the social developmental portion of the special education assessment for Martin, a second grader with serious behavior problems, you learn from the mother that Martin’s behavior has been getting steadily worse since her boyfriend moved into the home. The boyfriend is terrific to Martin when he is sober, but when he drinks, he is abusive to both Martin and the mother. This information seems essential to helping Martin with his behavior problems in school, but you are not certain if you should put this information in the assessment report. This report will be kept in the Martin’s special education file in the special education office.

71. Case example
In conducting an assessment of Katrina, a fourth grader, she tells you that her older brother is in jail for selling drugs. You include this information in your progress notes, as Katrina misses her brother very much. A few weeks later you see in the newspaper that Katrina’s brother is actually on trial for murder. Do you change your notes to reflect this new information?

72. In Making Ethical Decisions
A—Assess options
B—Be mindful of the process
C—Consult
D—Document
E—Evaluate
Strom-Gottfried, 2008

73. B—Be Mindful of the Process
Manage the clinical concerns
When you make a decision that the client may dislike, consider what the consequences will be and develop a plan for continuing to work with the client.
May need to explain reasoning, thinking, laws.
May need to share your feelings of concern
Involve clients in decision making as appropriate
(Raines, 2004)

74. Other Processes to Consider
Accountability/transparency
Critical reflection
Cultural Sensitivity
Consultation
(McAuliff, & Chenoweth, 2008)

75. Back to Jenny
Say you feel you need to document the referral for STD eval. ………
Would there be an ethical obligation to inform Jenny?
And to explain why?
Should the SSW disclose this decision to Jenny?

76. C—Consult Use supervision, consultation Get others’ opinions
May wish to get legal advice

77. D—Document Document your thinking Document your consultation
Document your process (Reamer, 2005)
If the dilemma is about what to put in a record, document in a separate place (Strom-Gottfried, 2008).

78. E—Evaluate To what degree did my personal values reflect my opinion?
Were there courses of action I failed to consider?
Did I consult adequately?
Did I adequately manage the clinical concerns?
Did I make the right decision?
What can I do to prevent such situations/problems in the future? (Mattison, 2000).

79. Conflicts will arise Among the standards, principles, and values
And between laws and standards
Between differing client systems (parents’ rights versus students’ rights)

80. Ethical School Social Workers…
Have considerable discretion about what to put in written records.
Each incident of recording requires judgment about what to include (and exclude).

81. Case example
You see 6 year old Alberto weekly in a group for students who have anxiety.
Mrs. Jones comes to meet with you to tell you that she and her husband have separated, and she thinks the separation may affect Alberto. She tells you that her husband has been abusive to Alberto, and she thinks Alberto will actually welcome the divorce.
What do you record of this meeting?

82. And then…
The next day, Mr. Jones telephones to inform you that he is seeking custody of Alberto, as his mother has been neglectful. She often leaves him home alone while she goes out drinking with her many boyfriends.
What do you record?

83. Case example
Sam is a 12 year old seventh grader at Suburban Middle School. He is in special education for his behavior problems and sees you for 30 minutes twice a week to work on problem solving and impulse control. Sam tells you in a session that he was responsible for burning down a church in his neighborhood last week. A caretaker was badly injured in the fire. What do you write in the record about this confession?

84. Challenges Left Over
What kind of memo is placed in student cum files regarding separate special education files?
What kind of memo should be on file if there are school social work records stored in the office of the school social worker?

85. Questions for Discussion
How can school social workers meet the MN Board of Social Work Requirements to maintain records for 7 years if they leave their school district job?
Who is responsible for monitoring these records?
Who should be responsible for them?
What policies are needed?

86. Case Example
You have worked with Tommy for 3 years, and he has just moved to a new school. You get a call from the school social worker at Tommy’s school who says that Tommy is having major problems. She wants you to send your case records to her quickly so they can know how to proceed. What do you do?

87. Case Example
You see 6 boys in an anger management group each week. The parents of one of the boys has asked you to see the records of the group. The records contain very little detail of what happens each week, only who attends, group activities, major themes that are discussed, and teacher ratings of each boy’s outbursts each week. You tell the parents what is contained about their son, but they wish to see the records. What do you do?

88. Things to consider In deciding what to put in a record
Who might have access to this record?
What if a parent wanted to see the record?
What if the record were subpoenaed?
Is the information sensitive?
Is the information relevant to the student’s education?

89. Things to consider
Do I need to document my reasoning/decision making about my practice?
Do I need to document evidence of a student’s behavior?
Do I need to document my actions/work with the student, parents, third parties?

90. More things… Have I included enough information?
Can I omit sensitive details?
Have I followed standards of practice?
Have I included what the law says needs to be there?
Should I have a separate sole possession record?

91. The Ethics of Record Keeping
Involves considerable personal deliberation.
Lacks consensus about what is “right.”
Aligns practice principles, legal principles, and doing the “right” thing.

92. Recommendations
Know that your notes are part of the educational record (at least per FERPA and MDE).
If you have records in your office, put a note in the cum file (much like special education) to indicate that there are records in your office.
Be aware that parents may see records if they request (unless the student is 18)

93. Recommendations
Work with districts to create confidentiality policies for records
What gets sent to new schools?
Where are records stored?
How long are records stored?
Who is responsible for destroying old records?

94. Recommendations
Summarize lengthy records periodically (like at year end).
Create forms for routine information
Cover information
Dates of contact
Contacts with parents
Consultation with teachers
Contacts with third parties
Progress notes

95. Recommendations Create checklists of Board of Social Work Mandates
Assessment
Service Plans
Progress Notes
Release of Information
Information on payment
Any other relevant information

96. For Sticky Situations
Record your thinking about why you made a decision.
Record your consultation regarding the issues.
Record your supervision.

97. Still Sticky…
If you made a mistake, fix it, but don’t expunge the record (date it an put in a revision).
Do not change or destroy records.
Do not remove records from your building.
If your records are subpoenaed, so are your personal or sole possession records.

98. And Finally…..
Good Luck!

99. References
Berman-Rossi, T., & Rossi, P. (1990). Confidentiality and informed consent in school social work. Social Work in Education, 12,
Dolgoff, R., Harrington, D. , & Lowenberg, F.M. (2012). Ethical decisions for social work practice. Belmont CA: Brooks/Cole.
Families Education Rights and Privacy Act of 1974, P.L , 34 CFR § 99.
Health Insurance Portability and Privacy Act of 1996, P.L ; 45 CFR §. 160 & 164.
Kagle, J.D., & Kopels, S. (2008). Social work records (3rd Ed.) Long Grove, IL: Waveland Press.
McAuliff, D., & Chenoweth, L. (2008). Leave no stone unturned: The inclusive model of ethical decision making. Ethics and Social Welfare, 2(1),
McBeath, G., & Webb, S.A. (2002) Virtue ethics and social work: Being lucky, realistic, and not doing ones duty. British Association fo Social Workers, 32,

100. References (cont.)
Mattison, M. (2000). Ethical decision making: The person in the process. Social Work, 45(3),
Miley, K.K., O’Melia, M.O., & DuBoise, B. (2011). Generalist social work practice. (Updated 6th Ed.). Boston: Allyn & Bacon.
National Association of Social Workers. (2008) Code of ethics. Washington D.C.: NASW Press.
National Association of Social Workers. (2002) NASW Standards for School Social Work Services. Washington D.C.: NASW Press.

101. References (cont.)
National Forum on Educational Statistics (2004). National Forum Guide to Protecting the Privacy of student Information: State and Local Education Agencies. Washington DC: U.S. Departement of Education. Retrieved Nov. 11, 2008 from
Overcamp-Martini, M.A. (2006). HIPAA ad the electronic transfer of student information. In C. Franklin, B.B. Harris, & P. Allen-Meares (Eds.) The school services sourcebook: A guide for school-based professionals (pp ). New York: Oxford University Press.
Raines, J.C. (2004). To tell or not to tell: Ethical issues regarding confidentiality. School Social Work Journal, 28(2),
Reamer, F.G. (2005). Documentation in social work; Evolving ethical and risk- management standards. Social Work, 50(4),
School Social Work Association of America (2001). Position paper: School social workers and confidentiality. Northlake IL: SSWAA
Strom-Gottfried, K. (2008). The ethics of practice with minors. Chicago: Lyceum Press.