Session III: Student Rights and Counselor Responsibilities: FERPA, IDEA, Negligence, 504, In loco parentis, confidentiality, records & record keeping By Harvey Hoyo, Ed.D. National University- Costa Mesa

Objectives NegligenceMalpractice Standards of Care In loco parentisConfidentiality504

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

Professional misconduct Unreasonable lack of skill Malpractice

Duty to Client Standard of Care Injury Proximate cause Loss or damage

“The way you do your job”

StatuesCase laws Ethical Codes of Professional Associations Community Standards

New Jersey v. T.L.O. (1985) No unreasonable searches Reasonable Test

Parents have no right to withhold education from children Schools determine appropriate curriculum

Parent Rights Planning Special Ed Services Privacy of student records

Appropriate education for children with disabilities Related services necessary to achieve Appropriate placement in least restrictive environment

Responsibilities to Parents Family Educational Rights and Privacy Act of 1973 (FERPA) Governs educational records and protects student privacy Access to records Right to remedy erroneous information

Student Rights Awareness of the rules A Fair Hearing No arbitrary Punishments Goss v. Lopez (1975)

Testing/Guidance MaterialsInternal ControlsDisproportionate Classes

Let’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?

Whose decision was it? Was make up work provided? Was make up work completed? What was impact on other students?

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?

Disclose to psychotherapist/nurse Persons under a waiverChild AbuseLaw enforcementClear & present danger School staff regarding academic program or personal injury or property loss

Administering drugs Giving birth control advice Giving abortion advice Making defamatory statements Assisting in locker searches Violating confidentiality/privacy of records

Civil liability Criminal liability

Go back to your answer from Quick Write #3, based on the information in the past three slide, how would your answer change?

No discrimination based on disabilities

IdentificationEvaluation Placement Change of Placement

May a student whose disabilities have resulted in dangerous behavior be given long term suspension?

Honig v.Doe

● Failing or refusing to communicate and actively coordinate with outside experts working with a child ● Taking a patronizing and/or antagonistic and/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

Parents of a student with a learning disability said a teacher had refused to provide their son with oral testing Oral testing is required by his IEP. The student failed the test & the class: consequently did not earn HS credit for the course.

Jury favored parents Awarded $5,000 in compensatory damages and $10,000 in punitive damages to the parents (plus attorneys fees and court costs).