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DOI: 10.1037/13272-007 APA Handbook of Ethics in Psychology: Vol. 2. Practice, Teaching, and Research, S. J. Knapp (Editor-in-Chief) Copyright © 2012 by the American Psychological Association. All rights reserved.

C H A P T E R 7

SCHOOL PSYCHOLOGY Susan Jacob and Megan M. Kleinheksel

School psychologists are professionals who provide educational and mental health services to children and youth, as well as work with parents, educators, and other professionals, to help youth succeed aca- demically, socially, behaviorally, and emotionally, and who work to foster supportive learning environ- ments for all schoolchildren ( National Association of School Psychologists [NASP], 2010 , Introduc- tion). As of 2008, there were approximately 35,400 credentialed school psychologists in the United States ( Charvat, 2008 ). Most are employed by the public schools (about 80%), but some work in pri- vate schools, mental health agencies, correctional facilities, hospitals, private practice, or other set- tings. The majority of school-based practitioners were trained at the specialist-degree level; about 24% hold a doctoral degree ( Curtis et al., 2008 ).

This chapter addresses professional ethics in the fi eld of school psychology, with a focus on the special challenges associated with school-based practice. We fi rst discuss codes of ethics that pro- vide guidance to school psychologists. Because public education is highly regulated by law, we next summarize the legal underpinnings of school- based practice and the ethical–legal issues associ- ated with consent, confi dentiality, privilege, record keeping, and assessment and intervention in the schools. Examples of ethically challenging situa- tions experienced by school-based practitioners are then discussed. Throughout the chapter, differ- ences between school-based practice and the deliv- ery of psychological services in nonschool settings

(e.g., private practice) are noted, with the goal of promoting positive collaboration between school- and community-based mental health providers.

CODES OF ETHICS

Two professional associations, the American Psy- chological Association (APA) and the NASP, have shaped the development of the fi eld of school psy- chology. The Ethical Principles of Psychologists and Code of Conduct (the Ethics Code; APA, 2010 ) was developed for psychologists with training in diverse specialty areas. In contrast, NASP ’ s Principles for Professional Ethics (the NASP-PPE; NASP, 2010 ) was developed specifi cally to address ethical issues asso- ciated with the provision of school psychological services.

Because our focus is on school-based practice, greater attention is given in this chapter to the stan- dards outlined in NASP ’ s code of ethics than APA ’ s code. School-based practice is defi ned as “the provi- sion of school psychological services under the authority of a state, regional, or local educational agency” whether the school psychologist “is an employee of the schools or contracted by the schools on a per-case or consultative basis” ( NASP, 2010 , Defi nitions). However, school psychologists should be thoroughly familiar with the NASP-PPE and the Ethics Code, whether or not they are members of a professional association. A psychologist with a broad knowledge base of ethical principles and stan- dards may be able to anticipate and prevent ethical

The authors are not attorneys, and the information provided should not be construed as legal advice.

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dilemmas from occurring and is better prepared to make sound choices when challenging situations arise. In addition, regardless of association member- ship or level of training, trainees and practitioners may be expected to know and abide by both the Ethics Code and NASP-PPE in their work setting ( Flanagan, Miller, & Jacob, 2005 ). Finally, state licensing boards may require adherence to a profes- sional code of ethics as part of their regulatory stan- dards, and in those states, ethics code violations can result in denial or loss of practice credentials ( Koocher & Keith-Spiegel, 2008 ). School psycholo- gists also face possible denial or loss of the National Certifi cate in School Psychology for violations of the NASP-PPE ( NASP, 2007 ).

NASP-PPE was fi rst adopted in 1974 and revised in 1984, 1992, 1997, 2000, and 2010 (see Williams, Armistead, & Jacob, 2008 , for a history of the code). The NASP-PPE emphasizes protecting the rights and interests of schoolchildren. The code is organized around four broad aspirational themes: “Respecting the Dignity and Rights of All Persons”; “Professional Competence and Responsibility”; “Honesty and Integrity in Professional Relation- ships”; and “Responsibility to Schools, Families, Communities, the Profession, and Society.” These themes were derived from the literature on ethical principles (e.g., Bersoff & Koeppl, 1993 ; Prillelten- sky, 1997 ; Ross, 1930 ) and other codes of ethics, especially that of the Canadian Psychological Asso- ciation ( CPA, 2000 ). The four broad themes sub- sume 17 ethical principles, and each principle is then further articulated by specifi c standards of conduct. The “broad themes, corollary principles, and ethical standards are to be considered in ethical decision making” ( NASP, 2010 , Introduction). However, the broad theme statements are aspira- tional; NASP will seek to enforce only the 17 ethi- cal principles and associated standards of conduct ( NASP, 2010 , Introduction).

FOUR BROAD ASPIRATIONAL THEMES

School psychologists “are committed to the applica- tion of their professional expertise for the purpose of promoting improvement in the quality of life for stu- dents, families, and the school community” ( NASP,

2010 , Introduction) and they pursue this objective only in ways that protect the dignity and rights of all persons ( NASP, 2010 , Introduction; also APA, 2010 , General Principle A). The interests and rights of chil- dren and youth are considered to be the highest pri- ority in decision making ( NASP, 2010 , Introduction).

Respecting the Dignity and Rights of All Persons NASP ’ s fi rst broad theme states, “In their words and actions, school psychologists demonstrate respect for the autonomy of persons and their right to self-deter- mination, respect for privacy, and a commitment to just and fair treatment of all persons.” Under this theme, NASP ’ s code has specifi c principles and stan- dards for respecting autonomy and self-determina- tion (consent and assent; NASP, 2010, I.1 ), privacy and confi dentiality ( NASP, 2010, I.2 ), and fairness and justice ( NASP, 2010, I.3 ). This portion of the code also addresses several emerging ethical issues, such as providing consultative services in the class- room (not within the context of a psychologist– client relationship), respecting privacy rights with regard to sensitive student health information and sexual orientation and transgender status, and pro- viding effective services for all persons regardless of their cultural and experiential background and indi- vidual characteristics.

Professional Responsibility and Competence Benefi cence , or responsible caring, means that psy- chologists engage in actions that are likely to benefi t others, or at least will do no harm ( CPA, 2000 ; Kitchener, 2000 ; also see APA, 2010 , General Princi- ple A; NASP, 2010, II ). According to the NASP, “to do this, school psychologists must practice within the boundaries of their competence, use scientifi c knowledge from psychology and education to help clients and others make informed choices, and accept responsibility for their work” ( NASP, 2010, II ). Under the second aspirational theme, NASP ’ s code has specifi c principles and standards pertaining to professional competence and maintaining compe- tence ( NASP, 2010, II.1 ) and accepting responsibil- ity for actions ( NASP, 2010, II.2 ), including the obligation to monitor the effectiveness of services

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provided and to take steps to correct any ineffective recommendations. Responsible assessment and intervention practices ( NASP, 2010, II.3 ), school- based record keeping ( NASP, 2010, II.4 ), and ensur- ing the proper use of assessment and intervention materials ( NASP, 2010, II.5 ) also are addressed under the second broad theme.

Honesty and Integrity in Professional Relationships A psychologist–client relationship is a fi duciary relationship, that is, one based on trust. The third broad theme in NASP ’ s code states,

To foster and maintain trust, school psychologists must be faithful to the truth and adhere to their professional promises. They are forthright about their qualifi cations, competencies, and roles; work in full cooperation with other pro- fessional disciplines to meet the needs of students and families; and avoid multiple relationships that diminish their profes- sional effectiveness. ( NASP, 2010, II )

Four enforceable principles ( NASP, 2010, III.1–III.4 ) are nested under the third broad theme, along with specifi c standards that clarify how the four princi- ples apply to professional practices.

Responsibility to Schools, Families, Communities, the Profession, and Society School psychologists have a responsibility to foster the well-being of individual students, but also to use their professional knowledge to help create healthy, safe, and caring environments for children and families ( Prilleltensky, 1991 ; also see CPA, 2000 ; APA, 2010, General Principle B ). NASP ’ s fourth broad theme ( NASP, 2010, IV ) includes principles and standards for promoting healthy school, family, and community environments ( NASP, 2010, IV.1 ); respecting law and the relationship of law and ethics ( NASP, 2010, IV.2 ); maintaining public trust by self-monitoring and peer monitoring ( NASP, 2010, IV.3 ); advancing the profes- sion by mentoring, teaching, and supervision ( NASP, 2010, IV.4 ); and contributing to the school psychol- ogy knowledge base ( NASP, 2010, IV.5 ; also see Jacob, Decker, & Hartshorne, 2011 ).

LEGAL REGULATION OF SCHOOL-BASED PRACTICE

For school-based practitioners, knowledge of school law pertinent to the provision of school psychologi- cal services “is one way to enhance opportunities for implementing best professional practices” ( Reschly & Bersoff, 1999, p. 1077 ; also see Case Examples 1 and 2). For psychologists employed in nonschool settings, understanding the legal regulation of school-based practice hopefully can improve com- munication and collaboration between school- and community-based practitioners (see Table 7.1 ).

The 10th Amendment of the U.S. Constitution is interpreted as prohibiting Congress from establish- ing a nationalized education system. State govern- ments have assumed the duty to educate children and the power to do so ( Hubsch, 1989 ). The primary mission of public schools is to educate children, maintain order, and ensure pupil safety ( Burnside v. Byars , 1966 ; NASP, 2010 , Introduction). The authority to educate children and ensure pupil safety is further delegated by state governments to local school boards. When school psychologists employed by a school board make decisions in their offi cial roles, such acts are seen as an extension of the authority of state government; in legal parlance, school-based practitioners are considered to be state actors . As state actors, school-based practitioners must know and respect the legal rights of schoolchil- dren and their parents. Furthermore, as employees of a school board, school-based practitioners have a legal obligation to protect all students from reason- ably foreseeable risk of harm ( Russo, 2006 ).

U.S. Constitution The three basic sources of public school law are the U.S. Constitution, statutes and regulations, and case law ( Russo, 2006 ). No fundamental right to an edu- cation is guaranteed to citizens in the U.S. Constitu- tion ( San Antonio Independent School District v. Rodriguez , 1973 ). However, state public education laws and school district policies are subject to the provisions of the Constitution. For this reason, the Constitution has been the foundation for many deci- sions affecting education, including the right to equal educational opportunity for all children and

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TABLE 7.1

Improving Communication and Collaboration Between School-Based School Psychologists and Nonschool Mental Health Professionals

School-based practice of school psychology Practice in community-based mental health care settings

Primary mission of schools is to educate students. Primary mission is improved mental health.

FERPA safeguards the privacy of elementary and secondary student education records, including school psychological records, and ensures parent access to the education records of their own child. Student education records are accessible to school staff with “legitimate educational interest” in the child and are not privileged. Confi dential communications within the context of a school psychologist–client established relationship may or may not be privileged under state law.

HIPAA protects the privacy of patient health and mental health records and includes rules addressing electronic storage and transmission of private health information. Communications within an established professional relationship between a licensed doctoral-level psychologist and client are privileged under state laws. Unlike FERPA, HIPAA requires training of staff members who manage protected health information.

School-based psychologists conduct psychoeducational evaluations to assist in determining whether a student has a disability as defi ned by IDEA or Section 504/ ADAA . A student ’ s eligibility, disability classifi cation under IDEA, and educational interventions are determined by a team of persons that includes the parents.

Community-based psychologists typically assess and diagnose youth using the DSM – IV – TR and may render a diagnosis based solely on their own assessment fi ndings.

To be eligible for special education and related services under IDEA Part B, a student must have a disability as defi ned in 1 of 13 categories and he or she must need special education and related services because of that disability.

Under federal law, a DSM – IV – TR diagnosis is neither necessary nor suffi cient to determine eligibility under IDEA.

The IDEA Part B defi nition of emotional disturbance focuses on overt and observable characteristics, resulting in a need for data based on classroom observations and behavior rating scales or checklists.

Findings from projective techniques may support a diagnosis rendered by a psychologist or psychiatrist. However, projective test results alone do not provide suffi cient documentation of student eligibility for special education under the IDEA Part B defi nition of emotional disturbance.

A public school may not label a child as “emotionally disturbed” without some sort of fair decision-making procedure that includes parent notice of the proposed classifi cation and the right to challenge the classifi cation.

Psychologists in private practice may render a diagnosis of a child as having a mental disorder without providing his or her parents prior notice of the proposed diagnosis and a right to challenge the diagnosis.

To receive IDEA funds, states must prohibit school personnel from requiring parents to obtain a prescription for a controlled substance as a condition of attending school (34 C.F.R. 300.174). For this reason, some school districts prohibit employees from suggesting psychopharmacological treatment of a student to a parent.

Psychologists in community-based practice are not restricted from recommending psychopharmacological treatment of a child to the parent.

As school employees, school-based practitioners have a duty to protect all students from reasonably foreseeable risk of harm to self or others. Schools must contact parents if it is suspected that a student is suicidal and adhere to district protocols for determining whether a student poses a threat to others.

Community-based mental health providers likely have more professional discretion in duty to protect situations. Some, but not all, states have enacted laws requiring psychologists to make reasonable efforts to warn potential victims of violent crimes.

Under FERPA, parents have access to the school psychological education records of their own high school student after he or she reaches the age of majority as long as the student is a dependent as defi ned by tax laws. For this reason, school-based practitioners may need to refer students seeking treatment on their own (without parent consent) to community-based sources of assistance.

Depending on the state where they practice, community-based health and mental health providers may be permitted to treat minors for certain conditions independent of parent notice or consent, with the minor ’ s treatment records considered to be privileged and under his or her own control.

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student rights in the school setting (e.g., freedom of speech, privacy rights).

The equal protection clause of the 14th Amend- ment provides that no state shall “deny any person within its jurisdiction the equal protection of the laws.” Beginning in the 1950s, this clause has been interpreted to mean that a state may not make a free public education available to some children but not to others in the state, and that state governments must provide equal educational opportunity to all schoolchildren within its jurisdiction regardless of race, color, national origin, gender, or disability (e.g., Brown v. Board of Education , 1954 ; Pennsylva- nia Association for Retarded Children v. Common- wealth of Pennsylvania, 1971 , 1972 ).

The 14th Amendment also provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Substantive due process applies to the content of a law. In the public schools, substantive due process has been interpreted to mean that school rules restricting student constitu- tional freedoms must be reasonably related to the purpose of schools (e.g., Tinker v. Des Moines Inde- pendent Community School District , 1969 ). Proce- dural due process means that a state may not take

away life, a liberty interest, or a property right with- out some sort of procedural fairness to safeguard cit- izens from unfair or wrongful infringement of rights by the government ( Reschly & Bersoff, 1999 ). In Goss v. Lopez (1975) , the Supreme Court held that education is a property right protected by the 14th Amendment, and that schools may not suspend or expel children from school (and therefore deprive them of their property interest) without some sort of fair, impartial due process procedures that include notice and the opportunity to be heard. The due process clause also protects citizens from unwar- ranted stigmatization by the state that could inter- fere with the ability to acquire property ( Wisconsin v. Constantineau , 1971 ). A public school may not label a child as “emotionally disturbed” or “mentally retarded” without due process, that is, some sort of fair decision-making procedure that includes parent notice of the proposed classifi cation and the right to challenge the classifi cation.

Federal Statutory Law Because education is a duty left to state governments, most public school laws are enacted at the state level. However, the U.S. Congress has the power to shape

TABLE 7.1 ( Continued )

Improving Communication and Collaboration Between School-Based School Psychologists and Nonschool Mental Health Professionals

School-based practice of school psychology Practice in community-based mental health care settings

Because they are employed under the authority of the state ’ s department of education, school-based practitioners usually are credentialed by the state ’ s department of education. Certifi cation or licensure requirements typically include supervised experience in a school setting.

Community-based mental health providers are usually credentialed by a state licensing board. Licensure requirements typically include supervised experience in a health or mental health care setting.

Depending on the state where he or she is employed, school- based practitioners may be immune from civil liability under state law during the performance of their duties within the scope of their employment. Malpractice suits against school- based psychologists are rare. However, they often are required to defend their assessment and intervention practices in administrative hearings under IDEA or Section 504.

Under state statutory or common law, professional malpractice suits may be fi led by clients against private practitioners.

Note. FERPA = Family Education and Rehabilitation Act of 1974; HIPAA = Health Insurance Portability and Accountability Act of 1996; DSM–IV–TR = Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision); IDEA = Individuals With Disabilities Education Improvement Act of 2004; Section 504/ADAA = Section 504 of the Rehabilitation Act of 1973/Americans With Disabilities Act Amendments (2008).

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education policy and practices by offering monies to states contingent on compliance with federal law. Some federal education legislation is grant legisla- tion; that is, funds are provided to states on the con- dition that schools comply with certain education policies. The Individuals With Disabilities Education Improvement Act of 2004 ( IDEA, 2004 ) is an impor- tant example of this type of legislation. Other federal education legislation stipulates that no federal funds will be made available to schools unless they adhere to specifi c policies outlined in the law. The Family Educational Rights and Privacy Act of 1974 ( FERPA, 1974 ) is an example of this type of legislation. Congress also has enacted civil rights legislation that prohibits state and school authorities from discrimi- nating against individuals on the basis of race, color, or national origin; gender; or disability in any pro- gram or activity receiving any federal funding. These laws also protect students from harassment on the basis of those characteristics. Schools must comply with antidiscrimination legislation if they receive any federal funds for any purpose. Section 504 of the Rehabilitation Act of 1973 (Section 504) is an exam- ple of antidiscrimination legislation.

School-based practitioners also must be familiar with Section 1983 of the Civil Rights Act of 1871. Under Section 1983, any person whose constitu- tional rights (or rights under federal law) have been violated by a government offi cials (including state actors, such as public school principals and school psychologists), may be held personally liable for damages in federal court.

INFORMED CONSENT, CONFIDENTIALITY, PRIVILEGE, AND RECORD KEEPING

Ethical issues pertaining to a school psychologist ’ s many roles include respecting and safeguarding pri- vacy rights, ensuring that students and others with whom they work have a voice in decisions that affect them, and engaging in responsible record keeping.

Informed Consent Codes of ethics and law show agreement that, with the exception of urgent situations, informed

consent should be obtained to establish a school psychologist–client professional relationship. In the school setting, consent to establish a profes- sional relationship typically is sought from the par- ent 1 or guardian of a minor child or from the student if an adult. Like nonschool practice set- tings, the individual providing consent must be given suffi cient information to make an informed choice about whether to accept the services offered, consent must be voluntary, and the parent must be allowed to withdraw consent at any time without negative repercussions. Also, practitioners recognize that consent is an ongoing process, requiring additional discussion with the individual who provided consent if there is a signifi cant change in the previously agreed on assessment or intervention goals or procedures ( APA, 2010 , Gen- eral Principle E; Standard 3.10, Informed Consent; Standard 3.11, Psychological Services Delivered to or Through Organizations; also see IDEA, 2004 ; Jacob et al., 2011 ; NASP, 2010, I.1 ).

For school-based practitioners, the decision whether to allow a child the opportunity to choose (or refuse) school psychological services indepen- dent of the parent ’ s wishes can be ethically challeng- ing. The NASP-PPE states, “Ordinarily, school psychologists seek the student ’ s assent to services; however, it is ethically permissible to by-pass student assent to services if the service is considered to be of direct benefi t to the student and/or is required by law” ( NASP, 2010, I.1.4 ). If a student ’ s assent for ser- vices is not solicited, school psychologists neverthe- less inform students about the nature and scope of services to be provided. Also, when a child

is given a choice regarding whether to accept or refuse services, the school psychologist ensures the student under- stands what is being offered, honors the student ’ s stated choice, and guards against overwhelming the student with choices he or she does not wish or is not able to make. ( NASP, 2010, I.1.4 ; also see Jacob et al., 2011 )

1 Hereafter the term parent will be used to refer to the individual who has the authority to make decisions and can include the natural or adoptive par- ent, an individual acting in the place of a parent such as a stepparent or domestic partner, or an adult student acting on his or her own behalf.

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School psychologists “encourage and promote parent participation in school decisions affecting their children” ( NASP, 2010, I.1.1 ). However, as one of the members of a school ’ s instructional sup- port staff, school-based practitioners also provide consultative services to student assistance teams and in classrooms that do not fall within the scope of a psychologist–client professional relationship. Ethically and legally, school-based consultative ser- vices do not require informed parent consent if the resulting interventions are under the authority of the teacher, within the scope of typical classroom interventions, and are not intrusive of pupil or fam- ily privacy beyond what might be expected in the course of ordinary school activities ( Burns, Jacob, & Wagner, 2008 ; Corrao & Melton, 1988 ; IDEA, 2004 ; NASP, 2010, I.1.1 ).

In addition, many school districts have policies that allow children to be seen by school health or mental health professionals without parent con- sent for one or several meetings to ensure that the student is not in danger (e.g., child abuse) or a danger to self or others. However, in schools, when minors self-refer for assistance, parent con- sent typically is sought to provide continuing psy- chological services to a child after it is determined that the student is not in danger ( NASP, 2010, I.1.2 ). In contrast, under federal and state law, community-based providers may be permitted to treat minors for certain health and mental health conditions (e.g., mental illness, drug and alcohol abuse, pregnancy management, treatment of sexu- ally transmitted diseases) independent of parent notice or consent, with the minor ’ s treatment records considered to be under his or her own control ( Boonstra & Nash, 2000 ). For this reason, school-based practitioners at times may need to refer students who desire assistance without par- ent involvement to community-based providers.

Confidentiality Confi dentiality is “an explicit promise or contract to reveal nothing about an individual except under conditions agreed to by the source or subject” ( Sie- gel, 1979, p. 251 ). Although primarily a matter of professional ethics, in some states, psychologists can be held civilly liable under state law for impermissible

breach of client confi dentiality. With the exception of urgent situations, school psychologists defi ne the parameters of confi dentiality at the outset of estab- lishing a school psychologist–client professional relationship ( APA, 2010 , General Principle E; Stan- dard 4.02, Discussing the Limits of Confi dentiality; also see NASP, 2010, I.2.3 ). When working with students, the parameters of the promise of confi den- tiality will vary depending on the age and maturity of the student, the reason for referral, and the nature of the services offered (e.g., individual counseling, assessment, and intervention for learning or behav- ioral problems; Jacob et al., 2011 ). Whatever the parameters, the circumstances under which the school psychologist might share confi dences with others must be clear ( Fisher, 2008 ; Koocher & Keith-Spiegel, 2008 ). If information learned within a school psychologist–client relationship is shared with third parties, such information is disclosed only on a need-to-know basis ( NASP, 2010, I.2.5 ). Furthermore, only information necessary for com- municating and resolving a student ’ s diffi culties in the school setting is disclosed internally to other school staff ( Fisher, 2008 ; also APA, 2010 , General Principle E; Standard 4.04, Minimizing Intrusions on Privacy; Standard 4.05, Disclosures; NASP, 2010, I.2 ; Schwab & Gelfman, 2005 ).

It is critically important for school-based psy- chologists to discuss confi dentiality and its limits with parents when seeking consent to provide ongoing counseling to a minor. Because parents have access to all school psychological records of their child as defi ned by FERPA (1974) , they also may feel entitled to know everything their child dis- closes to the school psychologist. The practitioner must explain to parents why a promise of confi den- tiality to the child can be essential to an effective helping relationship and seek parent understanding and agreement that the school psychologist will not disclose specifi c confi dences shared by the child to the parent without the child ’ s assent to do so. Par- ents need to be reassured, however, that the practi- tioner will let them know what they can do to help their child and that he or she will inform them immediately if there is a serious situation, such as one suggesting their child is in danger ( Jacob et al., 2011 ; NASP, 2010, I.2.4 ).

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When school psychological services are provided within the context of an established psychologist– client relationship, there are several situations in which a school psychologist may be obligated to share confi dential communications revealed in that relationship with third parties. Like psychologists in nonschool settings, school-based practitioners have a mandatory duty to report suspected child abuse to a child protection agency. Depending on state law, psychologists in nonschool settings may, or may not, have a legal duty to breach confi dentiality to protect a client or others from danger. In contrast, in school-based practice, confi dential information must be disclosed to others as a necessary to safeguard schoolchildren from reasonably foreseeable risk of harm 2 ( NASP, 2010 , Introduction; Russo, 2006 ; Schill, 1993 ). Reasonably foreseeable risk of harm is a less stringent standard for breach of confi dentiality than clear or imminent danger , terms often used in state laws regulating mental health providers. In addition, courts have ruled that schools must con- tact parents if it is suspected that a student may be suicidal (e.g., Eisel v. Board of Education of Montgom- ery County , 1991 ; Jacob, 2009 ). School-based practi- tioners also are required to adhere to district procedures for determining whether a student poses a threat to others and for warning potential victims of targeted violence. (More information on respond- ing to threats of harm can be found in Volume 1, Chapter 14, this handbook.)

In a survey of NASP school psychology practitio- ners, Dailor and Jacob (in press) found that within the previous year, about one fourth of 208 respon- dents had experienced the dilemma of deciding what information to disclose to the parents of a minor who is engaging in risky behavior. Although limited research is available, school psychologists ’ decisions to report a minor student ’ s risky behavior to a parent is likely infl uenced by the age and maturity of the child; the frequency, duration, and intensity of the behavior (e.g., limited experimentation with alcohol use versus frequently consuming multiple alcoholic drinks); and the dangerousness of the risky behavior

(e.g., experimentation with marihuana versus cocaine; Rae, Sullivan, Peña Razo, & Garcia de Alba, 2009). If it becomes apparent in working with a stu- dent that confi dentiality must be broken, the decision to divulge information also should be discussed with the student. Taylor and Adelman (1989) have sug- gested three steps: (a) explaining to the pupil the rea- son for disclosure, (b) exploring with the pupil the likely repercussions in and outside the student– psychologist relationship, and (c) discussing with the student how to proceed in a manner that will mini- mize negative consequences and maximize potential benefi ts (also see Fisher, 2008 ).

Privileged Communication The term evidentiary privilege refers to the legal right of the client (the parent of a minor child) to prevent disclosure in court (in some circumstances) of infor- mation revealed in an established psychologist–client relationship. In the years since the 1996 Jaffee v. Redmond Supreme Court decision, many, but not all, states broadened the scope of their laws governing privilege to include nondoctoral school psycholo- gists. The general rules of privilege for mental health providers and common exceptions are summarized in Aronson (2001) and Jacob and Powers (2009) . School psychologists are ethically obligated to be familiar with the laws governing privilege in the state where they practice ( NASP, 2010, I.2.2 ). (More information on these issues can be found in Volume 1, Chapter 13, this handbook.)

School-Based Record Keeping Under FERPA FERPA (1974) was passed to protect the privacy of student education records and to ensure parent access to the education records of their own child. No fed- eral funds will be made available to schools unless they adhere to the record-keeping policies outlined in FERPA. 3 The U.S. Department of Health and Human Services (HSS) together with the Department of Edu- cation (DOE) determined that the Health Insurance Portability and Accountability Act of 1996 ( HIPAA,

2 This standard emerged from civil lawsuits against school districts in cases involving foreseeable injury to a student.

3 The summary of FERPA (1974) focuses on the law as it applies to elementary and secondary schools and is based on the 2009 electronic Code of Federal Regulations (C.F.R.) and revisions published in the Federal Register on December 9, 2008.

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1996 ) privacy rule generally does not apply to ele- mentary and secondary education records protected by FERPA (see HHS & DOE, 2008, for a detailed dis- cussion of this issue, including implications of HIPAA for Medicaid billing, school-operated health clinics, and contracted health services).

In accordance with FERPA (1974) , parents have access to all offi cial school education records of their child, the right to challenge the accuracy of those records, and the right to an impartial hearing regarding their accuracy. The rights of the parent transfer to the student when he or she reaches the age of majority, but parents continue to have access to their high school student ’ s education records as long as their son or daughter is a dependent as defi ned by tax law. Aside from parents, education records are to be disclosed only to those in the school setting with a “legitimate educational inter- est” in the student, and parent consent generally must be obtained before personally identifi able stu- dent education records are released to persons or agencies outside of the school. Parents may fi le a complaint about FERPA violations with the DOE ’ s Family Compliance Offi ce. FERPA does not confer a personal right to enforcement by means of Section 1983 lawsuits against schools.

Under FERPA (1974) , education records are defi ned as any records maintained by the schools (or agencies or consultants to whom a school has out- sourced services) that are directly related to the stu- dent (34 C.F.R. § 99.3; 99.35). At the elementary and secondary level, the term education records includes records maintained by a school health or mental health professional (HHS & DOE, 2008); no distinction is made between the records of a school psychologist and other types of student education records. Information included in the student ’ s school psychological record as defi ned by FERPA is not considered privileged because it is accessible to parties outside of an established school psycholo- gist–client professional relationship ( J. N. v. Belling- ham School District No. 501 , 1994 ).

The defi nition of education record under FERPA (1974) excludes sole possession records , described as “records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person

except a temporary substitute for the maker of the record” (34 C.F.R. § 99.3). Under FERPA, it is thus permissible for a school-based psychologist to keep private notes about their contacts with clients that are separate from student education records. Under FERPA (1974) , IDEA (2004) , and Section 504 ( Rehabilitation Act of 1973 ), however, parents must have access to the data that forms the basis of edu- cation decisions regarding their child, and conse- quently information that the school practitioner discloses or makes available to others in the school setting must be placed in the student ’ s education record ( Martin, 1979 ). In some circumstances, a school-based practitioner may wish to keep private notes regarding communications by a client. For example, if a parent asked for a referral to a com- munity-based drug or alcohol treatment specialist, the practitioner might make a note to him or herself (sole possession record) to follow up this request to ensure that the parent was able to locate a satisfac- tory treatment option. If a school-based practitioner believes that it is necessary to keep private notes regarding certain communications by a client, such information should not shared with anyone includ- ing a substitute, and should be kept separately in a secure fi le not accessible to anyone but the school psychologist. The private notes of a nondoctoral school psychologist may, or may not, be privileged under state law; however, if a school psychologist ’ s records are subpoenaed, a client will more likely be successful in asserting that the psychologist ’ s “sole possession records” are privileged communications if the notes were not shared with anyone.

ASSESSMENT AND INTERVENTION UNDER IDEA

This discussion focuses on assessment and interven- tion under IDEA Part B (2004) , the portion of IDEA that provides funds to states that offer special educa- tion and related services to students with disabilities ages 6 through 18 (or ages 3 through 21 as deter- mined by state law). To receive funds, each state educational agency (SEA) must have on fi le with the DOE a plan to offer a free and appropriate education to all students ages 6 through 18 with disabilities residing within the state. DOE monitors compliance

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with IDEA at the state level and only indirectly (through review of the state plan). The SEA is responsible for ensuring compliance within the state. It is important to recognize that IDEA is not a fully funded mandate; it funds only a modest portion of the extra expenses that schools incur in providing special education to students with disabilities.

IDEA (2004) has a child fi nd requirement. The SEA must implement procedures to locate, identify, and evaluate all children with suspected disabilities within the state (34 C.F.R. § 300.111[a]). If a stu- dent is suspected of having a disability under IDEA and may need special education, then the school is required to conduct an individual evaluation of the child in accordance with IDEA procedures and time- lines unless the parents do not consent to the evalu- ation. Schools are not required to evaluate students only on the basis of parental suspicion of a disabil- ity. However, when parents request a special educa- tion eligibility evaluation of their child and the school decides not to evaluate the child, the school must provide the parent with written notice of the refusal to evaluate along with information describ- ing parent rights to challenge that decision (see Burns et al., 2008 ).

IDEA Part B (2004) funds are earmarked to pro- vide special education and related services only for students with a disability as defi ned by the law. A child with a disability means a child evaluated in accordance with the procedures in the law and who is found to qualify as having a disability in 1 of 13 categories: intellectual disability, hearing impair- ment, deafness, speech or language impairment, visual impairment, blindness, deaf-blindness, seri- ous emotional disturbance, orthopedic impairment, autism, traumatic brain injury, other health impair- ment, or specifi c learning disability; and who, for that reason, needs special education and related ser- vices (34 C.F.R. § 300.8[a]). Identifi cation of a pupil as eligible for special education is a two- pronged determination : (a) a disability must be docu- mented and (b) a need for special education must be established. Furthermore, a child is not eligible for special education and related services if his or her academic diffi culties are due to a lack of appro- priate instruction in reading or math, or limited English profi ciency (34 C.F.R. § 300.306[b]).

School-based practitioners are ethically obligated to conduct psychoeducational evaluations consistent with an ecological model of assessment, taking into account the multiple factors that affect school learn- ing and behavior, including instructional variables, the characteristics of the referred student, and sup- port available from home for school achievement ( NASP, 2010, II.3 ; Ysseldyke & Christenson, 1988 ). Under IDEA Part B (2004) , children must be assessed on the basis of testing and evaluation pro- cedures that are multifaceted (based on a variety of assessment tools and strategies), comprehensive (the child is assessed in all areas related to the suspected disability), technically adequate and valid for the purpose used, fair (nondiscriminatory), and useful (provide information that directly assists in deter- mining educational needs; IDEA, 2004, 34 C.F.R. § 300.304; also NASP, 2010, II.3 ).

The IDEA Part B (2004) defi nitions of a child with a disability (34 C.F.R. § 300.8), along with the criteria for determining eligibility (34 C.F.R. §§ 300.306–311), have been the source of many parent–school disagreements regarding whether a child is eligible for special education within the meaning of the law. Considerable disagreement exists among experts regarding how to operation- alize the federal defi nitions of autism , specific learning disability , other health impairmen t (which includes attention defi cit disorders), and emo- tional disturbance ; and differing criteria for eligi- bility under those defi nitions are used in different states, a situation that Weber (2009) aptly called “the IDEA eligibility mess.” For example, IDEA allows states to identify a child as having a specific learning disability if a signifi cant and unusual dis- crepancy exists between aptitude (intelligence quotient) and achievement scores, the child is found to have an information-processing defi cit, or on the basis of the child ’ s failure to respond to school interventions that were implemented with integrity (called responsiveness to intervention; see Burns et al., 2008 ).

In addition, confusion sometimes arises because nonschool mental health professionals are trained to use a system for classifying childhood disorders that differs from IDEA (2004) , namely the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text

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revision; DSM – IV – TR ; American Psychiatric Associa- tion, 2000 ). To add to the confusion, DSM – IV – TR criteria often are used in the schools to identify stu- dents with certain impairments such as attention dis- orders or autism. Although a DSM – IV – TR diagnosis may assist in determining eligibility under IDEA, it is not required by federal law, and it alone is not suffi - cient to determine whether a student is eligible for special education under IDEA Part B ( Zirkel, 2009d ).

For example, under IDEA Part B (2004) , the term emotional disturbance

means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child ’ s educational performance: (a) an inabil- ity to learn that cannot be explained by intellectual, sensory, or health factors; (b) an inability to build or maintain sat- isfactory interpersonal relationships with peers and teachers; (c) inappropriate types of behavior or feelings under nor- mal circumstances; (d) a general perva- sive mood of unhappiness or depression; (e) a tendency to develop physical symp- toms or fears associated with personal or school problems.

The defi nition goes on to say that “emotional distur- bance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance” (34 C.F.R. § 300.8). The IDEA defi ni- tion of emotional disturbance has been controversial since it was adopted in 1975. Generally, however, to qualify as a child with a disability within the cate- gory of emotional disturbance, the disturbance must be observable to school personnel. The defi nition “avoids presumptions about the child ’ s intrapsychic condition, psychiatric nosology, or clinical designa- tion” ( Slenkovich, 1988, p. 57 ). When a child is found to be eligible for special education because he or she meets IDEA criteria for emotional distur- bance, the label is an education classifi cation not a diagnosis.

The determination of whether a student is a child with a disability under IDEA Part B (2004) is made

by a group of persons (the Individualized Education Program [IEP] team) that includes, among others, the child ’ s parents, an individual qualifi ed to inter- pret evaluation data, a current or potential future teacher of the child, and an individual qualifi ed to provide or supervise special education (see 34 C.F.R. § 300.321[a]). Consistent with the ethical obliga- tions of school psychologists, IDEA requires schools to promote parent participation in the decision- making process (34 C.F.R. § 300.501[b]).

Under IDEA Part B (2004) , parents have the right to obtain an independent educational evalua- tion (IEE) of their child, and those fi ndings must be considered by the school “in any decision made with respect to the provision of [a free appropriate public education] to the child.” An IEE is an eval- uation conducted by a qualifi ed examiner who is not an employee of the district responsible for the education of the child in question. The school, on request, must provide parents with information about the district ’ s criteria for an IEE and where one may be obtained (34 C.F.R. § 300.502), and IEE examiners must be allowed to observe the child in question in his or her classroom. Depend- ing on the circumstances, an IEE may be con- ducted at parent or school expense. If the parent disagrees with the evaluation done by the school, the district is required, with no unnecessary delay, to either ensure that an IEE is conducted at dis- trict expense or initiate a due process hearing if it believes its evaluation was appropriate. If the hearing offi cer determines that the evaluation was appropriate, parents may proceed with an IEE, but at their own expense (see 34 C.F.R. § 300.502; also Zirkel, 2009b ).

If a child is determined to be eligible for special education and related services, the student must be offered an appropriate education as outlined in his or her IEP. Decisions regarding the content of the child ’ s IEP are made by a group of persons (the IEP team) that includes the parents. The required com- ponents of an IEP are outlined in the law (34 C.F.R. § 300.320) and include a description of the child ’ s current levels of educational performance, annual goals, how his or her progress will be measured, the extent to which the child will participate in classes and activities with nondisabled children, and the

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specifi c special education and related services to be provided.

The U.S. Supreme Court interpreted the meaning of appropriate education in its 1982 Board of Educa- tion of the Hendrick Hudson Central School District v. Rowley decision, and set forth a two-pronged test: “Were IDEA procedures followed in developing the IEP?” and “Is the program reasonably designed to benefi t the child?” Rowley and subsequent decisions indicate that IDEA (2004) ensures only an educa- tion reasonably designed to confer benefi t to the indi- vidual student, and not the best possible or most perfect education. Also, schools, not parents, have the authority to select specifi c instructional method- ologies as long as the methods chosen are consid- ered to be acceptable evidence-based practices.

A child who is eligible for special education under IDEA Part B (2004) also is eligible for related services but only if those services are required to assist a child with a disability to benefi t from special education. Related services include school psycholog- ical services, such as counseling and individualized behavioral interventions (34 C.F.R. § 300.34[a]). However, schools are not required to provide medi- cal, including psychiatric, treatment.

In accordance with IDEA (2004) , a student with a disability must be educated in the least restrictive environment (LRE) appropriate to the child. This means that, as much as feasible, children with disabilities

are educated with children who are non- disabled, and special classes, separate schooling or other removal of children with disabilities from the regular educa- tional environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 C.F.R. § 300.114[a][2])

Congress intended the SEA to make available a continuum of alterative placements to meet the needs of students with disabilities, including placement in the general education classroom with supplementary services, special classes, and residential facilities

(34 C.F.R. § 300.15). In developing the IEP, place- ment in the general education classroom with supple- mentary services is considered to be “the rebuttable presumption.” This means that decision making by the IEP team begins with the assumption that a child with a disability can be educated satisfactorily in the general education classroom when provided supple- mentary services, but the team may determine that child requires a more restrictive setting. In Sacramento City Unifi ed School District, Board of Education v. Rachel H. (1994 ) the court indicated that the follow- ing factors should be considered in determining the LRE appropriate for the student: (a) the educational benefi ts available in a general education classroom, supplemented with appropriate aids and services, as compared with the educational benefi ts of a special education classroom or other setting; (b) the nonaca- demic benefi ts of interaction with children who are not disabled; (c) the effect of the child ’ s presence (e.g., disruptive behavior) on the teacher ’ s ability to teach and on the learning of other children in the class; and (d) the cost of educating the child in a general educa- tion classroom. However, the cost must be signifi - cantly more expensive than alternative placements to justify an exclusion from the general education class- room on the basis of cost. Daniel R.R. v. Texas State Board of Education (1989) and Brillon v. Klein Indepen- dent School District (2004) suggested that a fi fth factor also can be considered in making placement deci- sions, namely, whether the child can benefi t from the general education curriculum without substantial and burdensome curricular modifi cations.

Under IDEA Part B (2004) , the SEA must ensure that each school district implements procedures to safeguard the parent ’ s right to confi dentiality of records and right to examine their child ’ s records (including their child ’ s answers as recorded on psy- chological test protocols); right to participate in meetings with respect to the identifi cation, evalua- tion, and placement of their child; right to consent to the initial evaluation and placement of their student and right to withdraw him or her from special educa- tion; right to written prior notice before changes are made in identifi cation, evaluation, placement, and special services; right to present fi ndings from an IEE; right to resolution of complaints by mediation; right to resolution of complaints by an impartial

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hearing offi cer; and right to bring civil action in court. Parents (and schools) generally must exhaust administrative remedies (e.g., mediation) before fi l- ing a civil action in court. Courts, at their discretion, may award reasonable attorney fees to the parents if they are the prevailing party in a civil action (34 C.F.R. §§ 300.506–518; also see Rooker, 2005 , 2008 , on parent rights to review their child ’ s answers on test protocols).

ASSESSMENT AND INTERVENTION UNDER SECTION 504/ADAA

As noted, Section 504 of the Rehabilitation Act of 1973 is civil rights legislation that prohibits discrimination against pupils with disabilities in school systems receiving federal fi nancial assistance. The Act states,

No otherwise qualifi ed handicapped individual . . . shall, solely by reason of his handicap, be excluded from the par- ticipation in, or be denied the benefi ts of, or be subjected to discrimination under any program or activity receiving Federal fi nancial assistance. (29 U.S.C. § 794)

Unlike IDEA (2004) , Section 504 provides no funds to schools. Section 504 does not require states to develop a written plan to meet the requirements of the law, but every school district must designate at least one person to coordinate its efforts to comply with the law and adopt grievance procedures for the prompt and equitable resolution of complaints alleg- ing violations of 504 (34 C.F.R. § 104.7).

The Section 504 defi nition of handicapped was amended by the Americans With Disabilities Amendments Act of 2008 ( ADAA, 2008 ) and here- after the term 504/ADAA disability will be used. Section 504/ADAA defi nes a disability as a physical or mental impairment that substantially limits one or more of the major life activities of the individual (Sec. 12102). 4 Major life activities include, but are not limited to, functions such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, speaking, walking, breathing, learning,

concentrating, thinking, and communicating. Fur- thermore, the determination of whether a physical or mental impairment substantially limits a major life activity is made without regard to the “amelio- rative effects of mitigating measures,” such as med- ication, assistive technology, or aids or services (Sec. 12102 [4][E]). The term disability does not apply to impairments that are transitory (actual or expected duration of 6 months or less) and minor (Sec. 12102 [3][B]), but an impairment that is “episodic or in remission” is a disability if it would substantially limit a major life activity when active (Sec. 12102 [4][D]).

The defi nition of disability under 504/ ADAA (2008) is thus broader and more open ended than IDEA ( 2004 ; Zirkel, 2009a ). Students who are dis- abled under IDEA are considered to have a disability under 504/ADAA. Contemporary interpretations suggest that schools receiving federal funds must attend to three types of potential discrimination pro- hibited by Section 504: schools are prohibited from excluding students from participating in school pro- grams and activities solely on the basis of a disabil- ity, are required to take reasonable steps to prevent harassment on the basis of disability, and are required to make accommodations to ensure that pupils with disabilities have equal opportunity to benefi t from its programs and activities as their peers without disabilities.

An evaluation of a student is required if it is believed that the student may qualify as having a disability as defi ned by 504/ ADAA (2008) and may need special school services or accommodations. Schools must notify parents of their rights regarding the identifi cation, evaluation, and placement of chil- dren with suspected disabilities before initiating a Section 504 evaluation (34 C.F.R. § 104.32). Like IDEA (2004) , schools are not required to evaluate children only on the basis of parental suspicion of a 504/ADAA impairment. When a school does not agree with a parental request for evaluation, it must inform parents of their right to contest that decision. A child who is evaluated because of a suspected dis- ability under IDEA Part B but found not eligible

4 The ADAA (2008) language quoted in this chapter is based on the text of U.S. Code as amended by ADAA and was retrieved from the Americans With Disabilities Act website ( http://www.ada.gov/pubs/adastatute08mark.htm ).

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should be considered for possible eligibility under 504/ADAA.

When a student is not eligible for special educa- tion under IDEA (2004) , but it is suspected that he or she may have a 504/ ADAA (2008) disability, the Section 504 evaluation regulations require deter- mination of the following: (a) Is there a physical or mental impairment? (b) Does that impairment sub- stantially limit a major life activity? and (c) What kind of accommodations would be needed so that the student will be able to enjoy the benefi ts of the school program ( Martin, 1992 )? Section 504 does not require a specifi c categorical diagnosis, only the determination of a condition that substantially impairs one or more major life activities at school and that requires special accommodation by the school.

Under Section 504, schools are required to estab- lish standards and procedures for the evaluation of pupils who, because of a suspected impairment, are believed to need special school accommodations. The 504 regulations regarding evaluation procedures (34 C.F.R. § 104.35) are almost identical to those in IDEA Part B (2004) . Like IDEA, a DSM – IV – TR diag- nosis may assist in determining eligibility under 504/ ADAA (2008) , but it is neither legally required nor suffi cient to make a 504/ADAA eligibility deter- mination under federal law ( Zirkel, 2009d ).

Appropriate education is defi ned in Section 504 as the provision of regular or special education and related aids and services: “(a) that are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (b) are based on adherence to procedural safeguards” outlined in the law (34 C.F.R. § 104.33). Section 504, like IDEA (2004) , also requires schools to educate student who have disabilities with students who do not have disabilities to the maximum extent appropriate to the needs of the student with a disabil- ity (34 C.F.R. § 104.34). The law itself does not specif- ically require a written 504 accommodation plan for students with 504/ ADAA (2008) disabilities; however, education experts recommend a written plan be devel- oped ( Zirkel, 2009c ). The 504/ADAA accommodation plan must be developed by a group of persons, includ- ing the child ’ s parents and persons knowledgeable of the evaluation data.

DOE memoranda, court cases, and administrative hearings under Section 504 have addressed the nature of accommodations required for students with mental impairments who do not also qualify as having a dis- ability under IDEA (2004) . Accommodations for a student with a mental impairment under 504/ ADAA (2008) must be made on the basis of individual need and must, at a minimum, provide assistance to ensure educational opportunity equal to peers without dis- abilities. The kinds of accommodations identifi ed as acceptable by the DOE and in court cases typically have been classroom or school modifi cations that a teacher or school psychologist might recommend, such as preferential seating, repeating and simplifying instructions, additional time for test taking, shortened homework assignments with extended due dates, interventions based on applied behavior analysis, individual or group counseling at school, and adult assistance with the administration or monitoring of medications (e.g., DOE, 1991).

Procedural safeguards in Section 504 regulations are stated in more general terms than those in IDEA Part B (2004) and must include “notice, an opportu- nity for the parents or guardian to examine relevant records, an impartial hearing with opportunity for participation by the person ’ s parents or guardian and representation by counsel, and a review proce- dure” (34 C.F.R. § 104.36).

The Offi ce for Civil Rights (OCR) is charged with investigating Section 504 complaints pertaining to DOE programs or activities. The OCR investigates individual complaints and a parent may trigger an investigation of school district compliance with 504 by fi ling a complaint with OCR. In addition, parents have the right to initiate a court action against the school on behalf of a child with 504/ ADAA (2008) impairments if they believe the school has violated the provisions of Section 504 with respect to their child. The courts may award reasonable attorney fees as part of the costs to parents when they are the prevailing party in a Section 504 lawsuit.

In summary, under IDEA (2004) , schools must offer a child with a disability an individualized educa- tion program reasonably designed to confer benefi t, not the best possible or most perfect program. Section 504 only ensures educational opportunities for stu- dents with disabilities that are equal to their peers

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without disabilities. Every child with a disability must be offered an education in the LRE where his or her schooling can be satisfactorily achieved. Fortunately, changes in federal law (e.g., IDEA, 2004 ) have resulted in expanded opportunities for school psychologists to plan and monitor scientifi cally based academic and behavior interventions for general education students who are struggling to be successful. These early inter- vening services can prevent student failure and reduce unnecessary eligibility testing and misclassifi cation under IDEA (e.g., Burns et al., 2008 ).

ETHICALLY CHALLENGING SITUATIONS IN SCHOOL-BASED PRACTICE

Regardless of their specialty area, most psycholo- gists encounter ethical dilemmas in their careers that involve competing ethical principles, confl icts between ethics and law, or diffi culties in determin- ing how broad ethics code statements apply to a particular situation. In school-based practice, prac- titioners also must “balance the authority of par- ents to make decisions about their children with the needs and rights of those children, and the purposes and authority of schools” ( NASP, 2010 , Introduction). Thus, school-based practitioners often are required to manage the confl icting inter- ests of multiple parties (children, parents, teachers, school administrators, and systems) in decision making as well as the dilemmas inherent in the dual roles of school employee and pupil advocate ( Dailor & Jacob, in press ; Jacob-Timm, 1999 ).

Conflicts Between the Ethical Obligations of School Psychologists and the Culture of the Public Schools In the following paragraphs, we discuss examples of confl icts between the ethical obligations of school psychologists and “the culture” of the public schools in the areas of managing sensitive student informa- tion, pressure from school administrators to make recommendations based on the interests of the dis- trict rather than the rights and needs of students, and the fi ne line between advocacy and insubordination.

Protecting sensitive student health and mental health information. School-based practitioners

face complex challenges regarding how to protect sensitive student information because, as noted, FERPA (1974) does not make a distinction between school psychological and other types of student education records at the elementary- and secondary- school level. In some school districts (particularly those with itinerant service providers), school psychologists do not have the authority to control who has access to school psychological education records, and unlike HIPAA (1996) , FERPA does not mandate training for school staff on safeguarding sensitive student information ( Schwab et al., 2005 ). Also, it is important to recognize that ethical obliga- tions such as safeguarding confi dential client disclo- sures and sharing sensitive student information only on a need-to-know basis are part of the professional duties and training of health and mental health pro- fessionals, but not school administrators. The terms need-to-know and privileged communication typically do not appear in the topic index of textbooks on public school law (e.g., Russo, 2006 ).

Sensitive health or mental health information might be received by a school psychologist in a report written by a physician or community-based mental health provider that was released by the par- ents to the school or that was communicated orally by the parent or student. Additionally, as in Case Example 1, a practitioner might uncover sensitive information as a result of the assessment process ( Jacob et al., 2011 ). Two issues are addressed here: (a) the exchange of sensitive student information between schools and community-based mental health providers and (b) the disclosure of sensitive information within the school setting.

It is likely that tension always will exist between a school ’ s perceived need for personal information about students and the right of students and their parents to be free from unnecessary intrusions on their privacy (e.g., Merriken v. Cressman , 1973 ). School administrators may demand that parents release their child ’ s complete medical or mental health records to the school, particularly if the child is sus- pected of having a disability under IDEA (2004) or Section 504 (e.g., Shelby by Kathleen T. v. Conroe Inde- pendent School District , 2006 ). Schwab et al. (2005) , however, recommended the use of HIPAA-compliant authorization forms when schools request health or

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mental health information from outside providers or agencies. This form should identify the names of the certifi ed or licensed school professionals (e.g., school nurse, school psychologist) who are being given per- mission to receive and use the information. The form also should identify the specifi c types of information requested, why the information has been requested and how it will be used (e.g., eligibility under IDEA or Section 504, educational program planning, ensur- ing appropriate school health care services). As Schwab et al. (2005) noted, it is rarely necessary or appropriate for a school to request release of a child ’ s complete medical or mental health records.

It also is critically important that community- based providers discuss with parents and adult stu- dents the content of the records to be released to the schools, and advise them against disclosing information “not germane to the request” ( Vande- Creek, 2008, p. 373 ). As VandeCreek wrote, “The most complete way to fully inform clients is to share the record (or the information to be shared) with the client before sending it on” (p. 373). Par- ents may not understand that sensitive information fi led by the school in their child ’ s education record is not protected by HIPAA (1996) , is not privileged, can be accessed by the student at the age of major- ity, and may be available to school staff who have not received formal training on how to handle sen- sitive information.

FERPA (1974) generally requires written con- sent of the parent (or adult student) before disclo- sure of personally identifi able student information to external (nonschool) providers and agencies. FERPA regulations, however, provide little guid- ance regarding what, if any, sensitive student infor- mation to share with others who have “legitimate educational interests” within the school setting ( Schwab & Gelfman, 2005 ).

Case Example 1 Maria Delgado, PhD, is a licensed

psychologist as well as a certifi ed school psychologist. After completing a doc- toral internship in a pediatric health care setting and her licensure require- ments, she accepted a position as a school psychologist in a public school system.

She received a referral to evaluate Tara, age 11, whose achievement in math is well below grade expectations, even after multiple small-group interventions were attempted in the general educa- tion classroom. Tara ’ s parents signed a consent form providing permission for a school evaluation to determine whether their daughter might be a child with a disability under IDEA (2004) . During her assessment, Dr. Delgado observed that Tara is an anxious child. She also observed that Tara frequently counted on her fi ngers while working on addition problems and, when given multiplica- tion problems, made tally marks on the side of the answer sheet. Further informal assessment confi rmed that Tara had not mastered basic addition or multiplication facts; simple math calculations were not automatic, making it diffi cult for her to tackle the challenges of fi fth-grade math. Dr. Delgado also found that Tara ’ s school records showed many absences due to ill- ness, that Tara often goes home early from school because of complaints of a head- ache or upset stomach, and that their fam- ily doctor has not found a medical cause for these recurring symptoms. On the basis of her assessment fi ndings, Dr. Del- gado determined that in addition to pos- sible eligibility under IDEA, Tara met the diagnostic criteria for somatoform disor- der, a diagnosis based on the DSM – IV – TR . At her doctoral internship site, Dr. Del- gado was required to prepare comprehen- sive psychological reports, incorporating child medical and developmental history; extensive family background information; and her assessment fi ndings, including, when appropriate, a DSM – IV – TR diag- nosis. Dr. Delgado is unsure whether to include Tara ’ s DSM – IV – TR diagnosis in the psychological report she is preparing for the IEP meeting to determine whether Tara is a student with a disability. ( Jacob et al., 2011 )

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Although Dr. Delgado in Case Example 1 had par- ent consent to conduct a psychoeducational assess- ment of Tara to determine possible eligibility under IDEA (2004) , she had not sought permission to ren- der a DSM – IV – TR diagnosis. Consistent with her eth- ical obligations to ensure parent consent for services and to assist them in making informed decisions, she arranged to meet with Tara ’ s parents in private to dis- cuss her fi ndings, including the benefi ts of including the somatoform disorder diagnosis in her report to the IEP team (e.g., possibly assisting instructional staff in understanding Tara ’ s emotional functioning) and the disadvantages (the diagnosis could be misun- derstood by instructional staff; the diagnosis will appear in educational records not managed by the school psychologist). As a result of the meeting, Tara ’ s parents requested that Dr. Delgado ’ s report for the IEP team focus on providing only the information necessary to make decisions regarding eligibility under IDEA and on identifying individualized inter- ventions that are likely to assist Tara, especially in math. They also agreed that Tara is an anxious child who would benefi t academically and emotionally from counseling to learn better strategies to cope with stress—fi ndings that should be shared with the IEP team. Dr. Delgado discussed community- and school-based counseling and psychotherapeutic treat- ment options for their daughter ( NASP, 2010, II.3.10 ) and identifi ed the possible fi nancial costs of various options. She also provided them with a list of strategies developed by pediatric experts for parents and teachers explaining how to help children learn to participate in school and other daily activities even if the child is experiencing physical discomforts. Dr. Delgado offered to coordinate implementation of the strategies at school and at home, and Tara ’ s parents readily agreed. Finally, Dr. Delgado reviewed the decisions that will be made at the upcoming IEP team meeting and encouraged Tara ’ s parents to express their opinions at the meeting.

Consistent with the need-to-know principle that appears in our ethics codes, Schwab and Gelfman (2005) advised school-based health and mental

health professionals to disclose private student information to others within the school setting only “when necessary in order to benefi t the student” (p. 267). Information disclosure should focus on communicating the student ’ s functional health, aca- demic, and behavioral diffi culties and explain how to respond. In keeping with emerging standards for the management of sensitive student information in the pubic schools (e.g., Schwab et al., 2005 ), it is appropriate to have a credentialed school-based health or mental health professional review, in col- laboration with the parents, any sensitive medical or mental health information obtained about their child, to determine what information should be shared with others in the school setting to assist the student (see Pine-Richland [PA] School District, 2009 ). Some medical and DSM – IV – TR diagnoses can be stigmatizing and misunderstood by school staff. Furthermore, when sensitive student information is shared with school staff, the school psychologist and parents lose control over its redisclosure ( Fisher, 2008 ). 5

Perhaps because of HIPAA (1996) , many par- ents now have a greater expectation of ownership and control of health information about their child in the school setting, and a few states have passed legislation to better protect the privacy of student health information maintained by public schools. We believe that school-based health and mental health providers should be allowed to serve as cus- todians and gatekeepers who, in partnership with parents, control disclosure of sensitive information about a student to others within the school setting. In addition, staff training in the management of sensitive student information should be required in all schools (see Schwab et al., 2005 ).

The rights and needs of students and parents versus school administrative pressures. Although school administrators share a commitment to pro- moting the welfare of all students, they face pres- sures to base decisions on “the good of the whole” rather than the needs of an individual student and

5 Unfortunately, in some schools, private health information about students is shared internally without consideration of the “need-to-know” principle, family privacy rights, or the obligation to ensure nondiscriminatory treatment of students with physical or mental impairments. The Offi ce for Civil Rights investigation of the Pine-Richland (PA) School District (2009) was initiated after school staff required a child (without prior parent permis- sion) to stand up and talk about her health condition (confi dential health information) in front of her second-grade classmates.

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to carefully manage limited resources ( Denig & Quinn, 2001 ). Not surprisingly, in several studies, school-based psychologists reported pressure from their supervisors to put the administrative needs of the district (e.g., contain costs) ahead of the rights and needs of students, especially students with sus- pected or known disabilities ( Dailor & Jacob, in press ; Jacob-Timm, 1999 ).

Case Example 2 Joshua, a student with a disability

under IDEA (2004) , was placed at a pri- vate school after the district ’ s IEP team, including his parents, the school psychol- ogist, and the director of special educa- tion, unanimously agreed that the private school ’ s program was the least restrictive setting available to meet Joshua ’ s com- plex special education needs. The school district ’ s superintendent, concerned about the expense of the private school, convened an IEP meeting at the end of the school year with the stated purpose of discussing Joshua ’ s fall placement. The superintendent knew that Joshua ’ s par- ents wished their son to continue at the private school because of his excellent progress there and that the school psy- chologist likely agreed with them. Before the IEP meeting, the superintendent left a voicemail message for Mrs. Bronson, the school psychologist, informing her that “the district” had no intention of allow- ing Joshua ’ s private school placement to continue and that she expected Mrs. Bronson ’ s “full cooperation” in the matter.

Mrs. Bronson and the district ’ s direc- tor of special education typically began each IEP team meeting with a review of the issues the team should consider in making eligibility, classifi cation, and placement decisions; statements encour- aging the parents to participate in the decision-making process; and queries to ensure that the parents are aware of their legal rights under IDEA. To their sur- prise, the school district superintendent

not only attended but also took charge of the IEP meeting regarding Joshua ’ s future placement. The superintendent began by stating that the purpose of the IEP meet- ing was to discuss Joshua ’ s “transition” from the private school to the district ’ s own special education program in the fall. Given the superintendent ’ s introduc- tory comments, how can Mrs. Bronson ensure that Joshua ’ s parents will feel comfortable voicing their opinions dur- ing the meeting regarding an appropriate placement for their son? How can she speak up for the legal rights of the par- ents and the needs of the student and at the same time maintain a positive work- ing relationship with her employer?

Some district administrators treat parents, stu- dents, and staff with respect and fairness, including them as much as feasible in school decisions that affect them. Other administrators, however, expect unquestioned deference to their decision-making authority. Unlike teachers and other instructional staff, the school psychologist ’ s obligation “to speak up for the rights and welfare of students and families, and to provide a voice to clients who cannot or do not wish to speak for themselves” is codifi ed in their code of ethics and emphasized in their training ( NASP, 2010 , Defi nitions). As Miller (2009) wrote, school psychologists “must, in a quiet and yet deter- mined fashion,” help administrators understand that in protecting the rights of students with disabilities, we also are “protecting the school district, and we are protecting them” (pp. 17–18). Consistent with the principle of respect for the dignity of persons, school psychology practitioners must ensure that clients have a voice in decisions that affect them. Further- more, in keeping with the principles of honesty and integrity in professional relationships and responsi- bility to families ( NASP, 2010, III, IV ), Mrs. Bronson has an obligation to ensure that Joshua ’ s parents have a clear understanding of the purposes of the meeting (i.e., to determine an appropriate fall placement), the process of decision making (what issues the team is legally required to consider), and their role in that process. To achieve this, Mrs. Bronson must reframe

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the meeting in a way that not only is respectful of the district superintendent, but also fosters a collabora- tive partnership between parents and school profes- sionals, with the goal of developing an IEP that is reasonably designed to confer benefi t in the LRE appropriate to Joshua ’ s individual needs.

Although Case Example 2 is fi ctitious, in H. Berry by Berry v. Virgenes Unifi ed School District (2010) , the 9th circuit held that a school district ’ s IEP proceedings violated IDEA (2004) because the district predeter- mined a child ’ s placement. More specifi cally, the school district superintendent ’ s introductory state- ments at an IEP meeting (as in Case Example 2) indi- cated that she already had decided to remove the child from a private school before the IEP meeting with the parents. Furthermore, the parents were not afforded a meaningful opportunity to participate in the IEP meet- ing, including the placement decision. In addition to the legal costs to the school district of defending its administrator ’ s inappropriate actions, the court ’ s rul- ing likely will allow the parents to receive reimburse- ment for their attorney fees from the school district.

Advocacy Versus Insubordination The 2006 U.S. Supreme Court Garcetti v. Ceballos deci- sion suggested that school-based practitioners, as state actors, could be disciplined or dismissed for publically criticizing the practices of the school districts where they are employed if speaking in their offi cial job role rather than as private citizens. School-based practitio- ners have whistleblower protection, however, if they expose unlawful actions by their employer. NASP-PPE obligates practitioners to advocate for the rights and interests of students and families, but its defi nition of advocacy goes on to state: “Nothing in this code of ethics . . . should be construed as requiring school psy- chologists to engage in insubordination (willful disre- gard of an employer ’ s lawful instructions) . . . as part of their advocacy efforts” ( NASP, 2010, IV.2.3 ; emphasis added). Regardless of the situation, however, school psychologists do not participate in school actions that violate basic human rights. 6

Jacob (2008) encouraged school-based practitio- ners to discuss concerns about problematic school

policies or actions using within-school venues, to emphasize the positive potential effects of alterna- tive practices rather than simply criticizing existing ones, and to clearly identify when they are speaking as an employee versus speaking as a private citizen (also see NASP, 2010, IV.2.4 ; Zirkel, 2008 ). (More information on institutional confl icts can be found in Volume 1, Chapter 5, this handbook.)

RESOLVING ETHICAL DILEMMAS

Like psychologists in other specialty areas, school psy- chologists are encouraged to take a proactive stance to avoid ethical dilemmas and to use a systematic prob- lem-solving model when diffi cult situations arise ( Koocher & Keith-Spiegel, 2008 ; McNamara, 2008 ; Williams et al., 2008 ;). They also are encouraged to “strive for excellence” ( Knapp & VandeCreek, 2006 ) rather than simply meeting the minimum ethical obli- gations outlined in codes of ethics and to “engage in the lifelong learning that is necessary to achieve and maintain expertise in applied professional ethics” ( NASP, 2010 , Introduction). Jacob (2008) also has provided suggestions for school-based practitioners on developing an ethical practice.

Collaboration Between School-Based Practitioners and Psychologists in Other Settings Federal laws such as FERPA (1974) , IDEA (2004) , and Section 504 (1973) are complex and amended periodically, and the regulations implementing them frequently are revised. Furthermore, various courts have issued differing interpretations of their language and meaning. Finally, the majority of statutes and rules that directly affect school district policies are enacted at the state level. School attor- neys, administrators, instructional staff, school psychologists, and parents all may have reasonable but differing interpretations of what FERPA, IDEA, and Section 504 require, prohibit, and permit.

School personnel struggle to keep abreast of changing education laws and regulations, and they may falter in their interpretation or implementation

6 The basic human rights of students in the school setting were discussed in Jacob et al. (2011) under the topics of behavioral interventions and corpo- ral punishment.

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of what is legally required. On the other hand, par- ents may be frustrated or discouraged by their child ’ s diffi culties at school; angry and mistrusting of school personnel; and, understandably, have their own beliefs about their child ’ s needs and what the school should do to address those needs. School psychologists are obligated to explain, as clearly as feasible, the school ’ s responsibilities as well as par- ent and student rights under IDEA (2004) , Section 504 (1973) , and FERPA (1974) . The ethical practice of school psychology “involves continuously work- ing to foster open and honest communication” with parents ( Dailor, 2007, p. 33 ). Unfortunately, many school–parent disagreements escalate, resulting in due process hearings and lawsuits. Between 1995 and 2003, special education litigation alone resulted in more than 1,500 judicial decisions in the United States ( Norlin, 2004 ). This number is just the tip of the iceberg because informal and administrative remedies typically must be exhausted before a law- suit is fi led, and some lawsuits are settled before a judicial decision is rendered.

The NASP-PPE states the following:

To best meet the needs of children and other clients, school psychologists cooperate with other psychologists and professionals from other disciplines in relationships based on mutual respect. They encourage and support the use of all resources to best serve the interests of students. ( NASP, 2010, III.3.1 )

School–community collaboration can result in improved health, mental health, and educational outcomes for youth (see Eagle, Dowd-Eagle, & Sheridan, 2008 ). Collaborative efforts between school- and community-based mental health provid- ers are most likely to benefi t students when such collaborations are formed on the basis of effective communication and positive cooperation, including respect for and understanding of differing profes- sional roles and employment contexts; a shared commitment to empowering parents to make informed choices about their child ’ s education and mental health needs; and a shared commitment to preventing misunderstandings among parents, schools, and community-based providers.

However, because unhappy parents often seek IEEs or expert testimony from nonschool psycholo- gists or psychiatrists while pursuing the dispute res- olution remedies available under IDEA (2004) or Section 504 (1973) , school- and community-based practitioners may fi nd themselves in adversarial rather than collaborate roles. In Table 7.1 we iden- tify some of the ways in which school-based practice may differ from the provision of psychological ser- vices in nonschool settings. Although the table only offers a simplistic summary, this information high- lights some of the subtle but important differences between school-based and non-school-based prac- tice. Improved communication across settings might increase the likelihood that parent–school disagree- ments regarding a child ’ s education needs and rights can be resolved informally, without triggering adversarial due process hearings and lawsuits under IDEA or Section 504. It is our belief that effective and positive collaboration among school-based psy- chologists, community-based providers, and parents can keep the best interests of the child at center stage.

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