Telecounseling is Gaining Momentum
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Author(s): Carolyn Stone, Greg Nuckols, Tracy Steele
May 1, 2022
You are being required to find a space for a student to have a telecounseling session during the school day, to set up the technology, see that the student is ready to go at the appointed time and stand guard at the door in case the student has a need. Is this legal?
This is a real case, triggering Steele, Nuckols and Stone (2021) to survey school counselors around this question, “Have any educators in your school been asked by an outside counseling entity to dismiss students from class during the school day to participate in mental health telecounseling?” Of the 380 respondents, 37% said “yes.” When asked to comment, respondents had much to say. The comments spanned from the positive explaining how the school supported the efforts to the negative expressing concern that outside counselors were asking too much of the school. However, on balance, the majority of respondents described how telecounselors are trying to be respectful and provide services in the least-intrusive way to both educators and students.
Telecounseling is simply counseling services using technology such as videoconferencing, text, chat rooms and other internet-supported approaches. The positives are obvious, as school counselors in rural settings have always struggled with their students’ access to outside counseling. Access has been a barrier regardless of the geographic setting for many school counselors whose students cannot participate in agency counseling due to transportation, scheduling and other issues. COVID-19 has created an awareness of and an increase in mental health issues for our students. Telecounseling may be an opportunity for school counselors to grow their reach by bringing agencies into the school through technology to help meet students’ needs.
The drawbacks have yet to be discovered fully. Much remains to be seen in the legal and ethical implications of this approach. One area is compliance with the Health Insurance Portability and Accountability Act (HIPAA) to protect client privacy. The technology used in schools and the barriers to secure, private settings may mean a breach of HIPAA compliance. The other issue to sort through is whose responsibility it is to ensure the technology works and there are no technical difficulties. Another concern is what is lost in telecounseling, such as verbal and body language cues that are difficult or impossible to read. School counselors also recognize how important face-to-face interactions are for developing a relationship with a student. Can a counselor do the same with a student if sessions aren’t face-to-face? Another unanswered question is who is responsible for the behavior of outside professionals working with students via telehealth when the students are on school grounds. In other words, if an outside telehealth counselor acted unprofessionally or inappropriately with a student, could the school be legally responsible?
Telecounseling holds much promise for student mental health, helping school counselors extend their reach and addressing an age-old problem of access. However, a number of unanswered and unexplored legal and ethical implications need further research.
Counseling as a Condition of School Attendance
You are a public school counselor who questions the legality of the principal’s practice of telling the parents/guardians of students with suicidal ideation that they must provide proof their child is seeing an outside therapist in order to return to school. Is the principal’s practice legal?
The legal question is whether school attendance can be made conditional for a student who is suicidal and not homicidal. We often hear that some public school administrators are requiring proof of outside counseling before a student who is suicidal but isn’t a danger to others is allowed back into their school. Public school administrators withholding education for a child when the reason has nothing to do with a discipline problem do so at their own peril. Parents/guardians would have a strong case that the school district must provide reimbursement for required counseling if their child is not a danger to others. If outside counseling is a recommendation or suggestion and not a requirement of school attendance, it is unlikely parents/guardians would be successful in requiring the school district to pay for such services. If parents/guardians aren’t providing treatment for their child who is suicidal, educators call child protective services about the negligence rather than denying school access.
There is nothing in the constitution that guarantees citizens an education. However, federal laws prohibit discriminating against categories of citizens. The early leaders of this country recognized the need for an educated citizenry, establishing a formal, unified system of publicly funded schools and charging the states with forming an education system. The federal government provided support for establishing public schools through federal land grants, with the requirement that a portion of the land be set aside for public schools. Throughout U.S. history, groups have been discriminated against regarding public school attendance. Brown v. Board of Education was a pivotal case and declared state-sponsored segregation of public schools to be unconstitutional.
To date, many court cases have followed the Brown v. Board of Education case, and public schools receiving federal funds cannot discriminate against any one group or class of students and make school attendance conditional. This includes students who are considered suicidal but who are not considered homicidal or a danger to other students’ safety. Discipline, of course, can result in a student being excluded from education and expelled or suspended, but we do not expel or suspend students because they are suffering from suicidal ideation.
When a child is prohibited from coming to school until an evaluation is made, this is most likely a decision that is based more on a bluff than a legal basis. The district could find itself responsible for paying for the outside services.
Informed Consent: Is it Possible?
An incest survivor’s court-ordered financial support for counseling ended. You are already working with another incest survivor. You know of a third student who’s an incest survivor, and you decide to form a group. All three girls sign the informed consent document to participate. The consent form and your initial conversations before and during each group session stress confidentiality. Have you received informed consent?
Setting aside all the other alarming issues in this all-too-real scenario (e.g., school counselor’s skill level, confidentiality, appropriateness of school group topics, parental involvement), it is the element of informed consent that is the subject of this column. All professional ethical standards in the health, social and counseling fields require informed consent for students, clients and patients. In many states, it is a legal obligation in professional practice statutes. Informed consent comes from the medical principle of primum non nocere, “first do no harm.” Competence, voluntariness and knowledge are necessary elements of informed consent. Although informed consent is one of the most represented values in the helping professions, many of the ethical standards, including ASCA’s, recognize informed consent is difficult and sometimes impossible to attain.
Informed consent for students in schools requires that the student has knowledge of all the components of informed consent, is voluntarily engaging in the counseling services provided and is competent to understand the implications both positive and negative for engaging in the counseling. Informed consent is not an event but a process that is repeated as needed in developmentally appropriate terms as to the goals, limits of confidentiality and how students can voluntarily terminate or participate. Competence means the student is able to rationally appreciate the facts, breadth and consequences of entering into counseling. Just as school counselors must come from the posture that confidentiality can never be guaranteed, so too must they come from the stance that informed consent is largely unattainable with students in schools. Even when school counselors believe a student is developmentally mature, has solid reasoning ability and understands all the nuances of informed consent, it is best practice for school counselors to question their confidence that they have actually obtained informed consent. Informed consent from a minor in a school setting is the rare exception, not the rule.
Did the school counselor actually get informed consent when she talked to the students individually and obtained their signature prior to the group? In the case of the incest group, the students put their trust in the school counselor with a level of confidence often unmatched with other educators. In many cases, students will assume if the school counselor is asking them to do something, then they will be safe, and it must be okay. These students probably never considered the potential for harm; yet, it happened. Upon hearing her private world discussed in the hallways, one of the group members refused to return to the school and was granted a special assignment to a distant school, where she hoped to regain her privacy.
These are just a few of the questions the ASCA Ethics Committee has recently received. To review more, visit www.schoolcounselor.org/ethics. If your question isn’t answered there, email ethics@schoolcounselor.org.
Carolyn Stone, Ed.D., is ASCA Ethics Committee chair and professor of school counseling, University of North Florida. Greg Nuckols, Ph.D., is director of counseling, Stanford Online High School. Tracy Steele, Ph.D., is director of student affairs, Stanford Online High School.
This is a real case, triggering Steele, Nuckols and Stone (2021) to survey school counselors around this question, “Have any educators in your school been asked by an outside counseling entity to dismiss students from class during the school day to participate in mental health telecounseling?” Of the 380 respondents, 37% said “yes.” When asked to comment, respondents had much to say. The comments spanned from the positive explaining how the school supported the efforts to the negative expressing concern that outside counselors were asking too much of the school. However, on balance, the majority of respondents described how telecounselors are trying to be respectful and provide services in the least-intrusive way to both educators and students.
Telecounseling is simply counseling services using technology such as videoconferencing, text, chat rooms and other internet-supported approaches. The positives are obvious, as school counselors in rural settings have always struggled with their students’ access to outside counseling. Access has been a barrier regardless of the geographic setting for many school counselors whose students cannot participate in agency counseling due to transportation, scheduling and other issues. COVID-19 has created an awareness of and an increase in mental health issues for our students. Telecounseling may be an opportunity for school counselors to grow their reach by bringing agencies into the school through technology to help meet students’ needs.
The drawbacks have yet to be discovered fully. Much remains to be seen in the legal and ethical implications of this approach. One area is compliance with the Health Insurance Portability and Accountability Act (HIPAA) to protect client privacy. The technology used in schools and the barriers to secure, private settings may mean a breach of HIPAA compliance. The other issue to sort through is whose responsibility it is to ensure the technology works and there are no technical difficulties. Another concern is what is lost in telecounseling, such as verbal and body language cues that are difficult or impossible to read. School counselors also recognize how important face-to-face interactions are for developing a relationship with a student. Can a counselor do the same with a student if sessions aren’t face-to-face? Another unanswered question is who is responsible for the behavior of outside professionals working with students via telehealth when the students are on school grounds. In other words, if an outside telehealth counselor acted unprofessionally or inappropriately with a student, could the school be legally responsible?
Telecounseling holds much promise for student mental health, helping school counselors extend their reach and addressing an age-old problem of access. However, a number of unanswered and unexplored legal and ethical implications need further research.
Counseling as a Condition of School Attendance
You are a public school counselor who questions the legality of the principal’s practice of telling the parents/guardians of students with suicidal ideation that they must provide proof their child is seeing an outside therapist in order to return to school. Is the principal’s practice legal?
The legal question is whether school attendance can be made conditional for a student who is suicidal and not homicidal. We often hear that some public school administrators are requiring proof of outside counseling before a student who is suicidal but isn’t a danger to others is allowed back into their school. Public school administrators withholding education for a child when the reason has nothing to do with a discipline problem do so at their own peril. Parents/guardians would have a strong case that the school district must provide reimbursement for required counseling if their child is not a danger to others. If outside counseling is a recommendation or suggestion and not a requirement of school attendance, it is unlikely parents/guardians would be successful in requiring the school district to pay for such services. If parents/guardians aren’t providing treatment for their child who is suicidal, educators call child protective services about the negligence rather than denying school access.
There is nothing in the constitution that guarantees citizens an education. However, federal laws prohibit discriminating against categories of citizens. The early leaders of this country recognized the need for an educated citizenry, establishing a formal, unified system of publicly funded schools and charging the states with forming an education system. The federal government provided support for establishing public schools through federal land grants, with the requirement that a portion of the land be set aside for public schools. Throughout U.S. history, groups have been discriminated against regarding public school attendance. Brown v. Board of Education was a pivotal case and declared state-sponsored segregation of public schools to be unconstitutional.
To date, many court cases have followed the Brown v. Board of Education case, and public schools receiving federal funds cannot discriminate against any one group or class of students and make school attendance conditional. This includes students who are considered suicidal but who are not considered homicidal or a danger to other students’ safety. Discipline, of course, can result in a student being excluded from education and expelled or suspended, but we do not expel or suspend students because they are suffering from suicidal ideation.
When a child is prohibited from coming to school until an evaluation is made, this is most likely a decision that is based more on a bluff than a legal basis. The district could find itself responsible for paying for the outside services.
Informed Consent: Is it Possible?
An incest survivor’s court-ordered financial support for counseling ended. You are already working with another incest survivor. You know of a third student who’s an incest survivor, and you decide to form a group. All three girls sign the informed consent document to participate. The consent form and your initial conversations before and during each group session stress confidentiality. Have you received informed consent?
Setting aside all the other alarming issues in this all-too-real scenario (e.g., school counselor’s skill level, confidentiality, appropriateness of school group topics, parental involvement), it is the element of informed consent that is the subject of this column. All professional ethical standards in the health, social and counseling fields require informed consent for students, clients and patients. In many states, it is a legal obligation in professional practice statutes. Informed consent comes from the medical principle of primum non nocere, “first do no harm.” Competence, voluntariness and knowledge are necessary elements of informed consent. Although informed consent is one of the most represented values in the helping professions, many of the ethical standards, including ASCA’s, recognize informed consent is difficult and sometimes impossible to attain.
Informed consent for students in schools requires that the student has knowledge of all the components of informed consent, is voluntarily engaging in the counseling services provided and is competent to understand the implications both positive and negative for engaging in the counseling. Informed consent is not an event but a process that is repeated as needed in developmentally appropriate terms as to the goals, limits of confidentiality and how students can voluntarily terminate or participate. Competence means the student is able to rationally appreciate the facts, breadth and consequences of entering into counseling. Just as school counselors must come from the posture that confidentiality can never be guaranteed, so too must they come from the stance that informed consent is largely unattainable with students in schools. Even when school counselors believe a student is developmentally mature, has solid reasoning ability and understands all the nuances of informed consent, it is best practice for school counselors to question their confidence that they have actually obtained informed consent. Informed consent from a minor in a school setting is the rare exception, not the rule.
Did the school counselor actually get informed consent when she talked to the students individually and obtained their signature prior to the group? In the case of the incest group, the students put their trust in the school counselor with a level of confidence often unmatched with other educators. In many cases, students will assume if the school counselor is asking them to do something, then they will be safe, and it must be okay. These students probably never considered the potential for harm; yet, it happened. Upon hearing her private world discussed in the hallways, one of the group members refused to return to the school and was granted a special assignment to a distant school, where she hoped to regain her privacy.
These are just a few of the questions the ASCA Ethics Committee has recently received. To review more, visit www.schoolcounselor.org/ethics. If your question isn’t answered there, email ethics@schoolcounselor.org.
Carolyn Stone, Ed.D., is ASCA Ethics Committee chair and professor of school counseling, University of North Florida. Greg Nuckols, Ph.D., is director of counseling, Stanford Online High School. Tracy Steele, Ph.D., is director of student affairs, Stanford Online High School.