Recommended Practices for School-Based Psychotherapists Part III:   
Common Scenarios Involving the Application of HIPAA, FERPA, California Laws  and Ethical Codes in School Settings  

The Therapist
March/April 2018
Mike Griffin, JD, LCSW (CAMFT Staff Attorney) and Sara Jasper JD, CAE (CAMFT Staff Attorney 
Reviewed November, 2022 by Sara Jasper, JD, CAE (CAMFT Staff Attorney) 

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

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

1. When a member of the school staff or administration would like to refer a student for a mental health assessment or treatment, should the child’s parents be contacted before doing so? 

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

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

2. How might a therapist respond if a member of the school staff or administration requests information regarding the treatment of a minor? 

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

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

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

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

3. How might a therapist respond if a member of the school staff or administration asks to see a copy of the client’s treatment record? 

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

4. How might a therapist respond if an IEP team requests information relevant to the student’s progress in therapy? 

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

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

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

5. How might a therapist respond, if a student communicates a threat of violence to him/herself or to others during a counseling session?  

When a therapist is aware that his or her client is at risk of committing suicide, courts have generally held that he or she has a duty to take “reasonable” or “appropriate” steps to prevent the client’s suicide.⁵ However, the definition of what may be considered to be “reasonable,” depends on the facts and circumstances of the case.⁶ 

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

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

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

CAMFT’s Code of Ethics is also instructive on the issue of disclosure of client’s confidential information to third parties. Section 5.15 states, “When appropriate, marriage and family therapists consult, collaborate with, and refer to physicians, other health care professionals, and community resources in order to improve and protect the health and welfare of the client/patient.” 

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

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

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

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

6. How might a therapist respond if a student shares information which leads the counselor to suspect reportable abuse or neglect? 

The intent and purpose of the Child Abuse and Neglect Reporting Act (“CANRA”)¹⁴ is to protect children from abuse and neglect. Licensed therapists, associates, and trainees in California are “mandated reporters” when they, in their professional capacity or within their scope of employment, have “reasonable suspicion” of child abuse or neglect. 

CANRA requires psychotherapists to report incidents of abuse and/or neglect to a designated receiver of these reports by calling as soon as practically possible and then by sending, faxing, or electronically transmitting a written follow-up report within 36 hours of receiving the information concerning the incident.¹⁵ The receivers of these reports include Child Protective Services (“CPS”), police, or the sheriff’s department.¹⁶ 

Suspected child abuse and/or neglect reports are confidential. However, “…Internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established provided that they are not inconsistent with [the CANRA statute]. . . . Reporting the information regarding a case of possible child abuse or neglect to an employer, supervisor, school principal, school counselor, coworker, or other person shall not be a substitute for making a mandated report to an agency.”¹⁷ Limitations on the disclosure of such information is intended to protect the privacy of the minor, as well as individuals who have not yet been subject to an investigation of alleged wrongdoing. Furthermore, the safety of the mandated reporter, and any other involved individuals, may be threatened by improper disclosures. In all settings, reporting duties under CANRA are individual, and no supervisor or administrator may impede or inhibit a mandated reporter in fulfilling such duties, nor can any person be sanctioned for making a report.¹⁸ Therefore, a supervisor may ask an individual to consult with him or her prior to making a report, but cannot interfere with, or prohibit, the filing of a report.¹⁹ Alternatively, in circumstances when two or more mandated reporters have joint knowledge of a known or suspected instance of child abuse or neglect, and when there is agreement among them, the required telephone report may be made by one of them and a single written report made and signed by the designated individual.20 Agencies and/or providers who are contracted to offer mental health services in schools should consider these issues when formulating the agreements that specify how those services will be carried out and who will have access to confidential information such as reports of suspected child abuse and neglect. It is recommended that suspected child abuse reports are filed separately from the minor’s treatment record. Members who have questions regarding child abuse reporting may consult with CAMFT’s Legal Department. 

7. How might a therapist respond if he or she receives a subpoena and/or court order for a counseling record? 

The therapist’s response in this situation depends on the facts and circumstances related to the request. The person or entity who is in the role of custodian of the treatment records is responsible for responding to such requests. If the treating therapist is, or was, employed by an outside practice, clinic or agency, such organization typically serves as the custodian of that therapist’s treatment records, and would therefore respond to the request or provide direction to the treating therapist in responding to the request. When the treating therapist is, or was, employed by a school, there is a need for that school to develop a workable procedure to follow when responding to subpoenas, and/or related requests for treatment records. In such circumstances, it is helpful if there is an identified mental health professional at the school who can be utilized as a primary resource to assist in responding to such requests. Some schools involve legal counsel from the school district in responding to subpoenas when the treatment was rendered by a therapist who was, or is, an employee of the school or the school district. Under California law, a psychotherapist must claim privilege on behalf of the holder of the privilege unless he or she is authorized to release the confidential information being sought.²¹ When deciding how to respond to a subpoena for a minor’s counseling records, the custodian of the treatment records should determine who holds the privilege (i.e., the minor, minor’s counsel or a guardian ad litem) and whether the holder of privilege intends to authorize release of the minor’s confidential records and/or information. 

8. How might a therapist respond if he or she is informed that there is no space available for the counselor to provide confidential counseling to students?  

Space is often limited in school settings and therapists have to collaborate with school staff regarding schedules and the utilization of office space. Flexibility is often called for but there are some fundamental requirements when it comes to the provision of confidential counseling services in any setting. The space must accommodate two or more people who will be meeting for various lengths of time (typically for 30 to 45 minutes). Furnishings can be as simple as a few chairs, (unless a group is involved) but the room should offer a reasonable degree of comfort and privacy. While the degree of soundproofing varies from setting to setting, therapists and clients should feel confident that they cannot be overheard by individuals who are nearby. 

9. How might a therapist respond if he or she is informed that there is no space available at the school to appropriately maintain confidential treatment records?  

Therapists are required to maintain and protect their client’s health care records in a manner that is in accord with state and federal law, and applicable ethical standards. If the therapist is employed at the school, it is recommended that he or she address the situation with school administrative personnel to develop an appropriate solution which will permit the safe and secure storage of records. 

10. How might a therapist respond if he or she is asked to store counseling records in a database or other record storage system which is utilized to store and maintain education records? 

Due to the confidential nature of mental health services and mental health treatment records, it may not be appropriate to combine counseling records with education records. The parties responsible for overseeing school-based mental health programs need to first determine whether the program is subject to FERPA, HIPAA and/or state laws in order to determine how records should be maintained.²² 

The Value of School-Based Programs 

Professionals who have established successful school-based mental health programs understand that such programs take time and effort to develop. Especially for those who are creating a new program, the various legal considerations can appear daunting, and there are often logistical problems to solve, depending on the school site. It is necessary to have the input and “buy-in” of key members of the school community, and if necessary, the district. 

The potential benefits of operating a school-based program can be substantial. In the end, individuals who have created successful programs also know that it was worth the effort to create such a valuable asset for students. 

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Endnotes 

¹ 20 U.S.C. §1400 

² Cal. Educ. Code, §56029 

³ Cal. Civil Code, §56.10 

⁴ See, The Child Abuse and Neglect Reporting Act (CANRA); Cal. Penal Code §§1164 to 11174.3; The Elder Abuse and Dependent Adult Civil Protection Act; Calif. W&I Code §§15600 to 15659; Tarasoff v. Regents of the University of California (1973), 33 Cal. App.3d 275; Tarasoff v. Regents of the University of California (1976), 16 Cal.3d 425; Cal. Civil Code, §43.92; Calif. W&I Code, §8100; Cal. Evid. Code, §1024 

⁵ Bellah v. Greenson, (1978) 81 Cal. App.3d 614; Jacoves v. United Merchandising Corp., (1992) 9 Cal. App. 4th 88; Kockelman v. Segal, (1998) 61 Cal. App.4th 491; Gross v. Allen (1994) 22 Cal. App. 4th 354 

⁶ Griffin, Michael, JD, LCSW, “Working with Suicidal Clients,” The Therapist, July/Aug, 2011 

⁷ Cal. Civil Code, §56.10(c)(1) 

⁸ Cal. Civil Code, §56.10(c)(19) 

⁹ Cal. Evid. Code §1024 also provides that there is no psychotherapist-patient privilege in circumstances where the psychotherapist has reasonable cause to believe the patient is in such mental or emotional conditions as to be dangerous to himself/ herself, or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger. 

¹⁰ Bellah v. Greenson, (1978), 81 Cal. App.3d 620-621 In this case, the parents of an adolescent girl who committed suicide sued their daughter’s former psychiatrist, wherein they alleged that he was negligent in the care of their daughter because, among other things, he failed to inform them of her suicidal risk. The court recognized, if every therapist was faced with a broad mandate to disclose confidential information regardless of whether it was clinically appropriate to do so, the disclosure itself could result in the rupture of the therapist-patient relationship and potentially increase the client’s risk of suicide. 

¹¹ Ewing v. Goldstein, (2004) 120 Cal.App. 4th 807 

¹² Tarasoff v. Regents of the University of California, (1976), 17 Cal. 3d 425 

¹³ Before deciding who to inform about a student’s risk of suicide, psychotherapists should determine whether education codes may apply to them as employees of the school district. Psychotherapists who are contracted to provide mental health services in schools should also refer to their professional services agreements to determine if the agreements require the therapists to take certain steps in response to potentially dangerous patients. 

¹⁴ Cal. Penal Code, §§11164-11174.3 

¹⁵ Cal. Penal Code, §11166(a) 

¹⁶ Cal. Penal Code, §11165.9 

¹⁷ Cal. Penal Code §§11166(i)(1)-(3) 

¹⁸ Cal. Penal Code §11166(i)(1) 

¹⁹ Id. 

²⁰ Cal. Penal Code §11166(h) 

²¹ Cal. Evid. Code §§1012 and 1014 

²² 20 U.S.C. §1232g(a)(4);34 CFR §99.3 

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Key Reminders When Working in Schools 

1. Every school setting is unique. It is always critical to collaborate and maintain clear communication with school staff and administration when developing a school-based mental health program. 
2. When developing a school-based mental health program, all parties should be clear about the goals and objectives of the program and the services to be provided. 
3.  Always determine who has authority to provide consent for mental health treatment at the outset of treatment. 
4.  Develop clear and specific policies for storage of and access to mental health records. 
5. Clarify policies in your school setting related to consent for treatment of minors and recognize that settings are not obligated to permit treatment of minors pursuant to California’s minor consent laws. Although the law does not require it, some school settings may have a policy that requires the consent of one or both parents/legal guardians. 
6. When faced with complex issues such as consent for treatment, or a client who may be dangerous to self or others, etc., consultations with a trusted colleague or CAMFT legal staff is always prudent. 
7. If a minor has consented for mental health treatment, his or her authorization to release records is required in all circumstances, even if a request for records is made for purposes of developing an IEP.