Ethical Issues in Record Keeping for

School Social Workers

Kendra J. Garrett Ph.D.March 7, 2012

MSSWA & MDE Spring ConferenceRoseville, MN

The Plan…….Records in School Social Work Practice

Practice Issues

Framework for Ethical Decision Making

Exploring Options

Ethical standards, values, and principles

Legal Issues

Some Case Examples

Some Recommendations

School Social Work Record Keeping

Ethical Dilemmas around principles ofConfidentialityPrivacyStudent rightsParent rightsSafety

Record Keeping Should Be

Purpose of Records in Practice

Improve quality of practice

Think through practice issues

Link assessment information to practice decisions

Identify missing information

Keep goals current

Discuss with supervisor

Maintain information (Kagle and Koepels, 2008)

Practice DecisionsWhat needs to be included in records?

What should I keep out of records?

What form should my records be in?

Who should see/know what is in records?

How much time do I have to record?

How confidential are my records?

How much should I tell student, teachers, parents about the kinds of record keeping I do?

Good practice records are….

Accurate

Unbiased

Concise

Clear

Jargon free

Organized

Current

Legible

To keep track of practice include…

Documentation of contacts with students and parents

Assessment information

Rationale for service

Goals

Intervention plans

Outcomes

And…Termination information

Critical incidents

Progress notes

Release of information forms

Contacts with third parties (including teachers and outside agencies)

But they should not include…

Unsubstantiated hypotheses

Intuition

Hunches

Judgments

Inaccurate information

Intimate details

Clients’ personal views (unless relevant)

Gossip (Kagel & Koepels, 2008)

Also….

Include reasoning used in decision making

Keep records neutral (showing both sides) (Strom-Gottfried, 2008)

Natural TensionNeed to be brief

Need to be thorough

Questions for DiscussionSometimes I want to keep a private record for

myself that is not a part of the formal record.

Should I keep a personal record for my own use?

Questions for DiscussionWhat kind of discussion is warranted with

students regarding social work records?

With parents?

With teachers?

With principals?

Social Work Practice with Minors

Viewed as in need of protection

Parents/guardians viewed as being better able to make decisions than the minor children.

Evolving capabilities UnderstandingDecision making abilityReasoning (Strom-Gottfried)

Developmental CapacitiesYounger children rarely assume confidentiality

(Rossi & Berman Rossi, 1990)

Child’s capacity for decision making evolves gradually.Brain developmentAbility to think abstractlyAbility to give consent (Strom-Gottfried, 2008)

Minor ClientsMay wish to keep information private

May request confidentiality from worker

May request that information not be placed in a record

Parents/GuardiansMay wish to keep information from their children

May wish for information to be kept out of record

Clinical ConsiderationsMaintain Therapeutic Relationship (Strom-

Gottfried, 2008)Maximize self-determination

Involve clients in decision making (Raines, 2004)

Informed consent

Confidentiality (Strom-Gottfried, 2008)

Record Keeping Should Be

EthicsThat branch of philosophy dealing with values

relating to human conduct,

with respect to the rightness and wrongness of certain actions

and to the goodness and badness of the motives and ends of such actions

Ethical DilemmaA choice between two (or more) goods/rights

choices.

A corollary is that both choices often carry negative consequences.

Note: It is not a choice between doing the right thing and doing what you would rather do that is easier but not right!

To have an ethical dilemma, you really need two right choices.

Ethical Record Keeping Doing the morally correct thing regarding record keeping

Including the appropriate information

Excluding inappropriate information

Maintaining appropriate confidentiality

Using the records appropriately

Process of Ethical Decision Making

A—Access options

B—Be mindful of the process

C—Consult

D—Document

E—Evaluate

Per Strom-Gottfried, 2008

Access OptionsEthical theories and principles

Laws and policies

Values

Information available

Standards (e.g., Code of Ethics)

Case exampleJenny is a 15 year old student at High

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

Access OptionsEthical Theories and PrinciplesWhat Ethical Theories and Principles Apply?

Philosophical perspectivesEthical Principles in Social Work

Theories of Ethical Reasoning

Deontological Thinkers—Believe some things are always right or always wrong. One should make decisions according to the rules or

standards.

Utilitarian Thinkers—Believe one should consider the outcomes or consequences as the most important element in making decisions. Short-term consequences Long-term consequences Unknown results that might happen

So For Jenny’s Case NotesAre there any rules that might apply in this

situation to give us guidance?

Like those that would always apply?

Or should we look at outcomes or consequences?

Ethical Principle Ranking(Dolgoff, Harrington& Lowenberg)

Protection of life

Equal treatment (access, opportunities, resources)

Autonomy/freedom

Least harm

Quality of life

Privacy and confidentiality

Truthfulness and full disclosure

So For JennyDo any principles apply to guide what we should

put in the record?

Practice concerns?

Ethical concerns?

Ethical Principle Ranking

Confidentiality Principles with children

Rules for Confidentiality with Children

Everyone is safe

Everything is confidential

If I have to choose, safe wins.

(Raines, 2004)

Assess OptionsEthical Standards and Principles

Laws and Policies

Values

Information

Standards

(Strom-Gottfried, 2008)

Access OptionsLaws and Policies

Federal Laws

State Laws

Board of Social Work Standards of Practice and Ethical Conduct

FERPA School Records(1) Directly related to a student and

(2) Maintained by an educational agency of institution or party acting for the agency or institution” Federal Education Rights and Privacy Act(§99.3)

FERPACannot release records to third parties without

parent permission

Can release records to a school where a student is transferring (without parent consent)

Schools must develop policies about what information can be shared with other schools routinely

FERPAParents and guardians have a right to view

educational records.

Including school social work recordsEven when those records are kept in the social

worker’s office

When students become 18, that right transfers to the student.

Sole Possession RecordsTeachers may keep private records as a

memory aid.

These records must remain private (shown only to a substitute teacher).

Should these records be disclosed to anyone other than a substitute teacher, they become part of the educational record.

School Social Work Records

Records maintained by school social worker are education records

Even if they are privately maintained

They do not qualify as “sole possession records.”

(National Forum on Educational Statistics, 2004)

Health Insurance Portability and Accountability Act

Applies to any agency that is billing insurance (or Medicaid or Medicare) electronically

HIPAA recognizes that psychotherapy notes as different from personal health information and may be kept separate from other health information

The HIPAA Privacy Rule specifically excludes from its coverage those records that are protected by FERPA

HIPAASo under HIPAA, school social work records are

still education records and still subject to FERPA

HIPAA creates no wiggle room about not disclosing records to parents

(Overcamp-Martini,2006)

IDEASpecial Education File contains assessment

information (including social work assessment)

Contains IEPs (may include social work goals and objectives and ways of measuring progress)

Districts must contact parents when information in SPED files is no longer needed. Parents my request that the information be destroyed.

When records contain information on more than 1 child, parents only have access to information on their own child only.

MN Minor Consent LawMinors (under 18) can give their own consent

for treatment toPrevent or diagnose pregnancyDiagnose or treat problems with drugs or alcoholPrevent sexually transmitted diseases

Minors 16 and over may admit themselves to a hospital for treatment of mental illness §144.341-347

Laws on Privileged Communication

Licensed social worker cannot disclose any information acquired in a professional capacity without consent of the client.

Except regarding the abuse or neglect of a child

Except when the client waives permission by filing charges against the professional

MN Social Work Records Must Contain

Assessment information

Service plans

Progress notes

Fees

Information release authorizations

Any other relevant information. (§148D.225 Subd.4)

Social Work Records Must Be Kept

A minimum of 7 years after termination with the client (§148D.225 Subd.4)

MDE Ruling on School Social Work Records

Records created or held by school social workers are considered educational records under Minnesota law.

Records cannot be released without parental consent.

Records are accessible by parents upon request.

MDE on Records (2009) Records may be accessible without parental

consent by school officials, including teachers, contractors, and volunteers, who have a legitimate educational interest in accessing the records. Schools must use reasonable methods to ensure that school officials obtain access to only those education records in which they have a legitimate educational interest, and that physical, technological, or administrative controls are in place to restrict access to records

More MDE Ruling on SSW Records

Social work records may be stored in a location separate from the central educational record, such as the social work office, in order to increase privacy protections and facilitate the use of the records by the school social worker.

If the social work records are stored separate from the student’s central educational record, the central educational record should contain a notation that the records are stored elsewhere, including a basic description of the type and nature of the data and the location of the data. 

More from MDEThe Minnesota Board of Social Work outlines the

minimum records that social workers must maintain

School social workers should follow the school’s record retention schedule, which must be in compliance with Minn. Stat. § 13.32, for guidance as to how to maintain their social work records.

So Does This Help with Jenny?

Jenny is under 18

Her parents have a right to see a school record

The SSW record is a part of the school record

Jenny has requested confidentiality

A referral to a clinic might be important information for the future

Students have a right to privacy with regard to sexually transmitted diseases

Assess OptionsValues

Social Work ValuesAcceptance IndividualizationNon-judgmental attitudeObjectivitySelf-DeterminationAccess to ResourcesConfidentialityAccountabilityCultural Sensitivity

Miley et al. (2011)

Consider Personal Values Identify personal biases

E.g., beliefs about whether sexually active teens should have access to medical care.

Identify personal values Personal Codes of Conducts Religious or moral principles

Identify conflicts between personal and professional values

Improper to serve personal values at the expense of those of the profession or client (Strom-Gottfried, 2008)

So for JennyWhat personal values do you bring to the

decision about what to put in a record regarding Jenny’s situation?

What social work values might fit in here?

Assess OptionsInformation

What do we know about the situation?

What do clients want?

Who are the clients?

Are there competing wants and interests among clients?

What are the decision-making abilities of the clients (especially if one is a minor)

Jenny….Wants confidentiality

Are there other clients in this system?

What is our responsibility to parents of minor children?

How mature is Jenny to make decisions on her own behalf?

What do we know about how parents might react to learning about Jenny’s concern about STDs?

Assess OptionsStandards

NASW Code of Ethics (2008)

NASW Standards for School Social Workers (2002)

School Social Workers’ Association of America Position Paper on Confidentiality (2001)

Does the NASW Code apply to me?

The NASW Code of Ethics is considered standard of practice

Even non-NASW members should follow NASW Code of Ethics

What does the NASW Code say about record keeping?

“ Include sufficient . . . documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future” (NASW, 2008, p. 20)

Clients should have reasonable access to records Exception: When access to records would cause harm

Requests to view and rationale for withholding access to parts of records should be documented (in the records).

When giving clients access to records, protect

the confidentiality of any other party discusses in the records.

Inform clients about the limits of confidentiality.

Avoid derogatory language.

Code: Records should…Be accurate

Be timely

Contain sufficient information to ensure continuity for future services

Include only relevant information

Protect privacy

Be kept for a reasonable length of time after services cease

Maintain privacy when transferred or destroyed

What does the NASW Code say about school social work?

NASW Standards for School Social Workers (2002)

In schools only disclose to others information that is relevant to education (NASW, 2002).

(Could we infer that if it isn’t relevant to education, do not put it in the record?)

What does the NASW Code say about minor clients?

When client lacks capacity to provide informed consent,

Seek permission from a qualified third party

Inform client according to level of understanding

Safeguard the interest of clients who lack decision-making capacity

SSWAA Position on Confidentiality

Information should be shared with other school personnel only on a need-to-know basis, and only for compelling professional reasons (SSWAA, 2001).Corollary: Only place information in reports that is

needed by anyone who has access to that report.

Avoid sending written material by fax unless in emergency

Position Paper (SSWAA, 2001)

Sole possession recordsSocial workers’ personal notes kept for use by only

the social worker are not considered education records

Records kept on a computer become education records only if shared orally with another staff person.

Sole possession records kept on a computer are not considered part of the education record and are confidential (SSWAA, 2001).

Note: this contradicts MDE interpretation of FERPA

So how do these standards help with Jenny

Does recording this situation protect Jenny’s privacy?

Is STD information relevant to Jenny’s education?

Is documentation of this part of our work with Jenny needed to “facilitate the delivery of services and to ensure continuity of services provided to clients in the future?”

Could you keep a “sole-possession record” with this information?

Review Access OptionsEthical theories and principles

Laws and policies

Values

Information available

Standards

Strom-Gottfried, 2008

Case exampleAs you do the social developmental portion of the

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

Case exampleIn conducting an assessment of Katrina, a fourth

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

In Making Ethical Decisions

A—Assess options

B—Be mindful of the process

C—Consult

D—Document

E—Evaluate

Strom-Gottfried, 2008

B—Be Mindful of the Process

Manage the clinical concerns

When you make a decision that the client may dislike, consider what the consequences will be and develop a plan for continuing to work with the client.May need to explain reasoning, thinking, laws.May need to share your feelings of concern Involve clients in decision making as appropriate

(Raines, 2004)

Other Processes to Consider

Accountability/transparency

Critical reflection

Cultural Sensitivity

Consultation

(McAuliff, & Chenoweth, 2008)

Back to JennySay you feel you need to document the referral

for STD eval. ………

Would there be an ethical obligation to inform Jenny?

And to explain why?

Should the SSW disclose this decision to Jenny?

C—Consult Use supervision, consultation

Get others’ opinions

May wish to get legal advice

D—Document Document your thinking

Document your consultation

Document your process (Reamer, 2005)

If the dilemma is about what to put in a record, document in a separate place (Strom-Gottfried, 2008).

E—Evaluate To what degree did my personal values reflect

my opinion?

Were there courses of action I failed to consider?

Did I consult adequately?

Did I adequately manage the clinical concerns?

Did I make the right decision?

What can I do to prevent such situations/problems in the future? (Mattison, 2000).

Conflicts will ariseAmong the standards, principles, and values

And between laws and standards

Between differing client systems (parents’ rights versus students’ rights)

Ethical School Social Workers…

Have considerable discretion about what to put in written records.

Each incident of recording requires judgment about what to include (and exclude).

Case exampleYou see 6 year old Alberto weekly in a group for

students who have anxiety.

Mrs. Jones comes to meet with you to tell you that she and her husband have separated, and she thinks the separation may affect Alberto. She tells you that her husband has been abusive to Alberto, and she thinks Alberto will actually welcome the divorce.

What do you record of this meeting?

And then…The next day, Mr. Jones telephones to inform you

that he is seeking custody of Alberto, as his mother has been neglectful. She often leaves him home alone while she goes out drinking with her many boyfriends.

What do you record?

Case exampleSam is a 12 year old seventh grader at

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

Challenges Left OverWhat kind of memo is placed in student cum

files regarding separate special education files?

What kind of memo should be on file if there are school social work records stored in the office of the school social worker?

Questions for DiscussionHow can school social workers meet the MN

Board of Social Work Requirements to maintain records for 7 years if they leave their school district job?

Who is responsible for monitoring these records?

Who should be responsible for them?

What policies are needed?

Case ExampleYou have worked with Tommy for 3 years, and he

has just moved to a new school. You get a call from the school social worker at Tommy’s school who says that Tommy is having major problems. She wants you to send your case records to her quickly so they can know how to proceed. What do you do?

Case ExampleYou see 6 boys in an anger management group

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

Things to consider In deciding what to put in a record

Who might have access to this record?What if a parent wanted to see the record?What if the record were subpoenaed?

Is the information sensitive?

Is the information relevant to the student’s education?

Things to considerDo I need to document my reasoning/decision

making about my practice?

Do I need to document evidence of a student’s behavior?

Do I need to document my actions/work with the student, parents, third parties?

More things…Have I included enough information?

Can I omit sensitive details?

Have I followed standards of practice?

Have I included what the law says needs to be there?

Should I have a separate sole possession record?

The Ethics of Record Keeping

Involves considerable personal deliberation.

Lacks consensus about what is “right.”

Aligns practice principles, legal principles, and doing the “right” thing.

RecommendationsKnow that your notes are part of the educational

record (at least per FERPA and MDE).

If you have records in your office, put a note in the cum file (much like special education) to indicate that there are records in your office.

Be aware that parents may see records if they request (unless the student is 18)

RecommendationsWork with districts to create confidentiality

policies for records

What gets sent to new schools?

Where are records stored?

How long are records stored?

Who is responsible for destroying old records?

RecommendationsSummarize lengthy records periodically (like at

year end).

Create forms for routine informationCover informationDates of contactContacts with parentsConsultation with teachersContacts with third partiesProgress notes

RecommendationsCreate checklists of Board of Social Work

Mandates

AssessmentService PlansProgress NotesRelease of Information Information on paymentAny other relevant information

For Sticky SituationsRecord your thinking about why you made a

decision.

Record your consultation regarding the issues.

Record your supervision.

Still Sticky… If you made a mistake, fix it, but don’t expunge the

record (date it an put in a revision).

Do not change or destroy records.

Do not remove records from your building.

If your records are subpoenaed, so are your personal or sole possession records.

And Finally…..

Good Luck!

References Berman-Rossi, T., & Rossi, P. (1990). Confidentiality and informed consent in

school social work. Social Work in Education, 12, 195-207.

Dolgoff, R., Harrington, D. , & Lowenberg, F.M. (2012). Ethical decisions for social work practice. Belmont CA: Brooks/Cole.

Families Education Rights and Privacy Act of 1974, P.L. 93-380, 34 CFR § 99.

Health Insurance Portability and Privacy Act of 1996, P.L. 104-191; 45 CFR §. 160 & 164.

Kagle, J.D., & Kopels, S. (2008). Social work records (3rd Ed.) Long Grove, IL: Waveland Press.

McAuliff, D., & Chenoweth, L. (2008). Leave no stone unturned: The inclusive model of ethical decision making. Ethics and Social Welfare, 2(1), 38-49.

McBeath, G., & Webb, S.A. (2002) Virtue ethics and social work: Being lucky, realistic, and not doing ones duty. British Association fo Social Workers, 32, 1015-1036.

References (cont.)Mattison, M. (2000). Ethical decision making: The

person in the process. Social Work, 45(3), 201-212.

Miley, K.K., O’Melia, M.O., & DuBoise, B. (2011). Generalist social work practice. (Updated 6th Ed.). Boston: Allyn & Bacon.

National Association of Social Workers. (2008) Code of ethics. Washington D.C.: NASW Press.

National Association of Social Workers. (2002) NASW Standards for School Social Work Services. Washington D.C.: NASW Press.

References (cont.) National Forum on Educational Statistics (2004). National Forum Guide to

Protecting the Privacy of student Information: State and Local Education Agencies. Washington DC: U.S. Departement of Education. Retrieved Nov. 11, 2008 from http://nces.ed.gov/pubs2004/privacy/index.asp.

Overcamp-Martini, M.A. (2006). HIPAA ad the electronic transfer of student information. In C. Franklin, B.B. Harris, & P. Allen-Meares (Eds.) The school services sourcebook: A guide for school-based professionals (pp. 905-912). New York: Oxford University Press.

Raines, J.C. (2004). To tell or not to tell: Ethical issues regarding confidentiality. School Social Work Journal, 28(2), 61-78.

Reamer, F.G. (2005). Documentation in social work; Evolving ethical and risk-management standards. Social Work, 50(4), 325-334.

School Social Work Association of America (2001). Position paper: School social workers and confidentiality. Northlake IL: SSWAA

Strom-Gottfried, K. (2008). The ethics of practice with minors. Chicago: Lyceum Press.