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Chapter 7

Ethical and Legal Issues in School-based Interventions

Jacob, Decker, & Hartshorne

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Interventions for Students Who Require Academic and Behavioral Support to Succeed in the General

Education

• School Psychology: A Blueprint for Training and Practice III - goal is to improve capacity of systems to meet needs of all students (Ysseldyke et al., 2006)

• Three-tier model of service delivery.

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Three Tiers• Tier I focuses on providing effective

instruction within general education.• Tier II, or targeted interventions, are for

students who do not succeed in response to Tier I and address specific academic or social-emotional skill deficits.

• Tier III involves more intensive interventions delivered by specialists with a small student-to-teacher ratio.

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Classroom Interventions: RTI• Pre-referral interventions were found to be effective

safeguards against unnecessary referral to special education and mis-classification.

• IDEA allows states to use up to 15% of their federal special education funds to develop early intervening services. These services are for all students who require additional support to succeed in general education.

• Response-to-intervention (RTI) is used in many districts as part of early intervening services.

• RTI generally means providing effective instruction for students within general education, monitoring student progress, providing different or more intense services for those who do not demonstrate adequate progress, again monitoring progress, and, as appropriate, referring those who still do not succeed for evaluation of special education eligibility.

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Selecting Classroom Interventions

• NASP-PPE (II.3.9), “best practices,” and education law obligate practitioners to:– Use a scientifically-based academic and

behavioral interventions.– Use a scientifically-based problem-solving

process.– Give preference to interventions described in

peer-reviewed literature and found to be effective.

– Strive for treatment fidelity but at the same time adapt interventions to the unique characteristics of the student and setting.

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Monitoring and Documenting Interventions

• Ethical obligation to use a data-based process to monitor the effectiveness of interventions (NASP-PPE II.2.2)

• Documenting response-to-intervention and modifying the intervention when it does not achieve the desired results are essential components of ethically and legally-defensible RTI practices.

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Parent Involvement, Consent, and Child Find

• If, at any point during the RTI process a student is suspected of having a disability and may need special education to be successful, then the school is required to conduct an individual evaluation in accordance with IDEA procedures and timelines (60 calendar days or the timelines established by the state).

• If parents request a special education (or 504) eligibility evaluation during the RTI process and the school decides not to evaluate the child, the school must provide the parents written notice of the refusal to evaluate and advise the parents of their legal right to challenge the refusal.

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Special Considerations Associated with the Use of Behavioral Interventions

• Goals must be selected to ensure that the pupil will develop appropriate adaptive behaviors, and not just suppress inappropriate ones.

• Consistent with the principle of respect for autonomy and self-determination, should allow pupil to participate in goal selection and change procedures as much as feasible.

• During the intervention stage, school psychologists are ethically obligated to select (or assist in the selection of) change procedures that have demonstrated effectiveness.

• Behavioral control methods may not deprive pupil of basic rights to food, water, shelter (including adequate heat and ventilation), sleep, or exercise periods. Students should not be denied educational opportunities that are a part of the child’s expected program for more than a trivial period. 

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Least Drastic Effective Procedures

Practitioners are obligated to select the least drastic procedures and those that minimize the risk of adverse side effects that are likely to be effective:

• First Choice - Strategies Based on Differential Reinforcement

• Second choice - strategies Based on Withdrawal of Reinforcement for Undesired Behaviors

• Third Choice - Strategies Based on Removal of Desired Reinforcers (e.g., Time Out)

• Last Choice - Strategies Based on Presentation of Aversive Stimuli

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Behavioral Interventions (Continued)

• If time-out is used, the student should be informed in advance of the types of behavior that will result in time-out, the pupil must be monitored while in the time-out setting and allowed to leave for appropriate reasons, the room must be safe, teachers may not lock the door, the length of time must be age-appropriate, and the student may not excluded from educational process for more than a trivial period.

• The effectiveness of the intervention should be monitored and the intervention plan should be changed if not effective.

• Practitioners should have verified training in applied behavior analysis.

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Therapeutic Interventions Within the Context of a School Psychologist-Client Relationship

• Counseling is a process of on-going, planned interactions between a student and a mental health professional (Tharinger & Stafford, 1995).

• Except for urgent situations or student self-referrals, school psychologists generally seek parent consent (or the consent of an adult student) prior to establishing an on-going school psychologist-client professional relationship (NASP-PPE I.1.1).

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Self-Referrals

“When a student who is a minor self-refers for assistance, it is ethically permissible to provide psychological assistance without parent notice or consent for one or several meetings to establish the nature and degree of the need for services and assure the child is safe and not in danger. It is ethically permissible to provide services to mature minors without parent consent where allowed by state law and school district policy(NASP-PPE I.1.2).

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Self-Referrals (Cont.)

“It is ethically permissible to provide services to mature minors without parent consent where allowed by state law and school district policy. However, if the student is not old enough to receive school psychological assistance independent of parent consent, the school psychologist obtains parent consent to provide continuing assistance to the student beyond the preliminary meetings or refers the student to alternative sources of assistance that do not require parent notice or consent” (NASP-PPE I.1.2).

Laws in 20 states and the District of Columbia give minors the explicit authority to consent to outpatient mental health services and control of their own mental health records (Boonstra & Nash, 2000).

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Challenging Situations

• Suspected Child Abuse • Threats to Self • Threats to Others• Risky Behaviors• Substance Abuse• Students Who Disclose Criminal Acts• Pregnancy, Birth Control, and

Sexually-Transmitted Disease

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Duty to Protect in School-Based Practice

• School psychologists employed by the public schools are state actors.

• Special obligations as state actors and school employees:

Legal duty to take steps to protect pupils from reasonably foreseeable risk of harm; obligation extends to all students; not just student-clients.

Must not violate student or parent constitutional or other rights under federal statutory law.

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Suspected Child Abuse• School psychologists are mandated

reporters in all states. • It is the duty of the child protection agency

(CPS), not school personnel, to confirm or disconfirm the suspected abuse or neglect.

• Procedures for reporting suspected abuse should be outlined in the school’s safe school plan. School professionals with special expertise in child abuse and neglect should be identified in the safe school plan. These professionals can assist teachers and others in making decisions whether abuse is suspected and establish and maintain a good working relationship with CPS.

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Student Threats to Self: Case Law

• School districts should have student suicide prevention policies and procedures, and ensure staff orientation to district policy. Staff should follow procedures outlined in safe school plan.

• Student should be seen for assessment of lethality of suicidal ideation by trained staff.

• A “do no harm” contract does not substitute for careful risk assessment and appropriate intervention based on risk.

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Assessing Lethality of Suicidal Ideation

• Professionals involved in assessment of suicide risk should have verifiable training and consult with others as appropriate.

• Experts recommend that risk assessment include both structured and unstructured methods.

• Interview methods of assessing lethality generally involve seeking answers to a series of critical questions such as:

Is there a preoccupation with death?Does the student have a suicide plan?Has the student made previous suicide

attempts?Is there a history of past suicide in the family?Is the student involved with drugs?Has there been a precipitating event?Why does the student want to die? (see

Poland, 1989).

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Threats to Self (Continued)

• Parents must be contacted in all cases, whether the risk is determined to be low or high.

• The high-risk student should not be left alone and his or her parents should be required to come to school for a conference and to pick up their child (Poland, 1989).

• The school psychologist needs to ensure that parents understand the seriousness of the situation, and parents should be advised to increase supervision at home and remove access to weapons.

• The practitioner should be prepared to refer the family to a community mental health professional who has expertise in working with suicidal youth.

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Threat to Others

• Schools should have a plan to respond to students who may be a threat to others.

• It is legally permissible for a school authority to detain and question a student thought to be planning an act of violence at school.

• Threat Assessment : Must distinguish between makes a threat and poses a threat. Reddy et al.(2001) have model for evaluating whether a student is on a path toward targeted violence.

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Threat Assessment EvaluationKey questions that guide the threat assessment evaluation:• What motivated the student to make statements or take

action, that caused him/her to be a concern to the school?• Does the student have ideas about or plans for targeted

violence?• Has the student shown an interest in violence, acts of

violence by others, or weapons?• Has the student engaged in any attack-related behavior,

including menacing, harassing, or stalking?• Does the student have a history of substance abuse or

psychotic symptoms?• Is the student cognitively and physically capable of

carrying out a plan of violence?• Has the student experienced a recent loss or loss of

status, and has this led to feelings of desperation and despair? Is there concern among those who know the student that he/she might take action based on inappropriate ideas?

• What factors in the students life and/or environment might increase or decrease the likelihood of the student becoming violent? (adapted from Borum et al., 1999).

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Threat Assessment (Continued)

• In making a decision whether a student poses a threat to others, the school psychologist should consult with other professionals as needed.

• Consistent with the guidelines for other situations involving danger, schools need to develop written procedures regarding when and how to notify school officials and legal authorities (e.g., police, the student's probation officer) if school staff become aware of a potentially assaultive student. These procedures should ensure that:

The intended victim is warned.If threats are made against a minor child, the parents of

the threatened child must be notified. Parents of a potentially assaultive student must be

informed of the situation.The potentially violent student should be supervised in the school setting and at home, and steps should be taken to

ensure there is no access to weapons.Mental health practitioners should be prepared to refer the family to a community mental health agency.

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Student Disclosure of Past Crimes

• “School psychologists recognize that client-school psychologist communications are privileged in most jurisdictions, and do not disclose information that would put the child or family at legal, social, or other risk if shared with third parties, except as permitted by the mental health provider-client privilege laws in their state” (NASP-PPE I.2.2).

• Must know the priviliged communication laws in the state where you practice.

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Example: McDuff v. Tamborlane (1999)

In order to assist the school psychologist in providing appropriate counseling (treatment) for her daughter, the girl’s mother informed the school psychologist that her daughter had been involved in a larceny. The mother assumed that this disclosure was confidential.

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McDuff v. Tamborlane (1999)

The school psychologist subsequently shared the information about the student’s crime with the vice-principal, who notified the police, and the student was arrested. The student’s family filed a malpractice suit against the school psychologist alleging she had violated the confidential nature of the communication by the mother to the psychologist, and the state’s privileged communication statutes.

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McDuff v. Tamborlane (1999)

In the opinion of a Superior Court of Connecticut, the communication of the student-client’s past criminal activity is privileged whether the information is disclosed by the client or a member of his or her family. The judge also noted that there was no imminent risk of injury to the student, others, or property that would justify the breach of confidentially.

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Storage of Privileged School Psychologist-Client Communications

Place in private notes (sole possession records) not accessible to anyone; return written report to sender or parent, and/or seek parent permission to include specific information in student

education record where it is no longer privileged.

Would sharing this confidential disclosure create risk for the client(s) if disclosed to others? Consider Legal,

Educational and Social Risks. Yes, handle as privileged communication; do not share

with anyone without parent permission (unless an exception to privilege under state law)

With parent permission, share information on a need-to-know basis, for the benefit of the student. Once

shared with third parties, the information is no longer privileged.

Privileged Information Received in Context of Practitioner-Client Relationship

Written Report Released to School by Parents Oral Communication by Parent or Student

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Privilege and Setting the Boundaries of Confidentiality

In contrast to the McDuff lawsuit, in People v. Vincent Moreno (2005), a school psychologist forewarned an older student who was not her client that she could not keep quiet if he told her “something really serious.” Vincent went on to confess to a murder. The court ruled that the confession was not a privileged communication because Vincent had been forwarded of the limits of confidentiality and he was not in an established school psychologist-client relationship at the time of the confession.

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Student Disclosure of Past Crimes

• If the psychologist believes the past crimes of a minor student should be reported to legal authorities, discuss the issue with the student and parents. Encourage parents to obtain legal representation for their child before legal authorities are contacted.

• If the parents cannot be persuaded to report the crime themselves, and the school psychologist believes the criminal behavior was so serious that it must be reported, the parents should be forewarned of the practitioner’s intent to report the crime, and the school psychologist should consult the school’s attorney.

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Pregnancy, Birth Control, and Sexually-Transmitted Disease

The Alan Guttmacher Institute maintains up-to-date state-by-state information regarding the legal right of minors to have access to birth control without parent notice or consent, pregnancy management health care, and testing and treatment of STD’s: http://www.guttmacher.org.

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Pregnancy, Birth Control, and Sexually-Transmitted Disease

In Arnold v. Board of Education of Escambia (1990), a federal district court determined that there is no federal statute or rule that requires parental notification by school officials of a pregnancy if the minor is of age to consent to reproductive health care under state law. Also, there is no federal statute or rule that requires a school to inform parents of the abortion plans of a student who is a minor if she is old enough to consent to an abortion under state law.

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Pregnancy, Birth Control, and Sexually-Transmitted Disease

• However, school psychologists must be familiar with state law and district policy regarding parental notification when an unemancipated minor is pregnant.

• Except for situations in which disclosure to the parent might mean more harm to the student than nondisclosure, a student should be encouraged to disclose a pregnancy to the parent.

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Unsafe Sexual Behaviors

All states allow minors to consent to confidential testing and treatment of STDs. Eighteen states allow a physician to inform a minor’s parents that their child is seeking or receiving STD services if the physician believes it is in the best interests of the minor, and one state requires parent notification of a positive HIV test (http://www.guttmacher.org).

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Psychopharmacological Interventions• Connecticut was the first state to enact legislation

prohibiting school personnel from suggesting psychiatric medication of a child to any parent. The purpose of the law is to ensure “the first mention of drugs comes from a physician” (Hoff et al., 2002, p. 1134). In order to receive NCLB funds, states must now enact similar legislation.

• Decisions to prescribe drugs must be made by a physician (a point that should be clearly communicated to parents), and parents must be free to choose or refuse the use of such medication without pressure from the school.

• Through cooperative efforts with the physician, the school must ensure there is careful monitoring of the child. School psychologists can assist in the documentation of the effectiveness or noneffectiveness of drug treatments and thereby provide important feedback to the physician and parents