Ethics and Law for School Psychologists. Susan Jacob
Transcript review requires submission of transcripts and other supporting materials to a state credentialing agency. The agency then determines whether the applicant successfully has completed the prescribed set of courses and field experiences outlined in the SDE’s credentialing standards. The program approval process means that applicants who have the recommendation from an approved state training program will be credentialed by the SDE. The procedure used for SDE credentialing may be different for applicants from in-state training programs and those from out-of-state programs. (See Rossen, 2014).
Because credentialing is controlled at the state level, students and practitioners need to contact the state in which they wish to practice for up-to-date information about SDE requirements for credentialing. The NASP maintains a National School Psychology Certification and Licensure Online Resource List that provides a summary of the requirements for licensure and certification in various states (see https://www.nasponline.org/standards-and-certification/state-school-psychology-credentialing-requirements).
Credentialing for Private Practice
Licensure acts typically regulate the private practice of psychology. Licenses for the private practice of psychology usually are issued by a state psychology board or a board that regulates mental health providers (Rossen, 2014). Some states, but not many, license school psychologists for unsupervised private practice at the subdoctoral level; some states license school psychologists for private practice at the subdoctoral level but only if they are supervised by a fully licensed doctoral psychologist. See Rossen (2014) and DeMers and Schaffer (2012) for additional discussion. Information on licensing boards is available at https://www.nasponline.org/standards-and-certification/state-school-psychology-credentialing-requirements and http://www.asppb.org.
Nonpractice Credentials
In addition to state credentials to practice, nonpractice credentials recognize the quality of professional preparation. The National School Psychology Certification System allows school psychologists who complete training consistent with NASP standards, who achieve a passing score on the National School Psychology Examination, and who meet continuing education requirements to be identified as a Nationally Certified School Psychologist (NCSP). More than 16,000 individuals hold the NCSP credential (NASP, n.d.-b). It is important to recognize that the NCSP title alone does not authorize a school psychologist to render services; practitioners must hold a valid certificate or license in the state where they wish to practice. However, 33 states “acknowledge, recognize, or accept the NCSP credential as either meeting or partially meeting requirements for the state school psychologist credential” (NASP, n.d.-b, p. 1). For more information, visit the NASP’s Web site at http://www.nasponline.org.
LAWSUITS AGAINST SCHOOLS AND SCHOOL PSYCHOLOGISTS
In the last portion of this chapter, we discuss lawsuits against schools and school psychologists.
Lawsuits against Schools under State Laws
Civil liability, simply stated, “means that one can be sued for acting wrongly toward another or for failing to act when there was a recognized duty to do so” (Hopkins & Anderson, 1985, p. 21). Civil liability rests within the basic framework of the law of tort. A tort is a civil (not criminal) wrong that does not involve a contract. It is a complex area of law. In general, the court considers four questions in tort cases: (1) Did injury occur? Injury means a wrong or damage done to the student’s person, rights, reputation, or property. (2) Did the school owe a duty in law to the student? (3) Was there a breach of duty? That is, did the school fail to do what it should have done? A tort can arise when either an improper act or a failure to act causes injury to the student. (4) Is there a proximate cause relationship between the injury and the breach of duty? (Evans, 1997).
The most common tort committed by school personnel is negligence (Evans, 1997). Negligence suits often are precipitated by a physical injury to a student (e.g., injury resulting from student-on-student violence). When a student suffers harm and their parents seek vindication in court, the parents are most likely to file a negligence lawsuit in state court (Schill, 1993). Such lawsuits generally allege that the school had a duty (under state common or statutory law) to protect students from foreseeable harm, had knowledge of a specific danger, negligently failed to take reasonable precautions to protect the student, and thus caused the injury by allowing the incident to occur (Schill, 1993; Wood & Chestnutt, 1995).
As noted previously, public schools are an arm of state government. Historically, under common law, a school district could not be held liable for torts committed by the district, officials, or other employees (Russo, 2018). In some states, the immunity of school districts was based on the old English doctrine of sovereign immunity: “The king (state) can do no wrong; you can’t sue the king.” In other states, immunity of school districts was based on the fact that state law provides no funds for the payment of damages; funds for education could not be diverted to pay legal claims (Russo, 2018).
Currently, the doctrine of immunity of school districts has been modified by legislation or case law in most states. However, the exceptions to the doctrine of immunity vary from state to state, making it extremely difficult to make generalizations about the kinds of tort actions that will be successful against school districts in various states. Immunity usually exists to the extent that the school’s or school board’s liability insurance does not cover the particular injury suffered (Schill, 1993, p. 1). This means that, in many states, state legislation or case law permits lawsuits against school districts but allows recovery only up to the limits of the school’s liability insurance (see Russo, 2018).
School-based practitioners must remember that they are state actors and district employees. As a result of a long history of negligence lawsuits against schools, school-based practitioners, like other school employees, have a legal duty to take steps to protect students from reasonably foreseeable risk of harm. This obligation extends to all students, not just student clients. Furthermore, school employment contracts often contain a provision whereby any act or failure to act that jeopardizes student health, safety, or welfare can result in the suspension or termination of employment. However, schools are not guarantors of student safety. Schools are not likely to be held liable when spontaneous, unforeseeable acts by students result in injury (Wood & Chestnutt, 1995; see, e.g., Kok v. Tacoma School District No. 10, 2013).
Whether a state will allow recovery of damages in lawsuits against school districts is a complicated matter. Whether individual school employees can be sued is also a complicated matter, determined by state legislation and case law. State courts typically have held teachers and other individual school employees immune from liability during performance of duties within the scope of their employment. They may, however, be disciplined by their district for inappropriate actions. School employees are not immune from liability for intentional torts or criminal acts.
School-based practitioners have a duty to protect students from reasonably foreseeable risk of harm; psychologists in nonschool settings also may have a professional obligation under the laws of the state where they practice to take steps to protect their clients from self-harm and to forewarn individuals whom their client has threatened to harm. However, where they exist, state laws governing mental health practitioners often use language that requires the psychologist to take preventive actions only in situations suggesting “clear and imminent” danger to the client or a targeted victim. Thus, a difference may exist between school-based practitioners and those in nonschool settings with regard to the threshold for breaking confidentiality of the psychologist–client relationship to protect a student or others from harm (i.e., reasonably foreseeable risk of harm versus imminent danger) (also see Chapter 3).