Amended Law Addresses Confidentiality of Communications with School Social Workers, Counselors, and Psychologists

By Jackie Wernz

Public Act 096-0628, which became effective on January 1, 2010, amended the Illinois School Student Records Act (ISSRA), 105 ILCS 10/1 et seq., to specifically address the confidentiality of communications with school social workers, school counselors, school psychologists and eligible interns. Before the amendments, ISSRA provided that nothing contained in the law should be construed to impair or limit the confidentiality of communications “otherwise protected by law as privileged or confidential.” 105 ILCS 10/5(f). The relevant provision of ISSRA provided a non-exclusive list of communications that might be protected—specifically, “information communicated in confidence to a physician, psychologist or other psychotherapist.”

Public Act 096-0628 amended ISSRA to add “school social worker[s], school counselor[s], school psychologist[s], or school social worker, school counselor, or school psychologist intern[s] who work[ ] under the direct supervision of a school social worker, school counselor, or school psychologist” to the non-exclusive list of professionals that might engage in protected communications. Public Act 096-0628 also provided for the first time that an employee who acts to protect communications as privileged or confidential pursuant to state or federal law, rule or regulation may not be subjected to adverse employment action, the threat of adverse employment action or any other manner of discrimination in retaliation. 105 ICLS 10/5(g).

Notably, the amended ISSRA provision does not itself provide any actual privilege or confidentiality protection to communications with school social workers, school counselors, school psychologists and eligible interns. Such protection must be found elsewhere in state or federal law, rules or regulations. Although a number of laws may provide such protection for student communications with social workers, school counselors, school psychologists and eligible interns—such as the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), 740 ILCS 110/1 et seq., and the Clinical Social Work and Social Work Practice Act, 225 ILCS 20/1 et seq.—such laws do not protect every communication a student may have with a school social worker, school counselor, school psychologist or eligible intern. The applicability of the newly amended ISSRA provision will therefore depend on the facts of each case, and a school district must make the decision of whether to request and/or compel disclosure of such communications on a case-by-case basis.