RRP: Student Pregnancies Are Not Reportable To School Officials Or To Parents

Memo To: Interested Parties From: New York Civil Liberties Union Reproductive Rights Project Re: Student Pregnancies are Not Reportable Date: March 25, 2003 This memo seeks to clarify confidentiality obligations of certified social workers and other school health and mental health providers. This memo also will address the unconstitutionality of a public school policy that requires blanket parental notification by any school employee regarding a student’s pregnancy. New York, Federal and constitutional law prohibit a policy requiring the blanket reporting of all pregnant students to school officials or to the student’s parents without the student’s permission. School Health and Mental Health Providers Under New York law, pregnant minors have the right to consent on their own to all necessary health and mental health care. When a minor has the right and the capacity to consent to her own health care, providers are prohibited from disclosing information relating to that care by virtue of laws establishing provider-patient privilege and laws regulating professional conduct. Laws establishing the privileged nature of communications made in the course of receiving health care apply to services provided by registered or licensed nurses, registered psychologists and certified social workers. Thus, unless a patient waives privilege or a special circumstance triggers a law that requires disclosure, providers may not reveal information related to a patient’s health or mental health care to any third party without the patient’s consent. This rule extends to such professionals working in the schools. For example, in Matter of Charles RR, 166 A.D.2d 763, 764 (3d Dep’t 1990) the court held that communications made by a student to a school psychologist were privileged. Laws regulating professional conduct also protect the confidentiality of health information by forbidding the release of information to third parties without the patient’s consent. This rule attaches to health and mental health professionals licensed, certified or registered by the state, and are therefore applicable to school nurses, social workers and psychologists. In fact, health and mental health professionals who reveal personal information obtained in a professional capacity without the prior consent of the patient (or when not required by law) have committed professional misconduct; may be subject to fines, reprimands or revocation of a license; and may be sued by a patient for damages resulting from the confidentiality breach. Similarly, where a school counselor’s position is supported at least in part by federal drug and alcohol funding, this funding arrangement subjects such counselors to federal rules that require stringent protection of clients’ confidentiality. In fact, when a patient receives any treatment from such a staff member — even if the treatment is unrelated to substance use — information relating to the treatment must remain confidential. Other Staff Even school employees who are not obligated by professional rules mandating confidentiality of patient information may not report a student’s pregnancy to her parents without the student’s permission. A public school policy requiring its staff — whether licensed health professionals or not — to report pregnant students violates these students’ right to privacy guaranteed by the federal Constitution. The United States Supreme Court has long held that the federal constitution guarantees a right of personal privacy that includes “‘the interest in independence in making certain kinds of important decisions,’” including the decision whether to bear a child, which is “at the very heart of th[e] cluster of constitutionally protected choices.” This right to privacy in decisions affecting procreation extends to minors as well as to adults. Although the Supreme Court has held that the state interest in protecting minors may justify infringements on minors’ rights that would not be tolerated if applied to adults, the Court has set clear boundaries on the state’s power to infringe a minor’s right to privacy. Because public schools are an arm of the state, a mandatory pregnancy reporting policy violates those boundaries. The Supreme Court has long held that a minor has the right to decide, free from parental involvement, whether to continue or terminate a pregnancy. The Court has recognized that “there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible,” and that parents might act in a way that could obstruct the minor’s choice. Thus, the Supreme Court has long held that a state may not require parental involvement when a minor chooses to terminate her pregnancy unless the state affords the minor the opportunity to bypass that requirement through adequate, confidential, alternative means. A public school’s mandatory reporting policy would eliminate a minor’s opportunity to decide, free from parental involvement and possible obstruction, whether to continue the pregnancy. Such a policy would effectuate an unconstitutional regime in which, by state mandate, a minor’s parents are notified of her pregnancy with no confidential option available for her to bypass parental involvement, and would therefore violate the Constitution. The Supreme Court’s requirement of confidentiality — if it means anything — surely requires public school officials not to force parental involvement in a minor’s procreative decision making. Conclusion Not only do policies respectful of client confidentiality comport with professional and legal requirements and protect minors’ rights, they also encourage students to seek services, talk to appropriate school personnel and get the help they need. Confidentiality is one of the most important factors considered by adolescents in their decision to consult with health care professionals about reproductive health issues, such as a pregnancy. Many minors who learn that all school officials must report a pregnancy to their parents will forgo seeking help from the health care providers and school staff to whom they have the greatest access and with whom they likely have the closest relationship rather than risk parental notification. Although most adolescents do end up involving their parents in decisions about their pregnancies, it is an unfortunate truth that for some students, parental involvement in a pregnancy is not in their best interest, and a mandatory reporting rule, in addition to being unconstitutional, would compromise their welfare. Further, not permitting a pregnant student to talk to her parents on her own terms can create a sense of distrust and may discourage her from seeking future, needed services. School policies that compel school nurses, social workers, psychologists and drug and alcohol counselors to report the names of pregnant students to school officials and/or the students’ parents violate the law by forcing these providers to breach confidentiality, and make these providers vulnerable to legal liability and allegations of professional misconduct. Furthermore, public school policies requiring any staff member to so report violates students’ right to privacy and may subject the school to legal liability for the constitutional violation. Schools must take these legal considerations into account when formulating reporting policies. For all the above reasons, school policies may not compel staff to notify parents or school administrators of a student’s pregnancy without the student’s permission. We urge school administrators to contact our office to clarify their reporting policies and to ensure compliance with the law.