Psychology in the Schools, Vol.

46(4), 2009 
C 2009 Wiley Periodicals, Inc.
Published online in Wiley InterScience (www.interscience.wiley.com) DOI: 10.1002/pits.20377

PRIVILEGED COMMUNICATION IN THE SCHOOL PSYCHOLOGIST–CLIENT

RELATIONSHIP
SUSAN JACOB AND KATIE E. POWERS
Central Michigan University

In the years since the 1996 Supreme Court Jaffee v. Redmond decision, many states broadened the
scope of their laws governing privilege to include non-doctoral school psychologists. This article
addresses the meaning of the term privileged communication and identifies common exceptions
to privilege. Findings from a computerized search of the status of privileged communication
between school psychologists and their clients in all states are reported. Implications of privilege
communication laws for the delivery of school psychological services are discussed.  C 2009 Wiley

Periodicals, Inc.

In the years since the 1996 Supreme Court Jaffee v. Redmond decision, many states broadened
the scope of their laws governing privilege to include non-doctoral school psychologists and their
clients. Because the majority of school psychology practitioners (about 70%) are trained at the
master’s or specialist degree level (Curtis, Lopez, Batsche, & Smith, 2006), the changing laws
governing privilege have the potential to affect many school-based practitioners. Although school
psychologists typically know and understand their ethical obligation to safeguard the confidentiality
rights of student-clients and parents, they may not be knowledgeable of their legal duty to protect
client confidences under the expanded scope of current privilege laws. For this reason, this article
addresses the meaning of the term privileged communication and identifies common exceptions to
privilege. An analysis of trends in state privilege laws is presented, and the implications of privilege
communication laws for the delivery of school psychological services are addressed.
Psychologists have long recognized that a promise of confidentiality to the client, along with an
explanation of its limits, is essential to establishing psychologist–client trust and an effective helping
relationship (Dekraai, Sales, & Hall, 1998; Siegel, 1979). Confidentiality is a matter of professional
ethics. The codes of ethics of the American Psychological Association (APA, 2002) and the National
Association of School Psychologists (NASP, 2000) both require school psychologists to respect the
confidentiality of psychologist–client communications. With the exception of urgent situations,
school psychologists are ethically obligated to discuss the parameters of confidentiality at the onset
of establishing a professional relationship with a client. Unfortunately, inappropriate breach of client
confidentiality by school psychology practitioners is not uncommon (Dailor, 2007).
In contrast, the term privilege refers to the legal right of the client to prevent disclosure of
information revealed in the psychologist–client relationship to others. In the course of school psy-
chological assessment or intervention, a child or his or her parents may divulge sensitive information
that, if disclosed to third parties, would create legal risks to the child or family members, risk to the
child’s right to attend school or his or her academic standing, or risks of social harm (e.g., loss of
social standing) (see Table 1). Privilege can be established by common law (judicial decisions) or
by statutory law. A distinction is made here between professional–client privilege and evidentiary
(or testimonial) privilege.

Funds for the study were provided by a Summer Faculty Scholars grant to the first author from the College of
Humanities and Social and Behavioral Sciences, Central Michigan University (CMU).
A special thank you to A. Nichole Dailor, CMU doctoral student, who assisted with this research, and Andrew
A. Neal, J. D. The authors are not attorneys, and the information provided should not be construed as legal advice.
Correspondence to: Susan Jacob, Psychology Department, Central Michigan University, Mt. Pleasant, MI 48859.
E-mail: [email protected]

307
308 Jacob and Powers

Table 1
Confidential Communications to a School Psychologist That Create Risk for the Client(s) if Disclosed to Third
Parties

Legal Risk
Example 1. During a meeting with the parents of a young teen referred for behavior problems at school, her parents
disclose that they discovered valuable shoplifted merchandise in their daughter’s bedroom.
Example 2. A young girl referred because of declining academic performance confides that she can’t sleep at night
because her brother joined a gang and keeps guns and maybe drugs in the house. She is worried about him and drive-by
shootings in her neighborhood.
Example 3. As a result of conversations with a child referred for academic assessment, the school psychologist becomes
aware that there is stress in the home because the child’s father is an illegal immigrant who fears deportation.
Risk to Right to Attend School and Academic Standing
Example 4. During counseling, a young teen confesses to prior acts of vandalizing the school, including slashing school
bus tires, to “fit in” with a cool crowd.
Example 5. A high school student referred for depression confides that he plagiarized several term papers because of
parental pressure to get “A’s” and acceptance at a prestigious college.
Social Risk (Risk to Reputation, Loss of Social Standing)
Example 6. In a meeting with parents regarding their teen who may be suicidal, the parents confide that they are divorcing
because one parent is leaving the marriage for a same-sex partner, resulting in turmoil at home.
Example 7. A school psychologist who is evaluating a child with behavior problems meets with the child’s mother. The
mother discloses that the child was adopted and that his natural parents are incarcerated for violent crimes.
Other Risk (e.g., loss of child custody)
Example 8. A single parent confides that she is overwhelmed with the responsibilities of her job and caring for three boys,
and that she has several alcoholic drinks each night after the children are asleep.

Note. This table shows examples (fictitious) of client information that, if disclosed to third parties, could result in damage
to the client’s rights or reputation.

Professional–client privilege is not found in all states, but may be established in state codes
that regulate the delivery of health and mental health services, including occupation codes, mental
health codes, and/or health and safety codes. Where found, such laws create a legal right for clients
to prevent disclosure of confidential information shared in a psychologist–client relationship except
under certain circumstances. These laws mean that a psychologist can be held civilly liable under state
law for an impermissible breach of the client confidentiality. Impermissible breach of confidentially
also can result in loss of practice credentials (license or certification to practice) (Dekraai et al.,
1998). McDuff v. Tamborlane (1999) provides an illustration of a civil suit filed against a school
psychologist for violation of professional–client privilege as established by state law regulating the
delivery of mental health services (see Table 2).
Evidentiary (or testimonial) privilege laws govern the admissibility of evidence in a trial or
legal procedure. Evidentiary privilege is a legal term that refers to the right of a person in a “special
relationship” to prevent the disclosure in court of information given in confidence in the special
relationship. The duty for witnesses to testify in judicial proceedings to ensure justice at times
conflicts with the need to safeguard the trust and privacy essential to special relationships (attorney–
client, husband–wife, psychotherapist–patient). Evidentiary or testimonial privilege generally means
that a client can prevent a psychologist from disclosing information shared in a psychologist–client
relationship in a legal proceeding. The client may voluntarily waive privilege (i.e., give consent for
the psychologist to disclose privileged communications), and then the psychologist must provide
relevant testimony (Jacob & Hartshorne, 2007). The waiver belongs to the client, and the psychologist
has no independent right to invoke privilege against the client’s wishes (Knapp & VandeCreek, 1985).

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Table 2
Court Cases Illustrating Application of State Privilege Statutes to School Psychologist–Client Privileged
Communications

People v. Vincent Moreno (2005). A student confessed to a school psychologist that he shot and killed a man during an attempt
to rob the victim of his necklace. However, the school psychologist had forewarned Vincent of the limits of confidentiality.
More specifically, she had cautioned Vincent that if he were to tell her something “really serious” she would be obligated to
take it to a higher level (“Psychologist-patient privilege,” 2002). The defense attorneys for Vincent argued that his confession
to the school psychologist was privileged communication. The court held that a psychologist–patient privilege did not exist
in this case because, among other things, a client–psychologist relationship did not exist at the time of the confession, and the
school psychologist had forewarned Vincent that her professional obligations prevented her from keeping such an admission
confidential.
McDuff v. Tamborlane (1999). A school psychologist employed by a public school district was providing psychological
counseling to a high school student. To assist the school psychologist in providing appropriate 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. 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. Although this case is subject to further review by the
courts, in the opinion of a Superior Court of Connecticut, the communication of a patient’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.
J. N. v. Bellingham School District No. 501 (1994). A student, “A.B.”, sexually assaulted another student, “J.N.” The victim’s
parents subsequently filed suit against the school district, alleging that the school had prior knowledge that A.B. posed a
threat to other pupils and, in light of this knowledge, was negligent in supervision of A.B. When the attorney for victim’s
parents asked to see A.B.’s school psychological records to establish that A.B was a foreseeable risk to others, the school
refused to release them on the basis that the records were privileged communication between the school psychologist and
A.B.’s parents, although they were released with parental consent to members of the school’s MDT (multidisciplinary)
special assessment team. The court held that psychologist–patient privilege “does not apply where it is manifest that the
communication was not intended to be confidential” (1994, p. 26). When information is recorded and shared for the purpose
of making a recommendation to a teacher or child study or Individualized Education Plan (IEP) team, the information is not
privileged.

Rules of evidence are used to determine what evidence is admissible in a trial or other le-
gal proceeding. Federal courts follow the Federal Rules of Evidence, whereas state courts may
follow their own rules (Legal Information Institute [LII], 2007). At the federal level, except as
required by the Constitution or the U.S. Congress, privilege, including whether communications
between a psychologist and client are protected from disclosure, is determined by case law (Article
V. Privileges, Rule 501. General Rule; LII, 2007). Prior to the late 1990s, federal case law recognized
“psychotherapist–patient privilege,” with the term “psychotherapist” meaning a psychiatrist or li-
censed doctoral-level psychologist. In 1996, however, in Jaffee v. Redmond, the Supreme Court ruled
that communications between a psychotherapist who was a master’s level social worker and her client
were privileged and protected from disclosure in federal court cases. Subsequent decisions in the
lower federal courts extended privilege to the clients of a broad range of non-doctoral mental health
providers.
State courts follow their own rules of evidence. At the state level, rules governing privilege are
established by common law or found in one or several different sections of state codes. In 1892, a
nongovernmental body, the National Conference on Commissioners on Uniform State Laws, was
formed to promote uniformity in state laws (LII, n.d.). This group, composed of attorneys from

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310 Jacob and Powers

each state, drafts “uniform laws” on various subjects that are sometimes, but not always, adopted
in whole or part, by states. As a result of the Jaffee v. Redmond decision and parallel developments
in state law, the 1974 Uniform Rules of Evidence were revised in 1999 to broaden the scope of
mental health provider privilege (Aronson, 2001). The components of the 1999 Uniform Rules of
Evidence addressing mental health provider privilege are described in the paragraphs that follow. It
is important to remember, however, that states rarely use the verbatim language of a uniform law
(LII, n.d.).
The Uniform Rules now recognize privileged communication status for “mental health providers,”
identified as “a person authorized, in any State. . . , or reasonably believed by the patient to be autho-
rized, to engage in the diagnosis or treatment of a mental or emotional condition, including addiction
to alcohol or drugs” (1999; Rule 503[a]([5]). The general rule of privilege is that a client has a
privilege to refuse to disclose, and to prevent a mental health provider from disclosing, confidential
communications made for the purpose of diagnosis or treatment of the client’s physical, mental, or
emotional condition (Rule 503[b]). Privilege includes the confidential communications of family
members who are participating in the diagnosis and treatment of the client (Rule 503[a][1]). Note
that under the Uniform Rules, the mental health provider does not have to be licensed or certified;
the only requirement is that the client “reasonably believes” that the person is an authorized mental
health provider.
Thus, under the Uniform Rules, privileged communication status for school psychologists gen-
erally means that a psychologist cannot disclose confidential information about the client without
client consent (or the consent of a minor’s parents) to do so. There are, however, exceptions to privi-
lege. First, to fall within the Uniform Rules scope of privileged communication, the communication
must occur in context of practitioner–client relationship and privilege applies only if the client has
a reasonable expectation that his or her communications are privileged (Uniform Rules, 1999, Rule
503, [a][5]). People v. Vincent Moreno (2005) and J.N. v. Bellingham School District (1994) provide
examples of this exception to privilege (see Table 2).
The Uniform Rules also identify other exceptions to privilege. Psychologist–client privilege
is typically waived when the school psychologist is obligated to report information under state
law (e.g., suspected child abuse or other state-mandated reporting), when the client has expressed
an intent to engage in conduct likely to result in imminent death or serious bodily injury to the
client or others; during legal proceedings to hospitalize a client for mental illness; for court-ordered
psychological examination of a client, when a client claims mental illness as part of a legal defense;
and during malpractice suits filed by a client against the psychologist (1999, Rule 503, [d]). Judges
also may waive privilege in child custody proceedings. Although state laws include these exceptions
to privilege (Glosoff, Herlihy, & Spence, 2000), other exceptions may exist. For example, in some
states, psychologist privilege does not apply in serious felonies such as homicide (e.g., D.C. Code §
14-307 [2006]; Illinois, 735 ILCS 5/8-802 [2005]).
In sum, privileged communication laws are designed to protect the client and the therapeutic
process. With regard to evidentiary privilege, the communications between a school psychologist
and client are protected in federal courts, and may or may not be protected in state courts, depending
on state law. If a client waives privilege or a judge rules that client communications to a psychologist
do not have privileged communication status, the psychologist is then required to testify in court,
and refusal to testify may result in the psychologist being held in contempt of court. Furthermore, in
some states, if psychologists disclose privileged client information to others without first obtaining
consent to do so, they may put themselves at risk for a malpractice suit (e.g., McDuff v. Tamborlane,
1999; Table 2) or sanction by their state credentialing board, including possible loss of certification
or licensure.

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State Laws Extending Privilege to School Psychology Practitioners

Howell and Ogles (1989) conducted a review of psychologist–client privileged communica-
tion laws. No recent review of state laws extending privilege to psychologists or to non-doctoral
mental health providers was located in the literature. In their study of privileged communication
in counselor–client relationships, Glosoff et al. (2000) found privilege statutes to be complex, with
limited uniformity across states, but that a trend toward broadening the scope of privilege laws to
include counselors was apparent. To provide up-to-date information on the status of state laws ex-
tending privilege to school psychology practitioners, a computerized search of state codes pertaining
to privileged communication was conducted using a procedure similar to that described in Glosoff
et al. (2000).
M ETHOD
Different titles are used for school psychologists in different states, and in some states titles vary
by level of training (e.g., school diagnostician, school psychometrician, school psychologist). The
first step in the research procedure was to access NASP’s “National School Psychology Certification
and Licensure Online Resource List” (n.d.) to identify the titles used by non-doctoral and doctoral-
level school psychologists in each state.
The second step in the search procedure was to access LEXIS-NEXIS electronic data for
each state or jurisdiction. The following path was followed: Law Reviews, Legal Research, State
Code. A LEXIS-NEXIS search of “State Code” includes a search of the following sources: advance
legislative service (all laws enacted during a legislative session), state statutory code, text of the
state constitution, rules for all state courts, and opinions from the offices of the State Attorney
General. In the present study, state codes were first searched using the keyword “privilege” with
“psychologist” to narrow the search. As needed, state codes were again searched simply using the
keywords “psychologist,” “school psychologist,” and the exact title used for non-doctoral school
psychologists in that state, in combination with “confidentiality.” Annotations were read to identify
any case law clarifying state codes. If the process followed in step two failed to yield information
regarding privilege for school psychologists, state case law was searched using LEXIS-NEXIS. The
final step (September 2008) was to update findings based on a search of legislation and rules of
evidence available on each state’s government Web site (i.e., www.state.gov).
State laws regarding whether school psychologist–client confidential communications are priv-
ileged were grouped into six categories (see Appendix), beginning with categories that are most
likely to be inclusive of extending privilege to non-doctoral school psychologists. The development
of categories and the grouping of states within those categories was a multistage process. Categories,
and the classification of states within those categories, were proposed and revised by the authors until
consensus was reached. A Juris Doctor conducted the final 2008 review of state privilege laws and
then proposed revisions to the categories and the classification of states within those categories, until
consensus with the authors was achieved. For each jurisdiction, the sources of law governing privilege
were coded as follows: case law = C, professional–client privilege = P, and evidentiary privilege =
E. Because there were sometimes differences among the various sources of law within one state, each
state was categorized based on the source of law that was most inclusive (an asterisk indicates the
source with most inclusive language). The Appendix also identifies those states that have indicated
intent to adopt the Uniform Rules of Evidence (1999) at least in part as reported by the LII (2003).
R ESULTS
The review of state law that appears in the Appendix was conducted for research purposes only;
it should not be construed as providing legal advice. As shown in the Appendix, Category 1 includes

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312 Jacob and Powers

12 states and the District of Columbia. These states use language from the Uniform Rules and
extend privilege to confidential communications between clients and psychotherapists or persons
reasonably believed by the client to be authorized to engage in the diagnosis or treatment of a mental
or emotional condition.
Category 2 is composed of 14 states that explicitly extend privilege to confidential communi-
cations between a client and a school psychologist or have acknowledged such communications as
privileged in case law.
The five states grouped in Category 3 extend privilege to confidential communications between
a client and a psychologist licensed or certified under the laws of any state.
Category 4 is composed of six states that do not explicitly recognize privilege for school
psychologist–client communications, but their laws extend privilege to confidential communications
between a client and a psychologist or other mental health provider.
Category 5 was composed of 12 states that extend privilege to confidential communications
between a client and a psychologist who is licensed by the state. These states typically have licensure
laws for psychologists, with school psychologists exempt from such licensure.
Category 6 included one state which appears to defer to common law with regard to psychologist–
client privilege.

D ISCUSSION
School psychology practitioners, including those without a doctorate, likely have privileged
communication status in federal courts. A search and categorization of state laws found that the
majority of states (75%) have broadened the scope of their laws governing patient–psychotherapist
privilege with language that would likely include non-doctoral school psychologists. More specif-
ically, 37 states and the District of Columbia extend privilege to confidential communications
between clients and persons reasonably believed by the client to be authorized to diagnosis or treat
a mental or emotional condition, to explicitly extend privilege to the confidential client–school
psychologist communications, or to extend privilege to the communications between a client and
a psychologist credentialed under the laws of any state or between a client and “mental health
provider.”
Whether confidential client–school psychologist communications are privileged is unclear in
13 states. One state simply defers to common law and no relevant cases were located; the remaining
12 recognize privilege for client disclosures to a psychologist who is licensed by the state, with
school psychologists exempt from state licensure. In McDuff v. Tamborlane (1999), a Connecticut
court interpreted “licensed psychologist” to include a school psychologist credentialed (but not
necessarily licensed) under state law. In State v. Berberich (1999), however, a Kansas court did not
extend privilege to the client of an unlicensed counselor.
Professional privilege laws creating a legal right for clients to prevent disclosure of confidential
information shared in a psychologist–client relationship, except under certain circumstances, were
found in 26 states and Washington D.C. Such laws mean that an impermissible breach of client
privilege would provide the basis for a malpractice suit against the psychologist and could result
in loss of practice credentials. However, a school psychologist can be sued for improper breach
of client confidentiality even in states that do not have professional privilege laws if a professional
relationship existed between the client and school psychologist and the psychologist did not maintain
confidentiality as required by the standards of the profession, the client suffered harm because of the
breach of client confidentiality (see Table 1), and the harm to the client was a reasonably foreseeable
consequence of the breach of confidentiality.
Privileged communication in the client–psychologist relationship is a complex area of law, and
questions regarding how such laws apply to psychologists in schools add another layer of complexity.

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 Privileged Communication 313

Results of this review of state laws suggest that most states are likely to recognize confidential client
communications to a school psychologist as privileged; for this reason, doctoral and non-doctoral
school psychologists are advised to practice as if they have privileged status, even if they work in a
state where the law is unclear. In jurisdictions where school psychologists are not granted privileged
communication status, a practitioner may ask that evidentiary privilege be extended to them in a
legal procedure (see, Wigmore, 1961). Practitioners are encouraged to be informed of the scope,
language, and exemptions of privilege law in the state where they work and to consult an attorney
for advice when difficult situations arise.

Implications for Practice

School psychologists face difficult ethical and legal decisions regarding whether information
revealed by a client should be kept confidential or disclosed to others. At times the obligation
to respect client privacy and the confidentiality of their communications competes with the duty
to protect schoolchildren from the risk of harm. In addition, when a decision is made to share
information learned in a professional relationship with others, practitioners also must consider
carefully what information to disclose and with whom the information will be shared (Jacob &
Hartshorne, 2007). The following questions serve as a framework for practitioners to use in deciding
whether a confidential client disclosure might be protected by privileged communication laws and
how to handle the disclosure.
1. Is the information shared an exception to privilege?
All states with laws pertaining to client–mental health provider privilege (see Appendix) also
identify exceptions to privilege. Common exceptions included those outlined in the Uniform Rules of
Evidence (1999). For example, psychologist–client privilege is waived when the school psychologist
is obligated to report information under state law (e.g., suspected child abuse or other state-mandated
reporting) and when the client has expressed an intent to engage in conduct likely to result in imminent
death or serious bodily injury to the client or others (see Rule 503, [d]). State laws vary with respect
to some exceptions to privilege. Psychologist–client privilege does not apply in some states if the
psychologist has knowledge that the client is contemplating commission of a crime, the client has
been a victim of an unreported crime (Glosoff et al., 2000), or if the client has committed a past
serious felony such as murder.
2. Did the communication occur in the context of the practitioner–client professional relation-
ship?
Privilege applies only to communications that occur in the context of the practitioner–client
professional relationship. In the People v. Vincent Moreno (2005), one reason the court ruled that
Vincent Moreno’s confession of murder to a school psychologist was not privileged was because
Vincent had been assigned to a different counselor at his school and he was not a client of the school
psychologist to whom he made his confession (Table 2).
3. Did the client (or family members providing information pertinent to diagnosis and treatment)
have a reasonable expectation that his or her communications are privileged?
Privilege laws cover the confidential communications of the client and family members who are
participating in the diagnosis and treatment of the client, typically including both oral and written
communications to the psychologist. The information provided by the parents in examples 1, 6, 7,
and 8 (Table 1) would likely be considered privileged even though it is provided by family members,
not the student-client.
Research suggests that most adults assume that communications to a psychotherapist are
confidential (Rubanowitz, 1987). In McDuff v. Tamborlane (1999), a mother divulged information to
a school psychologist about her daughter’s involvement in a larceny for the purpose of assisting in the

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diagnosis and treatment of her daughter (see Table 2). Contrary to her expectation of confidentiality,
the school psychologist then informed the principal of the crime. The principal contacted the police;
this resulted in the daughter’s arrest. The mother subsequently filed a malpractice suit against the
school psychologist for breach of privilege. In the legal proceedings that resulted from the lawsuit,
the judge noted that it would be natural and reasonable for the mother to assume that the information
she gave to the school psychologist was confidential and not to be disclosed to others without parental
consent, and that there was no legitimate reason for the school psychologist to disclose a past crime
(1999, p. 7).
When defining the parameters of confidentiality, school psychologists are trained to inform
student-clients and parents that psychologists who work in schools have a duty to reveal confidential
information to others when such disclosure is necessary to ensure the safety of the student-client or
others, including situations suggesting that a student is a danger to self, poses a danger to others, or
is the victim of child abuse (Jacob & Hartshorne, 2007). In light of laws governing privilege, it may
be appropriate for a school psychologist to also forewarn older student-clients and their parents that
he or she cannot keep quiet if the student has committed a serious crime. The second reason that the
court ruled that Vincent Moreno’s confession of murder to a school psychologist was not privileged
was because the school psychologist forewarned him that if he was to tell her something “really
serious” she would be obligated to report it, thereby dispelling any expectation that his disclosure
would be held in confidence (“Psychologist-patient privilege,” 2002; see Table 2).
School psychologists also need to recognize that client(s) understanding of and consent to the
boundaries of confidentiality is a process that may require ongoing discussion. Examples 1, 6, 7,
and 8 of Table 1 involve parents providing sensitive information to assist the school psychologist
in understanding the mental health needs of their child. When parents make such disclosures, it
is appropriate to ask whether the parent wishes the information to be held in strict confidence
(privileged). Privileged information should not be shared with others orally or in writing (e.g., in a
school psychological report) without parental permission.
4. When the student-client is a minor, who has the legal authority to consent to the release of
privileged information?
When a school psychologist provides services to a student-client who is a minor, the parent
or guardian has the legal authority to allow or prevent disclosure of privileged information to third
parties. State laws vary, but a student who is a minor typically has no legal right to confidentiality
independent of the parents. When offering counseling services, a psychologist explains to parents
why a promise of confidentiality to the child is important to an effective helping relationship
and seeks parental agreement that the psychologist will not disclose specific confidences shared
by the child without the child’s assent to do so (Jacob & Hartshorne, 2007). If a psychologist
believes it is necessary to disclose information divulged by a child to the parent without child
assent, the school psychologist has an ethical obligation to explain to the child the reason for the
disclosure and the likely repercussions (Taylor & Adelman. 1989). Disclosure of a child’s confidences
to the parent is not a breach of privilege because the parent, not the child, is the “holder” of
privilege.
5. When a school psychologist is privy to privileged information, what are implications for
record keeping?
Privileged information should be held in strict confidence and not shared with anyone outside of
the client–psychologist relationship without the consent of the holder of privilege. If a practitioner
feels it is necessary to keep notes regarding privileged information, such information should be
recorded in the school psychologist’s private notes and not shared with anyone (including a substi-
tute), kept separately from student education records and in a locked file not accessible to anyone but
the psychologist, and destroyed as soon as it is no longer needed. Information placed in the child’s

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school psychological report or other education record (as defined by the Family Rights and Privacy
Act of 1974) cannot be considered privileged because it is accessible to any school staff member
with a legitimate educational interest in the child (see J.N. v. Bellingham School District No. 501,
1994, Table 2). Practitioners should seek legal advice if they receive a subpoena for student records
or to testify in a legal proceeding regarding a client.

C ONCLUSIONS
Since 1996, most states have broadened the scope of their laws governing privilege to include
non-doctoral school psychologists. Practitioners are encouraged to be informed of the scope, lan-
guage, and exemptions of laws governing client–school psychologist privilege in the state where
they work, and to consult their school attorney for advice when difficult situations arise.

A PPENDIX
Summary of State Laws Regarding Whether School Psychologist–Client Confidential Communica-
tions Are Privileged.

Adopted
Uniform Case Law (C), Professional Code (P), C, P,
Category State Rules and State Rules of Evidence (E) or E

1. State extends privilege AK Y ARE, R. Evid. 504 (2008) E

∗
to confidential DC N DC ST § 7.1201.01 (2008); P
communications D.C. Code § 14-307 (2008) E
between clients and HI Y H.R.S. § 504.1 (2008) E
psychotherapist or KY Y KRE 507 (2008) E
∗
persons reasonably LA Y La. R.S. 37:2363 (2008) P
believed by the client La. R.S. 13:3734 (2008) uses E
to be authorized to “licensed health care provider”
engage in the ME Y Me. R. Evid. 503 (2008) E
∗
diagnosis or treatment NE Y R.R.S. Neb. § 71-1, 206.29 (2007) P
of a mental or R.R.S. Neb. § 27-504 (2007) uses E
emotional condition person licensed as a psychologist
under the laws of any state
OK Y 12 Okl. St. § 2503 (2008) E
OR Y ORS § 40.230 (2008) E
TX Y Texas Rules of Evidence (2007), E
Rule 510, retrieved 9.13.08 from
www.courts.state.tx.us
UT Y Utah Code Ann. § 58-61-602 P
(2008); E
∗
URE Rule 506 (2008)
VT Y V.R.E. Rule 503 (2008) E
WI Y Wis. Stat. § 905.04 (2007) E

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2. State explicitly CA N Cal Bus & Prof Code § 2918 (2008) P

extends privilege to (cross-references Cal Evid Code § 1010);
confidential Cal Evid Code § 1010 (2008) E
communications ∗
CO Y C.R.S. 12-43-218 (2007); P
between a client and a C.R.S. 13-90-107 (2007) uses licensed or E
school psychologist or unlicensed psychologist or any person
has acknowledged authorized by law to conduct therapy
such communications ∗
CT N McDuff v. Tamborlane, 1999 Conn. Super. C
as privileged LEXIS 1771;
Conn. Gen. Stat. § 52-146c (2008) uses E
psychologist as licensed to practice under
state law
∗
IN Y Burns Ind. Code Ann. § 20-28-12-5 (2008) P
∗
Burns Ind. Code Ann. § 34-6-2-80 (2008) E
∗
NY N People v. Vincent Moreno (2005); C
NY CLS CPLR § 4507 (2008) uses E
psychologist registered under state law
∗
OH Y ORC Ann. 4732.19 (2008) P
∗
PA N 42 Pa.C.S. § 5945 (2008) E
∗
MT Y Mont. Code Anno., § 26-1-809 (2007) E
∗
NV Y Nev. Rev. Stat. Ann § 49.290 (2008) E
∗
SD Y S.D. Codified Laws § 19-13-21.1 (2008) E
∗
TN Y Tenn. Code Ann. § 63-11-223 (2008) together P
with Tenn. Code Ann. § 63-11-213 (2008);
Tenn. Evid. Rule 501 (2008) uses licensed E
psychologist
∗
VA N Va. Code Ann. § 54.1-2400.1 (2008) together P
with § 54.1-3600;
Va. Code Ann. 8.01-400.2 (2008) E
∗
WA Y J.N. v. Bellingham School District (1994) (see C
text);
Wash. R.C.W. 18.83.110 (2008); P
Wash. ER 501 (2008) E
∗
WY Y Wyo. Stat. § 33-27-123 (2008) P
3. State extends privilege AR Y A.C.A. § 17-97-105 (2007); P
∗
to confidential A.R.E. R 503 (2008) E
∗
communications ID Y I.R.E. 503 (2008) E
∗
between a client and a ND Y N.D.R. Ev., Rule 503 (2008) E
∗
psychologist licensed NM Y N.N. R.E. 11-504 (2008) E
or certified under the MS Y Miss. Code Ann. § 73-31-29 (2007); P
∗
laws of any state M.R.E. Rule 503 (2008) E

Psychology in the Schools DOI: 10.1002/pits

 Privileged Communication 317

4. State extends privilege AL N Code of Ala. § 34-26-2 (2008); P

∗
to confidential ARE, R 503 (2008) E
communications DE Y D.R.E. 503 (2008) E
between a client and a FL Y Fla. Stat. § 90.503 (2008) E
psychologist or GA N The State v. Herendeen (2005) refers to mental C
another mental health privilege
health provider while O.C.G.A. § 43-39-16 (2008) uses licensed P
similarly engaged psychologist
IL N 225 ILCS 15/5 (2008) uses clinical psychologist; P
∗
735 ILCS 5/8-802 (2008) uses psychologist. . . or E
other healing art practitioner as well as health
care practitioner
IA Y Iowa Code § 622.10 (2007) uses mental health E
professional. . . a person with at least a master’s
degree. . . a school guidance counselor
5. State extends privilege AZa Y A.R.S. § 32-2085 (2007) (psychologist); P
to confidential A.R.S. § 32-3283 (2007) (behavioral health P
communications professional)
between a client and a KSa N State v. Berberich (1999) did not extend privilege C
psychologist who is to an unlicensed counselor;
licensed by the state K.S.A. § 74-5323 (2008) P
MDa N Md. Courts and Judicial Proceedings Ann. § E
9-109 (2008)
MAa N ALM GL ch. 112, § 129A (2008) P
MIa Y MCLS § 333.18237 (2008) uses psychologist P
licensed or allowed to use that titleb
MNa Y Minn. Stat. § 595.02 (2007) uses registered E
psychologist
MOa N § 337.055 R.S. Mo. (2007); P
§ 491.060 R.S. Mo. (2007) E
NHa Y RSA § 330-A:32 (2007); P
N.H. R. Evid. 503 (2008) E
NJa Y N.J.Stat. § 45:14B-28 (2008); P
N.J. R. Evid. 505 (2008) E
NCa Y N.C. Gen. Stat. § 8-53.3 (2008) E
RIa Y R.I. Gen. Laws § 5-37.3-3 (2007) P
SCa Y S.C. Code Ann. § 40-75-190 (2007); in addition to P
Department of Education credential for school
psychologists, the state Board of Psychology
licenses psycho-educational specialists
6. State law defers to WV Y
common law.

Note. An asterisk (∗ ) was used to indicate the source with the broader scope of privilege. The list of states that have
adopted all or part of the Uniform Rules of Evidence (1999) is from the Legal Information Institute (2003).
a School psychologists exempt from state Board of Psychology licensure. b Michigan law states (MCL, Chapter 380,
Sec. 1135) that “A local or intermediate school district shall not disclose any personally identifiable information contained
in a student records to a law enforcement agency, except in compliance with the Family Educational Rights and Privacy Act,
20 U.S.C, 1232g.”

Psychology in the Schools DOI: 10.1002/pits

318 Jacob and Powers

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Psychology in the Schools DOI: 10.1002/pits