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General Questions

I am a tenured teacher at a public school district, and the principal has told me that I have to have a mental health evaluation done prior to them allowing me to continue to teach. Can they require me to do that?

The School Code currently requires for new and tenured teachers to fulfill a “physical fitness and professional growth” requirement, and indicates at 105 ILCS 5/24-5 that “the [school] board may from time to time require an examination of any employee by a physician…” We interpret this to mean not only a physical examination, but also psychological or psychiatric, if there is evidence to warrant such an evaluation.

Should you disagree with this recommendation, you can refuse to consent to the evaluation. However, at that point the district may attempt to fire you for cause, and you will then (depending on your tenure status) be afforded all of the rights designated in 105 ILCS 5/24-12 and 23 Ill. Admin. Code 51.10 regarding a hearing on the specific charges for your dismissal.

I'm part of a union which has voted to strike, but I'm not tenured. Can I get fired if I participate in the strike?

Absolutely not. In accordance with the Educational Labor Relations Act (115 ILCS 5/14), educational employers are prohibited from discriminating in any way against an employee who exercise their right to strike, including firing, denying tenure or changing any other condition of employment. This applies to all union members.

I received a subpoena for school records related to a divorce case of one of my patients. Should I hand over the records?

No, and in fact doing so without a valid court order from a judge is illegal in Illinois. Many domestic relations attorneys are not familiar with the confidentiality laws in Illinois and therefore are unaware that it is illegal to subpoena any psychological or mental health records of children in Illinois. A court order by a circuit court (county) or district court (federal) judge is required for disclosure of these records, and so you should refuse to provide such documents until that order is provided to you.

A student assaulted me and my administrator has chosen not to do anything about it. What are my rights?

Under the Illinois Health and Safety Act (820 ILCS 225), all employers of public entities must provide “reasonable protection to the lives, health and safety” to all employees, including filing reports on any work-related deaths, injuries and illnesses.

However, these requirements are dependent on the seriousness of the injury. If the injury is considered “minor” (only first aid is administered), then no further action needs to be taken. However, if the injury required formal medical treatment, resulted in a loss of consciousness, restriction of work or motion or transfer to another job, then a formal report needs to be created regarding the incident.

Despite these regulations, nowhere in the School Code or any other statute or regulation does it delineate or even recommend what disciplinary measures should be taken against the student who committed the act. However, the response from your district should be: 1) In accordance with the district’s policies and procedures regarding discipline and personnel issues, and 2) Evaluated on a case-by-case basis. Should you have a dispute regarding the way an incident is handled by your district, you can, in accordance to the Health and Safety Act, make a complaint to the Department of Labor which may then lead to an impromptu inspection of your place of employment.

How do I insure that the forms for my practice are HIPAA compliant?

In many cases, if you are the member of a professional organization, such as the Illinois Psychiatric Association, you should be able to secure sample HIPAA forms as a part of your membership. However, if you are part of an organization which requires custom made forms, then hiring an attorney who is informed of the HIPAA intricacies can be helpful in creating forms for you. WTH has performed this service for numerous clients in the past, so if you are interested in these services please contact us at (847) 564-8662.

One of my patients indicated to me that they intend to harm others, but didn't specify a person or a plan. Am I supposed to contact the authorities?

No. Under current Illinois law, mental health practitioners must break confidentiality and warn third parties (and this means, when applicable, the intended victim and law enforcement authorities) if the harm is “reasonably foreseeable,” which means:

  • The patient has made specific threats of violence;
  • To a specific and identified victim
  • There is either a physician-patient relationship or a “special” relationship between the patient and the victim; and
  • The disclosure must be to the extent necessary to allow the victim to avoid harm and allow the authorities to intervene.

Please see our memorandums “Duty to Warn – When Can I Break Confidentiality?” and “Illinois Mental Health Confidentiality Act” for more information.

I believe one of my students may be being abused or neglected by one of their parents. What are my responsibilities in reporting this?

In accordance with the Abused and Neglected Child Reporting Act (325 ILCS 5), if you are a mandated reporter, which includes: physicians, residents, and interns; hospitals, hospital administrators and personnel engaged in the examination, care and treatment of persons; surgeons; dentists; dentist hygienists; osteopaths; chiropractors; podiatrists; Christian Science practitioners; coroners; medical examiners; emergency medical technicians; crisis line or hotline personnel; school personnel; educational advocate assigned to a child pursuant to the School Code; truant officers; social workers; social services administrators; domestic violence program personnel; registered nurses; licensed practical nurses, advanced practice nurses, home health aides; directors or staff assistants of nursery schools or child day care centers; recreational program or facility personnel; law enforcement officers; and registered psychologists, then you must report the suspicion to the Illinois State Central Registrar at (800) 25A-BUSE. Professionals who “willfully fail” to report are subject to license suspension or revocation, and will be referred to their respective disciplinary boards if applicable. In addition, the failure to report can lead to criminal charges including a Class A misdemeanor, which, if found guilty, could result in a fine of up to $2,500 and up to 12 months of imprisonment.

One of my patients has filed a complaint against me with the Illinois Department of Finance and Professional Regulation. What do I do?

After learning from the Illinois Department of Finance and Professional Regulation that a complaint has been filed against you, you will need to respond to the complaint allegations and most likely provide a formal statement and produce evidence and records in your defense. If the complaint is credible, it is best to hire an attorney to represent you during these proceedings. WTH has provided legal defense in this area for numerous clients in the past. Please see our areas of practice page titled “IDFPR Complaints” for more information.

I don't think I'm getting a fair deal in my contact with my school. What are my rights?

Contract negotiation can be a tricky thing, especially for administrators who are being promoted from within. Maintaining a positive relationship with your employer and trying to artfully negotiate and act as your own advocate can be an overwhelming task. WTH has provided contract negotiation services for numerous school and mental health related employees in Illinois for years, and can help you in this process. Please see our practice page titled “Contractual Issues” for more information.

What can I do if I think one of my public school students needs special education services?

Many staff members are hesitant to refer for special education services, especially those in elementary school as they are not sure whether the child is truly manifesting a disability or just lagging a little behind their peers. Please see the Early Warning Signs for Disabilities listed in our memorandum Guide to Educational Services for Ill and Disabled Children for guidance on these warning signs. We’ve heard many elementary teachers describe children as “lazy” or “spoiled” when the actuality is that it is a learning disability which prevents them from being able to complete work or a serious mental health issue which is causing behavioral problems. The sooner these children receive appropriate intervention, the more likely it is that they will be able to stay within the public school setting.

If you do believe a child is in need of special education services, the first thing to do is to begin documenting some of the behaviors you believe are concerning and inform someone on your Pupil Personnel Services team (or similar staff) so that the team can review the available information and make a determination about whether a case study evaluation should be conducted for the child.

Are my personal notes considered part of my patient's file or a student record?

No. If you are a private provider, then the federal Health Insurance Portability And Accountability Act of 1996 (42 U.S.C. 1301) and the Illinois Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1) apply to you. For HIPAA, there is an additional consent requirement for therapists to obtain from their patients prior to releasing “psychotherapy notes,” which are not included in the definition of a “medical record.” And for the IMHDDC, the term “Record does not include the therapist’s personal notes, if such notes are kept in the therapist’s sole possession for his own personal use and are not disclosed to any other person, except the therapist’s supervisor, consulting therapist or attorney.”

If you are an employee of a school district, then Family Educational Rights and Private Act (20 U.S.C. 1232g) and the Illinois School Students Record Act (105 ILCS 10/1) apply. FERPA specifies that records exempted from the definition of “education record” include “records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute.” As for the ISSRA, records exempted from the definition of “school student record” include “writings or other recorded information maintained by an employee of a school or other person at the direction of a school for his or her exclusive use.” Personal notes, then, would be considered as part of these exemptions, unless they are at some point merged with the student’s temporary record or distributed to other school personnel.

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