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AB-1348 Pupils: parental consent.(2011-2012)

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AB1348:v98#DOCUMENT

Amended  IN  Assembly  March 24, 2011

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 1348

Introduced  by  Assembly Member Mansoor

February 18, 2011

An act to amend Sections 51513, 51938, and 51939 of, to add Article 3 (commencing with Section 49440) to Chapter 9 of Part 27 of Division 4 of Title 2 of, and to repeal and add Section 46010.1 of, the Education Code, relating to pupils.


LEGISLATIVE COUNSEL'S DIGEST


AB 1348, as amended, Mansoor. Pupils: mental health screenings. parental consent.
(1) Existing law requires the governing board of a school district to notify pupils in grades 7 to 12, inclusive, and the parents or guardians of those pupils that school authorities may excuse a pupil from school to obtain confidential medical services without the consent of the pupils parent or guardian. Existing law authorizes a school district to include that notice with any other notice made to a parent or guardian of a pupil pursuant to existing law.
This bill would delete this provision, and instead prohibit a school official, as defined, from excusing a pupil who is a minor and enrolled in any of grades 1 to 12, inclusive, from the school campus before the end of a schoolday without the written consent of his or her parent or legal guardian.

(1)

(2) Existing law prohibits any employee of a school district from administering psychological tests or engaging in other psychological activities involving the application of psychological principles, methods, or procedures, except under specified conditions. Existing law states that parents and guardians of pupils enrolled in public schools have the right to receive information about any psychological testing the school conducts involving their child and to deny permission to give the test, except as specified.
This bill would prohibit the governing board of each school district maintaining kindergarten or any of grades 1 to 12, inclusive, from conducting any mental or psychological screening or testing of a minor pupil unless it uses a consent form developed by the State Department of Education to obtain the written consent of the pupil’s parent or guardian not less than 45 days prior to conducting the screen or test. The bill would require a school district, in the process of obtaining the written consent of a pupil’s parent or guardian, to provide the parent or guardian with access to a manual and other published information which fully describes specified information. The bill would require the department to develop the consent form, as specified, and make it available to school districts. By requiring school districts to perform additional duties, the bill would impose a state-mandated local program has obtained the written consent of the pupil’s parent or legal guardian.
(3) Existing law prohibits a test, questionnaire, survey, or examination containing any questions regarding the beliefs or practices of the pupil or the parents or guardians of the pupil related to sex, family life, morality, and religion, from being administered to any pupil in kindergarten or grades 1 to 12, inclusive, unless the parent or guardian of the pupil is notified in writing that this test, questionnaire, survey, or examination is to be administered and the parent or guardian of the pupil gives written permission for the pupil to take this test, questionnaire, survey, or examination.
This bill would add gender and sexual orientation to the topics about which a test, questionnaire, survey, or examination containing any questions regarding the beliefs or practices of a pupil or the parents or legal guardians of a pupil would be prohibited unless the parent or legal guardian of the pupil is notified in writing and gives written permission as specified.
(4) The existing California Comprehensive Sexual Health and HIV/AIDS Prevention Education Act authorizes school districts to provide comprehensive sexual health education, as defined, in any kindergarten or grades 1 to 12, inclusive, and requires that school districts ensure that all pupils in grades 7 to 12, inclusive, receive HIV/AIDS prevention education, as defined. Existing law requires a school district to notify the parent or guardian of a pupil about instruction in comprehensive sexual health education and HIV/AIDS prevention and empowers a parent or guardian to excuse his or her pupil from all or part of that instruction.
This bill would instead prohibit a pupil from receiving this comprehensive sexual education, HIV/AIDS prevention education, or assessments related to that education without the prior written consent of his or her parent or legal guardian. Because this provision would impose new duties on school districts, it would constitute a state-mandated local program.
(5) The California Comprehensive Sexual Health and HIV/AIDS Prevention Education Act prohibits a pupil from attending any class in comprehensive sexual education or HIV/AIDS prevention education, or participate in any anonymous, voluntary, or confidential test, questionnaire, or survey on pupil health behaviors and risk, if the school has received a written request from the pupil’s parent or guardian excusing the pupil from participation.
This bill would instead prohibit a pupil from attending a class in comprehensive sexual education or HIV/AIDS prevention education, or participate in any anonymous, voluntary, or confidential test, questionnaire, or survey on pupil health behaviors and risk, unless the school has received prior written consent for the pupil’s participation from the pupil’s parent or legal guardian.

(2)

(6) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) The Legislature reaffirms subdivision (a) of Section 51100 of the Education Code, which states: “It is essential to our democratic form of government that parents and guardians of schoolage children attending public schools and other citizens participate in improving public education institutions. Specifically, involving parents and guardians of pupils in the education process is fundamental to a healthy system of public education.”
(2) The Legislature reaffirms subdivision (c) of Section 51100 of the Education Code, which states: “All participants in the education process benefit when schools genuinely welcome, encourage, and guide families into establishing equal partnerships with schools to support pupil learning.”
(3) The Legislature reaffirms subdivision (a) of Section 51120 of the Education Code, which states: “The Legislature finds and declares that a critical dimension of effective schooling is parental involvement. Research indicates that parental involvement in a child’s education improves pupil achievement. The Legislature further finds and declares that school districts and schools, in collaboration with parents, teachers, pupils, and administrators, by establishing and developing proper efforts that enhance parental involvement, are taking a pivotal step in encouraging pupil success.”
(4) The Legislature further finds and declares that the role of parents is primary in the development of their children, and that obtaining affirmative parental permission before engaging pupils in sensitive matters bolsters parental involvement and confidence in public schools.
(b) It is the intent of the Legislature in enacting this measure to recognize and honor the principle that the role of parents is primary in the development of their children, and to respect that role by requiring affirmative parental permission regarding matters of child development, health, and safety.

SEC. 2.

 Section 46010.1 of the Education Code is repealed.
46010.1.

Commencing in the fall of the 1986–87 academic year, the governing board of each school district shall, each academic year, notify pupils in grades 7 to 12, inclusive, and the parents or guardians of all pupils enrolled in the district, that school authorities may excuse any pupil from the school for the purpose of obtaining confidential medical services without the consent of the pupil’s parent or guardian.

The notice required pursuant to this section may be included with any other notice given pursuant to this code.

SEC. 3.

 Section 46010.1 is added to the Education Code, to read:

46010.1.
 Notwithstanding any other law, a school official shall not excuse a pupil who is a minor and enrolled in any of grades 1 to 12, inclusive, from the school campus before the end of a schoolday without the written consent of his or her parent or legal guardian. As used in this section, “school official” includes, but is not necessarily limited to, a teacher or a principal, vice principal, registrar, or other classification of school administrator.

SEC. 4.

 Article 3 (commencing with Section 49440) is added to Chapter 9 of Part 27 of Division 4 of Title 2 of the Education Code, to read:
Article  3. Mental or Psychological Screening or Testing

49440.
 The governing board of each school district maintaining kindergarten or any of grades 1 to 12, inclusive, shall not conduct any mental or psychological screening or testing of a minor pupil unless it has obtained the written consent of the pupil’s parent or legal guardian.

SEC. 5.

 Section 51513 of the Education Code is amended to read:

51513.
 No A test, questionnaire, survey, or examination containing any questions about the pupil’s personal beliefs or practices in of the pupil related to sex, family life, morality, and religion, gender, or sexual orientation, or any questions about the pupil’s parents’ or guardians’ beliefs and practices in of the parents or legal guardians of the pupils related to sex, family life, morality, and religion, gender, or sexual orientation, shall not be administered to any a pupil in kindergarten or grades 1 to 12, inclusive, unless the parent or legal guardian of the pupil is notified in writing that this test, questionnaire, survey, or examination is to be administered and the parent or legal guardian of the pupil gives written permission for the pupil to take this test, questionnaire, survey, or examination.

SEC. 6.

 Section 51938 of the Education Code is amended to read:

51938.
 A pupil shall not receive comprehensive sexual health education, HIV/AIDS prevention education, or assessments related to that education without the prior written consent of his or her parent or legal guardian of a pupil has the right to excuse their child from all or part of comprehensive. Comprehensive sexual health education, HIV/AIDS prevention education, and assessments related to that education, under this chapter shall be conducted as follows:
(a) At the beginning of each school year, or, for a pupil who enrolls in a school after the beginning of the school year, at the time of that pupil’s enrollment, each school district shall notify the parent or legal guardian of each pupil about instruction in comprehensive sexual health education and HIV/AIDS prevention education and research on pupil health behaviors and risks planned for the coming year. The notice shall do all of the following:
(1) Advise the parent or legal guardian that written and audiovisual educational materials used in comprehensive sexual health education and HIV/AIDS prevention education are available for inspection.
(2) Advise the parent or legal guardian whether the comprehensive sexual health education or HIV/AIDS prevention education will be taught by school district personnel or by outside consultants. A school district may provide comprehensive sexual health education or HIV/AIDS prevention education, to be taught by outside consultants, and may hold an assembly to deliver comprehensive sexual health education or HIV/AIDS prevention education by guest speakers, but if it elects to provide comprehensive sexual health education or HIV/AIDS prevention education in either of these manners, the notice shall include the date of the instruction, the name of the organization or affiliation of each guest speaker, and information stating the right of the parent or legal guardian to request a copy of this section, Section 51933, and Section 51934. If arrangements for this instruction are made after the beginning of the school year, notice shall be made by mail or another commonly used method of notification, no fewer than 14 days before the instruction is delivered.
(3) Include information explaining the parent’s or legal guardian’s right to request a copy of this chapter.
(4) Advise the parent or legal guardian that the parent or guardian may request in writing that his or her child will not receive comprehensive sexual health education or HIV/AIDS prevention education without the prior written consent of a parent or legal guardian.
(b) Notwithstanding Section 51513, anonymous, voluntary, and confidential research and evaluation tools to measure pupils’ health behaviors and risks, including tests, questionnaires, and surveys containing age-appropriate questions about the pupil’s attitudes concerning, or practices relating to, sex may be administered to any a pupil in grades 7 to 12, inclusive, if the parent or legal guardian is notified in writing that this test, questionnaire, or survey is to be administered and, the pupil’s parent or legal guardian is given the opportunity to review the test, questionnaire, or survey, and to request in writing that a parent or legal guardian has given prior written consent for his or her child not to participate.
(c) The use of outside consultants or guest speakers as described in paragraph (2) of subdivision (a) is within the discretion of the school district.

SEC. 7.

 Section 51939 of the Education Code is amended to read:

51939.
 (a) A pupil may shall not attend any class in comprehensive sexual education or HIV/AIDS prevention education, or participate in any an anonymous, voluntary, and confidential test, questionnaire, or survey on pupil health behaviors and risks, if unless the school has received a prior written request consent for the pupil’s participation from the pupil’s parent or legal guardian excusing the pupil from participation.
(b) A pupil may shall not be subject to disciplinary action, academic penalty, or other sanction if the pupil’s parent or legal guardian declines to permit the pupil to receive comprehensive sexual health education or HIV/AIDS prevention education or to participate in anonymous, voluntary, and confidential tests, questionnaires, or surveys on pupil health behaviors and risks.
(c) While comprehensive sexual health education, HIV/AIDS prevention education, or anonymous, voluntary, and confidential test, questionnaire, or survey on pupil health behaviors and risks is being administered, an alternative educational activity shall be made available to pupils whose parents or legal guardians have requested that they not given prior written consent for their children to receive the instruction or participate in the test, questionnaire, or survey.

SECTION 1.

The Legislature finds and declares all of the following:

(a)When children and adolescents are screened for mental disorders in educational settings, parents are not given sufficient information about the purpose of these screenings and the possible ramifications of consenting to these screenings, such as mandatory psychological or psychiatric treatment for their child and family.

(b)In educational settings, a system of passive consent is often utilized whereby consent to a mental health screening is considered provided when the parent does not return the consent form. This system places the burden of obtaining consent on the pupil and parent, rather than on the school and the mental health professional or agency seeking to conduct the screening.

(c)Because mental health screening consent forms often omit pertinent information, such as information about the personal questions the child will be asked and information about what types of mental disorders are being tested, consent forms often mislead parents as to the nature of the mental health screening and leave the parent with insufficient information to make a decision regarding consent.

(d)The mental disorders that are being screened in educational settings are based on those defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), but according to the introductory text of the DSM, there is no definition that adequately specifies precise boundaries for the concept of “mental disorder.”

(e)Unlike physical diseases such as cancer, diabetes, or tuberculosis, mental disorders or syndromes cannot be diagnosed by medical tests, such as brain scans, X-rays, or blood tests. The former United States Surgeon General, in his 1999 report on Mental Health, stated, “The diagnosis of mental disorders is often believed to be more difficult than diagnosis of medical disorders since there is no definitive lesion, laboratory test, or abnormality in brain tissue that can identify the illness.”

(f)According to Dr. Joseph Glenmullen of the Harvard Medical School, the rating scales that are used to screen people for conditions such as depression are designed to fit hand-in-glove with the effects of drugs, and furthermore, while using a rating scale to diagnose depression may appear to be scientific, when one examines the questions asked and the scales used, they are utterly subjective measures.

(g)Based on the subjective nature of the mental health diagnostic system and mental health screenings, millions of children are prescribed antidepressants or stimulants recognized by leading drug regulatory agencies as causing suicidal behavior, suicide, violence, hostility, and, in the case of stimulants, the potential for strokes and heart attacks. In 2004, the United States Food and Drug Administration (FDA) required that a warning of suicide risk be placed on all antidepressants prescribed to individuals under 18 years of age. In 2005, the Commission of European Communities issued the strongest warning yet against child antidepressant use, warning of the potential of drugs to cause suicide, aggression, hostility, and related behavior. In 2006, the FDA Advisory Committee recommended that a warning of heart attacks and strokes be placed on stimulants.

(h)Therefore, parents must be given sufficient information about the nature and ramifications of mental health screenings in educational settings in order to give their informed consent to these screenings.

SEC. 2.Article 3 (commencing with Section 49440) is added to Chapter 9 of Part 27 of Division 4 of Title 2 of the Education Code, to read:
3.Mental Health Screenings
49440.

This article shall be known and may be cited as the Mental Health Screening, Child Protection, and Informed Consent Act.

49441.

(a)The governing board of each school district maintaining kindergarten or any of grades 1 to 12, inclusive, shall not conduct any mental or psychological screening or testing of a minor pupil unless it has obtained the written consent of the pupil’s parent or guardian on the consent form developed by the department pursuant to subdivision (c) not less than 45 days before conducting the planned screen or test.

(b)Prior to obtaining the written consent of a pupil’s parent or guardian, a school district shall provide the parent or guardian with access to a manual or other published information which fully describes all of the following:

(1)The nature and purpose of the screening or testing.

(2)The development of the screening or testing, its scientific validity as replicated in scientific studies, and the rationale for and reliability of the screening or testing.

(3)Scientific journal citations demonstrating that the proposed screening or testing has been proven to be reliable and valid by replicated scientific studies.

(4)A guarantee that no screening or testing is based on or related to any mental disorder as covered in the Diagnostic and Statistical Manual of Mental Disorders.

(5)The intended use of the results or outcomes of screening or testing.

(6)The right to rescind consent at any time before, during, or after the screening or testing.

(c)The department shall develop and make available to school districts a consent form as follows.

(1)The consent form shall be in a clear and legible format, comply with any applicable provisions of state or federal law regarding consent to mental health or psychological screening or testing, and be in the primary language of the parent or guardian.

(2)The consent form shall include all of the following:

(A)The following title centered and in bold type at the top of the form:

“FULLY INFORMED CONSENT FOR MENTAL HEALTH OR PSYCHOLOGICAL SCREENING OR TESTING.”

(B)A designated line in which to print the name of the pupil’s parent or guardian.

(C)A designated line in which to print the name of the school or organization conducting the screening or testing.

(D)The name of the screening or testing program, and the proposed time and location of the screen or test.

(E)All of the following informational statements:

(i)“Mental health or psychological screening or testing methods for children and adolescents vary from state to state, but may involve a self-administered computer interview or survey to determine how a pupil feels emotionally (anxious or worried, sad or depressed) or to judge his or her behavior at the present time or in the past. These questions can cover thoughts or feelings your child has had or thoughts and feelings your child thinks you may have had or currently have about him or her.”

(ii)“As a result of the screening or testing of your child, you may be asked to take your child for a followup interview or evaluation to determine if he or she has a mental disorder or syndrome. Based on an evaluation of your child’s answers to questions posed by a mental health professional, your child may be diagnosed with a mental or psychiatric disorder. These diagnoses have to be made by a psychologist, psychiatrist, or a medical doctor, but the subjectivity of this diagnostic process makes it a risk.”

(iii)“Questionnaires or tests are frequently based on symptoms outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the mental disorders section of the International Classification of Diseases (ICD). Psychologists, psychiatrists, and medical doctors often depend upon these diagnoses in order to bill private or government insurance providers.”

(iv)“The determination of whether the attitudes, beliefs, actions, inactions, or behaviors of a child or adolescent constitute a mental disorder is based only on the opinion of the person making the diagnosis. Unlike methods to determine physical diseases like cancer, diabetes, or tuberculosis, a diagnosis of a mental disorder or syndrome cannot be determined by any physical, medical test, such as a brain scan, chemical imbalance test, X-ray, or blood test.”

(v)“Mental health or psychological screening or testing may be presented to you as a means of preventing suicide. However, there is no scientific evidence to substantiate this assertion at this time. The United States Preventive Services Task Force (USPSTF) studied this assertion and recommended against screening for suicide in 2004, stating that it ‘found no evidence that screening for suicide risk reduces suicide attempts or mortality.’”

(vi)“Psychiatric drugs that are commonly prescribed to treat mental disorders can have very serious effects on some children. In 2005, the European Committee for Medicinal Products for Human Use (CHMP), which includes members from 25 European member states, determined that antidepressants should not be prescribed to children who are less than 18 years of age because they can produce suicidal behavior, including suicide attempts and thinking about suicide, and related behavior, including self-harm, hostility, or mood changes.”

(vii)“The United States Food and Drug Administration (FDA) ordered that a black box, its highest level of drug warning, be placed on antidepressant packaging to warn consumers that the drugs can induce suicide in children and teens. The FDA also has stated concerns that stimulant drugs prescribed for children may cause ‘psychiatric events,’ including ‘visual hallucinations, suicidal ideation, psychotic behavior, as well as aggression or violent behavior.’”

(F)A statement of the requirements described in subdivision (b) and an acknowledgment by the parent or guardian that the school district complied with those requirements.

(G)An acknowledgment by the parent or guardian that he or she has read and understood the information on the consent form, and either consents or does not consent to the screen or test.

(H)An acknowledgment, if the parent or guardian consents to the screen or test, that he or she permits the information obtained from the screen or test to be part of the pupil’s school record, to the extent consistent with state or federal law.

(I)An acknowledgment, if the parent or guardian consents to the screen or test, that he or she permits the information obtained from the screen or test to be transmitted to any outside agencies or individuals, to the extent consistent with state or federal law.

(J)Separate signature lines for the parent or guardian to consent to the screening or testing or to indicate that he or she does not consent to the screening or testing.

SEC. 3.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.