BILL NUMBER: AB 1348 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 24, 2011
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.
State-mandated 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:
Article 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.