Sample Legislation from Tennessee

To protect student and parent rights in mental health testing

Tenn. Code Ann. § 49-2-124 

Mental health or socioemotional

screening--when permitted; consent; parental rights

 (a) As used in this section:

 (1) “Mental health screening” or “socioemotional

screening” means, for the purposes of this chapter, the use of one (1) or

more brief, structured questionnaires designed to identify the possibility

that an individual has a mental health problem;

(2) “Psychotropic medication” means a drug that

exercises a direct effect upon the central nervous system and that is capable of influencing and modifying behavior. Psychotropic medication includes, but is not limited to:

 (A) Antipsychotics;

 (B) Antidepressants;

 (C) Agents for control of

mania and depression;

 (D) Antianxiety agents;

 (E) Psychomotor stimulants;

and

 (F) Hypnotics; and

 (3) “Universal mental health or socioemotional

screening” means, for the purposes of this chapter, any mental health

screening program in which a group of individuals is automatically screened

without regard to whether there was a prior indication of a mental health

problem.

(b) Universal mental health or socioemotional

screening is only permitted under the following circumstances:

(1) A parent, guardian, legal custodian or

caregiver under the Power of Attorney for Care of a Minor Child Act, compiled in title 34, chapter 6, part 3, of a child under sixteen (16) years of age has provided written, active, informed and voluntarily signed consent that may be withdrawn at any time by the parent, guardian, legal custodian or caregiver under the Power of Attorney for Care of a Minor Child Act;

 (2) A court requires the mental health

evaluation, examination or testing;

 (3) Emergency screening, evaluation, examination

or testing of an individual under the Power of Attorney for Care of a Minor

Child Act or screening done in connection with a disaster or epidemic; or

 (4) Screening required pursuant to the early

periodic screening, diagnosis, and treatment (EPSDT) program with active,

written, informed, voluntarily signed consent as outlined in subdivision

(b)(1) that may be withdrawn at any time by the parent, legal guardian,

custodian or caregiver under the Power of Attorney for Care of a Minor Child Act who gave the consent.

 (c) Notwithstanding any law to the

contrary, a local education agency (LEA) may not use the parent's refusal to consent to administration of a psychotropic medication to a student or to a mental health screening, evaluation, testing or examination of a child or student as grounds for prohibiting the child from attending class or

participating in a school-related activity or as the basis of reporting or

charging child abuse, child neglect, educational neglect or medical neglect.

An LEA shall not use nor threaten use of school sanctions to a student to

coerce parental consent to a mental health screening, evaluation, testing or examination. A person employed by an LEA may not require that a student be evaluated or treated with any psychotropic medication or for a particular mental health diagnosis. Only the following LEA personnel may perform an evaluation for psychiatric diagnosis or treatment, or both, with written, informed, voluntarily signed consent as outlined in subdivision (b)(1) that may be withdrawn at any time by the parent, legal guardian, custodian or caregiver under the Power of Attorney for Care of a Minor Child Act who gave the consent:

 (1) A psychiatrist;

 (2) A physician with expertise in psychiatry as

determined by training, education or experience;

 (3) An advanced practice registered nurse with

special certification in mental health or psychiatric nursing;

 (4) An advanced practice registered nurse with

expertise in mental health or psychiatric nursing as determined by training, education or experience;

 (5) A psychologist with health service provider

designation;

 (6) A senior psychological examiner;

 (7) A licensed professional counselor;

 (8) A licensed clinical social worker; or

 (9) A school psychologist.

 (d) Written, informed, active, voluntary consent

as outlined in subdivision (b)(1) that may be withdrawn at any time by the parent, legal guardian, custodian or caregiver under the Power of Attorney for Care of a Minor Child Act must also be obtained before proceeding with any psychiatric treatment recommendations resulting from any mental health screening, evaluation, testing or examination.

 (e) Subsections (b), (c), and (h) shall not be construed to:

(1) Prevent an appropriate referral under the

child find system required under 20 U.S.C. § 1412, with appropriate parental consent procedures as required under 20 U.S.C. § 1414(a)(1)(D)(i);

 (2) Prohibit an LEA employee from discussing any

aspect of a child's behavior or academic progress with the child's parent or guardian or another appropriate school district employee, consistent with federal and state law, including the requirement of prior parental consent for the disclosure of any education records. Nothing in this subdivision (e)(2) shall be construed to modify or affect parental notification requirements for programs authorized under the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001, Public Law 107-110;

 (3) Prohibit an LEA employee from referring a

child to LEA personnel specified in subsection (c);

 (4) Prohibit referrals, counseling or support in

the event of an emergency or urgent situation to include, but not be limited to, the death, suicide, attempted suicide, murder, attempted murder, serious injury or serious illness of a student, teacher, staff, member of the administration, director of schools or any other school personnel or significant individual; or

(5) Prohibit testing that is a part of a course

of treatment, rehabilitation or service plan for children in the legal

custody of a state agency or required by federal law applicable to such

children, or as otherwise authorized under title 37, including, but not

limited to, child protective services assessments or evaluations.

(f) Each LEA shall inform each parent, legal

guardian, custodian or caregiver of their rights pursuant to this section and shall provide a copy of the LEA policy on the rights of parents and students as required in § 49-2-211 and a copy of the Protection of Pupil Rights (20 U.S.C. § 1232h), commonly referred to as the Tiahrt Amendment, as amended by the Parents Rights Restoration Amendment to Goals 2000, March 31, 1994, Public Law 103-227, § 1017, and included in the No Child Left Behind Law (20 U.S.C. § 6301 et seq.).

(g) The local board of education of each LEA shall adopt policies that may be reasonable and necessary to ensure implementation and enforcement of this section.

(h) An LEA or school shall notify parents or legal guardians prior to any student participating in any mental health screening. The written notice shall include:

(1) The purpose for the mental health screening;

(2) The provider or contractor providing the

mental health screening;

(3) The date and time at which the mental health screening is scheduled; and

(4) The length of time the mental health screening may last.

(i) Pursuant to § 49-1-704, a parent or legal

guardian has a right to inspect and review the parent or guardian's child's

education records.

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