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As a future school counselor, I know that one of my responsibilities will be crisis intervention. Suicide prevention is a serious, crucial component of all school staff training. Albeit, the role of the counselor will be a part of the initial stages of prevention/intervention. Since suicide is the second leading cause of death for ages 10-24, it is critical to know the legal parameters and best pratices when faced with a suicidal student (The Jason Foundation, 2021). This presentation is targeted specifically to those in the school counseling profession, but can be useful for anyone working with youth and adolescents.

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Youth Suicide Statistics - Parent Resource Program

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Suicide is the SECOND leading cause of death for ages 10-24. (2017 CDC WISQARS) Suicide is the SECOND leading cause of death for college-age youth and ages 12-18. (2017 CDC WISQARS) More teenagers and young adults die from suicide than from cancer, heart disease, AIDS, birth defects, stroke, pneumonia, influenza, and chronic ...

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Iris Guevara, lead counselor at Grantham Academy for Engineering, a middle school in Houston, Texas, stressed the importance of following legal, ethical, and policy standards; especially when dealing with as sensitive of a subject as youth suicide. Guevara stated that school-aged children are constantly dealing with a volatile mixture of a social and emotional balance. Since, developmentally,  their brains are frequently in overdrive, it's important that the adults on campus have a level-headed, calm, demeanor, but also remain under control and proactive. "You cannot be proactive and in control of a crisis situation, such as a suicidal student, if you do not know the policies  and laws required to handle those situations, " emphasized Guevara.
Best Practices when confronted with a suicidal student are to:

Take any report , threat, or concern of a suicide attempt seriously.

Meet with the student one-on-one.

Ask questions and listen.

Refer the student to mental health services if you recognize warning signs.

One of the emerging issues that Ms. Guevara said might be shocking to hear about younger students, but needs to be noticed, is abusive dating relationships. "You would be surprised to know how many 11 and 12 year old girls I have in my office that are in a dark place and contemplating suicide because their boyfriend mentally or physically abuses them. At that point, parents have to be informed and a report must be made, " said the concerned counselor.  Additionally, cyberbullying can contribute to suicidal thoughts or attempts. "Students feel helpless when bullying takes place online because so much of their social life is the perception they create for themselves on social media" (I. Guevara, personal communication, May 3, 2021).

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Counselors Tips to support your family (English) Consejos para mantener a tu familia (español) Click here to View Meetings Previously Held I. Guevara- Lead Counselor Virtual

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The Society for the prevention of Teen Suicide, also known as, SPTS is a TEA approved training program used to raise awareness and give guidance to educators , parents, and teens, on the risks of suicide. This organization was founded by two parents who lost their teenagers to suicide. It is the program used to train the staff in my current district, Aldine ISD, and it provides real world scenarios and role-playing opportunities to teach trainees prevention techniques (SPTSuniversity.org, 2021).

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" Among high school students of all demographics, 1 in 5 said they were thinking about suicide and 1 in 10 said they had made a plan to carry it out."

"That's despite the "increased attention given to the creation of campaigns to reduce youth suicide in the United States over the last decade, the study found" (American Pyschological Association, 2019).

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The new study, which analyzed data from 198,540 high school students collected by the U.S. Centers for Disease Control and Prevention's Youth Risk Behavior Survey, also found that almost one in five high school students had thoughts about suicide. About one in 10 had a suicide plan.

They looked at four suicide-related rates: suicidal thoughts, suicide plans, suicide attempts, and injury by attempt. (Injury by attempt refers to any injuries, poisonings, or overdoses that had to be treated by a medical professional as a result of an attempt.)

Researchers found that rates of suicidal thoughts and suicide plans have decreased across all groups.

Science-based coverage sent each weeknight to your inbox - all facts, no panic.

Black teens of both sexes reported an increase of 73% in suicide attempts from 1991 to 2017, with black male adolescents reporting an increase in injury by attempt as well.

"Ideation and plans represent a less serious form of suicide behavior, but attempts are potentially more caustic in terms of outcomes," said Michael Lindsey, a professor of poverty studies at New York University who led the study. "It suggests that black kids might be engaged in more impulsive behavior around suicide. And for black boys, the increase in injury by attempt means that they're engaging in more lethal means to attempt suicide."

Lindsey said that the increase in injury by attempt could be because black boys are using weapons to attempt suicide, which is more dangerous than taking pills.

The increase in suicide-attempt rates for black teens is in line with earlier research that found that black children between ages 5 and 12 died by suicide at twice the rate of white children in the same age group. Black boys, in particular, have experienced an increase in the rate of suicide deaths.

Previous research has pointed to disparities in mental health treatment for black adolescents compared with white adolescents. Some are reluctant to seek help or acknowledge mental illness symptoms, while others are skeptical of mental health treatment. But research has shown that the social issues black adolescents face, such as racial discrimination and poverty, have been linked to suicidal behaviors.

Jaynay Johnson, a family therapist who works with black teens in the Philadelphia area, said she wasn't surprised by the results of this study. Johnson said that black teens don't have a lot of outlets to just "let their emotions be," so living with mental illness can become very taxing.

"As we have pushed for more awareness around mental health and anxiety and depression, we have a lot more teens willing to share their experiences," she said. "But as they do that, they realize how much they don't have support."

Johnson also identified social media as a potential stressor for black girls, who increasingly absorb what the standards of beauty are through photos they see on Instagram. Johnson discusses these issues with black girls in group therapy sessions.

"When you're on social media all day long, all you're seeing are models who have a certain hair texture and certain skin," she said. "If you don't fit that mold, a lot of self-esteem issues start to creep in, along with self-doubt. And because black girls are at the bottom of the totem pole, no one's having these conversations with them about how to beat these issues."

As for young black men, Johnson said exposure to violence and racism that happens in their communities plays a bigger role in their mental health. Trauma from shootings in their families, communities, and even of black people they don't know can cause stress, anxiety, and depression. A study published last year by researchers from the University of Pennsylvania, Boston University, and Harvard University found that when police kill an unarmed black American, other black Americans who did not know the victim experience an emotional impact so severe that it is comparable to the stress caused by a chronic illness like diabetes.

Lead study author Lindsey said that it's important for researchers to look into why increasing numbers of black teens are attempting suicide.

"We need to provide all schools with mental health services proportional to the number of students who are there," he said. "Proximity and colocation of services is really important to getting kids identified early and connected to treatment."

Johnson agreed, saying that figuring out how to provide mental health services in schools is key to preventing suicide and related behaviors. She said that black students often find schools to be traumatic places because of ostracizing and lack of resources. Johnson said parents of teens should keep an eye out for mood swings and erratic behavior. A drastic break from normal routines or hobbies can indicate that something is wrong.

Overall, Johnson said that the biggest hurdle the black community faces with treatment for mental health is the stigma associated with it.

"We need to continue to diminish that so we can build programs tailored for youth," she said. "In other communities, they've accepted mental health. They're the ones writing the books. For us, we are behind the ball with that."

If you or someone you know is thinking of suicide, call the National Suicide Prevention Lifeline at 1-800-273-8255 or text TALK to the Crisis Text Line at 741741.

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Suicide attempts rising for black teens, study shows

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The new study, which analyzed data from 198,540 high school students collected by the U.S. Centers for Disease Control and Prevention's Youth Risk Behavior Survey, also found that almost one in five high school students had thoughts about suicide. About one in 10 had a suicide plan.

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According to the APA, there is a correlation to teens' use of social media and reports of depression.

Warning signs such as, talking about death or wanting to die, extreme mood swings, or increased drug or alcohol abuse, will often show in suicidal students.

It is important for adults to listen to the youth voice their doubts or concerns about life, school, etc. (American Psychological Association,2020).

Heffron, C., & Shelton, R. (2020). Conffronting Teen Suicide. Saint Anthony Messenger, 128(1), 30–36.

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Slide #6: Original Source of Law Federal/State

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Slide #6: Original Source of Law Federal/State

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Statutory
87 (R) H.B. 2954

This House Bill relates to suicide prevention, intervention, and postvention programs for Texas elementary schools.

The purpose is to promote, fund, and train the schools to reduce suicide risks.

Coordinated, with Health and Human Services, to implement a program called Advancing Wellness and Resiliency in Education (AWARE)

Does not authorize a school district employee to recommend perscriptions or make medical decisions for students

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87(R) HB 2954 - Introduced version - Bill Text

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relating to a suicide prevention, intervention, and postvention

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Slide #7: Original Source of Law Federal/State

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Slide #7: Original Source of Law Federal/State

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Statutory
Garrett Lee Smith Memorial Act of 2004, Pub. L. No. 108-355, § 2634

A response to youth suicide in the U.S.

74 college campuses participate and receive grants for suicide prevention.

Grants awarded to states, tribes, and territories for prevention programs not only in schools, but in juvenile facilities, foster care programs, and mental healtth programs

Calls for data collection on effectiveness of efforts, activities, and policy developments

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Shown Here:
Public Law No: 108-355 (10/21/2004)
(This measure has not been amended since it was passed by the House on September 9, 2004. The summary of that version is repeated here.)
Garrett Lee Smith Memorial Act - Amends the Public Health Service Act to require the Secretary of Health and Human Services, acting through the Administrator of the Substance Abuse and Mental Health Services Administration, to award a grant to an additional research, training, and technical assistance center to provide information, training, and technical assistance to various entities, including for: (1) developing or continuing statewide or tribal suicide early intervention and prevention strategies; (2) ensuring the surveillance of such strategies; (3) studying the costs and effectiveness of such strategies; (4) promoting the sharing of data regarding youth suicide; and (5) evaluating and disseminating outcomes and best practices of mental and behavioral health services at institutions of higher education.

Requires the Secretary to award grants or cooperative agreements to various entities to design early intervention and prevention strategies that will complement the State-sponsored statewide or tribal youth suicide prevention strategies developed under this Act, including by: (1) providing for the timely assessment, treatment, or referral for mental health or substance abuse services of youth at risk for suicide; (2) offering access to services and care to youth with diverse linguistic and cultural backgrounds; and (3) conducting annual self-evaluations of outcomes and activities. Provides grants for three years.

Requires the Secretary, acting through the Administrator of the Substance Abuse and Mental Health Services Administration, to award grants or cooperative agreements to States or Indian tribes to: (1) develop and implement the suicide prevention strategies in schools, juvenile justice systems, and other child and youth support entities; (2) support organizations actively involved in such strategies and in developing and continuing such strategies; (3) provide grants to institutions of higher education to coordinate the implementation of such strategies; (4) collect and analyze data to monitor the effectiveness of suicide prevention services and for research, technical assistance, and policy developments; and (5) assist eligible entities in achieving their targets for youth suicide reductions. Limits grant or cooperative agreement awards to one per State.

Requires States to give preference to certain entities in providing assistance, including those that: (1) provide suicide prevention services to at-risk youth and that are integrated with child and youth support organizations; (2) provide immediate support and information resources to families of at-risk youth; (3) offer appropriate post-suicide intervention services, care, and information; (4) train professionals in suicide prevention services and in effectively identifying youth who are at risk; and (5) obtain informed written consent from a parent or legal guardian of an at-risk child before involving the child in an intervention and prevention program. Requires 85 percent of grant funds to be used to provide direct services and at least 5% to be awarded to institutions of higher education.

Requires the Secretary to coordinate and collaborate on policy development with relevant Department of Health and Human Services (HHS) agencies and suicide working groups and to consult with the private sector on policy development with respect to suicide prevention strategies.

States that this Act does not: (1) require suicide assessment, early intervention, or treatment services for youth whose parents or legal guardians object based on the parents' or legal guardians' religious beliefs or moral objections; or (2) allow school personnel to require that a student obtain any medication as a condition of attending school or receiving services.

Prohibits funds appropriated under this Act from being used to pay for or refer for abortion.

Requires that States and entities receiving funding under this Act obtain prior written, informed consent from the child's parent or legal guardian for assessment services, school-sponsored programs, and treatment involving medication related to youth suicide conducted in elementary and secondary schools, except in: (1) an emergency where it is necessary to protect the immediate health and safety of a student; or (2) other instances defined by the State where parental consent cannot be reasonably obtained.

Provides that States that have rates of suicide that significantly exceed the national average be given preference in the event of limited appropriations.

Allows the Secretary, acting through the Director of the Center for Mental Health Services, to award competitive matching grants to institutions of higher education to enhance services for students with mental and behavioral health problems that can lead to school failure, such as depression, substance abuse, and suicide attempts, so that students can successfully complete their studies. Provides that institutions receiving such grants must agree to use such funds only for: (1) educational seminars; (2) the operation of hot lines; (3) the preparation of informational material, including materials for families to increase awareness of potential mental and behavioral health issues of students; (4) training programs for students and campus personnel to respond effectively to students with mental and behavioral health problems that can lead to school failure; or (5) the creation of a networking infrastructure to link colleges and universities that do not have mental health services with health care providers who can treat mental and behavioral health problems. Sets forth application requirements.

Sets forth reporting requirements.

Authorizes appropriations.

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S.2634 - 108th Congress (2003-2004): Garrett Lee Smith Memorial Act

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(This measure has not been amended since it was passed by the House on September 9, 2004. The summary of that version is repeated here.)

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Slide #8: Original Source of Law Federal/State

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Slide #8: Original Source of Law Federal/State

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Judicial
Nguyen v MIT, 96 N.E. 3d 128 (2018)

Decision made in the Massachusetts Supreme Jucidicial Court

Involved a tort claim of negligence in response to a MIT college student who had previously attempted suicide and had seen several on-campus  professionals

Put into question the university's duty to prevent suicide

The Court decided it was the institution's duty to intervene and protect the students from self-harm. It was determined that a suicide prevention protocol must be enacted by the institution.

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Download PDF

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us SJC-12329 DZUNG DUY NGUYEN, administrator,1 vs. MASSACHUSETTS INSTITUTE OF TECHNOLOGY & others.2 Middlesex. Present: November 7, 2017. - May 7, 2018. Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ. Wrongful Death. Negligence, Wrongful death, College. Damages, Wrongful death, Conscious pain and suffering, Breach of contract. Practice, Civil, Amendment of complaint. Workers' Compensation Act, Exclusivity provision. Civil action commenced in the Superior Court Department on September 6, 2011. The case was heard by Bruce R. Henry, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Jeffrey S. Beeler for the plaintiff. Kevin P. Martin (Yvonne W. Chan also present) for the defendants. Alan D. Rose, B. Aidan Flanagan, & Antonio Moriello, for Amherst College & others, amici curiae, submitted a brief. 1 Of the estate of Han Duy Nguyen. 2 Birger Wernerfelt, Drazen Prelec, and David W. Randall. 2 Jonathan A. Karon, Thomas R. Murphy, Mark F. Itzkowitz, & Lisa DeBrosse Johnson, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. KAFKER, J. The plaintiff, Dzung Duy Nguyen, commenced a wrongful death action against the defendants, Massachusetts Institute of Technology (MIT), MIT Professors Birger Wernerfelt and Drazen Prelec, and MIT assistant dean David W. Randall, arising out of the suicide of his son, Han Duy Nguyen (Nguyen). The defendants are alleged to have been negligent in not preventing Nguyen's suicide. The motion judge allowed summary judgment for MIT and the individual defendants, finding no duty to prevent Nguyen's suicide. Although we conclude that, in certain circumstances not present here, a special relationship and a corresponding duty to take reasonable measures to prevent suicide may be created between a university and its student, we affirm the decision of the motion judge that the defendants are entitled to judgment as a matter of law.3 Background. We summarize the facts in the record in the light most favorable to the plaintiff. Godfrey v. Globe We acknowledge the amicus brief filed by the Massachusetts Academy of Trial Attorneys; and the amicus brief filed in support of defendants by Amherst College, Bentley University, Berklee College of Music, Boston College, Boston University, Brandeis University, College of the Holy Cross, Emerson College, Endicott College, Harvard University, Northeastern University, Simmons College, Smith College, Stonehill College, Suffolk University, Tufts University, Williams College, and Worcester Polytechnic Institute. 3 3 Newspaper Co., 457 Mass. 113, 114 (2010). We reserve additional facts for our discussion of the legal issues. 1. The parties. At the time of his death on June 2, 2009, Nguyen was a twenty-five year old graduate student in the marketing program at MIT's Sloan School of Management (Sloan) and lived off-campus. Prelec was a Sloan faculty member and served as Nguyen's graduate research advisor. Wernerfelt was a Sloan faculty member and head of the Marketing Group Ph.D. program whose responsibility included advising graduate students concerning their coursework and research. Randall was an assistant dean in MIT's student support services (student support) office. 2. MIT support resources. In May, 2007, after his first academic year at MIT and two years before his death, Nguyen contacted Sloan's Ph.D. program coordinator, Sharon Cayley, for assistance with test-taking problems. Nguyen explained to Cayley that he was "failing all of my classes because I don't know how to take [examinations (exams)]. I know the course material, but it just won't happen for me on exams." Cayley then referred Nguyen to an MIT student disability services office coordinator, who described some of MIT's accommodations for individuals with disabilities. accommodations. Nguyen declined such In her notes from her meeting with Nguyen, the coordinator wrote that Nguyen "does not want to connect with MIT 4 Medical. (I recommended that he do so.) Says it won't be helpful; no reason to do so" (emphasis in original). After two meetings with the coordinator, Nguyen reported to Cayley that the meetings were of "absolutely no use . . . [the coordinator] seemed to think that because I was referred to her, that meant that I was disabled, and therefore had only disability accommodations to offer me." On June 25, 2007, Cayley referred Nguyen to MIT's mental health and counselling service (MIT Mental Health) and informed Wernerfelt that this referral was Cayley's "response to [Nguyen's] expressed need for remedial study skills." On July 9, 2007, Nguyen met with Dr. Celene Barnes, a psychologist at MIT Mental Health. On meeting Barnes, Nguyen stated that he did not know why he "was referred here. My issues have nothing to do with [mental health]." During the intake meeting, Nguyen denied suicidal ideation. Barnes "provided [a] brief overview of [information] on test anxiety and gave him handouts used in the test anxiety workshop [and] [o]ffered to work with him on this issue." Nguyen "declined, stating again that he did not want to seek[] services at [MIT Mental Health] due to the stigma associated with it." On July 25, 2007, Nguyen had a second appointment with Barnes. She conducted a general intake, which irritated Nguyen because "he didn't know what other [mental health] issues had to 5 do with his test taking problem." During this meeting, Nguyen disclosed to Barnes that he had had a long history of depression with two prior suicide attempts during college but denied any present suicidal ideation. Nguyen also disclosed that he had been in treatment prior to coming to MIT and that he had resumed treatment with a psychiatrist in the area. Although Nguyen had hoped that his test anxiety issue would be resolved in one appointment, he agreed to follow up with Barnes at the start of the school year. On July 29, 2007, Nguyen told Cayley that he found MIT Mental Health to be "useless," that Barnes "proceeded to turn me into a mental patient, and I was forced to discuss things that I really didn't want to," and that he doubted that MIT Mental Health was the "correct agency to solve my problem." Further, Nguyen questioned why Wernerfelt had to be informed of the referral to Barnes because Nguyen was "hoping to keep the circle as small as possible, since I'm very ashamed and embarrassed about [my test-taking problems]." On August 9, 2007, Nguyen reported to Barnes that he was receiving treatment from Dr. John J. Worthington, a psychiatrist at Massachusetts General Hospital (MGH), not MIT Mental Health. Barnes offered to consult about treatment planning, but Nguyen declined. Subsequently, Nguyen informed Barnes that he had "been able to make other arrangements for treatment, so there 6 will be no need to search any further, but I really appreciate all of your effort thus far." On September 6, 2007, Nguyen met with Randall, the assistant dean in the student support office.4 Before meeting with Randall, Nguyen had sent an electronic mail (e-mail) message to another student support dean, inquiring whether the student support office could help him with his problem, which was that he had "difficulty with taking exams, to the extent that [he was] failing classes" and asked if the student support office offered "any kind of counseling service that teaches study skills." In their first meeting, Randall reported that Nguyen was "very committed to this not being seen as a 'problem' and [was] looking for a quick fix." Toward the end of the meeting, Nguyen acknowledged that he had a long history of mental health issues and depression and that he was seeing a psychiatrist, Dr. Worthington, off campus. On September 24, 2007, Nguyen returned to see Randall. Nguyen described a "long history of depression dating back to high school," and treatment by "several . . . therapists during college." He also "acknowledged two suicide attempts in the At the time, Randall was a licensed clinical psychologist. Both parties are in agreement, however, that Randall did not have a clinician-patient relationship with Nguyen in his nonclinical capacity as assistant dean in the Massachusetts Institute of Technology (MIT) student support services office. 4 7 past and frequent suicidal thoughts." Nguyen, however, stated that he "did not identify a specific plan [to commit suicide] . . . and [was] not imminently suicidal." Although perceiving that Nguyen was not an imminent threat, Randall "strongly encouraged" Nguyen to visit MIT Mental Health. But after his recent MIT Mental Health meeting with Barnes, Nguyen was resistant and stated that his current psychiatrist was already aware of his prior suicidal ideation and that Nguyen also had plans to see another therapist, Dr. Stephen Bishop, in Rhode Island. By the end of the September 24 meeting, Nguyen gave Randall permission to contact Worthington, Bishop, and Barnes. Later that day, Randall left a voice message for Worthington. Subsequently, Nguyen revoked Randall's permission to contact Worthington and stated in an e-mail message that he would "like to keep the fact of my depression separate from my academic problems. I'd prefer that we not any further discuss the depression, that my academic problems can be framed in terms of a deficit in study skills instead. If you can offer any such aid, I'd be happy to further employ your services." On September 25, Randall acknowledged Nguyen's decision and replied that he "would still like to meet with you and think that I can be helpful." Randall also stated in the e-mail message that Nguyen was permitted "to schedule another [appointment]." 8 Nguyen did not respond to Randall's e-mail message and did not have any further meetings or contact with Randall after September, 2007. Worthington followed up with Randall on September 27, 2007. Worthington was unable to share any information or confirm that Nguyen was his patient, but said that he could listen to Randall's concerns, especially regarding Nguyen's safety. Randall informed Worthington that Nguyen appeared "agitated, a little suspicious, and anxious, both at [the student support office] and MIT [Mental Health]," and of Nguyen's "suicidal thoughts and previous attempts." Worthington did not discuss the case further, but agreed the information should be taken seriously. On September 28, 2007, Randall told Barnes that he had spoken with Worthington about Nguyen, and wrote, "Let's keep in touch about this student." Barnes responded, "I agree, let's definitely keep in touch about [Nguyen]." Nguyen did not return to see Barnes or any other mental health provider at MIT Mental Health. 3. Nguyen's mental health history. Although Nguyen briefly sought out the student disability services office, MIT Mental Health, and the student support office between May and September, 2007, he extensively consulted with clinicians not affiliated with MIT. Between July, 2006, when Nguyen moved to Massachusetts, and May, 2009, Nguyen saw at least nine private 9 mental health professionals who collectively recorded over ninety in-person visits during this period. There was no indication from any of these mental health professionals that Nguyen was at an imminent risk of committing suicide. From July, 2006, two months before enrolling at MIT, to November, 2008, Nguyen was treated by Worthington, a psychiatrist at MGH. Over the course of their forty-three in- person appointments, Worthington discerned nothing indicating that Nguyen was at an imminent risk of suicide. Nguyen requested electroconvulsive therapy to treat his depression, and received six rounds of it at MGH in August and September, 2006. Starting in September, 2006, Nguyen began therapy with a social worker at MGH and was scheduled for sixteen sessions. Nguyen disclosed to the social worker that he had occasional suicidal thoughts, but no suicidal intent or plan. After their twelfth visit, Nguyen canceled his remaining appointments stating that his "time together [with the social worker had] not resulted in an inch of progress." Nguyen's next therapist was Bishop, whom he saw for several months in Rhode Island beginning in October, 2007. Bishop diagnosed Nguyen with dysthymic disorder, a chronic depressive condition. Nguyen saw Bishop six times between October, 2007, and March, 2008, but stopped seeing him because of the distance and because Bishop did not accept his health insurance plan. 10 From April, 2008, to March, 2009, Nguyen sought treatment from a doctor at a private practice group who specialized in sleep disorders. This doctor did not think that Nguyen was at risk of suicide during the time she was treating him. Starting in August, 2009, Nguyen saw a psychologist affiliated with the same private practice group. In February, 2009, Nguyen canceled his future appointments with the psychologist because he believed his "sleep patterns [were] beginning to converge on nonpathology." Next, in November, 2008, Nguyen met twice with another doctor to complete a psychological test. During the interview, Nguyen told that doctor that he was "not imminently suicidal." That same month, Nguyen stopped seeing Worthington because Nguyen believed him to be "too autocratic and didn't consider [Nguyen's] input."5 Nguyen then began seeing yet another doctor and continued to see him through May, 2009. At Nguyen's initial appointment, that doctor noted that Nguyen "made two 'halfassed' suicide attempts. He denies suicidal ideation." At each appointment, the doctor and Nguyen discussed whether Nguyen had "any self-destructive thoughts . . . [or felt like] giving up." Nguyen had made a similar point in June, 2008, when he sent an electronic mail (e-mail) message to Worthington stating, "I need you to consider me as part of the team when it comes to my own treatment. . . . After all I am a PhD student at one of the world's top universities. Please give me a little credit here." 5 11 Nguyen denied any such thoughts or feelings. In March, 2009, Nguyen began seeing a different doctor, with whom he had six visits. Nguyen told the doctor about his two prior suicide attempts but denied any current suicidal ideation. Throughout this time, the doctor did not believe that Nguyen was at an imminent threat of self-harm. Nguyen's last appointment with this doctor was on May 28, 2009, five days before Nguyen's death. The doctor noted that Nguyen "did not say anything that sounded imminently suicidal or hopeless, and we discussed more things that he would do toward exploring thesis and career options, and we made a next [appointment] for [June 18]." 4. Nguyen's academic challenges. At times during his studies at Sloan, Nguyen struggled academically and performed "well below average" in some of his courses. During Nguyen's time at MIT, neither Wernerfelt nor Prelec was aware of Nguyen's history of severe depression or prior suicide attempts. Wernerfelt knew only that Nguyen had insomnia and test taking anxiety, and that he was consulting off-campus mental health professionals. On May 9, 2008, Prelec was informed by one of his MIT colleagues that Nguyen was reportedly "out of it" and "despondent," potentially because Nguyen was "having trouble sleeping as of late." On May 12, Prelec met with Nguyen and 12 reported to Wernerfelt that Nguyen is "sleep deprived . . . and is taking something on prescription to help him sleep. He is seeing a psychiatrist regularly, at Mass General (not MIT). Same person he has been seeing since he got here." Wernerfelt replied that Nguyen "has had some serious issues with exam anxiety, so I worry about the general[] [exams]. Perhaps we can give them in a less concentrated form . . . [t]hat way he can get a good grade under his belt . . . I think that it would be good to give him some confidence."6 On May 26, 2008, Wernerfelt was informed that Nguyen had performed poorly in a course that an MIT colleague taught. Nguyen had told that colleague that he had "medical problems that have prevented him from focusing on classes . . . [and] asked [the colleague] to consider his weakened health when he [took] the final." Wernerfelt responded to his colleague that Nguyen was "having serious problems. Some of his issues seem to peak at exam time, but there is much more to it than that. He has been seeing a psychiatrist at MGH (not MIT) as long as he has been here. I thus have no official information, but I do Wernerfelt testified that "general exams" were required for all MIT Sloan School of Management Ph.D. students. Students typically take these examinations at the end of their second year, over a period of several days. 6 13 believe that he is at risk."7 Wernerfelt suggested that his colleague be lenient and "grade him based on the problem sets" rather than his final examination. On June 2, 2008, Wernerfelt sent an e-mail message to seven of Nguyen's professors, informing them that Prelec and he had "decided to reduce the pressure on [Nguyen] by spreading out his general[] [exams] over several weeks." On June 4, Wernerfelt, "[i]n an attempt to reduce the pressure on [Nguyen] as much as possible," further modified Nguyen's examination schedule allowing Nguyen to take the examinations when he was ready. In a June, 2008 self-evaluation form, Nguyen stated that his academic performance was "[b]elow average, due to my medical condition." Nguyen indicated that the "primary nature of this illness [was] insomnia" and that he had "been seeing a team of doctors at [MGH] and elsewhere who have been trying to help me." Nguyen described how "horrendously bad" his medical condition was, stating that "[t]here were days during which I was so completely debilitated for the entire day that I was unable to get out of bed at all, much less function properly" and that at one point he "had to be hospitalized because I was so delirious Wernerfelt testified that he meant "risk" to refer to "some adverse reaction if [Nguyen] were to get a really low grade" in Nguyen's economics course. Wernerfelt stated that a low grade was "not a big deal" because if Nguyen got "a bad grade . . . he [could] take a makeup exam or . . . take another course instead" to satisfy the graduate school requirement. 7 14 and incoherent after not being able to sleep for over [seventytwo] hours." Nguyen further stated that he "would not be surprised if I have to be hospitalized again in the near future." Nguyen also stated that he was on his ninth different sleeping pill prescription and that he was still not functioning well. Nguyen did not disclose any history of depression, suicidal ideation, or his prior suicide attempts in his selfevaluation. After receiving Nguyen's self-evaluation, Wernerfelt offered to help Nguyen obtain a "leave from the program . . . such that [he] could return to a good situation once the [doctors] lick [his] sleeping problems." On October 30, 2008, Nguyen sent an e-mail message to Wernerfelt and requested an examination schedule that would take place between January 12 and January 26, 2009, with his oral examination during the week of January 26 through January 30, 2009.8 Prelec testified that Nguyen's performance "varied some, but overall it was not a good performance." After Nguyen had completed his general examinations, the faculty in his department met in January, 2009, to discuss Nguyen's performance and whether he had passed. Wernerfelt advocated that "Nguyen should be passed and that the faculty should counsel him to pursue a master's degree." Wernerfelt Nguyen's general examinations originally had been scheduled for the summer of 2008. 8 15 also stated that "they might end up with 'blood on their hands'" if the faculty were to fail Nguyen.9 One of Wernerfelt's colleagues testified that the phrase, "blood on our hands," was repeated several times. After the faculty passed Nguyen, Wernerfelt met with Nguyen to inform him that he had passed, although he was required to take certain additional courses to remain in the Ph.D. program. Further, Wernerfelt "laid out the path to a [Master's degree] . . . [and] [s]aid that all members of the faculty felt that he would be unhappy in a professorial job." In March, 2009, Nguyen sent an e-mail message to Prelec, telling him that "to be a professor" is what Nguyen "want[ed] more than anything. . . . [and he was not] convinced that anyone has really taken [his] health issues into consideration." Nguyen remained insistent that he would "still do everything in [his] power to ensure that [he] will finish the PhD." Prelec met with Nguyen weekly during the spring of 2009 and noticed that Nguyen "seemed better" and was having fewer sleep problems. That semester, Nguyen served as a teaching assistant and, at the end of the semester, was offered another teaching assistant position for the fall of 2009, which he accepted. In In contrast to failing a course, failing general examinations could lead to dismissal from the graduate program. Wernerfelt testified that if Nguyen were to fail his general examinations, there was a "very small chance that . . . something bad could happen . . . such as [Nguyen] hurting himself or others." 9 16 May, 2009, Prelec recommended Nguyen for a summer research assistant position in an MIT laboratory. On May 27, 2009, Nguyen sent an e-mail message to the project investigator that he was "very excited about [the] project . . . [and] would be eager to begin very soon." Nguyen also requested an update about funding logistics, as he was under the impression that the MIT laboratory's "coffers were bottomless." Prelec was copied on this message and forwarded it to Wernerfelt, stating that he was "mildly nervous" about recommending Nguyen because "[w]ith this talk of bottomless coffers . . . [Nguyen] will rapidly offend . . . folks." In response, Wernerfelt suggested that "someone should talk to [Nguyen] about sending more respectful e-mails" and that "[p]erhaps we should offer to prescreen his emails . . . after two or three [Nguyen] might get the idea." Wernerfelt offered to take the lead on speaking with Nguyen about e-mail etiquette. 5. Nguyen's suicide. At approximately 7 A.M. on June 2, 2009, Nguyen sent the project investigator an e-mail message, on which he blind-copied Prelec: "I forgot to mention that this upcoming Monday I have a doctor's appointment that I had scheduled a long time ago, so I won't be able to come into the office until about 11:30 that day. I hope that that won't be a problem. "If we can quickly follow up on the conversation that we had yesterday, if you'll forgive me, I'd like to be honest with you about something. [Prelec] recommended me for this position . . . [a]nd I'm not an undergrad 17 anymore; I'm a grad[uate] student now. For those reasons, it was disturbing, as well as a little insulting, to me that yesterday you took pains to express your expectations of me in a manner that presumed that I would give you anything less than this project deserved, that you would 'give me a signal' if you didn't think that my contribution amounted to something deserving of authorship credit, that 'there would be a problem' if it turned out that '[you] could do [the work] faster [your]self,' that you threatened me that you could tell by visual inspection whether my work was up to par. I like to feel like I've earned the right not to have my effectiveness or my integrity questioned anymore, and to hear you do that yesterday was kind of hurtful. I'm not sure that if you continue to do this that I'll be able to work as effectively as I'd like to be able to. Although I keep asking about it, I'm not just doing this for the money. I want to learn something and make a meaningful contribution . . . . Would it be possible that we could move forward with an understanding of good faith on my part?" After receiving Nguyen's e-mail message, Prelec and the project investigator spoke about it. The project investigator told Prelec that Nguyen had taken his comments out of context and that Nguyen misinterpreted his intentions and the tone of the meeting. Prelec forwarded the e-mail message to Wernerfelt, asking if Wernerfelt could "talk to [Nguyen] as a somewhat neutral party . . . [Nguyen] is misreading things. reply is totally out of line." sorry. Even so, the tone of Wernerfelt responded, "I am so I will talk to [Nguyen] and let you know what he says." At approximately 9 A.M. on June 2, Nguyen arrived at a laboratory in a building on MIT's campus. The laboratory coordinator noted that Nguyen's demeanor appeared "pretty 18 normal" and that Nguyen was preparing for a research project. After a number of missed calls between Nguyen and Wernerfelt, at 10:51 A.M., Nguyen reached Wernerfelt by telephone. the laboratory to take the call.10 Nguyen left After the telephone call ended at approximately 10:59 A.M., Nguyen went to the roof of the building and jumped off the building to his death. A first responder administered first aid to Nguyen "a few seconds" after he landed and did not identify any signs of breathing, eye movement, pulse, or consciousness. It was determined that the immediate cause of Nguyen's death was "blunt trauma with head, skull, torso and extremity injuries" and that it occurred within "seconds." Meanwhile, after Wernerfelt finished speaking with Nguyen, at 11:04 A.M., Wernerfelt sent an e-mail message to Prelec: "I read [Nguyen] the riot act "Explained what is wrong about the e-mail "Told him that you or I would look over future e-mails he Wernerfelt testified that he contacted Nguyen because he had been forwarded Nguyen's e-mail message to the project investigator and that he wanted to help with Nguyen's "social skills." Wernerfelt testified that he "went through point for point" giving "advice and explanations" on what was improper with Nguyen's e-mail. Wernerfelt recommended that Nguyen, in the future, let him or Prelec review Nguyen's e-mail drafts. Wernerfelt reiterated that Nguyen "would be happier outside the academe" and "should think about getting a [M]aster's degree and pursuing a nonacademic job." At the conclusion of the telephone call, Wernerfelt told Nguyen that "some patching up would have to be done after this e-mail, and [Wernerfelt] thought [Nguyen] should . . . contact [Prelec] and the two of them could together figure out what the next steps would be." 10 19 send[s] . . . "I said that we know that he is not out to offend anyone but that he seems poor at navigating the academe "Said that this is an example of why we all recommended that he take a [Master's Degree] and go out to get a job "I talked about some papers he could turn into [a Master's] thesis and volunteered to supervise it "Said that he made you look bad vs [the laboratory] and that some patching up was necessary "He will call you about what to do" Later in the afternoon on June 2, 2009, one of Wernerfelt's colleagues sent an e-mail message to Wernerfelt that "I know you were worried about suicide, but you can feel positive that we tried very hard to help [Nguyen] (and especially you did so much to help him)."11 In 2011, the plaintiff commenced an action in Superior Court, alleging that the defendants' negligence caused Nguyen's death. In March, 2016, the defendants moved for summary judgment and the plaintiff filed a cross motion for summary judgment. In October, 2016, the defendants' motion for summary judgment was allowed and the plaintiff's cross motion for summary judgment was denied. The plaintiff appealed from the denial of his motion, and we granted his motion for direct appellate review. Discussion. The plaintiff contends that the defendants owed Nguyen a duty of reasonable care and committed a breach of The colleague testified that Wernerfelt "didn't actually say suicide. He said serious consequences, which I interpreted . . . as a risk for suicide." 11 20 this duty. Additionally, the plaintiff argues that the record supports claims for punitive damages, conscious pain and suffering, and breach of contract. The plaintiff also asserts that the Superior Court judge improperly denied the plaintiff's motion to amend the complaint to assert claims against former MIT chancellor Phillip Clay. Lastly, the plaintiff contends that summary judgment should be entered in his favor that Nguyen was not an MIT employee at the time of his death for workers' compensation purposes. 1. Standard of review. Where the parties have cross-moved for summary judgment, we review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the unsuccessful opposing party and drawing all permissible inferences and resolving any evidentiary conflicts in that party's favor, the successful opposing party is entitled to judgment as a matter of law. Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752, 756 (2010). See Cabot Corp. v. AVX Corp., 448 Mass. 629, 636-637 (2007), citing Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). 2. Negligence claim. a. General negligence principles. "To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant [committed a breach of] this duty, that damage resulted, and that there was a causal relation between the 21 breach of the duty and the damage." 141, 146 (2006). Jupin v. Kask, 447 Mass. Generally, there is no duty to prevent another from committing suicide. Under our case law, "we do not owe others a duty to take action to rescue or protect them from conditions we have not created." Cremins v. Clancy, 415 Mass. 289, 296 (1993) (O'Connor, J., concurring). "[T]he law has persistently refused to impose on a stranger the moral obligation of common humanity to go to the aid of another human being who is in danger, even if the other is in danger of losing his life." W.L. Prosser & W.P. Keeton, Torts § 56, at 375 (5th ed. 1984). b. Special relationships and the duty to prevent suicide. We have, however, recognized that special relationships may arise in certain circumstances imposing affirmative duties of reasonable care in regard to the duty to rescue, including the duty to prevent suicide. The classic case is the custodial relationship, particularly jails or hospitals.12 In Slaven v. In noncustodial cases, a defendant is also "liable for another's death by suicide when, as a consequence of a physical impact, death results from an 'uncontrollable impulse, or is accomplished in delirium or frenzy.'" Slaven v. Salem, 386 Mass. 885, 886-887 (1982), quoting Daniels v. New York, N.H. & H.R.R., 183 Mass. 393, 399-400 (1903). The plaintiff asserts that the second scenario applies, that Wernerfelt triggered Nguyen's uncontrollable suicidal impulse by the "riot act" telephone call. In this case, the "uncontrollable impulse" scenario does not apply, as there has been no prior physical 12 22 Salem, 386 Mass 885, 888 (1982), we addressed the duty and accompanying responsibilities of a jailor for the suicide of a prisoner in his custody. "One who is required by law to take or voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a duty (1) to protect them against unreasonable risk of physical harm, and (2) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others." Id. at 887, citing Restatement (Second) of Torts § 314A (1965). We further explained that "[t]he comments to § 314A state that a 'defendant is not liable where he neither knows nor should know of the unreasonable risk, or of the illness or injury.'" Slaven, supra, citing Restatement (Second) of Torts, supra at § 314A comment e. Finally, we noted that in cases in other jurisdictions "that have addressed the issue of the liability of a jailor for the suicide of one in his custody, most have required that there be evidence that the defendant knew, or had reason to know, of the plaintiff's suicidal tendency." Slaven, supra at 888. We likewise conclude that there are other special relationships, outside the custodial context, that may impose affirmative, albeit limited, duties in regard to suicide injury causing the uncontrollable impulse. 887. Slaven, supra at 23 prevention. We therefore turn to the scope of the university- student relationship, and the duties, if any, it imposes regarding suicide prevention.13 c. The modern university-student relationship. We begin with the Restatement (Third) of Torts, which states that "[a]n actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship." Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40(a) (2012). Included in the list of special relationships giving rise to such duty is "a school with its students." Id. at § 40(b)(5). This, of course, is the beginning and not the end of the analysis. There is a wide range of schools -- from elementary to graduate school -- and great differences in the scopes of student-school relationships. Additionally, the Restatement (Third) of Tort's formulation of special relationship is not focused on the specific question of student suicide. The particularities of the university-student relationship are of paramount importance in defining any duty. Universities are clearly not bystanders or strangers in regards to their students. See Mullins v. Pine Manor College, 389 Mass. 47, 51- Our use of the term "university" encompasses other institutions of higher education, including but not limited to colleges and universities. 13 24 52 (1983). nature.14 The primary mission of universities is academic in Universities also sponsor and have special relationships with their students regarding athletics and other potentially dangerous activities. See, e.g., Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1370 (3d Cir. 1993) (duty of care to lacrosse player during practice); Davidson v. University of N. Carolina at Chapel Hill, 142 N.C. App. 544, 555-556 (2001) (duty of care to cheerleader during practice). Suicide on Campus: See also Massie, The Appropriate Legal Responsibility of College Personnel, 91 Marq. L. Rev. 625, 641 (2008) (Suicide on Campus). Cf. Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 202 (2003) (special relationship does not extend to athletes from other schools). They are also property owners and landlords responsible for their students' physical safety on campus. See Mullins, 389 Mass. at 51-52; Massie, Suicide on Campus, supra at 642. Furthermore, university involvement extends widely into other aspects of student life. Determining Duty in Collegiate Tort Litigation: See Dall, Shifting Paradigms of the College-Student Relationship, 29 J.C. & U.L. 485, 519 (2003) (universities "do not conceive of their For example, "[t]he mission of MIT is to advance knowledge and educate students in science, technology, and other areas of scholarship that will best serve the nation and the world in the 21st century]." http://web.mit.edu/facts /mission.html [https://perma.cc/KF4R-PQ3W]. 14 25 educational role narrowly . . . and foster many aspects of student life and community involvement such as residential life, multicultural programs, student organizations, student government, student media, community service, internships and externships, technology, health and fitness, and spirituality"). Accord Regents of the Univ. of Cal. vs. Superior Court of Los Angeles, Supreme Court of California, No. S230658, slip op. at 27 (Mar. 22, 2018) (Regents) ("Along with educational services, colleges provide students social, athletic, and cultural opportunities. Regardless of the campus layout, colleges provide a discrete community for their students."). But universities are not responsible for monitoring and controlling all aspects of their students' lives. "There is universal recognition that the age of in loco parentis has passed, and that the duty, if any is not one of a general duty of care to all students in all aspects of their collegiate life." Massie, Suicide on Campus, 91 Marq. L. Rev. at 640. See Mullins, 389 Mass. at 52 (describing major "changes in college life," and "the general decline of the theory that a college stands in loco parentis to its students"); Schieszler v. Ferrum College, 236 F. Supp. 2d 602, 610 (W.D. Va. 2002) ("colleges are not insurers of the safety of their students"). See also Bradshaw v. Rawlings, 612 F.2d 135, 139 (3d Cir. 1979) (describing end of loco parentis relationship "between college 26 and student that imposed a duty on the college to exercise control over student conduct and, reciprocally, gave the students certain rights of protection by the college"). University students are young adults, not young children. Indeed, graduate students are adults in all respects under the law. Universities recognize their students' adult status, their desire for independence, and their need to exercise their own judgment. Consequently the modern university-student relationship is respectful of student autonomy and privacy. See Bradshaw, 612 F.2d at 138 ("Trustees, administrators, and faculties have been required to yield to the expanding rights and privileges of their students"); Furek v. University of Del., 594 A.2d 506, 516-517 (Del. 1991) (describing "realities of modern college life where students are regarded as adults in almost every phase of community life" [quotations and citation omitted]). This includes students' personal mental health decisions. Indeed, the privacy of student mental health records are generally protected, absent the student's consent or an emergency where disclosure is necessary to protect the health or safety of the student or other persons. See Family Educational Right and Privacy Act of 1974, 20 U.S.C. § 1232g (2012). See also Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d-6 (2012) (imposing limitations on rights of nonclinicians in obtaining or disclosing individually 27 identifiable health information); Massie, Suicide on Campus, 91 Marq. L. Rev. at 648.15 In deciding whether a special relationship and accompanying duty exists between a university and a student in regard to suicide prevention, and whether a breach of such a duty has occurred, we must therefore take into account a complex mix of competing considerations. Students are adults but often young and vulnerable; their right to privacy and their desire for independence may conflict with their immaturity and need for protection. As for the universities, their primary mission is to educate and they no longer are acting in loco parentis, but they still have a wide-ranging involvement in the lives of their students. See, e.g. Mullins, 389 Mass. at 52; Bradshaw, 612 F.2d at 138. d. See also Regents, slip op. at 17. A university's duty regarding suicide prevention. In analyzing whether a duty to prevent suicide falls within the scope of the complex relationship that universities have with their students, we consider a number of factors used to delineate duties in tort law. Irwin v. Ware, 392 Mass. 745, 756 Universities must also be attentive to the requirements of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2012), which states, "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 15 28 (1984). See Massie, Suicide on Campus, 91 Marq. L. Rev. at 639. "Foremost among these is whether a defendant reasonably could foresee that he [or she] would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so." Irwin, supra. A related factor is "reasonable reliance by the plaintiff [on the defendant], impeding other persons who might seek to render aid." Id. Other factors that have been considered relevant to special relationships and the creation of a duty in the university context are the "degree of certainty of harm to the plaintiff; burden upon the defendant to take reasonable steps to prevent the injury; some kind of mutual dependence of plaintiff and defendant upon each other, frequently . . . involving financial benefit to the defendant arising from the relationship; moral blameworthiness of defendant's conduct in failing to act; and social policy considerations involved in placing the economic burden of the loss on the defendant." Massie, Suicide on Campus, supra. 53. See also Lake, Still Waiting: See Mullins, 389 Mass. at 51The Slow Evolution of the Law in Light of the Ongoing Student Suicide Crisis, 34 J.C. & U.L. 253, 257-277 (2008) (Still Waiting) (catalog of key cases and factors used by courts to determine duty); Regents, slip op. at 18 ("Students are comparatively vulnerable and dependent on their colleges for a safe environment. Colleges have a superior 29 ability to provide that safety with respect to activities they sponsor or facilities they control"). With these considerations in mind, we conclude that a university has a special relationship with a student and a corresponding duty to take reasonable measures to prevent his or her suicide in the following circumstances. Where a university has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide,16 the university has a duty to take reasonable The Columbia Lighthouse Project, under the auspices of Columbia University, created the Columbia-Suicide Severity Rating Scale(C-SSRS), a suicide risk assessment tool that provides useful guidance. See Columbia-Suicide Severity Rating Scale. http://cssrs.columbia.edu/the-columbia-scale-cssrs/about-the-scale/ [https://perma.cc/TR7Y-S8JB]. More specifically, C-SSRS category four or five behavior is informative of what constitutes a student's stated plans or intentions to commit suicide: 16 "4. Active Suicidal Ideation with Some Intent to Act, without Specific Plan -- Active suicidal thoughts of killing oneself and subject reports having some intent to act on such thoughts, as opposed to 'I have the thoughts but I definitely will not do anything about them.' "5. Active Suicidal Ideation with Specific Plan and Intent -- Thoughts of killing oneself with details of plan fully or partially worked out and subject has some intent to carry it out." (Emphasis in original.) See Posner, Brent, Lucas, Gould, Stanley, Brown, Fisher, Zelazny, Burke, Oquendo, & Mann, Columbia-Suicide Severity Rating Scale (C-SSRS), Lifetime Recent, Version 1/14/09 m9/12/17 (2008). 30 measures under the circumstances to protect the student from self-harm. See Mullins, 389 Mass. at 52 ("Parents, students, and the general community still have a reasonable expectation, fostered in part by colleges themselves, that reasonable care will be exercised to protect . . . students from foreseeable harm"); Schieszler, 236 F. Supp. 2d at 608-609 ("relationship between a college or university and its students can give rise to a duty to protect students from harms of which the school has knowledge," including risk of suicide); Restatement (Third) of Torts, § 40(b)(5); Massie, Suicide on Campus, 91 Marq. L. Rev. at 631 ("where college or university personnel are aware that a student has made serious suicidal threats or attempts, they have a duty to take reasonable steps to protect the student's safety"). See also Pavela, Questions and Answers on College Student Suicide: A Law and Policy Perspective 8-9 (2006) ("[I]nstitutions of higher education face heightened risk of liability for suicide when they ignore or mishandle known suicide threats or attempts. . . . The main obstacle to better suicide prevention on campus is underreaction, especially the failure to provide [perhaps even require] prompt professional evaluation and treatment for any student who threatens or attempts suicide" [emphasis in original]). We have sought to define here the circumstances creating the special relationship and the duty realistically recognizing the scope of the suicide 31 problem on university campuses, the capacities of nonclinicians, and the nature of the modern university-student relationship.17 It is estimated that 1,100 university students die by suicide ever year. See Jed Foundation's Framework for Developing Institutional Protocols For the Acutely Distressed or Suicidal College Student 2 (2006), available at https://www.jedfoundation.org/wp-content/uploads/2016/07 /framework-developing-institutional-protocols-acutelydistressed-suicidal-college-student-jed-guide_NEW.pdf [https://perma.cc/8MLG-2T3U] ("Jed Framework"). "According to the Center for Disease Control and Prevention (CDC), suicide is the 'second leading cause of death among [twenty-five to thirtyfour] year olds and the third leading cause of death among [fifteen to twenty-four] year olds.' Thus, suicide prevention is not simply a focus for traditional college- and universityaged populations, but must also be a focus for graduate and professional schools. The [twenty-five to thirty-four] year-old demographic factors prominently in most graduate and professional school programs and applies to the many college and university students who extend their education" (footnote omitted). Lake, Still Waiting: The Slow Evolution of the Law in Light of the Ongoing Student Suicide Crisis, 34 J.C. & U.L. 253, 254-255 (2008). See Center for Disease Control, National Center for Injury Prevention and Control, 10 Leading Causes of Death by Age Group, United States -- 2015, https://www.cdc.gov /injury/wisqars/pdf/leading_causes_of_death_by_age_group_2015a.pdf [https://perma.cc/A8TN-N2HQ] (from most recent statistics available from CDC, in 2015, suicide was second leading cause of death among both fifteen to twenty-four and twenty-five to thirty-four year olds). 17 The number of students with suicidal thoughts is even more alarming. According to an Internet-based survey of 26,000 undergraduate and graduate students administered by the National Research Consortium of Counseling Centers in Higher Education, six per cent of undergraduate and four per cent of graduate students reported seriously considering suicide within the past twelve months. See Drum, Brownson, Denmark, & Smith, New Data on the Nature of Suicidal Crises in College Students: Shifting the Paradigm, 40 Prof. Psychol.: Res. & Prac. 213, 214-216 (2009). Similarly, in the American College Health Association's National College Health Assessment, which surveyed over 63,000 students at ninety-two colleges and universities in 2017, 10.3 32 It is important to understand the limited circumstances creating the duty. prevent suicide. It is definitely not a generalized duty to Nonclinicians are also not expected to discern suicidal tendencies where the student has not stated his or her plans or intentions to commit suicide. Even a student's generalized statements about suicidal thoughts or ideation are not enough, given their prevalence in the university community. The duty is not triggered merely by a university's knowledge of a student's suicidal ideation without any stated plans or intentions to act on such thoughts. As previously explained, this duty hinges on foreseeability. at 52. 639. See Irwin, 392 Mass. at 756; Mullins, 389 Mass. See also Massie, Suicide on Campus, 91 Marq. L. Rev. at Where a student has attempted suicide while enrolled at the university or recently before matriculation, or has stated plans or intentions to commit suicide, suicide is sufficiently foreseeable as the law has defined the term, even for university nonclinicians without medical training. Reliance of the student per cent of students reported that they had "seriously considered" suicide within the previous twelve months, and 1.5 per cent of students had attempted to commit suicide within the previous twelve months. See American College Health Association National College Health Assessment (2017), at 2, 14, http://www.acha-ncha.org/docs/NCHA-II_SPRING_2017_ REFERENCE_GROUP_EXECUTIVE_SUMMARY.pdf [https://perma.cc/F3NNU9XD]. 33 on the university for assistance, at least for students living in dormitories or away from their parents or guardians, is also foreseeable. Universities are in the best, if not the only, position to assist. See Mullins, supra. They have also "fostered" expectations, at least for their residential students, that reasonable care will be exercised to protect them from harm. Id. at 52, 54. See Irwin, supra. The probability of the harm must of course be considered along with its gravity including the death of the student. See Schieszler, 236 F. Supp. 2d at 609 ("there was an imminent probability that [the decedent] would try to hurt himself"); Lake, Still Waiting, 34 J.C. & U.L. at 284 & n.204 (referencing in article on risk of student suicide and violence Justice Learned Hand's United States v. Carroll Towing Co., 159 F.2d 169, 173 [2d Cir. 1947], formulation that "if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B [is] less than PL"); Eisel v. Board of Educ. of Montgomery County, 324 Md. 376, 386 (1991) (discussing magnitude of harm and statistical possibility of risk of suicide). Thus, where a student has attempted to commit suicide while enrolled at the university or recently before matriculation or stated plans or intentions to commit suicide, that probability is sufficient to justify imposition of a duty on the university. See Eisel, 34 supra. The burden on the university is not insubstantial, but so is the financial benefit received from student tuition. See generally Mullins, 389 Mass. at 53 (relating tuition to duty to provide adequate protection); Regents, slip op. at 13. Moral blameworthiness on the part of a university in failing to act to intervene to save a young person's life, when it was within the university's knowledge and power to do so, is understood and accepted by our society. See Eisel, supra at 391 ("if classmates of [a middle school decedent] found her lying on the floor of a lavatory, bleeding from slashed wrists, and those students told one or more teachers of the emergency, society would be outraged if the teachers did nothing and [the decedent] bled to death"); Ames, Law and Morals, 22 Harv. L. Rev. 97, 112113 (1908) ("We should all be better satisfied if the man who refuses to throw a rope to a drowning man or to save a helpless child on the railroad track could be punished and be made to compensate the widow of the man drowned and the wounded child"). Reasonable measures by the university to satisfy a triggered duty will include initiating its suicide prevention protocol if the university has developed such a protocol.18 In One resource that provides universities with guidance for drafting is Jed Foundation's Framework for Developing Institutional Protocols For the Acutely Distressed or Suicidal College Student. See Jed Framework, supra at 2-3, 10-16. 18 35 the absence of such a protocol, reasonable measures will require the university employee who learns of the student's suicide attempt or stated plans or intentions to commit suicide to contact the appropriate officials at the university empowered to assist the student in obtaining clinical care from medical professionals or, if the student refuses such care, to notify the student's emergency contact.19 In emergency situations, reasonable measures obviously would include contacting police, fire, or emergency medical personnel. By taking the reasonable measures under the circumstances presented, a university satisfies its duty. We stress that the duty here, at least for nonclinicians, is limited.20 It is created only by actual knowledge of a We recognize that for college and university students the emergency contact will often be the student's parents. But it might not always be a parent or guardian, such as where the student is married or where the student has informed the University that the suicide attempt or stated plans or intentions to commit suicide derive in part from a toxic home environment (including parental pressures or abuse inflicted by a parent). See Susan R. Furr, Westefeld, McConnell, & Jenkins, Suicide and Depression Among College Students: A Decade Later, 32 Prof. Psychol.: Res. & Prac. 97, 98 (2001) (survey of 1,455 college and university students demonstrated that twenty per cent of students who identified themselves as having suicidal thoughts considered "parental problems" to be contributor to their suicidal ideation and behavior). 19 For university-employed medical professionals, the duty and standards of care are those established by the profession itself. See Stepakoff v. Kantar, 393 Mass. 836, 841 (1985) ("plaintiff has not directed our attention to any case in which 20 36 student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide. It also is limited to initiating the university's suicide prevention protocol, and if the school has no such protocol, arranging for clinical care by trained medical professionals or, if such care is refused, alerting the student's emergency contact. the duty is time-bound. Finally, Medical professionals may, for example, conclude that the student is no longer a suicide risk and no further care or counselling is required. This limited duty takes a number of the complex and competing considerations discussed above into account. First, it respects the privacy and autonomy of adult students in most circumstances, relying in all but emergency situations on the student's own capacity and desire to seek professional help to a court has bifurcated the duty owed by a psychiatrist to a suicidal patient by declaring that, when diagnosing a patient, the psychiatrist must exercise the care and skill customarily exercised by an average qualified psychiatrist, while, after diagnosing a patient as suicidal, the psychiatrist's duty to take preventive measures becomes one of 'reasonableness.' We are unwilling to disturb our longstanding rule that a physician, practicing a specialty, owes to his or her patient a duty to comply in all respects with the standard set by the average physician practicing that specialty"). See also McNamara v. Honeyman, 406 Mass 43, 49 (1989), citing Stepakoff, supra at 840 ("psychiatrist must exercise the same degree of skill and care as is exercised by the average qualified practitioner in that specialty, taking into account the advances in that profession and the resources available to the physician"). 37 address his or her mental health issues. Second, it recognizes that nonclinicians cannot be expected to probe or discern suicidal intentions that are not expressly evident. It also acknowledges the scope of the suicide risk on campus and seeks to impose realistic duties and responsibilities on the universities, allowing them to respond with their own suicide prevention protocols if such protocols have been developed. Finally, this limited duty is consistent with the modern university relationship with its students, which is no longer in loco parentis but rather provides for the students' independence and self-determination. e. Whether a duty was created in this case and, if so, whether a breach of that duty occurred. For reasons that will be explained in detail below, we conclude that there was no duty created in the instant case, and if there arguably was such a duty two years before Nguyen's death, the defendants did not commit a breach of it as a matter of law. In sum, Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation. He also was a twenty-five year old adult graduate student living off campus, not a young student living in a campus dormitory under daily observation. Nguyen repeatedly made clear that he wanted to keep his mental health issues separate from his 38 academic performance problems and that he was seeking professional help from psychiatrists and psychologists outside the MIT Mental Health system. i. The relationship with Dean Randall in 2007. In the instant case, the question whether Randall, and therefore MIT, had a special relationship with Nguyen to take reasonable measures to prevent suicide in 2007 requires consideration of Randall's knowledge of Nguyen's prior suicide attempts and Nguyen's statements about present suicidal thoughts. First, Nguyen's prior suicide attempts in December, 2002, and April, 2005, were as an undergraduate student at a different university and preceded his September, 2006, enrollment as an MIT graduate student. Additionally, although Nguyen had frequent suicidal thoughts, which, in the light most favorable to the plaintiff, can be read as present not past suicidal thoughts, Nguyen denied suicidal ideation in 2007. Thus, Randall had no actual knowledge of Nguyen having attempted suicide while enrolled at or recently before matriculating to MIT, or whether Nguyen had stated plans or intentions to commit suicide. Consequently, Randall had no special relationship with Nguyen and thus no duty to take reasonable measures to prevent Nguyen's suicide two years before his death. Nonetheless, Randall properly encouraged Nguyen to seek professional help at MIT, which Nguyen, as was his right, refused. Nguyen also informed Randall 39 that he was seeking professional help elsewhere and Randall sought permission to communicate with that psychiatrist, which Nguyen allowed and then promptly revoked. Finally, Randall invited further conversations with Nguyen, which he declined. That being said, Randall left Nguyen in the care of competent outside professionals as Nguyen demanded. In these circumstances, as a matter of law, a twenty-five year old graduate student's rights to privacy, autonomy, and selfdetermination were properly respected. ii. Prelec. The relationship with Professors Wernerfelt and In contrast to Randall's circumstances, no such special relationship was even arguably created between Nguyen and the defendants Wernerfelt and Prelec. There was no evidence that Wernerfelt and Prelec had actual knowledge of Nguyen's plans or intentions to commit suicide. a trained clinician. Both were academics; neither was Nguyen's communications to them about his mental health problems related to insomnia and test-taking, not to suicidal thoughts. There was also no evidence that Wernerfelt or Prelec were informed by MIT Mental Health, the student support office, or Randall about Nguyen's two suicide attempts in 2002 and 2005. Even if Wernerfelt or Prelec had such knowledge, the prior attempts were not close in time to Nguyen's enrollment at MIT. Given Nguyen's express request that his academic issues be kept separate from his mental health 40 issues and his assurances that he was being treated elsewhere, there also was no duty to communicate this information to either Wernerfelt or Prelec. Finally, even though Wernerfelt commented about possible "blood on their hands," it was stated metaphorically in the entirely different context of persuading his colleagues to allow Nguyen to pass his examinations. We note that Wernerfelt's expressed anxieties at the time of the general examinations that Nguyen might harm himself were not based on express statements or actions by Nguyen or information from trained clinicians and were more than five months before the time of the suicide. As none of the medical professionals treating Nguyen considered him "imminently suicidal," this was certainly not something Wernerfelt could have intuited on his own.21 Because the circumstances at hand did not trigger a Dr. Worthington, who treated Nguyen over the course of forty-three appointments over more than two years, testified that he "never thought [Nguyen] was at that imminent risk [of suicide] that he had to be admitted." Dr. Jeffrey Fortgang, the last medical professional that Nguyen saw, also noted that Nguyen did not seem "imminently suicidal or hopeless." 21 Although clinicians commonly assess the "imminence of the risk of suicide," such assessment, even for clinicians, is difficult and disputed. See, e.g., Hawes, Yaseen, Briggs, & Galynker, The Modular Assessment of Risk for Imminent Suicide (MARIS): A proof of concept for a multi-informant tool for evaluation of short-term suicide risk, 72 Comprehensive Psychiatry 88 (2017); Simon, Imminent Suicide: The Illusion of Short-Term Prediction, 36 Suicide and Life-Threatening Behavior 296 (2006). We do not here in any way impose such assessment on a nonclinician. 41 special relationship, we need not consider the duty of reasonable care and whether a breach of such a duty occurred. f. Voluntary assumption of a duty of care. The plaintiff also claims the defendants had a duty stemming from their voluntary assumption of a duty of care. assumed must be performed with due care." "[A] duty voluntarily 52. Mullins, 389 Mass. at This duty, however, can lead to liability only where a "failure to exercise such care increases the risk of such harm, or "the harm is suffered because of the other's reliance upon the undertaking." Id. at 53. Although MIT voluntarily offers mental health student support services, there is no evidence that these services increased Nguyen's risk of suicide. Additionally, there was no evidence that Nguyen relied on MIT's mental health services. of such services. The facts bear out Nguyen's rejection Nguyen briefly consulted with MIT Mental Health and the student support office for only a few months in 2007, nearly two years before his death. Nguyen wanted assistance from MIT only as it pertained to test-taking and wanted to keep his mental health treatment separate. Nguyen declined further MIT services and instead engaged with nine offcampus mental health professionals while remaining enrolled as an MIT graduate student. Cf. Mullins, supra at 54 (prospective residential students rely on university's security features). Accordingly, the plaintiff cannot succeed on a "voluntarily 42 assumed duty" theory. 3. Punitive damages for wrongful death, conscious pain and suffering, and breach of contract. The plaintiff asserts that he is entitled to punitive and emotional distress damages because the defendants' reckless or grossly negligent conduct was the proximate cause of Nguyen's death. As we concluded above, there was no evidence of the defendants' negligence and consequently the plaintiff cannot succeed on such claims. The plaintiff also cannot succeed on his breach of contract claim, as references to MIT Mental Health and the student support office's coordination of services is merely generalized and not sufficient to form an enforceable contract. See Guckenberger v. Boston Univ., 974 F. Supp. 106, 150 (D. Mass. 1997). Further, even if such a contract existed, the claim would still fail, as Nguyen rejected assistance from both MIT Mental Health and the student support office. 4. Motion to amend. The plaintiff contends that his motion to amend the complaint to assert claims against former MIT chancellor Clay should have been allowed. The Superior Court judge denied the motion on grounds of futility. We review the denial of a motion to amend the complaint for abuse of discretion. Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 864 (1991), cert. denied, 502 U.S. 865 (1991). Although leave to amend should be "freely given when justice so 43 requires," Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), such leave may be denied where there is undue delay, undue prejudice to the opposing party, or futility in the amendment (citation omitted). (1991). Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264 Here, Clay, who served as chancellor of MIT from 2001 through 2011, directed efforts in implementing MIT's mental health task force. At the time of Nguyen's death, several key recommendations had not yet been implemented. There was no indication that Clay had any personal knowledge of Nguyen's mental health issues or was personally involved with Nguyen in any other way. Clay had no common-law duty to prevent Nguyen's suicide, nor any special relationship with Nguyen, and he had not voluntarily assumed a duty of care. Furthermore, Clay had no individual liability solely on the basis of his "general supervisory role." Lyon v. Morphew, 424 Mass. 828, 833 (1997). Consequently, the proposed claims against Clay would be futile, and we conclude that there was no abuse of discretion in denying the plaintiff's motion to amend. 5. Workers' compensation. The plaintiff argues that Nguyen was not an MIT employee at the time of his death and consequently his tort claims were not barred by the exclusivity provision of the workers' compensation act, G. L. c. 152. The defendants claim that Nguyen was acting as an MIT employee and the tort claims were barred. We conclude, as did a judge in the 44 Superior Court in his written decision on cross motions for summary judgment that were filed on this issue, "that there are too many conflicting pieces of material evidence presented for this court to determine, as a matter of law, the unique question of whether or not Nguyen was an MIT employee at the time of his death." The factual record is undeveloped and unclear and the briefing inadequate on this difficult question involving paid summer research outside of Nguyen's ordinary graduate school activity for which he received a stipend. Further complicating matters, the financial and other documentary evidence is unclear as to Nguyen's work status at MIT on June 2, 2009. Additionally, whether the June 2, 2009, telephone call prior to the suicide was work or school-related is also in question. Consequently, there was no error in the denial of summary judgment on this issue. See Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 97 (2011). Conclusion. For the foregoing reasons, we conclude that summary judgment was properly granted for the defendants on the tort claims as a matter of law. We further conclude that the Superior Court judge properly denied summary judgment on the workers' compensation claim, as there are material disputed facts. So ordered.

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Nguyen v. Massachusetts Institute of Technology

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Download PDF NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us SJC-12329 DZUNG DUY NGUYEN, administrator,1 vs.

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Slide #9: Original Source of Law Federal/State

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Slide #9: Original Source of Law Federal/State

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Statutory
42 U.S. Code § 290bb-36(a)

Although this code was written in response to rising suicide rates among youth in Native tribes, it is applicable to professional school counselors.

In order to receive state funding, the suicide prevention program must "provide for the timely assessment, treatment, or referral for mental health or substance abuse services of youth at risk for suicide."

The program should use effective techniques to educate and raise awareness.

The counselor should be prepared to address students from diverse cultural backgrounds and linguistic abilities.

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In carrying out subsection (a), the Secretary shall ensure that activities under this section are coordinated with the relevant Department of Health and Human Services agencies and suicide working groups.

(c) Requirements A public organization, private nonprofit organization, political subdivision, consortium of political subdivisions, consortium of States, or federally recognized Indian tribe or tribal organization desiring a grant, contract, or cooperative agreement under this section shall demonstrate that the suicide prevention program such entity proposes will-

be based on suicide prevention practices and strategies that are adapted to the local community;

integrate its suicide prevention program into the existing health care system in the community including general, mental, and behavioral health services, and substance abuse services;

be integrated into other systems in the community that address the needs of youth including the school systems, educational institutions, juvenile justice system, substance abuse programs, mental health programs, foster care systems, and community child and youth support organizations;

conduct annual self-evaluations of outcomes and activities, including consulting with interested families and advocacy organizations;

ensure that staff used in the program are trained in suicide prevention and that professionals involved in the system of care have received training in identifying persons at risk of suicide.

Amounts provided under a grant or cooperative agreement under this section shall be used to supplement, and not supplant, Federal and non-Federal funds available for carrying out the activities described in this section. Applicants shall provide financial information to demonstrate compliance with this section.

An applicant for a grant or cooperative agreement under subsection (a) shall demonstrate to the Secretary that the application complies with the State-sponsored statewide early intervention and prevention strategy as developed under section 290bb-36 of this title and the applicant has the support of the local community and relevant public health officials.

In awarding grants and cooperative agreements under subsection (a), the Secretary shall ensure that such awards are made in a manner that will focus on the needs of communities or groups that experience high or rapidly rising rates of suicide.

A public organization, private nonprofit organization, political subdivision, consortium of political subdivisions, consortium of States, or Federally recognized Indian tribe or tribal organization receiving a grant or cooperative agreement under subsection (a) shall prepare and submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may reasonably require. Such application shall include a plan for the rigorous evaluation of activities funded under the grant or cooperative agreement, including a process and outcome evaluation.

(h) Distribution of awards

In awarding grants and cooperative agreements under subsection (a), the Secretary shall ensure that such awards are distributed among the geographical regions of the United States and between urban and rural settings.

A public organization, private nonprofit organization, political subdivision, consortium of political subdivisions, consortium of States, or Federally recognized Indian tribe or tribal organization receiving a grant or cooperative agreement under subsection (a) shall prepare and submit to the Secretary at the end of the program period, an evaluation of all activities funded under this section.

(j) Dissemination and education

The Secretary shall ensure that findings derived from activities carried out under this section are disseminated to State, county and local governmental agencies and public and private nonprofit organizations active in promoting suicide prevention and family support activities.

With respect to a grant, contract, or cooperative agreement awarded under this section, the period during which payments under such award may be made to the recipient may not exceed 3 years.

(l) Study Within 1 year after , the Secretary shall, directly or by grant or contract, initiate a study to assemble and analyze data to identify-

unique profiles of children under 13 who attempt or complete suicide;

unique profiles of youths between ages 13 and 24 who attempt or complete suicide; and

a profile of services available to these groups and the use of these services by children and youths from paragraphs (1) and (2).

(n) Authorization of appropriation

For purposes of carrying out this section, there is authorized to be appropriated $75,000,000 for fiscal year 2001 and such sums as may be necessary for each of the fiscal years 2002 through 2003.

(July 1, 1944, ch. 373, title V, § 520E-1, formerly § 520E, as added Pub. L. 106-310, div. B, title XXXI, § 3111, , 114 Stat. 1186; renumbered § 520E-1 and amended Pub. L. 108-355, § 3(b), , 118 Stat. 1407.)

Amendments

2004- Pub. L. 108-355, § 3(b)(1)(A), substituted "youth" for "children and adolescents" in section catchline.

Subsec. (a). Pub. L. 108-355, § 3(b)(1)(B), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: "The Secretary shall award grants, contracts, or cooperative agreements to States, political subdivisions of States, Indian tribes, tribal organizations, public organizations, or private nonprofit organizations to establish programs to reduce suicide deaths in the United States among children and adolescents."

Subsec. (b). Pub. L. 108-355, § 3(b)(1)(C), substituted "with the relevant Department of Health and Human Services agencies and suicide working groups." for "among the Substance Abuse and Mental Health Services Administration, the relevant institutes at the National Institutes of Health, the Centers for Disease Control and Prevention, the Health Resources and Services Administration, and the Administration on Children and Families."

Subsec. (c)(1). Pub. L. 108-355, § 3(b)(1)(D)(iii), added par. (1). Former par. (1) redesignated (2).

Subsec. (c)(2). Pub. L. 108-355, § 3(b)(1)(D)(ii), (iv), redesignated par. (1) as (2) and substituted "youth" for "children and adolescents". Former par. (2) redesignated (3).

Subsec. (c)(3). Pub. L. 108-355, § 3(b)(1)(D)(ii), (v), redesignated par. (2) as (3) and struck out "best evidence-based," after "based on". Former par. (3) redesignated (4).

Subsec. (c)(5). Pub. L. 108-355, § 3(b)(1)(D)(ii), (vii), redesignated par. (4) as (5) and substituted "youth including the school systems, educational institutions, juvenile justice system, substance abuse programs, mental health programs, foster care systems, and community child and youth support organizations;" for "children and adolescents including the educational system, juvenile justice system, welfare and child protection systems, and community youth support organizations;". Former par. (5) redesignated (6).

Subsec. (c)(6), (7). Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated pars. (5) and (6) as (6) and (7), respectively. Former par. (7) redesignated (8).

Subsec. (c)(8). Pub. L. 108-355, § 3(b)(1)(D)(viii), added par. (8) and struck out former par. (8) which read as follows: "provide linguistically appropriate and culturally competent services, as needed;".

Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated par. (7) as (8). Former par. (8) redesignated (9).

Subsec. (c)(9). Pub. L. 108-355, § 3(b)(1)(D)(ix), added par. (9) and struck out former par. (9) which read as follows: "provide a plan for the evaluation of outcomes and activities at the local level, according to standards established by the Secretary, and agree to participate in a national evaluation; and".

Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated par. (8) as (9). Former par. (9) redesignated (10).

Subsec. (c)(10). Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated par. (9) as (10).

Subsec. (d). Pub. L. 108-355, § 3(b)(1)(E), added subsec. (d) and struck out heading and text of former subsec. (d). Text read as follows: "Amounts provided under grants, contracts, or cooperative agreements under subsection (a) of this section shall be used to supplement and not supplant other Federal, State, and local public funds that are expended to provide services for eligible individuals."

Subsec. (f). Pub. L. 108-355, § 3(b)(1)(G), struck out ", contracts," after "grants".

Subsec. (h). Pub. L. 108-355, § 3(b)(1)(I), struck out ", contracts," after "grants".

Subsec. (k). Pub. L. 108-355, § 3(b)(1)(K), substituted "3 years" for "5 years".

Subsec. (l)(2). Pub. L. 108-355, § 3(b)(1)(L)(i), substituted "24" for "21".

Subsec. (l)(3). Pub. L. 108-355, § 3(b)(1)(L)(ii), struck out "which might have been" after "profile of services".

Subsec. (m). Pub. L. 108-355, § 3(b)(1)(O), added subsec. (m). Former subsec. (m) redesignated (n).

Pub. L. 108-355, § 3(b)(1)(M), struck out par. (1) designation and heading and struck out heading and text of par. (2). Text read as follows: "In carrying out this section, the Secretary shall use 1 percent of the amount appropriated under paragraph (1) for each fiscal year for managing programs under this section."

Subsec. (n). Pub. L. 108-355, § 3(b)(1)(N), redesignated subsec. (m) as (n).

Statutory Notes and Related Subsidiaries

Teen Suicide Prevention Study

Pub. L. 106-386, div. B, title VI, § 1602, , 114 Stat. 1538, provided that:

measures that increase public awareness of suicide as a preventable public health problem, and target parents and youth so that suicide risks and warning signs can be recognized, will help to eliminate the ignorance and stigma of suicide as barriers to youth and families seeking preventive care;

"(2) suicide prevention efforts in the year 2000 should-

target at-risk youth, particularly youth with mental health problems, substance abuse problems, or contact with the juvenile justice system;

the identification of the characteristics of the at-risk youth and other youth who are contemplating suicide, and barriers to treatment of the youth; and

the development of model treatment programs for the youth;

include a pilot study of the outcomes of treatment for juvenile delinquents with mental health or substance abuse problems;

include a public education approach to combat the negative effects of the stigma of, and discrimination against individuals with, mental health and substance abuse problems; and

include a nationwide effort to develop, implement, and evaluate a mental health awareness program for schools, communities, and families;

although numerous symptoms, diagnoses, traits, characteristics, and psychosocial stressors of suicide have been investigated, no single factor or set of factors has ever come close to predicting suicide with accuracy;

research of United States youth, such as a 1994 study by Lewinsohn, Rohde, and Seeley, has shown predictors of suicide, such as a history of suicide attempts, current suicidal ideation and depression, a recent attempt or completed suicide by a friend, and low self-esteem; and

"(5) epidemiological data illustrate-

the trend of suicide at younger ages as well as increases in suicidal ideation among youth in the United States; and

"(B) distinct differences in approaches to suicide by gender, with-

3 to 5 times as many females as males attempting suicide; and

3 to 5 times as many males as females completing suicide.

The purpose of this section is to provide for a study of predictors of suicide among at-risk and other youth, and barriers that prevent the youth from receiving treatment, to facilitate the development of model treatment programs and public education and awareness efforts.

"(d) Study.- Not later than 1 year after the date of the enactment of this Act [], the Secretary of Health and Human Services shall carry out, directly or by grant or contract, a study that is designed to identify-

the characteristics of at-risk and other youth age 13 through 21 who are contemplating suicide;

the characteristics of at-risk and other youth who are younger than age 13 and are contemplating suicide; and

the barriers that prevent youth described in paragraphs (1) and (2) from receiving treatment.

"(e) Authorization of Appropriations.-

There are authorized to be appropriated to carry out this section such sums as may be necessary."

[For definition of " youth" as used in section 1602 of Pub. L. 106-386, set out above, see section 1002 of Pub. L. 106-386, set out as a note under section 10447 of Title 34, Crime Control and Law Enforcement.]

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42 U.S. Code § 290bb-36a - Suicide prevention for youth

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In carrying out subsection (a), the Secretary shall ensure that activities under this section are coordinated with the relevant Department of Health and Human Services agencies and suicide working groups.

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Slide #10: Local Administrative Law/Policy/Rule

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Slide #10: Local Administrative Law/Policy/Rule

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Texas Education Code (Tex. Edu. Code  § 38)

The counselor must build skills relating to managing the emotions of students.

The counselor is responsible for creating a positive rapport with students.

The counselor must participate in training specializing in suicide prevention, intervention, and postvention.

The counselor must recognize the risks and warning signs of student who may attempt suicide.

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EDUCATION CODE



TITLE 2. PUBLIC EDUCATION



SUBTITLE G. SAFE SCHOOLS



CHAPTER 38. HEALTH AND SAFETY



SUBCHAPTER A. GENERAL PROVISIONS



Sec. 38.001. IMMUNIZATION; REQUIREMENTS; EXCEPTIONS. (a) Each student shall be fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided by Subsection (c).


Text of subsection as amended by Acts 2007, 80th Leg., R.S., Ch. 43 (H.B. 1098), Sec. 1



(b) Subject to Subsections (b-1) and (c), the executive commissioner of the Health and Human Services Commission may modify or delete any of the immunizations in Subsection (a) or may require immunizations against additional diseases as a requirement for admission to any elementary or secondary school.


Text of subsection as amended by Acts 2007, 80th Leg., R.S., Ch. 94 (H.B. 1059), Sec. 2



(b) Subject to Subsection (c), the Department of State Health Services may modify or delete any of the immunizations in Subsection (a) or may require immunizations against additional diseases as a requirement for admission to any elementary or secondary school.


(b-1) Each year, the Department of State Health Services shall prepare a list of the immunizations required under this section for admission to public schools and of any additional immunizations the department recommends for school-age children. The department shall prepare the list in English and Spanish and make the list available in a manner that permits a school district to easily post the list on the district's Internet website as required by Section 38.019.


(c) Immunization is not required for a person's admission to any elementary or secondary school if the person applying for admission:


(1) submits to the admitting official:


(A) an affidavit or a certificate signed by a physician who is duly registered and licensed to practice medicine in the United States, in which it is stated that, in the physician's opinion, the immunization required poses a significant risk to the health and well-being of the applicant or any member of the applicant's family or household; or


(B) an affidavit signed by the applicant or, if a minor, by the applicant's parent or guardian stating that the applicant declines immunization for reasons of conscience, including a religious belief; or


(2) is a member of the armed forces of the United States and is on active duty.


(c-1) An affidavit submitted under Section (c)(1)(B) must be on a form described by Section 161.0041, Health and Safety Code, and must be submitted to the admitting official not later than the 90th day after the date the affidavit is notarized.


(d) The Department of State Health Services shall provide the required immunization to children in areas where no local provision exists to provide those services.


(e) A person may be provisionally admitted to an elementary or secondary school if the person has begun the required immunizations and if the person continues to receive the necessary immunizations as rapidly as is medically feasible. The Department of State Health Services shall adopt rules relating to the provisional admission of persons to an elementary or secondary school.


(f) A person who has not received the immunizations required by this section for reasons of conscience, including because of the person's religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.160, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 43 (H.B. 1098), Sec. 1, eff. May 8, 2007.


Acts 2007, 80th Leg., R.S., Ch. 94 (H.B. 1059), Sec. 2, eff. May 15, 2007.


Sec. 38.002. IMMUNIZATION RECORDS; REPORTING. (a) Each public school shall keep an individual immunization record during the period of attendance for each student admitted. The records shall be open for inspection at all reasonable times by the Texas Education Agency or by representatives of local health departments or the Texas Department of Health.


(b) Each public school shall cooperate in transferring students' immunization records to other schools. Specific approval from students, parents, or guardians is not required before transferring those records.


(c) The Texas Education Agency and the Texas Department of Health shall develop the form for a required annual report of the immunization status of students. The report shall be submitted by all schools at the time and in the manner indicated in the instructions printed on the form.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 38.0025. DISSEMINATION OF BACTERIAL MENINGITIS INFORMATION. (a) The Department of State Health Services shall prescribe procedures by which each school district shall provide information relating to bacterial meningitis to its students and their parents each school year. The procedures must ensure that the information is reasonably likely to come to the attention of the parents of each student. The department shall prescribe the form and content of the information. The information must cover:


(1) the symptoms of the disease, how it may be diagnosed, and its possible consequences if untreated;


(2) how the disease is transmitted, how it may be prevented, and the relative risk of contracting the disease for primary and secondary school students;


(3) the availability and effectiveness of vaccination against and treatment for the disease, and a brief description of the risks and possible side effects of vaccination; and


(4) sources of additional information regarding the disease, including any appropriate office of the school district and the appropriate office of the department.


(b) Repealed by Acts 2019, 86th Leg., R.S., Ch. 1187 (H.B. 3884), Sec. 2, eff. June 14, 2019.


(c) A school district, with the written consent of the Department of State Health Services, may provide the information required by this section to its students and their parents by a method different from the method prescribed by the department under Subsection (a) if the department determines that method would be effective in bringing the information to the attention of the parents of each student.


Added by Acts 2001, 77th Leg., ch. 219, Sec. 2, eff. May 22, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 1187 (H.B. 3884), Sec. 1, eff. June 14, 2019.


Acts 2019, 86th Leg., R.S., Ch. 1187 (H.B. 3884), Sec. 2, eff. June 14, 2019.


Sec. 38.003. SCREENING AND TREATMENT FOR DYSLEXIA AND RELATED DISORDERS. (a) Students enrolling in public schools in this state shall be screened or tested, as appropriate, for dyslexia and related disorders at appropriate times in accordance with a program approved by the State Board of Education. The program must include screening at the end of the school year of each student in kindergarten and each student in the first grade.


(b) In accordance with the program approved by the State Board of Education, the board of trustees of each school district shall provide for the treatment of any student determined to have dyslexia or a related disorder.


(b-1) Unless otherwise provided by law, a student determined to have dyslexia during screening or testing under Subsection (a) or accommodated because of dyslexia may not be rescreened or retested for dyslexia for the purpose of reassessing the student's need for accommodations until the district reevaluates the information obtained from previous screening or testing of the student.


(c) Subject to Subsection (c-1), the State Board of Education shall adopt any rules and standards necessary to administer this section.


(c-1) The agency by rule shall develop procedures designed to allow the agency to:


(1) effectively audit and monitor and periodically conduct site visits of all school districts to ensure that districts are complying with this section, including the program approved by the State Board of Education under this section;


(2) identify any problems school districts experience in complying with this section, including the program approved by the State Board of Education under this section; and


(3) develop reasonable and appropriate remedial strategies to address school district noncompliance and ensure the purposes of this section are accomplished.


(d) In this section:


(1) "Dyslexia" means a disorder of constitutional origin manifested by a difficulty in learning to read, write, or spell, despite conventional instruction, adequate intelligence, and sociocultural opportunity.


(2) "Related disorders" includes disorders similar to or related to dyslexia, such as developmental auditory imperception, dysphasia, specific developmental dyslexia, developmental dysgraphia, and developmental spelling disability.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 635 (S.B. 866), Sec. 3, eff. June 17, 2011.


Acts 2017, 85th Leg., R.S., Ch. 1044 (H.B. 1886), Sec. 5, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 450 (S.B. 2075), Sec. 3, eff. June 4, 2019.


Sec. 38.0031. CLASSROOM TECHNOLOGY PLAN FOR STUDENTS WITH DYSLEXIA. (a) The agency shall establish a committee to develop a plan for integrating technology into the classroom to help accommodate students with dyslexia. The plan must:


(1) determine the classroom technologies that are useful and practical in assisting public schools in accommodating students with dyslexia, considering budget constraints of school districts; and


(2) develop a strategy for providing those effective technologies to students.


(b) The agency shall provide the plan and information about the availability and benefits of the technologies identified under Subsection (a)(1) to school districts.


(c) A member of the committee established under Subsection (a) is not entitled to reimbursement for travel expenses incurred by the member under this section unless agency funds are available for that purpose.


Added by Acts 2011, 82nd Leg., R.S., Ch. 635 (S.B. 866), Sec. 4, eff. June 17, 2011.


Sec. 38.0032. DYSLEXIA TRAINING OPPORTUNITIES. (a) The agency shall annually develop a list of training opportunities regarding dyslexia that satisfy the requirements of Section 21.054(b). The list of training opportunities must include at least one opportunity that is available online.


(b) A training opportunity included in the list developed under Subsection (a) must:


(1) comply with the knowledge and practice standards of an international organization on dyslexia; and


(2) enable an educator to:


(A) understand and recognize dyslexia; and


(B) implement instruction that is systematic, explicit, and evidence-based to meet the educational needs of a student with dyslexia.


Added by Acts 2017, 85th Leg., R.S., Ch. 1044 (H.B. 1886), Sec. 6, eff. June 15, 2017.


Sec. 38.004. CHILD ABUSE REPORTING AND PROGRAMS. (a) The agency shall develop a policy governing the reports of child abuse or neglect, including reports related to the trafficking of a child under Section 20A.02(a)(5), (6), (7), or (8), Penal Code, as required by Chapter 261, Family Code, for school districts, open-enrollment charter schools, and their employees. The policy must provide for cooperation with law enforcement child abuse investigations without the consent of the child's parents if necessary, including investigations by the Department of Family and Protective Services. The policy must require each school district and open-enrollment charter school employee to report child abuse or neglect, including the trafficking of a child under Section 20A.02(a)(5) or (7), Penal Code, in the manner required by Chapter 261, Family Code. Each school district and open-enrollment charter school shall adopt the policy.


(a-1) The agency shall:


(1) maintain on the agency Internet website a list of links to websites that provide information regarding the prevention of child abuse; and


(2) develop and periodically update a training program on prevention of child abuse that a school district may use for staff development.


(b) Each school district shall provide child abuse antivictimization programs in elementary and secondary schools.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 561 (S.B. 1456), Sec. 1, eff. June 16, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 592 (S.B. 939), Sec. 1, eff. September 1, 2013.


Acts 2015, 84th Leg., R.S., Ch. 332 (H.B. 10), Sec. 6, eff. September 1, 2015.


Sec. 38.0041. POLICIES ADDRESSING SEXUAL ABUSE AND OTHER MALTREATMENT OF CHILDREN. (a) Each school district and open-enrollment charter school shall adopt and implement a policy addressing sexual abuse, sex trafficking, and other maltreatment of children, to be included in the district improvement plan under Section 11.252 and any informational handbook provided to students and parents.


(a-1) A school district may collaborate with local law enforcement and outside consultants with expertise in the prevention of sexual abuse and sex trafficking to create the policy required under Subsection (a), and to create a referral protocol for high-risk students.


(b) A policy required by this section must address:


(1) methods for increasing staff, student, and parent awareness of issues regarding sexual abuse, sex trafficking, and other maltreatment of children, including prevention techniques and knowledge of likely warning signs indicating that a child may be a victim of sexual abuse, sex trafficking, or other maltreatment, using resources developed by the agency or the commissioner regarding those issues, including resources developed by the agency under Section 38.004;


(2) actions that a child who is a victim of sexual abuse, sex trafficking, or other maltreatment should take to obtain assistance and intervention; and


(3) available counseling options for students affected by sexual abuse, sex trafficking, or other maltreatment.


(c) The methods under Subsection (b)(1) for increasing awareness of issues regarding sexual abuse, sex trafficking, and other maltreatment of children must include training, as provided by this subsection, concerning prevention techniques for and recognition of sexual abuse, sex trafficking, and all other maltreatment of children, including the sexual abuse, sex trafficking, and other maltreatment of children with significant cognitive disabilities. The training:


(1) must be provided, as part of a new employee orientation, to all new school district and open-enrollment charter school employees and to existing district and open-enrollment charter school employees on a schedule adopted by the agency by rule until all district and open-enrollment charter school employees have taken the training; and


(2) must include training concerning:


(A) factors indicating a child is at risk for sexual abuse, sex trafficking, or other maltreatment;


(B) likely warning signs indicating a child may be a victim of sexual abuse, sex trafficking, or other maltreatment;


(C) internal procedures for seeking assistance for a child who is at risk for sexual abuse, sex trafficking, or other maltreatment, including referral to a school counselor, a social worker, or another mental health professional;


(D) techniques for reducing a child's risk of sexual abuse, sex trafficking, or other maltreatment; and


(E) community organizations that have relevant existing research-based programs that are able to provide training or other education for school district or open-enrollment charter school staff members, students, and parents.


(d) For any training under Subsection (c), each school district and open-enrollment charter school shall maintain records that include the name of each district or charter school staff member who participated in the training.


(e) If a school district or open-enrollment charter school determines that the district or charter school does not have sufficient resources to provide the training required under Subsection (c), the district or charter school shall work in conjunction with a community organization to provide the training at no cost to the district or charter school.


(f) The training under Subsection (c) may be included in staff development under Section 21.451.


(g) A school district or open-enrollment charter school employee may not be subject to any disciplinary proceeding, as defined by Section 22.0512(b), resulting from an action taken in compliance with this section. The requirements of this section are considered to involve an employee's judgment and discretion and are not considered ministerial acts for purposes of immunity from liability under Section 22.0511. Nothing in this section may be considered to limit the immunity from liability provided under Section 22.0511.


(h) For purposes of this section, "other maltreatment" has the meaning assigned by Section 42.002, Human Resources Code.


Added by Acts 2009, 81st Leg., R.S., Ch. 1115 (H.B. 1041), Sec. 2, eff. June 19, 2009.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 1323 (S.B. 471), Sec. 2, eff. June 17, 2011.


Acts 2013, 83rd Leg., R.S., Ch. 443 (S.B. 715), Sec. 34, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 592 (S.B. 939), Sec. 2, eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 762 (S.B. 2039), Sec. 2, eff. June 12, 2017.


Reenacted and amended by Acts 2019, 86th Leg., R.S., Ch. 303 (H.B. 111), Sec. 1, eff. May 31, 2019.


Sec. 38.0042. POSTING CHILD ABUSE HOTLINE TELEPHONE NUMBER. (a) Each public school and open-enrollment charter school shall post in a clearly visible location in a public area of the school that is readily accessible to students a sign in English and in Spanish that contains the toll-free telephone number operated by the Department of Family and Protective Services to receive reports of child abuse or neglect.


(b) The commissioner may adopt rules relating to the size and location of the sign required by Subsection (a).


Added by Acts 2013, 83rd Leg., R.S., Ch. 592 (S.B. 939), Sec. 3, eff. September 1, 2013.


Sec. 38.005. PROTECTIVE EYE DEVICES IN PUBLIC SCHOOLS. Each teacher and student must wear industrial-quality eye-protective devices in appropriate situations as determined by school district policy.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 38.006. E-CIGARETTES AND TOBACCO PRODUCTS ON SCHOOL PROPERTY. (a) In this section, "e-cigarette" has the meaning assigned by Section 161.081, Health and Safety Code.


(b) The board of trustees of a school district shall:


(1) prohibit smoking or using e-cigarettes or tobacco products at a school-related or school-sanctioned activity on or off school property;


(2) prohibit students from possessing e-cigarettes or tobacco products at a school-related or school-sanctioned activity on or off school property; and


(3) ensure that school personnel enforce the policies on school property.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 181 (S.B. 97), Sec. 38, eff. October 1, 2015.


Sec. 38.007. ALCOHOL-FREE SCHOOL ZONES. (a) The board of trustees of a school district shall prohibit the use of alcoholic beverages at a school-related or school-sanctioned activity on or off school property.


(a-1) This section does not apply to a performing arts facility leased to a nonprofit organization for an event as provided by Section 11.179.


(b) The board of trustees of a school district shall attempt to provide a safe alcohol-free environment to students coming to or going from school. The board of trustees may cooperate with local law enforcement officials and the Texas Alcoholic Beverage Commission in attempting to provide this environment and in enforcing Sections 101.75, 109.33, and 109.59, Alcoholic Beverage Code. Additionally, the board, if a majority of the area of a district is located in a municipality with a population of 900,000 or more, may petition the commissioners court of the county in which the district is located or the governing board of an incorporated city or town in which the district is located to adopt a 1,000-foot zone under Section 109.33, Alcoholic Beverage Code.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 834 (H.B. 2633), Sec. 4, eff. September 1, 2019.


Sec. 38.008. POSTING OF STEROID LAW NOTICE. Each school in a school district in which there is a grade level of seven or higher shall post in a conspicuous location in the school gymnasium and each other place in a building where physical education classes are conducted the following notice:


Anabolic steroids are for medical use only. State law prohibits possessing, dispensing, delivering, or administering an anabolic steroid in any manner not allowed by state law. State law provides that body building, muscle enhancement, or the increase of muscle bulk or strength through the use of an anabolic steroid or human growth hormone by a person who is in good health is not a valid medical purpose. Only a medical doctor may prescribe an anabolic steroid or human growth hormone for a person. A violation of state law concerning anabolic steroids or human growth hormones is a criminal offense punishable by confinement in jail or imprisonment in the Texas Department of Criminal Justice.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.050, eff. September 1, 2009.


Sec. 38.009. ACCESS TO MEDICAL RECORDS. (a) A school administrator, nurse, or teacher is entitled to access to a student's medical records maintained by the school district for reasons determined by district policy.


(b) A school administrator, nurse, or teacher who views medical records under this section shall maintain the confidentiality of those medical records.


(c) This section does not authorize a school administrator, nurse, or teacher to require a student to be tested to determine the student's medical condition or status.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 38.0095. PARENTAL ACCESS TO MEDICAL RECORDS. (a) A parent or guardian of a student is entitled to access to the student's medical records maintained by a school district.


(b) On request of a student's parent or guardian, the school district shall provide a copy of the student's medical records to the parent or guardian. The district may not impose a charge for providing the copy that exceeds the charge authorized by Section 552.261, Government Code, for providing a copy of public information.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 3, eff. June 19, 1999.


Sec. 38.010. OUTSIDE COUNSELORS. (a) A school district or school district employee may not refer a student to an outside counselor for care or treatment of a chemical dependency or an emotional or psychological condition unless the district:


(1) obtains prior written consent for the referral from the student's parent;


(2) discloses to the student's parent any relationship between the district and the outside counselor;


(3) informs the student and the student's parent of any alternative public or private source of care or treatment reasonably available in the area;


(4) requires the approval of appropriate school district personnel before a student may be referred for care or treatment or before a referral is suggested as being warranted; and


(5) specifically prohibits any disclosure of a student record that violates state or federal law.


(b) In this section, "parent" includes a managing conservator or guardian.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.



Text of section effective on December 01, 2019



Sec. 38.0101. AUTHORITY TO EMPLOY OR CONTRACT WITH NONPHYSICIAN MENTAL HEALTH PROFESSIONAL. (a) A school district may employ or contract with one or more nonphysician mental health professionals.


(b) In this section, "nonphysician mental health professional" means:


(1) a psychologist licensed to practice in this state and designated as a health-service provider;


(2) a registered nurse with a master's or doctoral degree in psychiatric nursing;


(3) a licensed clinical social worker;


(4) a professional counselor licensed to practice in this state; or


(5) a marriage and family therapist licensed to practice in this state.


Added by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.12, eff. December 1, 2019.


Sec. 38.011. DIETARY SUPPLEMENTS. (a) A school district employee may not:


(1) knowingly sell, market, or distribute a dietary supplement that contains performance enhancing compounds to a primary or secondary education student with whom the employee has contact as part of the employee's school district duties; or


(2) knowingly endorse or suggest the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance enhancing compounds by a primary or secondary education student with whom the employee has contact as part of the employee's school district duties.


(b) This section does not prohibit a school district employee from:


(1) providing or endorsing a dietary supplement that contains performance enhancing compounds to, or suggesting the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance enhancing compounds by, the employee's child; or


(2) selling, marketing, or distributing a dietary supplement that contains performance enhancing compounds to, or endorsing or suggesting the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance enhancing compounds by, a primary or secondary education student as part of activities that:


(A) do not occur on school property or at a school-related function;


(B) are entirely separate from any aspect of the employee's employment with the school district; and


(C) do not in any way involve information about or contacts with students that the employee has had access to, directly or indirectly, through any aspect of the employee's employment with the school district.


(c) A person who violates this section commits an offense. An offense under this section is a Class C misdemeanor.


(d) In this section:


(1) "Dietary supplement" has the meaning assigned by 21 U.S.C. Section 321 and its subsequent amendments.


(2) "Performance enhancing compound" means a manufactured product for oral ingestion, intranasal application, or inhalation that:


(A) contains a stimulant, amino acid, hormone precursor, herb or other botanical, or any other substance other than an essential vitamin or mineral; and


(B) is intended to increase athletic or intellectual performance, promote muscle growth, or increase an individual's endurance or capacity for exercise.


Added by Acts 1999, 76th Leg., ch. 1086, Sec. 1, eff. Sept. 1, 1999.


Sec. 38.012. NOTICE CONCERNING HEALTH CARE SERVICES. (a) Before a school district or school may expand or change the health care services available at a school in the district from those that were available on January 1, 1999, the board of trustees must:


(1) hold a public hearing at which the board discloses all information on the proposed health care services, including:


(A) all health care services to be provided;


(B) whether federal law permits or requires any health care service provided to be kept confidential from parents;


(C) whether a child's medical records will be accessible to the child's parent;


(D) information concerning grant funds to be used;


(E) the titles of persons who will have access to the medical records of a student; and


(F) the security measures that will be used to protect the privacy of students' medical records; and


(2) approve the expansion or change by a record vote.


(b) A hearing under Subsection (a) must include an opportunity for public comment on the proposal.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 2, eff. June 19, 1999.


Sec. 38.013. COORDINATED HEALTH PROGRAM FOR ELEMENTARY, MIDDLE, AND JUNIOR HIGH SCHOOL STUDENTS.



Text of subsection effective until December 01, 2019



 (a) The agency shall make available to each school district one or more coordinated health programs designed to prevent obesity, cardiovascular disease, oral diseases, and Type 2 diabetes in elementary school, middle school, and junior high school students. Each program must provide for coordinating:


(1) health education, including oral health education;


(2) physical education and physical activity;


(3) nutrition services; and


(4) parental involvement.



Text of subsection effective on December 01, 2019



(a) The agency shall make available to each school district one or more coordinated health programs in elementary school, middle school, and junior high school. Each program must provide for coordinating education and services related to:


(1) physical health education, including programs designed to prevent obesity, cardiovascular disease, oral diseases, and Type 2 diabetes and programs designed to promote the role of proper nutrition;


(2) mental health education, including education about mental health conditions, mental health well-being, skills to manage emotions, establishing and maintaining positive relationships, and responsible decision-making;


(3) substance abuse education, including education about alcohol abuse, prescription drug abuse, and abuse of other controlled substances;


(4) physical education and physical activity; and


(5) parental involvement.


(a-1) The commissioner by rule shall adopt criteria for evaluating a coordinated health program before making the program available under Subsection (a). Before adopting the criteria, the commissioner shall request review and comment concerning the criteria from the Department of State Health Services School Health Advisory Committee. The commissioner may make available under Subsection (a) only those programs that meet criteria adopted under this subsection.


(b) The agency shall notify each school district of the availability of the programs.


(c) The commissioner by rule shall adopt criteria for evaluating the nutritional services component of a program under this section that includes an evaluation of program compliance with the Department of Agriculture guidelines relating to foods of minimal nutritional value.


Added by Acts 2001, 77th Leg., ch. 907, Sec. 3, eff. June 14, 2001. Amended by Acts 2003, 78th Leg., ch. 944, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 3, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 4, eff. June 17, 2005.


Acts 2013, 83rd Leg., R.S., Ch. 1399 (H.B. 2483), Sec. 1, eff. June 14, 2013.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.13, eff. December 1, 2019.


Sec. 38.014. IMPLEMENTATION OF COORDINATED HEALTH PROGRAM FOR ELEMENTARY, MIDDLE, AND JUNIOR HIGH SCHOOL STUDENTS. (a) Each school district shall:


(1) participate in appropriate training for the implementation of the program approved by the agency under Section 38.013; and


(2) implement the program in each elementary school, middle school, and junior high school in the district.


(b) The agency, in cooperation with the Texas Department of Health, shall adopt a schedule for regional education service centers to provide necessary training under this section.


Added by Acts 2001, 77th Leg., ch. 907, Sec. 3, eff. June 14, 2001.


Amended by:


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 5, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 6, eff. June 17, 2005.


Sec. 38.0141. REPORTING OF CERTAIN HEALTH AND SAFETY INFORMATION REQUIRED.



Text of subsection effective until December 01, 2019



 (a) Each school district shall provide to the agency information as required by the commissioner, including statistics and data, relating to student health and physical activity and information described by Section 28.004(k), presented in a form determined by the commissioner. The district shall provide the information required by this subsection for the district and for each campus in the district.



Text of subsection effective on December 01, 2019



(a) Each school district shall provide to the agency information as required by the commissioner, including statistics and data, relating to student health and physical activity and information described by Sections 28.004(k)(2), (3), and (4) presented in a form determined by the commissioner. The district shall provide the information required by this subsection for the district and for each campus in the district.


(b) Not later than one year after the agency receives the information required by Subsection (a), the commissioner shall complete a report on physical education provided by each school district and publish the report on the agency's Internet website.


(c) The report must include:


(1) the number of physical education classes offered at each campus in the district and detail the number of days, classes, and minutes offered each week by each campus;


(2) the ratio of students enrolled in physical education classes in the district compared to the overall enrollment;


(3) the average physical education class size at each campus in the district;


(4) the number of physical education teachers in the district who are licensed, certified, or endorsed by an accredited teacher preparation program to teach physical education;


(5) whether each campus in the district has the appropriate equipment and adequate facilities for students to engage in the amount and intensity of physical activity required under Section 28.002;


(6) whether the district allows modifications or accommodations that allow physical education courses to meet the needs of students with disabilities; and


(7) whether the district has a policy that allows teachers or administrators in the district to withhold physical activity from a student as punishment.


Added by Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 7, eff. June 17, 2005.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 1126 (S.B. 1873), Sec. 1, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 3.02, eff. December 1, 2019.


Sec. 38.015. SELF-ADMINISTRATION OF PRESCRIPTION ASTHMA OR ANAPHYLAXIS MEDICINE BY STUDENTS. (a) In this section:


(1) "Parent" includes a person standing in parental relation.


(2) "Self-administration of prescription asthma or anaphylaxis medicine" means a student's discretionary use of prescription asthma or anaphylaxis medicine.


(b) A student with asthma or anaphylaxis is entitled to possess and self-administer prescription asthma or anaphylaxis medicine while on school property or at a school-related event or activity if:


(1) the prescription medicine has been prescribed for that student as indicated by the prescription label on the medicine;


(2) the student has demonstrated to the student's physician or other licensed health care provider and the school nurse, if available, the skill level necessary to self-administer the prescription medication, including the use of any device required to administer the medication;


(3) the self-administration is done in compliance with the prescription or written instructions from the student's physician or other licensed health care provider; and


(4) a parent of the student provides to the school:


(A) a written authorization, signed by the parent, for the student to self-administer the prescription medicine while on school property or at a school-related event or activity; and


(B) a written statement from the student's physician or other licensed health care provider, signed by the physician or provider, that states:


(i) that the student has asthma or anaphylaxis and is capable of self-administering the prescription medicine;


(ii) the name and purpose of the medicine;


(iii) the prescribed dosage for the medicine;


(iv) the times at which or circumstances under which the medicine may be administered; and


(v) the period for which the medicine is prescribed.


(c) The physician's statement must be kept on file in the office of the school nurse of the school the student attends or, if there is not a school nurse, in the office of the principal of the school the student attends.


(d) This section does not:


(1) waive any liability or immunity of a governmental unit or its officers or employees; or


(2) create any liability for or a cause of action against a governmental unit or its officers or employees.


(e) The commissioner may adopt rules and prescribe forms to assist in the implementation of this section.


Added by Acts 2001, 77th Leg., ch. 511, Sec. 1, eff. June 11, 2001. Renumbered from Education Code Sec. 38.013 by Acts 2003, 78th Leg., ch. 1275, Sec. 2(19), eff. Sept. 1, 2003.


Amended by:


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 10.01, eff. May 31, 2006.


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 10.02, eff. May 31, 2006.


Sec. 38.0151. POLICIES FOR CARE OF CERTAIN STUDENTS AT RISK FOR ANAPHYLAXIS. (a) The board of trustees of each school district and the governing body or an appropriate officer of each open-enrollment charter school shall adopt and administer a policy for the care of students with a diagnosed food allergy at risk for anaphylaxis based on "Guidelines for the Care of Students With Food Allergies At-Risk for Anaphylaxis" developed by the commissioner of state health services under this section and updated by the commissioner of state health services in consultation with an ad hoc committee appointed by the commissioner of state health services as provided by Section 38.0152. The guidelines and any recommendation to update the guidelines regarding medical treatment or therapy must be scientifically valid.


(b) A school district or open-enrollment charter school shall annually review and, as necessary, revise its policy for the care of students with a diagnosed food allergy at risk for anaphylaxis to ensure the policy is consistent with the most current version of the guidelines described by Subsection (a).


(c) The guidelines described by Subsection (a) may not:


(1) require a school district or open-enrollment charter school to purchase prescription anaphylaxis medication, such as epinephrine, or require any other expenditure that would result in a negative fiscal impact on the district or charter school; or


(2) require the personnel of a district or charter school to administer anaphylaxis medication, such as epinephrine, to a student unless the anaphylaxis medication is prescribed for that student.


(d) This section does not:


(1) waive any liability or immunity of a governmental entity or its officers or employees; or


(2) create any liability for or a cause of action against a governmental entity or its officers or employees.


(e) The agency shall post the guidelines described by Subsection (a) on the agency's website with any other information relating to students with special health needs. The information posted by the agency must include a summary of the guidelines. The agency shall annually review and, as necessary, revise the summary and any other information to reflect the most current version of the guidelines.


(f) A school district or open-enrollment charter school that provides for the maintenance, administration, and disposal of epinephrine auto-injectors under Subchapter E is not required to comply with this section.


(g) Each school year, the board of trustees of each school district and the governing body of each open-enrollment charter school shall post a summary of the guidelines on the district's or school's Internet website, including instructions on obtaining access to the complete guidelines document. The district's or school's website must be accessible by each student enrolled in the district or school and a parent or guardian of each student. Any forms used by a district or school requesting information from a parent or guardian enrolling a child with a food allergy in the district or school must include information to access on the district's or school's Internet website a summary of the guidelines and instructions on obtaining access to the complete guidelines document.


(h) The guidelines described by Subsection (a) may not:


(1) require a school district or open-enrollment charter school to purchase treatments approved by the United States Food and Drug Administration or make any other expenditure that would result in a negative fiscal impact on the district or school; or


(2) require the personnel of a district or school to administer treatments approved by the United States Food and Drug Administration to a student unless the medication is prescribed for that student by the student's physician.


(i) This section does not:


(1) waive any liability or immunity of a school district or open-enrollment charter school or district or school officers or employees; or


(2) create any liability for or a cause of action against a school district or open-enrollment charter school or district or school officers or employees.


(j) Notwithstanding any other law, this section, including any information or materials developed under this section and the dissemination of information or materials developed under this section, does not create a civil, criminal, or administrative cause of action or liability or create a standard of care, obligation, or duty that provides the basis for a cause of action.


Added by Acts 2011, 82nd Leg., R.S., Ch. 590 (S.B. 27), Sec. 1, eff. June 17, 2011.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 3, eff. May 28, 2015.


Acts 2019, 86th Leg., R.S., Ch. 975 (S.B. 869), Sec. 1, eff. June 14, 2019.


Sec. 38.0152. COMMITTEE TO ASSIST IN UPDATING GUIDELINES FOR CARE OF STUDENTS AT RISK FOR ANAPHYLAXIS. (a) In this section:


(1) "Commissioner" means the commissioner of state health services.


(2) "Department" means the Department of State Health Services.


(3) "Guidelines" means "Guidelines for the Care of Students With Food Allergies At-Risk for Anaphylaxis" on which school district and open-enrollment charter school policies for the care of students with a diagnosed food allergy at risk for anaphylaxis are based as provided by Section 38.0151.


(b) The commissioner shall appoint members to an ad hoc committee to consult with the commissioner on updating the current guidelines to incorporate and specifically reference any new food-allergy management best practices and treatments, including new methods, treatments, and therapies to reduce the risk of allergic reactions.


(c) The committee must include:


(1) not more than one representative from:


(A) the department; and


(B) the Texas Nurses Association;


(2) at least two individuals from one or more national patient advocacy organizations representing the interests of food allergies, anaphylaxis, and related medical issues, including asthma;


(3) one principal of a public elementary school campus at which one or more students with a diagnosed food allergy at risk for anaphylaxis are enrolled;


(4) one classroom teacher employed at a public elementary school campus at which one or more students with a diagnosed food allergy at risk for anaphylaxis are enrolled;


(5) one superintendent of a school district;


(6) one member of a board of trustees of a school district;


(7) one member of a governing body of an open-enrollment charter school;


(8) at least two parents of public school students with a diagnosed food allergy at risk for anaphylaxis;


(9) at least four physicians board certified in allergy and immunology by the American Board of Allergy and Immunology; and


(10) at least one physician board certified in general pediatrics by the American Board of Pediatrics who is a member of a statewide pediatric organization.


(d) Ad hoc committee members shall serve for a period determined by the commissioner. On the resignation of a member of the committee or the removal of a member from the committee by the commissioner, the commissioner shall appoint a new member to the committee who qualifies for the committee in the same manner that the member who resigned or is removed qualified.


(e) Section 2110.005, Government Code, does not apply to the ad hoc committee appointed under this section.


(f) Any recommendations on updating the current guidelines regarding medical treatment or therapies must be submitted by the physicians directly to the commissioner, provided that those recommendations may only be submitted to the commissioner if approved by a majority of the physicians serving on the committee.


(g) At least once every three years, the commissioner shall order a meeting of the committee to update the guidelines to incorporate any new food-allergy management best practices and treatments.


(h) The commissioner may order a meeting of the committee at any time the commissioner determines necessary for the committee to:


(1) discuss the protection of students with food allergies at risk for anaphylaxis; and


(2) update the guidelines.


Added by Acts 2019, 86th Leg., R.S., Ch. 975 (S.B. 869), Sec. 2, eff. June 14, 2019.


Sec. 38.016. PSYCHOTROPIC DRUGS AND PSYCHIATRIC EVALUATIONS OR EXAMINATIONS.



Text of subsection effective until December 01, 2019



 (a) In this section:


(1) "Parent" includes a guardian or other person standing in parental relation.


(2) "Psychotropic drug" means a substance that is:


(A) used in the diagnosis, treatment, or prevention of a disease or as a component of a medication; and


(B) intended to have an altering effect on perception, emotion, or behavior.



Text of subsection effective on December 01, 2019



(a) In this section:


(1) "Nonphysician mental health professional" has the meaning assigned by Section 38.0101.


(2) "Parent" includes a guardian or other person standing in parental relation.


(3) "Psychotropic drug" means a substance that is:


(A) used in the diagnosis, treatment, or prevention of a disease or as a component of a medication; and


(B) intended to have an altering effect on perception, emotion, or behavior.


(b) A school district employee may not:


(1) recommend that a student use a psychotropic drug; or


(2) suggest any particular diagnosis; or


(3) use the refusal by a parent to consent to administration of a psychotropic drug to a student or to a psychiatric evaluation or examination of a student as grounds, by itself, for prohibiting the child from attending a class or participating in a school-related activity.



Text of subsection effective until December 01, 2019



(c) Subsection (b) does not:


(1) prevent an appropriate referral under the child find system required under 20 U.S.C. Section 1412, as amended; or


(2) prohibit a school district employee who is a registered nurse, advanced nurse practitioner, physician, or certified or appropriately credentialed mental health professional from recommending that a child be evaluated by an appropriate medical practitioner; or


(3) prohibit a school employee from discussing any aspect of a child's behavior or academic progress with the child's parent or another school district employee.



Text of subsection effective on December 01, 2019



(c) Subsection (b) does not:


(1) prevent an appropriate referral under the child find system required under 20 U.S.C. Section 1412, as amended;


(2) prohibit a school district employee, or an employee of an entity with which the district contracts, who is a registered nurse, advanced nurse practitioner, physician, or nonphysician mental health professional licensed or certified to practice in this state from recommending that a child be evaluated by a physician or nonphysician mental health professional; or


(3) prohibit a school employee from discussing any aspect of a child's behavior or academic progress with the child's parent or another school district employee.


(d) The board of trustees of each school district shall adopt a policy to ensure implementation and enforcement of this section.


(e) An act in violation of Subsection (b) does not override the immunity from personal liability granted in Section 22.0511 or other law or the district's sovereign and governmental immunity.


Added by Acts 2003, 78th Leg., ch. 1058, Sec. 1, eff. June 20, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 4.008, eff. September 1, 2007.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.14, eff. December 1, 2019.


Sec. 38.017. AVAILABILITY OF AUTOMATED EXTERNAL DEFIBRILLATOR. (a) Each school district shall make available at each campus in the district at least one automated external defibrillator, as defined by Section 779.001, Health and Safety Code. A campus defibrillator must be readily available during any University Interscholastic League athletic competition held on the campus. In determining the location at which to store a campus defibrillator, the principal of the campus shall consider the primary location on campus where students engage in athletic activities.


(b) To the extent practicable, each school district, in cooperation with the University Interscholastic League, shall make reasonable efforts to ensure that an automated external defibrillator is available at each University Interscholastic League athletic practice held at a district campus. If a school district is not able to make an automated external defibrillator available in the manner provided by this subsection, the district shall determine the extent to which an automated external defibrillator must be available at each University Interscholastic League athletic practice held at a district campus. The determination must be based, in addition to any other appropriate considerations, on relevant medical information.


(c) Each school district, in cooperation with the University Interscholastic League, shall determine the extent to which an automated external defibrillator must be available at each University Interscholastic League athletic competition held at a location other than a district campus. The determination must be based, in addition to any other appropriate considerations, on relevant medical information and whether emergency services personnel are present at the athletic competition under a contract with the school district.


(d) Each school district shall ensure the presence at each location at which an automated external defibrillator is required under Subsection (a), (b), or (c) of at least one campus or district employee trained in the proper use of the defibrillator at any time a substantial number of district students are present at the location.


(e) A school district shall ensure that an automated external defibrillator is used and maintained in accordance with standards established under Chapter 779, Health and Safety Code.


(f) This section does not:


(1) waive any immunity from liability of a school district or its officers or employees;


(2) create any liability for or a cause of action against a school district or its officers or employees; or


(3) waive any immunity from liability under Section 74.151, Civil Practice and Remedies Code.


(g) This subsection applies only to a private school that receives an automated external defibrillator from the agency or receives funding from the agency to purchase or lease an automated external defibrillator. A private school shall:


(1) make available at the school at least one automated external defibrillator; and


(2) in coordination with the Texas Association of Private and Parochial Schools, adopt a policy concerning the availability of an automated external defibrillator at athletic competitions and practices in a manner consistent with the requirements prescribed by this section, including the training and maintenance requirements prescribed by this section.


(h) A school district may seek and accept gifts, grants, or other donations to pay the district's cost of purchasing automated external defibrillators required under this section.


Added by Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 6, eff. June 15, 2007.


Sec. 38.018. PROCEDURES REGARDING RESPONSE TO CARDIAC ARREST. (a) Each school district and private school shall develop safety procedures for a district or school employee or student to follow in responding to a medical emergency involving cardiac arrest, including the appropriate response time in administering cardiopulmonary resuscitation, using an automated external defibrillator, as defined by Section 779.001, Health and Safety Code, or calling a local emergency medical services provider.


(b) A private school is required to develop safety procedures under this section only if the school receives an automated external defibrillator from the agency or receives funding from the agency to purchase or lease an automated external defibrillator.


Added by Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 6, eff. June 15, 2007.


Sec. 38.0181. CARDIOVASCULAR SCREENING PILOT PROGRAM. (a) In this section, "pilot program" means the cardiovascular screening pilot program.


(b) The commissioner shall establish a pilot program under which sixth grade students at participating campuses are administered a cardiovascular screening, including an electrocardiogram and an echocardiogram.


(c) The commissioner shall select campuses to participate in the pilot program. In selecting campuses, the commissioner shall ensure that the cardiovascular screening is administered to an ethnically diverse range of students.


(d) The commissioner may accept grants and donations for use in administering the pilot program.


(e) The commissioner shall require a participating campus to provide the results of a student's cardiovascular screening to the student's parent or guardian.


(f) Expired.


(g) The commissioner may adopt rules necessary to administer this section.


Added by Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 6, eff. June 15, 2007.


Renumbered from Education Code, Section 38.019 by Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 27.001(6), eff. September 1, 2009.


Sec. 38.019. IMMUNIZATION AWARENESS PROGRAM. (a) A school district that maintains an Internet website shall post prominently on the website:


(1) a list, in English and Spanish, of:


(A) the immunizations required for admission to public school by rules of the Department of State Health Services adopted under Section 38.001;


(B) any immunizations or vaccines recommended for public school students by the Department of State Health Services; and


(C) health clinics in the district that offer the influenza vaccine, to the extent those clinics are known to the district; and


(2) a link to the Department of State Health Services Internet website where a person may obtain information relating to the procedures for claiming an exemption from the immunization requirements of Section 38.001.


(a-1) The link to the Department of State Health Services Internet website provided under Subsection (a)(2) must be presented in the same manner as the information provided under Subsection (a)(1).


(b) The list of recommended immunizations or vaccines under Subsection (a)(2) must include the influenza vaccine, unless the Department of State Health Services requires the influenza vaccine for admission to public school.


Added by Acts 2007, 80th Leg., R.S., Ch. 94 (H.B. 1059), Sec. 3, eff. May 15, 2007.


Sec. 38.021. USE OF SUNSCREEN PRODUCTS. (a) A student may possess and use a topical sunscreen product while on school property or at a school-related event or activity to avoid overexposure to the sun and not for the medical treatment of an injury or illness if the product is approved by the federal Food and Drug Administration for over-the-counter use.


(b) This section does not:


(1) waive any immunity from liability of a school district, its board of trustees, or its employees; or


(2) create any liability for or a cause of action against a school district, its board of trustees, or its employees.


Added by Acts 2015, 84th Leg., R.S., Ch. 1139 (S.B. 265), Sec. 1, eff. June 19, 2015.


Sec. 38.022. SCHOOL VISITORS. (a) A school district may require a person who enters a district campus to display the person's driver's license or another form of identification containing the person's photograph issued by a governmental entity.


(b) A school district may establish an electronic database for the purpose of storing information concerning visitors to district campuses. Information stored in the electronic database may be used only for the purpose of school district security and may not be sold or otherwise disseminated to a third party for any purpose.


(c) A school district may verify whether a visitor to a district campus is a sex offender registered with the computerized central database maintained by the Department of Public Safety as provided by Article 62.005, Code of Criminal Procedure, or any other database accessible by the district.


(d) The board of trustees of a school district shall adopt a policy regarding the action to be taken by the administration of a school campus when a visitor is identified as a sex offender.


Added by Acts 2007, 80th Leg., R.S., Ch. 1372 (S.B. 9), Sec. 12, eff. June 15, 2007.


Sec. 38.023. LIST OF RESOURCES CONCERNING INTERNET SAFETY. The agency shall develop and make available to school districts a list of resources concerning Internet safety, including a list of organizations and Internet websites that may assist in educating teachers and students about:


(1) the potential dangers of allowing personal information to appear on an Internet website;


(2) the significance of copyright laws; and


(3) the consequences of cyber-plagiarism and theft of audiovisual works, including motion pictures, software, and sound recordings, through uploading and downloading files on the Internet.


Added by Acts 2007, 80th Leg., R.S., Ch. 751 (H.B. 3171), Sec. 1, eff. June 15, 2007.


Sec. 38.024. INSURANCE AGAINST STUDENT INJURIES. (a) In compliance with this section, the board of trustees of a school district may obtain insurance against bodily injuries sustained by students while training for or engaging in interschool athletic competition or while engaging in school-sponsored activities.


(b) The amount of insurance to be obtained must be in keeping with the financial condition of the school district and may not exceed the amount that, in the opinion of the board of trustees, is reasonably necessary to afford adequate medical treatment of injured students.


(c) The insurance authorized by this section must be obtained from a reliable insurance company authorized to do business in this state and must be on forms approved by the commissioner of insurance.


(d) The cost of the insurance is a legitimate part of the total cost of operating the school district.


(e) The failure of any board of trustees to carry the insurance authorized by this section may not be construed as placing any legal liability on the school district or its officers, agents, or employees for any injury that results.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 534, Sec. 1, eff. Sept. 1, 2001.


Transferred from Education Code, Section 33.085 by Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.004(a), eff. September 1, 2009.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.004(b), eff. September 1, 2009.


Acts 2015, 84th Leg., R.S., Ch. 92 (H.B. 744), Sec. 1, eff. May 23, 2015.


Sec. 38.026. GRANT PROGRAM FOR BEST PRACTICES IN NUTRITION EDUCATION. (a) The Department of Agriculture shall develop a program under which the department awards grants to public school campuses for best practices in nutrition education.


(b) The Department of Agriculture may solicit and accept gifts, grants, and donations from any public or private source for the purposes of this section.


(c) The Department of Agriculture may adopt rules as necessary to administer a grant program established under this section.


Added by Acts 2009, 81st Leg., R.S., Ch. 728 (S.B. 282), Sec. 2, eff. June 19, 2009.


Sec. 38.027. ELECTRONIC COMMUNICATION POLICY. (a) In this section, "electronic communication" means any communication facilitated by the use of any electronic device, including a telephone, cellular telephone, computer, computer network, personal data assistant, or pager. The term includes e-mails, text messages, instant messages, and any communications made through an Internet website, including a social media website or a social networking website.


(b) A school district shall adopt a written policy concerning electronic communications between a school employee and a student enrolled in the district.


(c) The policy adopted under this section must:


(1) include provisions designed to prevent improper electronic communications between a school employee and a student;


(2) allow a school employee to elect to not disclose to students the employee's personal telephone number or e-mail address; and


(3) include provisions instructing a school employee about the proper method for notifying appropriate local administrators about an incident in which a student engages in improper communications with the school employee.


Added by Acts 2017, 85th Leg., R.S., Ch. 178 (S.B. 7), Sec. 15, eff. September 1, 2017.


Sec. 38.030. TRAUMATIC INJURY RESPONSE PROTOCOL. (a) Each school district and open-enrollment charter school shall develop and annually make available a protocol for school employees and volunteers to follow in the event of a traumatic injury.


(b) The protocol required under this section must:


(1) provide for a school district or open-enrollment charter school to maintain and make available to school employees and volunteers bleeding control stations, as described by Subsection (d), for use in the event of a traumatic injury involving blood loss;


(2) ensure that bleeding control stations are stored in easily accessible areas of the campus that are selected by the district's school safety and security committee or the charter school's governing body;


(3) require that agency-approved training on the use of a bleeding control station in the event of an injury to another person be provided to:


(A) each school district peace officer commissioned under Section 37.081 or school security personnel employed under that section who provides security services at the campus;


(B) each school resource officer who provides law enforcement at the campus; and


(C) all other district or school personnel who may be reasonably expected to use a bleeding control station; and


(4) require the district or charter school to annually offer instruction on the use of a bleeding control station from a school resource officer or other appropriate district or school personnel who has received the training under Subdivision (3) to students enrolled at the campus in grade seven or higher.


(c) A district's school safety and security committee or the charter school's governing body may select, as easily accessible areas of the campus at which bleeding control stations may be stored, areas of the campus where automated external defibrillators are stored.


(d) A bleeding control station required under this section must contain all of the following required supplies in quantities determined appropriate by the superintendent of the district or the director of the school:


(1) tourniquets approved for use in battlefield trauma care by the armed forces of the United States;


(2) chest seals;


(3) compression bandages;


(4) bleeding control bandages;


(5) space emergency blankets;


(6) latex-free gloves;


(7) markers;


(8) scissors; and


(9) instructional documents developed by the American College of Surgeons or the United States Department of Homeland Security detailing methods to prevent blood loss following a traumatic event.


(e) In addition to the items listed under Subsection (d), a school district or open-enrollment charter school may also include in a bleeding control station any medical material or equipment that:


(1) may be readily stored in a bleeding control station;


(2) may be used to adequately treat an injury involving traumatic blood loss; and


(3) is approved by local law enforcement or emergency medical services personnel.


(f) To satisfy the training requirement of Subsection (b)(3), the agency may approve a course of instruction that has been developed or endorsed by:


(1) the American College of Surgeons or a similar organization; or


(2) the emergency medicine department of a health-related institution of higher education or a hospital.


(g) The course of instruction for training described under Subsection (f) may not be provided as an online course. The course of instruction must use nationally recognized, evidence-based guidelines for bleeding control and must incorporate instruction on the psychomotor skills necessary to use a bleeding control station in the event of an injury to another person, including instruction on proper chest seal placement.


(h) The course of instruction described under Subsection (f) may be provided by emergency medical technicians, paramedics, law enforcement officers, firefighters, representatives of the organization or institution that developed or endorsed the training, educators, other public school employees, or other similarly qualified individuals. A course of instruction described under Subsection (f) is not required to provide for certification in bleeding control. If the course of instruction does provide for certification in bleeding control, the instructor must be authorized to provide the instruction for the purpose of certification by the organization or institution that developed or endorsed the course of instruction.


(i) The good faith use of a bleeding control station by a school district or open-enrollment charter school employee to control the bleeding of an injured person is incident to or within the scope of the duties of the employee's position of employment and involves the exercise of judgment or discretion on the part of the employee for purposes of Section 22.0511, and a school district or open-enrollment charter school and the employees of the district or school are immune from civil liability, as provided by that section, from damages or injuries resulting from that good faith use of a bleeding control station. A school district or open-enrollment charter school volunteer is immune from civil liability from damages or injuries resulting from the good faith use of a bleeding control station to the same extent as a professional employee of the district or school, as provided by Section 22.053.


(j) Nothing in this section limits the immunity from liability of a school district, open-enrollment charter school, or district or school employee or volunteer under:


(1) Sections 22.0511 and 22.053;


(2) Section 101.051, Civil Practice and Remedies Code; or


(3) any other applicable law.


(k) This section does not create a cause of action against a school district or open-enrollment charter school or the employees or volunteers of the district or school.


Added by Acts 2019, 86th Leg., R.S., Ch. 1357 (H.B. 496), Sec. 1, eff. June 15, 2019.


Sec. 38.031. NOTICE OF LICE. (a) The board of trustees of an independent school district shall adopt a policy requiring a school nurse of a public elementary school who determines or otherwise becomes aware that a child enrolled in the school has lice shall provide written or electronic notice of that fact to:


(1) the parent of the child with lice as soon as practicable but not later than 48 hours after the administrator or nurse, as applicable, determines or becomes aware of that fact; and


(2) the parent of each child assigned to the same classroom as the child with lice not later than the fifth school day after the date on which the administrator or nurse, as applicable, determines or becomes aware of that fact.


(b) The notice provided under Subsection (a):


(1) must include the recommendations of the Centers for Disease Control and Prevention for the treatment and prevention of lice; and


(2) if the notice is provided under Subsection (a)(2), may not identify the child with lice.


(c) The commissioner shall adopt rules as necessary to implement this section in a manner that complies with federal law regarding confidentiality of student medical or educational information, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) and the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), and any state law relating to the privacy of student information.


Added by Acts 2017, 85th Leg., R.S., Ch. 925 (S.B. 1566), Sec. 14, eff. September 1, 2017.


Sec. 38.032. SEIZURE MANAGEMENT AND TREATMENT PLAN. (a) The parent or guardian of a student with a seizure disorder may seek care for the student's seizures while the student is at school or participating in a school activity by submitting to the school district at which the student is enrolled a copy of a seizure management and treatment plan developed by the student's parent or guardian and the physician responsible for the student's seizure treatment. The plan must be submitted to and reviewed by the district:


(1) before or at the beginning of the school year;


(2) on enrollment of the student, if the student enrolls in the district after the beginning of the school year; or


(3) as soon as practicable following a diagnosis of a seizure disorder for the student.


(b) A seizure management and treatment plan must:


(1) identify the health care services the student may receive at school or while participating in a school activity;


(2) evaluate the student's ability to manage and level of understanding of the student's seizures; and


(3) be signed by the student's parent or guardian and the physician responsible for the student's seizure treatment.


(c) The care of a student with a seizure disorder by a district employee under a seizure management plan submitted under this section is incident to or within the scope of the duties of the employee's position of employment and involves the exercise of judgment or discretion on the part of the employee for purposes of Section 22.0511.


(d) The immunity from liability provided by Section 22.0511 applies to an action or failure to act by a district employee in administering a medication, assisting with self-administration, or otherwise providing for the care of a student under a seizure management plan submitted for the student under Subsection (a).


Added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2, eff. June 14, 2019.


Text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2



For text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1042 (H.B. 706), Sec. 1, see other Sec. 38.033.



Sec. 38.033. SEIZURE RECOGNITION AND RELATED FIRST AID TRAINING. (a) A school nurse employed by a school district must complete an agency-approved online course of instruction for school nurses regarding managing students with seizure disorders that includes information about seizure recognition and related first aid.


(b) A school district employee, other than a school nurse, whose duties at the school include regular contact with students must complete an agency-approved online course of instruction for school personnel regarding awareness of students with seizure disorders that includes information about seizure recognition and related first aid.


(c) The agency may approve an online course of instruction provided by a nonprofit national foundation that supports the welfare of individuals with epilepsy and seizure disorders to satisfy the training required under Subsection (a) or (b). An online course of instruction approved by the agency under this subsection that is provided to a school district must be provided by the nonprofit entity free of charge.


(d) The agency shall adopt rules as necessary to administer this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2, eff. June 14, 2019.


Text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1042 (H.B. 706), Sec. 1



For text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2, see other Sec. 38.033.



Sec. 38.033. SCHOOL HEALTH AND RELATED SERVICES PROGRAM; ELIGIBILITY FOR AUDIOLOGY SERVICES. (a) A child is eligible to receive audiology services provided under the school health and related services program if the child:


(1) is 20 years of age or younger;


(2) has a disability or chronic medical condition;


(3) is eligible for Medicaid benefits; and


(4) has been prescribed the services under:


(A) an individualized education program created under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.); or


(B) a plan created under Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794).


(b) The Health and Human Services Commission shall provide reimbursement to a provider under the school health and related services program for audiology services provided to a child who is eligible for the services under Subsection (a).


(c) The executive commissioner of the Health and Human Services Commission, in consultation with the agency, shall adopt rules necessary to implement this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 1042 (H.B. 706), Sec. 1, eff. September 1, 2019.


Sec. 38.036. TRAUMA-INFORMED CARE POLICY. (a) Each school district shall adopt and implement a policy requiring the integration of trauma-informed practices in each school environment. A district must include the policy in the district improvement plan required under Section 11.252.


(b) A policy required by this section must address:


(1) using resources developed by the agency, methods for:


(A) increasing staff and parent awareness of trauma-informed care; and


(B) implementation of trauma-informed practices and care by district and campus staff; and


(2) available counseling options for students affected by trauma or grief.


(c) The methods under Subsection (b)(1) for increasing awareness and implementation of trauma-informed care must include training as provided by this subsection. The training must be provided:


(1) through a program selected from the list of recommended best practice-based programs and research-based practices established under Section 161.325, Health and Safety Code;


(2) as part of any new employee orientation for all new school district educators; and


(3) to existing school district educators on a schedule adopted by the agency by rule that requires educators to be trained at intervals necessary to keep educators informed of developments in the field.


(d) For any training under Subsection (c), each school district shall maintain records that include the name of each district staff member who participated in the training.


(e) Each school district shall report annually to the agency the following information for the district as a whole and for each school campus:


(1) the number of teachers, principals, and counselors employed by the district who have completed training under this section; and


(2) the total number of teachers, principals, and counselors employed by the district.


(f) If a school district determines that the district does not have sufficient resources to provide the training required under Subsection (c), the district may partner with a community mental health organization to provide training that meets the requirements of Subsection (c) at no cost to the district.


(g) The commissioner shall adopt rules as necessary to administer this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 18, eff. June 6, 2019.


SUBCHAPTER B. SCHOOL-BASED HEALTH CENTERS



Sec. 38.051. ESTABLISHMENT OF SCHOOL-BASED HEALTH CENTERS. (a) A school district in this state may, if the district identifies the need, design a model in accordance with this subchapter for the delivery of cooperative health care programs for students and their families and may compete for grants awarded under this subchapter. The model may provide for the delivery of conventional health services and disease prevention of emerging health threats that are specific to the district.



Text of subsection effective until December 01, 2019



(b) On the recommendation of an advisory council established under Section 38.058, a school district may establish a school-based health center at one or more campuses in the district to meet the health care needs of students and their families.



Text of subsection effective on December 01, 2019



(b) On the recommendation of an advisory council established under Section 38.058 or on the initiative of the board of trustees or the governing body of an open-enrollment charter school, a school district or open-enrollment charter school may establish a school-based health center at one or more campuses to meet the health care needs of students and their families.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.15, eff. December 1, 2019.


Sec. 38.052. CONTRACT FOR SERVICES. A district may contract with a person to provide services at a school-based health center.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.053. PARENTAL CONSENT REQUIRED. (a) A school-based health center may provide services to a student only if the district or the provider with whom the district contracts obtains the written consent of the student's parent or guardian or another person having legal control of the student on a consent form developed by the district or provider. The student's parent or guardian or another person having legal control of the student may give consent for a student to receive ongoing services or may limit consent to one or more services provided on a single occasion.


(b) The consent form must list every service the school-based health center delivers in a format that complies with all applicable state and federal laws and allows a person to consent to one or more categories of services.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.



Text of section effective until December 01, 2019



Sec. 38.054. CATEGORIES OF SERVICES. The permissible categories of services are:


(1) family and home support;


(2) health care, including immunizations;


(3) dental health care;


(4) health education; and


(5) preventive health strategies.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.16, eff. December 1, 2019.



Text of section effective on December 01, 2019



Sec. 38.054. CATEGORIES OF SERVICES. The permissible categories of services are:


(1) family and home support;


(2) physical health care, including immunizations;


(3) dental health care;


(4) health education;


(5) preventive health strategies;


(6) treatment for mental health conditions; and


(7) treatment for substance abuse.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.16, eff. December 1, 2019.


Sec. 38.055. USE OF GRANT FUNDS FOR REPRODUCTIVE SERVICES PROHIBITED. Reproductive services, counseling, or referrals may not be provided through a school-based health center using grant funds awarded under this subchapter.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.056. PROVISION OF CERTAIN SERVICES BY LICENSED HEALTH CARE PROVIDER REQUIRED. Any service provided using grant funds awarded under this subchapter must be provided by an appropriate professional who is properly licensed, certified, or otherwise authorized under state law to provide the service.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.057. IDENTIFICATION OF HEALTH-RELATED CONCERNS. (a) The staff of a school-based health center and the person whose consent is obtained under Section 38.053 shall jointly identify any health-related concerns of a student that may be interfering with the student's well-being or ability to succeed in school.



Text of subsection effective until December 01, 2019



(b) If it is determined that a student is in need of a referral for mental health services, the staff of the center shall notify the person whose consent is required under Section 38.053 verbally and in writing of the basis for the referral. The referral may not be provided unless the person provides written consent for the type of service to be provided and provides specific written consent for each treatment occasion.



Text of subsection effective on December 01, 2019



(b) If it is determined that a student is in need of a referral for physical health services or mental health services, the staff of the center shall notify the person whose consent is required under Section 38.053 verbally and in writing of the basis for the referral. The referral may not be provided unless the person provides written consent for the type of service to be provided and provides specific written consent for each treatment occasion or for a course of treatment that includes multiple treatment occasions of the same type of service.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.17, eff. December 1, 2019.



Text of section effective until December 01, 2019



Sec. 38.058. HEALTH EDUCATION AND HEALTH CARE ADVISORY COUNCIL. (a) The board of trustees of a school district may establish and appoint members to a local health education and health care advisory council to make recommendations to the district on the establishment of school-based health centers and to assist the district in ensuring that local community values are reflected in the operation of each center and in the provision of health education.


(b) A majority of the members of the council must be parents of students enrolled in the district. In addition to the appointees who are parents of students, the board of trustees shall also appoint at least one person from each of the following groups:


(1) teachers;


(2) school administrators;


(3) licensed health care professionals;


(4) the clergy;


(5) law enforcement;


(6) the business community;


(7) senior citizens; and


(8) students.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.18, eff. December 1, 2019.



Text of section effective on December 01, 2019



Sec. 38.058. HEALTH EDUCATION AND HEALTH CARE ADVISORY COUNCIL. (a) The board of trustees of a school district or the governing body of an open-enrollment charter school may establish and appoint members to a local health education and health care advisory council to make recommendations to the district or school on the establishment of school-based health centers and to assist the district or school in ensuring that local community values are reflected in the operation of each center and in the provision of health education.


(b) A majority of the members of the council must be parents of students enrolled in the school district or open-enrollment charter school. In addition to the appointees who are parents of students, the board of trustees or governing body shall also appoint at least one person from each of the following groups:


(1) classroom teachers;


(2) school administrators;


(3) school counselors;


(4) health care professionals licensed or certified to practice in this state;


(5) the clergy;


(6) law enforcement;


(7) the business community;


(8) senior citizens; and


(9) students.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.18, eff. December 1, 2019.


Sec. 38.059. ASSISTANCE OF PUBLIC HEALTH AGENCY. (a) A school district may seek assistance in establishing and operating a school-based health center from any public health agency in the community. On request, a public health agency shall cooperate with a district and to the extent practicable, considering the resources of the agency, may provide assistance.


(b) A district and a public health agency may, by agreement, jointly establish, operate, and fund a school-based health center.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.



Text of section effective on December 01, 2019



Sec. 38.0591. ACCESS TO MENTAL HEALTH SERVICES. The agency, in cooperation with the Health and Human Services Commission, shall develop guidelines for school districts regarding:


(1) partnering with a local mental health authority and with community or other private mental health services providers and substance abuse services providers to increase student access to mental health services; and


(2) obtaining mental health services through the medical assistance program under Chapter 32, Human Resources Code.


Added by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.19, eff. December 1, 2019.


Sec. 38.060. COORDINATION WITH EXISTING PROVIDERS IN CERTAIN AREAS. (a) This section applies only to a school-based health center serving an area that:


(1) is located in a county with a population not greater than 50,000; or


(2) has been designated under state or federal law as:


(A) a health professional shortage area;


(B) a medically underserved area; or


(C) a medically underserved community by the Texas Department of Rural Affairs.


(b) If a school-based health center is located in an area described by Subsection (a), the school district and the advisory council established under Section 38.058 shall make a good faith effort to identify and coordinate with existing providers to preserve and protect existing health care systems and medical relationships in the area.



Text of subsection effective until December 01, 2019



(c) The council shall keep a record of efforts made to coordinate with existing providers.



Text of subsection effective on December 01, 2019



(c) The school district or open-enrollment charter school shall keep a record of efforts made to coordinate with existing providers.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 609, Sec. 7, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 9.006(f), eff. Sept. 1, 2003.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 112 (H.B. 1918), Sec. 2, eff. September 1, 2009.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.20, eff. December 1, 2019.


Sec. 38.061. COMMUNICATION WITH PRIMARY CARE PHYSICIAN. (a) If a person receiving a medical service from a school-based health center has a primary care physician, the staff of the center shall provide notice of the service the person received to the primary care physician in order to allow the physician to maintain a complete medical history of the person.


(b) The staff of a school-based health center shall, before delivering a medical service to a person with a primary care physician under the state Medicaid program, a state children's health plan program, or a private health insurance or health benefit plan, notify the physician for the purpose of sharing medical information and obtaining authorization for delivering the medical service.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.062. FUNDING FOR PROVISION OF SERVICES. A school district or the provider with whom the district contracts shall seek all available sources of funding to compensate the district or provider for services provided by a school-based health center, including money available under the state Medicaid program, a state children's health plan program, or private health insurance or health benefit plans or available from those persons using a school-based health center who have the ability to pay for the services.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.063. GRANTS. (a) Subject to the availability of federal or state appropriated funds, the commissioner of state health services shall administer a program under which grants are awarded to assist school districts and local health departments, hospitals, health care systems, universities, or nonprofit organizations that contract with school districts with the costs of school-based health centers in accordance with this section.


(b) The commissioner of state health services, by rules adopted in accordance with this section, shall establish procedures for awarding grants. The rules must provide that:


(1) grants are awarded annually through a competitive process to:


(A) school districts; and


(B) local health departments, hospitals, health care systems, universities, or nonprofit organizations that have contracted with school districts to establish and operate school-based health centers;


(2) subject to the availability of federal or state appropriated funds, each grant is for a term of five years; and


(3) a preference is given to school-based health centers in school districts that are located in rural areas or that have low property wealth per student.


(c) All health care programs should be designed to meet the following goals:


(1) reducing student absenteeism;


(2) increasing a student's ability to meet the student's academic potential; and


(3) stabilizing the physical well-being of a student.


(d) A school district, local health department, hospital, health care system, university, or nonprofit organization may not receive more than $250,000 per state fiscal biennium through grants awarded under this section.


(e) To be eligible to receive a grant, a school district, local health department, hospital, health care system, university, or nonprofit organization must provide matching funds in accordance with rules adopted under Subsection (b). The matching funds may be obtained from any source available to the district, local health department, hospital, health care system, university, or nonprofit organization, including in-kind contributions, community or foundation grants, individual contributions, and local governmental agency operating funds.


(e-1) A grant under this section may not be given to a nonprofit organization that offers reproductive services, contraceptive services, counseling, or referrals, or any other services that require a license under Chapter 245, Health and Safety Code, or that is affiliated with a nonprofit organization that is licensed under Chapter 245, Health and Safety Code.


(e-2) A school district, local health department, hospital, health care system, university, or nonprofit organization receiving a grant under this section may use the grant funds to:


(1) establish a new school-based health center;


(2) expand an existing school-based health center; or


(3) operate a school-based health center.


(f) The commissioner of state health services shall adopt rules establishing standards for health care centers funded through grants that place primary emphasis on delivery of health services and secondary emphasis on population-based models that prevent emerging health threats.


(g) The commissioner of state health services shall require client surveys to be conducted in school-based health centers funded through grants awarded under this section.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 598 (H.B. 281), Sec. 1, eff. June 19, 2009.


Sec. 38.064. REPORT TO LEGISLATURE. (a) Based on statistics obtained from every school-based health center in this state that receives funding through the Department of State Health Services, the Department of State Health Services shall issue a biennial report to the legislature about the relative efficacy of services delivered by the centers during the preceding two years and any increased academic success of students at campuses served by those centers, with special emphasis on any:


(1) increased attendance, including attendance information regarding students with chronic illnesses;


(2) decreased drop-out rates;


(3) improved student health;


(4) increased student immunization rates;


(5) increased student participation in preventive health measures, including routine physical examinations and checkups conducted in accordance with the Texas Health Steps program; and


(6) improved performance on student assessment instruments administered under Subchapter B, Chapter 39.


(b) The Department of State Health Services may modify any requirement imposed by Subsection (a) if necessary to comply with federal law regarding confidentiality of student medical or educational information, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) and the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 598 (H.B. 281), Sec. 2, eff. June 19, 2009.


SUBCHAPTER C. PHYSICAL FITNESS ASSESSMENT



Sec. 38.101. ASSESSMENT REQUIRED. (a) Except as provided by Subsection (b), a school district annually shall assess the physical fitness of students enrolled in grade three or higher in a course that satisfies the curriculum requirements for physical education under Section 28.002(a)(2)(C).


(b) A school district is not required to assess a student for whom, as a result of disability or other condition identified by commissioner rule, the assessment instrument adopted under Section 38.102 is inappropriate.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Amended by:


Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 17, eff. September 28, 2011.


Sec. 38.102. ADOPTION OF ASSESSMENT INSTRUMENT. (a) The commissioner by rule shall adopt an assessment instrument to be used by a school district in assessing student physical fitness under this subchapter.


(b) The assessment instrument must:


(1) be based on factors related to student health, including the following factors that have been identified as essential to overall health and function:


(A) aerobic capacity;


(B) body composition; and


(C) muscular strength, endurance, and flexibility; and


(2) include criterion-referenced standards specific to a student's age and gender and based on the physical fitness level required for good health.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Sec. 38.103. REPORTING OF PHYSICAL FITNESS RESULTS. (a) A school district shall provide the results of individual student performance on the physical fitness assessment required by this subchapter to the agency. The results may not contain the names of individual students or teachers or a student's social security number or date of birth.


(b) The results of individual student performance on the physical fitness assessment instrument are confidential and may be released only in accordance with state and federal law.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 372 (S.B. 226), Sec. 1, eff. June 17, 2011.


Acts 2011, 82nd Leg., R.S., Ch. 372 (S.B. 226), Sec. 2, eff. June 17, 2011.


Sec. 38.104. ANALYSIS OF RESULTS. (a) The agency shall analyze the results received by the agency under this subchapter and identify, for each school district, any correlation between the results and the following:


(1) student academic achievement levels;


(2) student attendance levels;


(3) student obesity;


(4) student disciplinary problems; and


(5) school meal programs.


(b) The agency may contract with a public or private entity for that entity to conduct all or part of the analysis required by Subsection (a).


(c) Not later than September 1 of each year, the agency shall report the findings of the analysis under this section of the results obtained during the preceding school year to the School Health Advisory Committee established under Section 1001.0711, Health and Safety Code, for use by the committee in:


(1) assessing the effectiveness of coordinated health programs provided by school districts in accordance with Section 38.014; and


(2) developing recommendations for modifications to coordinated health program requirements or related curriculum.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Sec. 38.105. DONATIONS. The agency and each school district may accept donations made to facilitate implementation of this subchapter.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Sec. 38.106. RULES. The commissioner shall adopt rules necessary to implement this subchapter.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


SUBCHAPTER D. PREVENTION, TREATMENT, AND OVERSIGHT OF CONCUSSIONS AFFECTING STUDENT ATHLETES



Sec. 38.151. DEFINITIONS. In this subchapter:


(1) "Advanced practice nurse" has the meaning assigned by Section 301.152, Occupations Code.


(2) "Athletic trainer" has the meaning assigned by Section 451.001, Occupations Code.


(3) "Coach" includes an assistant coach.


(4) "Concussion" means a complex pathophysiological process affecting the brain caused by a traumatic physical force or impact to the head or body, which may:


(A) include temporary or prolonged altered brain function resulting in physical, cognitive, or emotional symptoms or altered sleep patterns; and


(B) involve loss of consciousness.


(5) "Licensed health care professional" means an advanced practice nurse, athletic trainer, neuropsychologist, or physician assistant, as those terms are defined by this section.


(6) "Neuropsychologist" means a person who:


(A) holds a license to engage in the practice of psychology issued under Section 501.252, Occupations Code; and


(B) specializes in the practice of neuropsychology.


(7) "Open-enrollment charter school" includes a school granted a charter under Subchapter E, Chapter 12.


(8) "Physician" means a person who holds a license to practice medicine in this state.


(9) "Physician assistant" means a person who holds a license issued under Chapter 204, Occupations Code.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.152. APPLICABILITY. This subchapter applies to an interscholastic athletic activity, including practice and competition, sponsored or sanctioned by:


(1) a school district, including a home-rule school district, or a public school, including any school for which a charter has been granted under Chapter 12; or


(2) the University Interscholastic League.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.153. OVERSIGHT OF CONCUSSIONS BY SCHOOL DISTRICTS AND CHARTER SCHOOLS; RETURN-TO-PLAY PROTOCOL DEVELOPMENT BY CONCUSSION OVERSIGHT TEAM. (a) The governing body of each school district and open-enrollment charter school with students enrolled who participate in an interscholastic athletic activity shall appoint or approve a concussion oversight team.


(b) Each concussion oversight team shall establish a return-to-play protocol, based on peer-reviewed scientific evidence, for a student's return to interscholastic athletics practice or competition following the force or impact believed to have caused a concussion.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.154. CONCUSSION OVERSIGHT TEAM: MEMBERSHIP. (a) Each concussion oversight team must include at least one physician and, to the greatest extent practicable, considering factors including the population of the metropolitan statistical area in which the school district or open-enrollment charter school is located, district or charter school student enrollment, and the availability of and access to licensed health care professionals in the district or charter school area, must also include one or more of the following:


(1) an athletic trainer;


(2) an advanced practice nurse;


(3) a neuropsychologist; or


(4) a physician assistant.


(b) If a school district or open-enrollment charter school employs an athletic trainer, the athletic trainer must be a member of the district or charter school concussion oversight team.


(b-1) If a school district or open-enrollment charter school employs a school nurse, the school nurse may be a member of the district or charter school concussion oversight team if requested by the school nurse.


(c) Each member of the concussion oversight team must have had training in the evaluation, treatment, and oversight of concussions at the time of appointment or approval as a member of the team.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 365 (H.B. 961), Sec. 1, eff. June 2, 2019.


Sec. 38.155. REQUIRED ANNUAL FORM ACKNOWLEDGING CONCUSSION INFORMATION. A student may not participate in an interscholastic athletic activity for a school year until both the student and the student's parent or guardian or another person with legal authority to make medical decisions for the student have signed a form for that school year that acknowledges receiving and reading written information that explains concussion prevention, symptoms, treatment, and oversight and that includes guidelines for safely resuming participation in an athletic activity following a concussion. The form must be approved by the University Interscholastic League.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.156. REMOVAL FROM PLAY IN PRACTICE OR COMPETITION FOLLOWING CONCUSSION. A student shall be removed from an interscholastic athletics practice or competition immediately if one of the following persons believes the student might have sustained a concussion during the practice or competition:


(1) a coach;


(2) a physician;


(3) a licensed health care professional;


(4) a person licensed under Chapter 201, Occupations Code;


(5) a school nurse; or


(6) the student's parent or guardian or another person with legal authority to make medical decisions for the student.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 362 (H.B. 3024), Sec. 1, eff. June 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 365 (H.B. 961), Sec. 2, eff. June 2, 2019.


Sec. 38.157. RETURN TO PLAY IN PRACTICE OR COMPETITION. (a) A student removed from an interscholastic athletics practice or competition under Section 38.156 may not be permitted to practice or compete again following the force or impact believed to have caused the concussion until:


(1) the student has been evaluated, using established medical protocols based on peer-reviewed scientific evidence, by a treating physician chosen by the student or the student's parent or guardian or another person with legal authority to make medical decisions for the student;


(2) the student has successfully completed each requirement of the return-to-play protocol established under Section 38.153 necessary for the student to return to play;


(3) the treating physician has provided a written statement indicating that, in the physician's professional judgment, it is safe for the student to return to play; and


(4) the student and the student's parent or guardian or another person with legal authority to make medical decisions for the student:


(A) have acknowledged that the student has completed the requirements of the return-to-play protocol necessary for the student to return to play;


(B) have provided the treating physician's written statement under Subdivision (3) to the person responsible for compliance with the return-to-play protocol under Subsection (c) and the person who has supervisory responsibilities under Subsection (c); and


(C) have signed a consent form indicating that the person signing:


(i) has been informed concerning and consents to the student participating in returning to play in accordance with the return-to-play protocol;


(ii) understands the risks associated with the student returning to play and will comply with any ongoing requirements in the return-to-play protocol;


(iii) consents to the disclosure to appropriate persons, consistent with the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), of the treating physician's written statement under Subdivision (3) and, if any, the return-to-play recommendations of the treating physician; and


(iv) understands the immunity provisions under Section 38.159.


(b) A coach of an interscholastic athletics team may not authorize a student's return to play.


(c) The school district superintendent or the superintendent's designee or, in the case of a home-rule school district or open-enrollment charter school, the person who serves the function of superintendent or that person's designee shall supervise an athletic trainer or other person responsible for compliance with the return-to-play protocol. The person who has supervisory responsibilities under this subsection may not be a coach of an interscholastic athletics team.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.158. TRAINING COURSES. (a) The University Interscholastic League shall approve for coaches of interscholastic athletic activities training courses that provide for not less than two hours of training in the subject matter of concussions, including evaluation, prevention, symptoms, risks, and long-term effects. The league shall maintain an updated list of individuals and organizations authorized by the league to provide the training.


(b) The Texas Department of Licensing and Regulation shall approve for athletic trainers training courses in the subject matter of concussions and shall maintain an updated list of individuals and organizations authorized by the board to provide the training.


(c) The following persons must take a training course in accordance with Subsection (e) from an authorized training provider at least once every two years:


(1) a coach of an interscholastic athletic activity;


(2) a school nurse who serves as a member of a concussion oversight team;


(3) a licensed health care professional who serves as a member of a concussion oversight team and is an employee, representative, or agent of a school district or open-enrollment charter school; and


(4) a licensed health care professional who serves on a volunteer basis as a member of a concussion oversight team for a school district or open-enrollment charter school.


(d) A physician who serves as a member of a concussion oversight team shall, to the greatest extent practicable, periodically take an appropriate continuing medical education course in the subject matter of concussions.


(e) For purposes of Subsection (c):


(1) a coach must take a course described by Subsection (a);


(2) an athletic trainer must take:


(A) a course described by Subsection (b); or


(B) a course concerning the subject matter of concussions that has been approved for continuing education credit by the appropriate licensing authority for the profession; and


(3) a school nurse or licensed health care professional, other than an athletic trainer, must take:


(A) a course described by Subsection (a) or (b); or


(B) a course concerning the subject matter of concussions that has been approved for continuing education credit by the appropriate licensing authority for the profession.


(f) Each person described by Subsection (c) must submit proof of timely completion of an approved course in compliance with Subsection (e) to the school district superintendent or the superintendent's designee or, in the case of a home-rule school district or open-enrollment charter school, a person who serves the function of a superintendent or that person's designee.


(g) A school nurse or licensed health care professional who is not in compliance with the training requirements under this section may not serve on a concussion oversight team in any capacity.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 6.003, eff. September 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 365 (H.B. 961), Sec. 3, eff. June 2, 2019.


Sec. 38.159. IMMUNITY. This subchapter does not:


(1) waive any immunity from liability of a school district or open-enrollment charter school or of district or charter school officers or employees;


(2) create any liability for a cause of action against a school district or open-enrollment charter school or against district or charter school officers or employees;


(3) waive any immunity from liability under Section 74.151, Civil Practice and Remedies Code; or


(4) create any cause of action or liability for a member of a concussion oversight team arising from the injury or death of a student participating in an interscholastic athletics practice or competition, based on service or participation on the concussion oversight team.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.160. RULES. The commissioner may adopt rules as necessary to administer this subchapter.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


SUBCHAPTER E. MAINTENANCE AND ADMINISTRATION OF EPINEPHRINE AUTO-INJECTORS AND ASTHMA MEDICINE



Sec. 38.201. DEFINITIONS. In this subchapter:


(1) "Advisory committee" means the committee established under Section 38.202.


(2) "Anaphylaxis" means a sudden, severe, and potentially life-threatening allergic reaction that occurs when a person is exposed to an allergen.


(3) "Epinephrine auto-injector" means a disposable medical drug delivery device that contains a premeasured single dose of epinephrine that is intended to be used to treat anaphylaxis.


(4) "Physician" means a person who holds a license to practice medicine in this state.


(5) "Private school" means a school that:


(A) offers a course of instruction for students in one or more grades from prekindergarten through grade 12;


(B) is not operated by a governmental entity; and


(C) is not a school whose students meet the definition provided by Section 29.916(a)(1).


(6) "School personnel" means an employee of a school district, open-enrollment charter school, or private school. The term includes a member of the board of trustees of a school district or the governing body of an open-enrollment charter school or private school.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 1, eff. May 22, 2017.


Sec. 38.202. ADVISORY COMMITTEE: ESTABLISHMENT AND COMPOSITION. (a) The commissioner of state health services shall establish an advisory committee to examine and review the administration of epinephrine auto-injectors to a person experiencing an anaphylactic reaction on a campus of a school district, an open-enrollment charter school, a private school, or an institution of higher education.


(b) The advisory committee shall be composed of members appointed by the commissioner of state health services. In making appointments, the commissioner shall ensure that:


(1) a majority of the members are physicians with expertise in treating anaphylaxis, including physicians who specialize in the fields of pediatrics, allergies, asthma, and immunology;


(2) at least one member is a registered nurse employed by a school district, open-enrollment charter school, or private school as a school nurse;


(3) at least one member is an employee of a general academic teaching institution; and


(4) at least one member is an employee of a public junior college or a public technical institute.


(c) A member of the advisory committee serves at the pleasure of the commissioner of state health services.


(d) A vacancy on the advisory committee is filled by the commissioner of state health services in the same manner as other appointments to the advisory committee.


(e) In this section, "general academic teaching institution," "institution of higher education," "public junior college," and "public technical institute" have the meanings assigned by Section 61.003.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 2, eff. May 22, 2017.


Acts 2017, 85th Leg., R.S., Ch. 206 (S.B. 1367), Sec. 1, eff. September 1, 2017.


Sec. 38.203. ADVISORY COMMITTEE: PRESIDING OFFICER. The advisory committee shall elect a presiding officer.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.204. ADVISORY COMMITTEE: COMPENSATION AND EXPENSES. Members of the advisory committee serve without compensation but are entitled to reimbursement for travel expenses.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.205. ADVISORY COMMITTEE: APPLICABILITY OF OTHER LAW. Chapter 2110, Government Code, does not apply to the advisory committee.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.206. ADVISORY COMMITTEE: OPEN MEETINGS. Meetings of the advisory committee are subject to Chapter 551, Government Code.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.207. ADVISORY COMMITTEE: DUTIES. The advisory committee shall advise the commissioner of state health services on:


(1) the storage and maintenance of epinephrine auto-injectors on school campuses and campuses of institutions of higher education;


(2) the training of school personnel and school volunteers, and of personnel and volunteers at institutions of higher education, in the administration of an epinephrine auto-injector; and


(3) a plan for:


(A) one or more school personnel members or school volunteers trained in the administration of an epinephrine auto-injector to be on each school campus; and


(B) one or more personnel members or volunteers of an institution of higher education trained in the administration of an epinephrine auto-injector to be on each campus of an institution of higher education.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 206 (S.B. 1367), Sec. 2, eff. September 1, 2017.


Sec. 38.208. MAINTENANCE AND ADMINISTRATION OF EPINEPHRINE AUTO-INJECTORS AND ASTHMA MEDICINE. (a) Each school district, open-enrollment charter school, and private school may adopt and implement a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school.


(a-1) Each school district, open-enrollment charter school, and private school may adopt and implement a policy authorizing a school nurse to maintain and administer asthma medicine at each campus in the district or school.


(b) If a policy is adopted under Subsection (a), the policy:


(1) must provide that school personnel and school volunteers who are authorized and trained may administer an epinephrine auto-injector to a person who is reasonably believed to be experiencing anaphylaxis on a school campus; and


(2) may provide that school personnel and school volunteers who are authorized and trained may administer an epinephrine auto-injector to a person who is reasonably believed to be experiencing anaphylaxis at an off-campus school event or while in transit to or from a school event.


(b-1) If a policy is adopted under Subsection (a-1), the policy must provide that the school nurse may administer prescription asthma medicine to a student only if the school nurse has written notification from a parent or guardian of the student that the student has been diagnosed as having asthma and stating that the school nurse may administer prescription asthma medicine to the student. A school nurse may administer the prescription asthma medicine only at a school campus.


(c) The executive commissioner of the Health and Human Services Commission, in consultation with the commissioner of education, and with advice from the advisory committee as appropriate, shall adopt rules regarding the maintenance, administration, and disposal of an epinephrine auto-injector at a school campus subject to a policy adopted under Subsection (a) and the maintenance and administration of asthma medicine at a school campus subject to a policy adopted under Subsection (a-1). The rules must establish:


(1) the number of epinephrine auto-injectors available at each campus;


(2) the amount of prescription asthma medicine available at each campus;


(3) the process for each school district, open-enrollment charter school, and private school to check the inventory of epinephrine auto-injectors and asthma medicine at regular intervals for expiration and replacement; and


(4) the amount of training required for school personnel and school volunteers to administer an epinephrine auto-injector.


(d) Each school district, open-enrollment charter school, and private school that adopts a policy under Subsection (a) must require that each campus have one or more school personnel members or school volunteers authorized and trained to administer an epinephrine auto-injector present during all hours the campus is open.


(e) The supply of epinephrine auto-injectors at each campus must be stored in a secure location and be easily accessible to school personnel and school volunteers authorized and trained to administer an epinephrine auto-injector. The supply of asthma medicine at each campus must be stored in a secure location and be easily accessible to the school nurse.


(f) The policy described by Subsection (a-1) may not require a school district, open-enrollment charter school, or private school to purchase prescription asthma medicine or require any other expenditure related to the maintenance or administration of asthma medicine that would result in a negative fiscal impact on the district or school.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 3, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 2, eff. May 24, 2019.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 3, eff. May 24, 2019.


Sec. 38.209. REPORT ON ADMINISTERING EPINEPHRINE AUTO-INJECTOR. (a) Not later than the 10th business day after the date a school personnel member or school volunteer administers an epinephrine auto-injector in accordance with a policy adopted under Section 38.208(a), the school shall report the information required under Subsection (b) to:


(1) the school district, the charter holder if the school is an open-enrollment charter school, or the governing body of the school if the school is a private school;


(2) the physician or other person who prescribed the epinephrine auto-injector; and


(3) the commissioner of state health services.


(b) The report required under this section must include the following information:


(1) the age of the person who received the administration of the epinephrine auto-injector;


(2) whether the person who received the administration of the epinephrine auto-injector was a student, a school personnel member or school volunteer, or a visitor;


(3) the physical location where the epinephrine auto-injector was administered;


(4) the number of doses of epinephrine auto-injector administered;


(5) the title of the person who administered the epinephrine auto-injector; and


(6) any other information required by the commissioner of education.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 4, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.10, eff. June 10, 2019.


Sec. 38.210. TRAINING. (a) Each school district, open-enrollment charter school, and private school that adopts a policy under Section 38.208(a) is responsible for training school personnel and school volunteers in the administration of an epinephrine auto-injector.


(b) Training required under this section must:


(1) include information on:


(A) recognizing the signs and symptoms of anaphylaxis;


(B) administering an epinephrine auto-injector;


(C) implementing emergency procedures, if necessary, after administering an epinephrine auto-injector; and


(D) properly disposing of used or expired epinephrine auto-injectors; and


(2) be provided in a formal training session or through online education and be completed annually.


(c) Each school district, open-enrollment charter school, and private school shall maintain records on the training required under this section.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 5, eff. May 22, 2017.


Sec. 38.211. PRESCRIPTION OF EPINEPHRINE AUTO-INJECTORS AND ASTHMA MEDICINE. (a) A physician or person who has been delegated prescriptive authority under Chapter 157, Occupations Code, may prescribe epinephrine auto-injectors or asthma medicine in the name of a school district, open-enrollment charter school, or private school.


(b) A physician or other person who prescribes epinephrine auto-injectors or asthma medicine under Subsection (a) shall provide the school district, open-enrollment charter school, or private school with a standing order for the administration of, as applicable:


(1) an epinephrine auto-injector to a person reasonably believed to be experiencing anaphylaxis; or


(2) asthma medicine to a person reasonably believed to be experiencing a symptom of asthma and who has provided written notification and permission as required by Section 38.208(b-1).


(c) The standing order under Subsection (b) is not required to be patient-specific, and the epinephrine auto-injector or asthma medicine may be administered to a person without a previously established physician-patient relationship.


(d) Notwithstanding any other provisions of law, supervision or delegation by a physician is considered adequate if the physician:


(1) periodically reviews the order; and


(2) is available through direct telecommunication as needed for consultation, assistance, and direction.


(e) An order issued under this section must contain:


(1) the name and signature of the prescribing physician or other person;


(2) the name of the school district, open-enrollment charter school, or private school to which the order is issued;


(3) the quantity of epinephrine auto-injectors or asthma medicine to be obtained and maintained under the order; and


(4) the date of issue.


(f) A pharmacist may dispense an epinephrine auto-injector or asthma medicine to a school district, open-enrollment charter school, or private school without requiring the name or any other identifying information relating to the user.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 6, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 4, eff. May 24, 2019.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 5, eff. May 24, 2019.


Sec. 38.212. NOTICE TO PARENTS. If a school district, open-enrollment charter school, or private school implements a policy under this subchapter, the district or school shall provide written notice to a parent or guardian of each student enrolled in the district or school. Notice required under this section must be provided before a policy is implemented by the district or school and before the start of each school year.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 7, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 6, eff. May 24, 2019.


Sec. 38.213. GIFTS, GRANTS, AND DONATIONS. A school district, open-enrollment charter school, or private school may accept gifts, grants, donations, and federal and local funds to implement this subchapter.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 8, eff. May 22, 2017.


Sec. 38.214. RULES. Except as otherwise provided by this subchapter, the commissioner of education and the executive commissioner of the Health and Human Services Commission shall jointly adopt rules necessary to implement this subchapter.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 9, eff. May 22, 2017.


Sec. 38.215. IMMUNITY FROM LIABILITY. (a) A person who in good faith takes, or fails to take, any action under this subchapter is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act, including:


(1) issuing an order for epinephrine auto-injectors or asthma medicine;


(2) supervising or delegating the administration of an epinephrine auto-injector or asthma medicine;


(3) possessing, maintaining, storing, or disposing of an epinephrine auto-injector or asthma medicine;


(4) prescribing an epinephrine auto-injector or asthma medicine;


(5) dispensing:


(A) an epinephrine auto-injector; or


(B) asthma medicine, provided that permission has been granted as provided by Section 38.208(b-1);


(6) administering, or assisting in administering, an epinephrine auto-injector or asthma medicine, provided that permission has been granted as provided by Section 38.208(b-1);


(7) providing, or assisting in providing, training, consultation, or advice in the development, adoption, or implementation of policies, guidelines, rules, or plans; or


(8) undertaking any other act permitted or required under this subchapter.


(b) The immunities and protections provided by this subchapter are in addition to other immunities or limitations of liability provided by law.


(c) Notwithstanding any other law, this subchapter does not create a civil, criminal, or administrative cause of action or liability or create a standard of care, obligation, or duty that provides a basis for a cause of action for an act or omission under this subchapter.


(d) A cause of action does not arise from an act or omission described by this section.


(e) A school district, open-enrollment charter school, or private school and school personnel and school volunteers are immune from suit resulting from an act, or failure to act, under this subchapter, including an act or failure to act under related policies and procedures.


(f) An act or failure to act by school personnel or a school volunteer under this subchapter, including an act or failure to act under related policies and procedures, is the exercise of judgment or discretion on the part of the school personnel or school volunteer and is not considered to be a ministerial act for purposes of liability of the school district or open-enrollment charter school.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 10, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 7, eff. May 24, 2019.


Subchapter F, consisting of Secs. 38.251 to 38.256, was added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19.



For another Subchapter F, consisting of Secs. 38.301 to 38.312, added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, see Sec. 38.301 et seq., post.



SUBCHAPTER F. MENTAL HEALTH RESOURCES



Sec. 38.251. RUBRIC TO IDENTIFY RESOURCES. (a) The agency shall develop a rubric for use by regional education service centers in identifying resources related to student mental health that are available to schools in their respective regions. The agency shall develop the rubric in conjunction with:


(1) the Health and Human Services Commission;


(2) the Department of Family and Protective Services;


(3) the Texas Juvenile Justice Department;


(4) the Texas Higher Education Coordinating Board;


(5) the Texas Child Mental Health Care Consortium;


(6) the Texas Workforce Commission; and


(7) any other state agency the agency considers appropriate.


(b) The rubric developed by the agency must provide for the identification of resources relating to:


(1) training and technical assistance on practices that support the mental health of students;


(2) school-based programs that provide prevention or intervention services to students;


(3) community-based programs that provide school-based or school-connected prevention or intervention services to students;


(4) Communities In Schools programs described by Subchapter E, Chapter 33;


(5) school-based mental health providers; and


(6) public and private funding sources available to address the mental health of students.


(c) Not later than December 1 of each odd-numbered year, the agency shall revise the rubric as necessary to reflect changes in resources that may be available to schools and provide the rubric to each regional education service center.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.252. REGIONAL INVENTORY OF MENTAL HEALTH RESOURCES. (a) Each regional education service center shall use the rubric developed under Section 38.251 to identify resources related to student mental health available to schools in the center's region, including evidence-based and promising programs and best practices, that:


(1) create school environments that support the social, emotional, and academic development of students;


(2) identify students who may need additional behavioral or mental health support before issues arise;


(3) provide early, effective interventions to students in need of additional support;


(4) connect students and their families to specialized services in the school or community when needed; and


(5) assist schools in aligning resources necessary to address the mental health of students.


(b) A regional education service center may consult with any entity the center considers necessary in identifying resources under Subsection (a), including:


(1) school districts;


(2) local mental health authorities;


(3) community mental health services providers;


(4) education groups;


(5) hospitals; and


(6) institutions of higher education.


(c) Not later than March 1 of each even-numbered year, each regional education service center shall:


(1) use the revised rubric received from the agency under Section 38.251 to identify, in the manner provided by this section, any additional resources that may be available to schools in the center's region; and


(2) submit to the agency a report on resources identified through the process, including any additional resources identified under Subdivision (1).


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.253. STATEWIDE INVENTORY OF MENTAL HEALTH RESOURCES. (a) The agency shall develop a list of statewide resources available to school districts to address the mental health of students, including:


(1) training and technical assistance on practices that support the mental health of students;


(2) school-based programs that provide prevention or intervention services to students;


(3) community-based programs that provide school-based or school-connected prevention or intervention services to students;


(4) school-based mental health providers; and


(5) public and private funding sources available to address the mental health of students.


(b) In developing the list required under Subsection (a), the agency shall collaborate with:


(1) the Health and Human Services Commission;


(2) the Department of Family and Protective Services;


(3) the Texas Juvenile Justice Department;


(4) the Texas Higher Education Coordinating Board;


(5) the Texas Child Mental Health Care Consortium;


(6) the Texas Workforce Commission;


(7) one or more representatives of Communities In Schools programs described by Subchapter E, Chapter 33, who are designated by the Communities In Schools State Office;


(8) hospitals or other health care providers;


(9) community service providers;


(10) parent, educator, and advocacy groups; and


(11) any entity the agency determines can assist the agency in compiling the list.


(c) The agency shall include on the list any resource available through an entity identified as a resource under Subsection (b), including an entity described by Subsection (b), that provides evidence-based and promising programs and best practices that:


(1) create school environments that support the social, emotional, and academic development of students;


(2) identify students who may need additional behavioral or mental health support before issues arise;


(3) provide early, effective interventions to students in need of additional support; and


(4) connect students and their families to specialized services in the school or community when needed.


(d) The agency shall revise the list not later than March 1 of each even-numbered year.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.254. STATEWIDE PLAN FOR STUDENT MENTAL HEALTH. (a) The agency shall develop a statewide plan to ensure all students have access to adequate mental health resources. The agency shall include in the plan:


(1) a description of any revisions made to the rubric required by Section 38.251;


(2) the results of the most recent regional inventory of mental health resources required by Section 38.252, including any additional resources identified;


(3) the results of the most recent statewide inventory of mental health resources required by Section 38.253, including any additional resources identified;


(4) the agency's goals for student mental health access to be applied across the state, including goals relating to:


(A) methods to objectively measure positive school climate;


(B) increasing the availability of early, effective school-based or school-connected mental health interventions and resources for students in need of additional support; and


(C) increasing the availability of referrals for students and families to specialized services for students in need of additional support outside the school;


(5) a list of actions the commissioner may take without legislative action to help all districts reach the agency's goals described by the plan; and


(6) recommendations to the legislature on methods to ensure that all districts can meet the agency's goals described in the plan through legislative appropriations or other action by the legislature.


(b) In developing the agency's goals under Subsection (a)(4), the agency shall consult with any person the agency believes is necessary to the development of the goals, including:


(1) educators;


(2) mental health practitioners;


(3) advocacy groups; and


(4) parents.


(c) The agency shall revise the plan not later than April 1 of each even-numbered year.


(d) As soon as practicable after completing or revising the plan, the agency shall:


(1) submit an electronic copy of the plan to the legislature;


(2) post the plan on the agency's Internet website; and


(3) hold public meetings in each regional education service center's region to present the statewide plan and shall provide an opportunity for public comment at each meeting.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.255. AGENCY USE OF STATEWIDE PLAN. (a) The agency shall use the statewide plan for student mental health required by Section 38.254 to develop and revise the agency's long-term strategic plan.


(b) The agency shall use the recommendations to the legislature required by Section 38.254(a)(6) to develop each agency legislative appropriations request.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.256. REPORTS TO LEGISLATURE. In addition to any other information required to be provided to the legislature under this chapter, not later than November 1 of each even-numbered year the agency shall provide to the legislature:


(1) a description of any changes the agency has made to the rubric required by Section 38.251; and


(2) an analysis of each region's progress toward meeting the agency's goals developed under Section 38.254.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Subchapter F, consisting of Secs. 38.301 to 38.312, was added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1.



For another Subchapter F, consisting of Secs. 38.251 to 38.256, added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, see Sec. 38.251 et seq., post.



For expiration of this subchapter, see Section 38.312.



SUBCHAPTER F. COLLABORATIVE TASK FORCE ON PUBLIC SCHOOL MENTAL HEALTH SERVICES



Sec. 38.301. DEFINITIONS. In this subchapter:


(1) "Institution of higher education" has the meaning assigned by Section 61.003.


(2) "Task force" means the Collaborative Task Force on Public School Mental Health Services.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.302. ESTABLISHMENT. The Collaborative Task Force on Public School Mental Health Services is established to study and evaluate:


(1) mental health services that are funded by this state and provided at a school district or open-enrollment charter school directly to:


(A) a student enrolled in the district or school;


(B) a parent or family member of or person standing in parental relation to a student enrolled in the district or school; or


(C) an employee of the district or school;


(2) training provided to an educator employed by the district or school to provide the mental health services described by Subdivision (1); and


(3) the impact the mental health services described by Subdivision (1) have on:


(A) the number of violent incidents that occur at school districts or open-enrollment charter schools;


(B) the suicide rate of the individuals who are provided the mental health services described by Subdivision (1);


(C) the number of public school students referred to the Department of Family and Protective Services for investigation services and the reasons for those referrals;


(D) the number of individuals who are transported from each school district or open-enrollment charter school for an emergency detention under Chapter 573, Health and Safety Code; and


(E) the number of public school students referred to outside counselors in accordance with Section 38.010.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.303. MEMBERSHIP. (a) The task force is composed of:


(1) the commissioner or the commissioner's designee;


(2) the following additional members appointed by the commissioner:


(A) three parents of students who are enrolled in school districts or open-enrollment charter schools and receive the mental health services described by Section 38.302(1);


(B) one person who provides the mental health services described by Section 38.302(1) or the training described by Section 38.302(2) and who is:


(i) a licensed professional counselor, as defined by Section 503.002, Occupations Code;


(ii) a licensed clinical social worker, as defined by Section 505.002, Occupations Code; or


(iii) a school counselor certified under Subchapter B, Chapter 21;


(C) one person who is a psychiatrist;


(D) two persons who are administrators of districts or schools that provide the mental health services described by Section 38.302(1) or the training described by Section 38.302(2);


(E) one person who is a member of a foundation that invests in the mental health services described by Section 38.302(1) or the training described by Section 38.302(2);


(F) one person who is an employee of an institution of higher education designated under Section 38.307; and


(G) one person who is a licensed specialist in school psychology, as defined by Section 501.002, Occupations Code; and


(3) for any other entity the task force considers necessary, one person appointed by the task force for each such entity.


(b) Appointments to the task force shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.


(c) Chapter 2110, Government Code, does not apply to the task force.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.304. OFFICERS. (a) The commissioner is designated as the interim presiding officer for purposes of calling and conducting the initial meeting of the task force.


(b) The task force:


(1) shall at its initial meeting select a presiding officer from among its members for the purpose of calling and conducting meetings; and


(2) may select an assistant presiding officer and a secretary from among its members.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.305. COMPENSATION; REIMBURSEMENT. A member of the task force may not receive compensation or reimbursement for service on the task force.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.306. MEETINGS. (a) After its initial meeting, the task force shall meet at least twice each year at a time and place determined by the presiding officer.


(b) The task force may meet at other times the task force considers appropriate. The presiding officer may call a meeting on the officer's own motion.


(c) The task force may meet by teleconference.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.307. SUPPORT SERVICES FOR TASK FORCE. (a) The commissioner shall designate one institution of higher education with experience in evaluating mental health services to serve as the lead institution for the task force. The institution designated under this subsection shall provide faculty, staff, and administrative support services to the task force as determined necessary by the task force to administer this subchapter.


(b) The commissioner shall designate two institutions of higher education with experience in evaluating mental health services to assist the task force and the lead institution designated under Subsection (a) as determined necessary by the task force to administer this subchapter.


(c) In making a designation under this section, the commissioner shall give preference to at least one predominantly black institution, as defined by 20 U.S.C. Section 1067q(c)(9).


(d) On request of the task force, the agency, a school district, or an open-enrollment charter school shall provide information or other assistance to the task force.


(e) The agency shall maintain the data collected by the task force and the work product of the task force in accordance with:


(1) the agency's information security plan under Section 2054.133, Government Code; and


(2) the agency's records retention schedule under Section 441.185, Government Code.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.308. DUTIES OF TASK FORCE. The task force shall:


(1) gather data on:


(A) the number of students enrolled in each school district and open-enrollment charter school;


(B) the number of individuals to whom each school district or open-enrollment charter school provides the mental health services described by Section 38.302(1);


(C) the number of individuals for whom each school district or open-enrollment charter school has the resources to provide the mental health services described by Section 38.302(1);


(D) the number of individuals described by Paragraph (B) who are referred to an inpatient or outpatient mental health provider;


(E) the number of individuals who are transported from each school district or open-enrollment charter school for an emergency detention under Chapter 573, Health and Safety Code; and


(F) the race, ethnicity, gender, special education status, educationally disadvantaged status, and geographic location of:


(i) individuals who are provided the mental health services described by Section 38.302(1);


(ii) individuals who are described by Paragraph (D); and


(iii) individuals who are described by Paragraph (E); and


(2) study, evaluate, and make recommendations regarding the mental health services described by Section 38.302(1), the training described by Section 38.302(2), and the impact of those mental health services, as described by Section 38.302(3), including addressing:


(A) the outcomes and the effectiveness of the services and training provided, including the outcomes and effectiveness of the service and training providers and the programs under which services and training are provided, in:


(i) improving student academic achievement and attendance;


(ii) reducing student disciplinary proceedings, suspensions, placements in a disciplinary alternative education program, and expulsions; and


(iii) delivering prevention and intervention services to promote early mental health skills, including:


(a) building skills relating to managing emotions, establishing and maintaining positive relationships, and making responsible decisions;


(b) preventing substance abuse;


(c) preventing suicides;


(d) adhering to the purpose of the relevant program services or training;


(e) promoting trauma-informed practices;


(f) promoting a positive school climate, as defined by Section 161.325(a-3), Health and Safety Code, in the district or school; and


(g) improving physical and emotional safety and well-being in the district or school and reducing violence in the district or school;


(B) best practices for districts and schools in implementing the services or training;


(C) disparities in the race, ethnicity, gender, special education status, and geographic location of individuals receiving the services; and


(D) best practices to replicate the services or training for all districts and schools.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.309. PRIVACY OF INFORMATION. The task force shall ensure that data gathered, information studied, and evaluations conducted under this subchapter:


(1) comply with federal law regarding confidentiality of student medical or educational information, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) and the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), and any state law relating to the privacy of student information; and


(2) may not be shared with a federal agency or state agency, including an institution of higher education, except as otherwise provided by this subchapter or other law.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.310. REPORTS. Not later than November 1 of each even-numbered year, the task force shall submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the agency a report of the results of the task force's activities conducted under Section 38.308 and any recommendations for legislative or other action.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.311. FUNDING; ADMINISTRATIVE COST RESTRICTION; GIFTS AND GRANTS. (a) Of state funds allocated to the agency for public school mental health services, the commissioner may provide not more than 10 percent for purposes of the task force established under this subchapter.


(b) The task force may not spend for the administration of the task force more than 10 percent of any money allocated to the task force for the purposes of this subchapter.


(c) The task force may accept a gift or grant from a person other than the federal government.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.312. EXPIRATION. The task force is abolished and this subchapter expires December 1, 2025.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


SUBCHAPTER G. MENTAL HEALTH, SUBSTANCE ABUSE, AND YOUTH SUICIDE




Text of section effective on December 01, 2019



Sec. 38.351. MENTAL HEALTH PROMOTION AND INTERVENTION, SUBSTANCE ABUSE PREVENTION AND INTERVENTION, AND SUICIDE PREVENTION. (a) The agency, in coordination with the Health and Human Services Commission and regional education service centers, shall provide and annually update a list of recommended best practice-based programs and research-based practices in the areas specified under Subsection (c) for implementation in public elementary, junior high, middle, and high schools within the general education setting.


(b) Each school district may select from the list provided under Subsection (a) a program or programs appropriate for implementation in the district.


(c) The list provided under Subsection (a) must include programs and practices in the following areas:


(1) early mental health prevention and intervention;


(2) building skills related to managing emotions, establishing and maintaining positive relationships, and responsible decision-making;


(3) substance abuse prevention and intervention;


(4) suicide prevention, intervention, and postvention;


(5) grief-informed and trauma-informed practices;


(6) positive school climates;


(7) positive behavior interventions and supports;


(8) positive youth development; and


(9) safe, supportive, and positive school climate.


(d) For purposes of Subsection (c), "school climate" means the quality and character of school life, including interpersonal relationships, teaching and learning practices, and organizational structures, as experienced by students enrolled in the school district, parents of those students, and personnel employed by the district.


(e) The suicide prevention programs on the list provided under Subsection (a) must include components that provide for training school counselors, teachers, nurses, administrators, and other staff, as well as law enforcement officers and social workers who regularly interact with students, to:


(1) recognize students at risk of attempting suicide, including students who are or may be the victims of or who engage in bullying;


(2) recognize students displaying early warning signs and a possible need for early mental health or substance abuse intervention, which warning signs may include declining academic performance, depression, anxiety, isolation, unexplained changes in sleep or eating habits, and destructive behavior toward self and others;


(3) intervene effectively with students described by Subdivision (1) or (2) by providing notice and referral to a parent or guardian so appropriate action, such as seeking mental health or substance abuse services, may be taken by a parent or guardian; and


(4) assist students in returning to school following treatment of a mental health concern or suicide attempt.


(f) In developing the list of best practice-based programs and research-based practices, the agency and the Health and Human Services Commission shall consider:


(1) any existing suicide prevention method developed by a school district; and


(2) any Internet or online course or program developed in this state or another state that is based on best practices recognized by the Substance Abuse and Mental Health Services Administration or the Suicide Prevention Resource Center.


(g) Except as otherwise provided by this subsection, each school district shall provide training described in the components set forth under Subsection (e) for teachers, school counselors, principals, and all other appropriate personnel. A school district is required to provide the training at an elementary school campus only to the extent that sufficient funding and programs are available. A school district may implement a program on the list to satisfy the requirements of this subsection.


(h) If a school district provides the training under Subsection (g):


(1) a school district employee described under that subsection must participate in the training at least one time; and


(2) the school district shall maintain records that include the name of each district employee who participated in the training.


(i) A school district shall develop practices and procedures concerning each area listed in Subsection (c), including mental health promotion and intervention, substance abuse prevention and intervention, and suicide prevention, that:


(1) include a procedure for providing notice of a recommendation for early mental health or substance abuse intervention regarding a student to a parent or guardian of the student within a reasonable amount of time after the identification of early warning signs as described by Subsection (e)(2);


(2) include a procedure for providing notice of a student identified as at risk of attempting suicide to a parent or guardian of the student within a reasonable amount of time after the identification of early warning signs as described by Subsection (e)(2);


(3) establish that the district may develop a reporting mechanism and may designate at least one person to act as a liaison officer in the district for the purposes of identifying students in need of early mental health or substance abuse intervention or suicide prevention;


(4) set out available counseling alternatives for a parent or guardian to consider when their child is identified as possibly being in need of early mental health or substance abuse intervention or suicide prevention; and


(5) include procedures:


(A) to support the return of a student to school following hospitalization or residential treatment for a mental health condition or substance abuse; and


(B) for suicide prevention, intervention, and postvention.


(j) The practices and procedures developed under Subsection (i):


(1) may address multiple areas listed in Subsection (c) together; and


(2) must prohibit the use without the prior consent of a student's parent or guardian of a medical screening of the student as part of the process of identifying whether the student is possibly in need of early mental health or substance abuse intervention or suicide prevention.


(k) The practices and procedures developed under Subsection (i) must be included in:


(1) the annual student handbook; and


(2) the district improvement plan under Section 11.252.


(l) The agency shall develop and make available to school districts guiding principles on the coordination of programs and practices in areas listed under Subsection (c).


(m) The agency, the Health and Human Services Commission, and each regional education service center:


(1) may accept donations for purposes of this section from sources without a conflict of interest; and


(2) may not accept donations for purposes of this section from an anonymous source.


(n) Nothing in this section is intended to interfere with the rights of parents or guardians and the decision-making regarding the best interest of the child. Practices and procedures developed in accordance with this section are intended to notify a parent or guardian of a need for mental health or substance abuse intervention so that a parent or guardian may take appropriate action. Nothing in this section shall be construed as giving school districts the authority to prescribe medications. Any and all medical decisions are to be made by a parent or guardian of a student.


(o) In this section, "postvention" includes activities that promote healing necessary to reduce the risk of suicide by a person affected by the suicide of another.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1134 (H.B. 1386), Sec. 3, eff. June 17, 2011.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 578 (S.B. 831), Sec. 2, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 578 (S.B. 831), Sec. 3, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1321 (S.B. 460), Sec. 4, eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 522 (S.B. 179), Sec. 12, eff. September 1, 2017.


Acts 2017, 85th Leg., R.S., Ch. 714 (H.B. 4056), Sec. 1, eff. June 12, 2017.


Reenacted, transferred, redesignated and amended by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.21, eff. December 1, 2019.



Text of section effective on December 01, 2019



Sec. 38.352. IMMUNITY. This subchapter does not:


(1) waive any immunity from liability of a school district or of district school officers or employees;


(2) create any liability for a cause of action against a school district or against district school officers or employees; or


(3) waive any immunity from liability under Section 74.151, Civil Practice and Remedies Code.


Added by Acts 2013, 83rd Leg., R.S., Ch. 1321 (S.B. 460), Sec. 5, eff. September 1, 2013.


Reenacted, transferred, redesignated and amended by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.21, eff. December 1, 2019.

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EDUCATION CODE CHAPTER 38. HEALTH AND SAFETY

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EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE G. SAFE SCHOOLS CHAPTER 38. HEALTH AND SAFETY SUBCHAPTER A. GENERAL PROVISIONS Sec. 38.001. IMMUNIZATION; REQUIREMENTS; EXCEPTIONS. (a) Each student shall be fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided by Subsection (c).

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An ethical dilemma that could occur, in terms of suicide prevention as a school counselor, is that a student could show warning signs of suicide, but request that they do not want their parents to know. Of course, rapport and confidentiality are important, but when a student is at risk of harm, the counselor cannot keep that to themselves. According to the American School Counselor Association  (ASCA),  the school counselor should not only identify the warning signs, but must ethically, notify the parents/guardians of a student that there is potential suicide risk (ASCA, A.6., 2016).

American School Counselor Association. (2016). Ethical standards for school counselors.

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Slide #12: Personal Connection to the Legal and Ethical Standards

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Slide #12: Personal Connection to the Legal and Ethical Standards

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As a classroom teacher, I have been personally affected by the suicide attempt of a student. Although I knew the importance of intervention, I did not know how to follow-through. One of the reasons I chose this topic is because I often think back to that student and wonder how I would need to approach the situation as a school counselor. Not only did I want to know what to do, but how to tackle the issue legally and ethically.
The  first way to legally comply with suicide prevention is to pay attention to the yearly required trainings enforced by the district. TEA approved trainings provide the laws and guidelines that the district employees must adhere to. Paying close attention to the risks and warning signs will allow me to be proactive in handle this type of crucial intervention.

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Slide #13: Bulleted List of Recommendations/ Best Practices for Compliance

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Slide #13: Bulleted List of Recommendations/ Best Practices for Compliance

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Actively engage in trainings from the district regarding suicide prevention.

Build trusting relationships with students and frequently observe.

Listen to the students, and do not be negligent in taking action when there are risks or warning signs present.

Do not diagnose a student.

Recognize that a legal responsibility of the counselor is to protect the student from harm, even if it is self-harm.

Make a referral to the student and parents, if further evaluation/diagnosis is needed to determine the mental health of the student.