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Inform Students About Confidentiality Limits: Clearly explain confidentiality boundaries and the obligation to report abuse or harm during initial counseling sessions.

Understand and Follow Mandated Reporting Laws: Familiarize yourself with Texas Family Code § 261.101, which requires reporting suspected abuse or neglect within 48 hours.

Prioritize Student Safety: Always prioritize the safety and well-being of students, even when it requires breaching confidentiality.

Maintain Documentation: Keep detailed and accurate records of counseling sessions, including disclosures, actions taken, and reports filed.

Engage in Ongoing Training: Regularly participate in professional development to stay updated on changes to state and federal laws related to confidentiality and reporting.

Refer to Ethical Guidelines: Use the American School Counselor Association (ASCA) Ethical Standards as a framework for decision-making in challenging situations.

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Book: The transformed school counselor (4th ed.)

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Book: The transformed school counselor (4th ed.)

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Citation: Stone, C., & Dahir, C. A. (2023). The transformed school counselor (4th ed.). Cengage Learning.

Link:

https://faculty.cengage.com/works/9780357764770?q=contents

Summary: This book provides a comprehensive guide for school counselors, offering insights into navigating the complex balance between ethical responsibilities and legal obligations, including confidentiality and mandated reporting. It explains real-world scenarios and best practices, equipping counselors with practical strategies to protect student welfare while complying with state and federal laws. This resource is particularly helpful for professionals seeking to understand the ethical and procedural aspects of their role in addressing issues like child abuse and neglect.

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The Transformed School Counselor - Product Details - Cengage Instructor Center

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Higher Ed instructors: Sign in to access your products and courses, or access full eBooks and resources.

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"School counselors inform students of the purposes, goals, and limitations of counseling relationships, such as confidentiality and the possible necessity for breaching confidentiality when a student’s safety is at risk."

Citation: American School Counselor Association (ASCA). (2022). ASCA ethical standards for school counselors.

Link: https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

Connection: This ethical code directly addresses the dual responsibility of maintaining confidentiality while also adhering to mandated reporting laws. It highlights the necessity of informing students about these boundaries at the outset of the counseling relationship, ensuring transparency and preparing them for situations where confidentiality may need to be breached for their safety.

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(Adopted 1984; revised 1992, 1998, 2004, 2010, 2016, 2022)

Preamble

The American School Counselor Association (ASCA) is a professional organization supporting school counselors, school counseling students/interns, school counseling program directors/supervisors and school counselor educators. These standards are the ethical responsibility of all school counseling professionals.

School counselors have unique qualifications and skills to implement a comprehensive school counseling program that addresses pre-K-12 students' academic, career and social/emotional development needs. School counselors are leaders, advocates, collaborators and consultants who create systemic change to ensure equitable educational outcomes through the school counseling program. School counselors demonstrate the belief that all students have the ability to learn by advocating for and contributing to an education system that provides optimal learning environments for all students.

All students have the right to:

Be respected and treated with dignity.

A physically and emotionally safe, inclusive and healthy school environment, both in-person and through digital platforms, free from abuse, bullying, harassment, discrimination and any other forms of violence.

Equitable access to a school counseling program that promotes academic, career and social/emotional development and improves student outcomes for all students, including students historically and currently marginalized by the education system.

Equitable access to school counselors who support students from all backgrounds and circumstances and who advocate for and affirm all students regardless of but not limited to ethnic/racial identity; nationality; age; social class; economic status; abilities/disabilities; language; immigration status; sexual orientation; gender identity; gender expression; family type; religious/spiritual identity; and living situations, including emancipated minor status, wards of the state, homelessness or incarceration.

Information and support needed to enhance self-development and affirmation within one's group identities.

Critical, timely information, beginning with pre-K through grade 12, on how college/university, career and technical school, military, workforce and other postsecondary options can have an impact on their educational choices and future opportunities.

Privacy that is honored to the greatest extent possible, which at times may be limited by school counselors' balance of other competing interests (e.g., best interests of students, the safety of others, parental rights) and adherence to laws, policies and ethical standards pertaining to confidentiality and disclosure in the school setting.

Purpose

In this document, ASCA specifies the obligation to the principles of ethical behavior necessary to maintain the highest standards of integrity, leadership and professionalism. The ASCA Ethical Standards for School Counselors were developed in collaboration with school counselors, state school counselor associations, school counseling district and state leaders, and school counselor educators across the nation to clarify the profession's norms, values and beliefs.

The purpose of this document is to:

Serve as a guide for the ethical practices of all individuals serving in a school counseling capacity, including school counselors, school counseling students/interns, supervisors/directors of school counseling programs and school counselor educators regardless of grade level, geographic area, population served or ASCA membership.

Provide support and direction for self-assessment, peer consultation and performance appraisal regarding school counselors' responsibilities to students, parents/guardians, colleagues and professional associates, school district and employees, communities and the school counseling profession.

Inform all educational stakeholders, including but not limited to students, parents/guardians, teachers/staff, administrators, community members, legal professionals and courts of justice, regarding the ethical practices, values and expected behaviors of the school counseling professional.

A. RESPONSIBILITY TO STUDENTS A.1. Supporting Student Development
School counselors:

Have a primary obligation to the students, who are to be treated with dignity and respect as unique individuals.

Foster and affirm all students and their identity and psychosocial development.

Support all students and their development by actively working to eliminate systemic barriers or bias impeding student development.

Provide culturally responsive instruction and appraisal and advisement to students.

Provide culturally responsive counseling to students in a brief context and support students and families/guardians in obtaining outside services if students need long-term clinical/mental health counseling. image ASCA Ethical Standards for School Counselors

Do not diagnose but recognize how a student's diagnosis and environment can potentially affect the student's access, participation and ability to achieve academic, postsecondary and social/emotional success.

Acknowledge the vital role and rights of parents/guardians, families and tribal communities.

Respect students' and families' values, beliefs and cultural background, as well as students' sexual orientation, gender identity and gender expression, and exercise great care to avoid imposing personal biases, beliefs or values rooted in one's religion, culture or ethnicity.

Are knowledgeable of local, state and federal laws, as well as school and district policies and procedures affecting students and families and strive to protect and inform students and families regarding their rights.

Advocate for equitable, anti-oppressive and anti-bias policies and procedures, systems and practices, and provide effective, evidence-based and culturally sustaining interventions to address student needs.

Involve diverse networks of support, including but not limited to educational teams, community and tribal agencies and partners, wraparound services and vocational rehabilitation services as needed to best serve students.

Maintain appropriate boundaries and are aware that any sexual or romantic relationship with students (whether legal or illegal in the state of employment) is a grievous breach of ethics and is prohibited regardless of a student's age or consent. This prohibition applies to both in-person and electronic interactions and relationships.

A. 2. Confidentiality
School counselors:

Promote awareness of school counselors' ethical standards and legal mandates regarding confidentiality and the appropriate rationale and procedures for disclosure of student data and information to school staff.

Inform students of the purposes, goals, techniques, rules and procedures under which they may receive counseling. Disclosure includes informed consent and clarification of the limits of confidentiality.

Recognize that informed consent requires competence, voluntariness and knowledge on students' part to understand the limits of confidentiality and, therefore, can be difficult to obtain from students of certain developmental levels and special-needs populations. The school counselor should make attempts to gain assent appropriate to the individual student (e.g., in the student's preferred language) prior to disclosure.

Are aware that even though attempts are made to obtain informed consent, it is not always possible. When needed, school counselors make decisions on students' behalf that promote students' welfare.

Explain the limits of confidentiality in developmentally appropriate terms through multiple methods, such as student handbooks; classroom lessons; verbal notification to individual students; and school counseling department websites, brochures and social media accounts.

Keep information confidential unless legal requirements demand confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student or others. Serious and foreseeable harm is different for each minor in schools and is determined by a student's developmental and chronological age, the setting, parental/guardian rights and the nature of the harm. School counselors consult with appropriate professionals when in doubt as to the validity of an exception.

Recognize their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of parents'/guardians' legal and inherent rights to be the guiding voice in their children's lives. School counselors understand the need to balance students' ethical rights to make choices, their capacity to give consent or assent, and parental or familial legal rights and responsibilities to make decisions on their child's behalf.

Collaborate with and involve students to the extent possible and use the most appropriate and least intrusive method to breach confidentiality if such action is warranted. The child's developmental age and the circumstances requiring the breach are considered and, as appropriate, students are engaged in a discussion about the method and timing of the breach. Consultation with professional peers and/or supervision is recommended.

Request of the court that disclosure not be required when the school counselor's testimony or case notes are subpoenaed if the release of confidential information may potentially harm a student or the counseling relationship.

Protect the confidentiality of students' records and release of personal data in accordance with prescribed federal and state laws and district and school policies.

Recognize the vulnerability of confidentiality in electronic communications and only transmit student information electronically in a way that follows currently accepted security standards and meets federal, state and local laws and school board policy.

Convey a student's highly sensitive information (e.g., a student's suicidal ideation) through personal contact such as a phone call or visit and not less-secure means such as a notation in the educational record or an email. Adhere to federal, state and local laws and school board policy when conveying sensitive information.

Advocate for appropriate safeguards and protocols so highly sensitive student information is not disclosed accidentally to individuals who do not have a need to know such information. Best practice suggests a very limited number of educators would have access to highly sensitive information on a need-to-know basis.

Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and currently acceptable algorithms to be utilized for data in transit.

Avoid using software programs without the technological capabilities to protect student information based upon legal specifications and currently acceptable security standards.

Advocate for physical and virtual workspaces that are arranged to protect the confidentiality of students' communications and records.

A. 3. Comprehensive School Counseling Program
School counselors:

Provide students with a culturally responsive school counseling program that promotes academic, career and social/emotional development and equitable opportunity and achievement outcomes for all students.

Collaborate with administration, teachers, staff and stakeholders for equitable school improvement goals.

Use data-collection tools adhering to standards of confidentiality as expressed in A.2.

Review and use school and student data to assess and address needs, including but not limited to data on strengths and disparities that may exist related to gender, race, ethnicity, socioeconomic status, disability and/or other relevant classifications.

Deliver research-based interventions to help close achievement, attainment, information, attendance, discipline, resource and opportunity gaps.

Collect and analyze participation, ASCA Mindsets & Behaviors and outcome data to determine the progress and effectiveness of the school counseling program.

Share data outcomes with stakeholders.

A.4. Academic, Career and Social/Emotional Planning
School counselors:

Collaborate with a community of stakeholders to create a culture of postsecondary readiness.

Provide and advocate for all students' pre-K-postsecondary career awareness, exploration, and postsecondary planning and decision-making to support students' right to choose from the wide array of career and postsecondary options, including but not limited to college/university, career and technical school, military or workforce.

Identify and examine gaps in college and career access and address both intentional and unintentional biases in postsecondary and career counseling.

Provide opportunities for all students to develop a positive attitude toward learning, effective learning strategies, self-management and social skills and an understanding that lifelong learning is part of long-term career success.

Address their personal biases related to students' postsecondary choices.

Address any inequitable systemic policies and practices related to students' postsecondary choices.

A. 5. Sustaining Healthy Relationships and Managing Boundaries
School counselors:

Engage in professional roles and relationships with students and stakeholders that foster wellness and student success.

Recognize that establishing credibility, rapport and an effective working alliance with some students and stakeholders may be facilitated by developing relationships that extend beyond the school day and building (e.g., attending community events, advocating for community improvement for and with students and stakeholders, joining community enhancement organizations).

Assess potential risks and benefits prior to extending relationships beyond the school building and school hours (e.g., attending students off-site extracurricular activities, celebrations honoring students, hospital visits, funerals).

Document the nature of relationship extensions, including the rationale, potential benefit and possible consequences for the student and school counselor.

Act to eliminate and/or reduce the potential for harm to students and stakeholders in any relationships or interactions by using safeguards, such as informed consent, consultation, supervision and documentation.

Prevent potential harm to students and stakeholders with whom the school counselor's judgment may be compromised (e.g., family members, children of close friends) by helping facilitate the provision of alternative services or resources when available.

Adhere to legal, ethical, district and school policies and guidelines regarding relationships with students and stakeholders.

Refrain from the use of personal social media, text and email accounts to interact with students unless sanctioned by the school district. Adhere to legal, ethical, district and school policies and guidelines when using technology with students and stakeholders.

Avoid inappropriate roles and relationships such as providing direct discipline, teaching courses that involve grading students and accepting administrative duties in the absence of an administrator.

Strive to avoid a conflict of interest through self-promotion that would benefit the school counselor personally and/or financially (e.g., advertising their products and/or services).

A. 6. Appropriate Collaboration, Advocacy and Referrals for Counseling
School counselors:

Collaborate with all relevant stakeholders, including students, school faculty/staff and parents/guardians, when students need assistance, including when early warning signs of student distress are identified.

Provide a list of outside agencies and resources in their community, or the closest available, to students and parents/guardians when students need or request additional support. School counselors provide multiple referral options or the district-vetted list of referrals options and are careful not to indicate an endorsement or preference for one individual or practice. School counselors encourage parents/guardians to research outside professionals' skills/experience to inform their personal decision regarding the best source of assistance for their student.

Connect students with services provided through the local school district and community agencies and remain aware of state laws and local district policies related to students with special needs, including limits to confidentiality and notification to authorities as appropriate.

Develop a plan for the transitioning of primary counseling services with minimal interruption of services. Students retain the right for the referred services to be conducted in coordination with the school counselor or to discontinue counseling services with the school counselor while maintaining an appropriate relationship that may include participation in other school support services.

Refrain from referring students based solely on the school counselor's personal beliefs or values rooted in one's religion, culture, ethnicity or personal worldview. School counselors maintain the highest respect for student cultural identities and worldviews. School counselors pursue additional training and supervision when their values are discriminatory in nature (e.g., sexual orientation, gender identity, gender expression, reproductive rights, race, religion, ability status). School counselors do not impose their values on students and/or families when making referrals to outside resources for student and/or family support.

Attempt to establish a collaborative relationship with outside service providers to best serve students. Request a release of information signed by the student and/or parents/guardians before attempting to collaborate with the student's external provider.

Provide internal and external service providers with accurate and meaningful data necessary to adequately assess, counsel and assist students.

Ensure there is not a conflict of interest in providing referral resources. School counselors do not refer or accept a referral to counsel students from their school if they also work in a private counseling practice.

A. 7. Group Work
School counselors:

Offer culturally sustaining small-group counseling services based on individual student, school and community needs; student data; a referral process; and/or other relevant data.

Provide equitable access to participation in groups, including alleviating physical, language and other obstacles.

Assess student needs to determine if participating in the group is appropriate for the student.

Inform parents/guardians of student participation in and the purpose of the small group.

Facilitate short-term groups to address students' academic achievement, postsecondary and career exploration, and social/emotional well-being.

Use data to inform group topics, establish well-defined expectations and measure the outcomes of group participation.

Reflect on group outcomes and determine adjustments that may improve future group interventions.

Communicate the aspiration of confidentiality as a group norm, while recognizing and working from the protective posture that confidentiality for students in small groups cannot be guaranteed.

Select topics for groups with the clear understanding that some topics are not suitable for groups in schools (e.g., incest survivorship, eating disorders, dating violence) and accordingly take precautions to protect members from harm as a result of interactions with the group.

Facilitate culturally sustaining groups from the framework of evidence-based or research-based practices.

Practice within their competence level and develop professional competence through training and supervision.

Provide necessary follow-up and/or referrals to additional resources for group members.

A. 8. Student Peer-Support Program
School counselors:

Share the student peer-support program's goal and purpose with stakeholders.

Safeguard the welfare of students participating in peer-to-peer programs under their direction.

Strive to protect the confidentiality of students receiving peer support services by not sharing or disclosing personal information (e.g., special education services, academic information).

Work to select peer helpers who reflect the diversity of the population to be served.

Facilitate equitable access, representation and cultural sustainability in peer-support programs.

Develop, train and supervise students in school counseling peer-support programs, using culturally relevant frameworks that promote inclusion and belonging.

Inform peer-support students about when students need to report information to a responsible adult at school.

A. 9. Serious and Foreseeable Harm to Self and Others
School counselors:

Inform parents/guardians and school administration when a student poses a serious and foreseeable risk of harm to self or others. This notification is to be done after careful deliberation and consultation with appropriate professionals, such as other school counselors, the school nurse, school psychologist, school social worker, school resource officer or child protective services. Even if the danger appears relatively remote, parents/guardians must be notified. The consequence of the risk of not giving parents/guardians a chance to intervene on behalf of their child is too great.

Recognize the level of suicide risk (e.g., low, medium, high) is difficult to accurately quantify. If required to use a risk assessment, it must be completed with the realization that it is an information-gathering tool and only one element in the risk-assessment process. When reporting risk-assessment results to parents/guardians, school counselors do not negate the risk of students' potential harm to self even if the assessment reveals a low risk, as students may minimize risk to avoid further scrutiny and/or parental/guardian notification. The purpose of reporting any risk-assessment results to parents/guardians is to underscore the need for parents/guardians to act, not to report a judgment of risk.

Collaborate with school administration to ensure a student has proper supervision and support. If parents/guardians will not provide proper support, the school counselor takes necessary steps to underscore to parents/guardians the necessity to seek help and, at times, may include a report to child protective services.

Provide culturally responsive mental health resources to parents/guardians.

Report to administration and/or appropriate authorities (e.g., law enforcement) when a student discloses a perpetrated or a perceived threat to another person's physical or mental well-being. This threat may include but is not limited to verbal abuse, physical abuse, sexual abuse, dating violence, bullying or harassment. The school counselor follows applicable federal and state laws and school and district policy.

A. 10. Marginalized Populations
School counselors:

Advocate with and on behalf of students to ensure they remain safe at home, in their communities and at school. A high standard of care includes determining what information is shared with parents/guardians and when information creates an unsafe environment for students.

Actively work to establish a safe, equitable, affirming school environment in which all members of the school community demonstrate respect, inclusion and acceptance.

Identify and advocate for resources needed to optimize and support academic, career and social/emotional development opportunities.

Collaborate with parents/guardians when appropriate and strive to establish consistent, constructive two-way communication in their preferred language to ensure students' needs are met.

Understand and advocate for all students' right to be treated in a manner that honors and respects their identity and expression, including but not limited to race, gender identity, gender expression, sexual orientation, language and ability status, and to be free from any form of discipline, harassment or discrimination based on their identity or expression.

Advocate for the equitable right and access to free, appropriate public education for all youth in which students are not stigmatized or isolated based on race, gender identity, gender expression, sexual orientation, language, immigration status, juvenile justice/court involvement, housing, socioeconomic status, ability, foster care, transportation, special education, mental health and/or any other exceptionality or special need.

Advocate for access to and inclusion in opportunities (e.g., Advanced Placement, International Baccalaureate, gifted and talented, honors, dual enrollment) in which students are not stigmatized, isolated or excluded based on race, gender identity, gender expression, sexual orientation, language, immigration status, juvenile justice/court involvement, housing, socioeconomic status, ability, foster care, transportation, special education, mental health and/or any other exceptionality or special need.

Actively advocate for systemic and other changes needed for equitable participation and outcomes in educational programs when disproportionality exists regarding enrollment in such programs by race, gender identity, gender expression, sexual orientation, language, immigration status, juvenile justice/court involvement, housing, socioeconomic status, ability, foster care, transportation, special education, mental health and/or any other exceptionality or special need.

Recognize the strengths of students with disabilities as well as their challenges and provide best practices in supporting their academic, career and social/emotional needs.

A. 11. Bullying, Harassment, Discrimination, Bias and Hate Incidents
School counselors:

Recognize that bullying, discrimination, bias and hate incidents rooted in race, gender, sexual orientation and ethnicity are violations of federal law and many state and local laws and district policies.

Advocate for schoolwide policies, protocols and training for response to bullying, harassment and bias incidents centered in safety, belonging and justice.

Advocate for accessible, effective tools for students or community to report incidents of bullying, hate or bias.

Report all incidents of bullying, dating violence or harassment to the administration, recognizing these behaviors may fall under Title IX of the Education Amendments of 1972 or other federal and state laws as illegal and require administrator intervention.

Recognize that bias incidents are not only potentially traumatizing for students but can lead to significant damage and disruption of the school environment. Facilitate and monitor schoolwide prevention of bullying, harassment, discrimination, hate and bias through active practices that support a positive school climate, culture and belonging.

In response to a hate or bias incident (e.g. discrimination, explicit bias, hate speech), collaborate with administrative teams to ensure safety, provide support for targeted students, facilitate effective communication, provide education, connect students to resources and promote healing and recovery within the school community.

In developmentally appropriate ways and in the context of the incident, support victims, and encourage growth and provide tools for accountability and change (e.g. restorative practices) in perpetrators, and promote healing in the school community while deferring to administration for all discipline issues or any other violation of federal and state laws or district and school policies.

Actively respond to incidents of bias or hate, demonstrating a commitment to equity and promoting a safe, inclusive school community.

A.12. Child Abuse
School counselors:

Report to the proper authorities, as mandated by the state, all suspected cases of child abuse and neglect, recognizing that certainty is not required, only reasonable suspicion. School counselors are held to a higher standard regarding their absolute duty as a mandated reporter to report suspected child abuse and neglect.

Develop and maintain the expertise to recognize the signs of child abuse and neglect. Advocate for training to enable students and staff to have the knowledge and skills needed to recognize the signs and to whom they should report suspected child abuse and neglect.

Take reasonable precautions to protect the privacy of students for whom abuse or neglect is suspected from those who do not have a legitimate need to know.

Know current state laws and the school system's procedures for reporting child abuse and neglect and methods to advocate for students' physical and emotional safety following abuse/neglect reports.

Connect students who have experienced abuse and neglect with services provided through the local school district and community agencies.

A. 13. Student Records
School counselors:

Abide by the Family Educational Rights and Privacy Act (FERPA), which defines who has access to students' educational records and allows parents/guardians the right to review the records and challenge perceived inaccuracies in their child's records.

Advocate for the ethical use of student data and records and inform administration of inappropriate or harmful practices.

Recognize the difficulty in adhering to FERPA's definition of sole-possession records.

Recognize that sole-possession records and case notes can be subpoenaed unless there is a specific state statute for privileged communication expressly protecting student/school counselor communication.

Recognize that electronic communications with school officials regarding individual students, even without using student names, are likely to create student records that must be addressed in accordance with FERPA and state laws.

Establish a reasonable timeline for purging sole-possession records or case notes. Suggested guidelines include shredding paper sole-possession records or deleting electronic sole-possession records when a student transitions to the next level, transfers to another school or graduates. School counselors do not destroy sole-possession records that may be needed by a court of law, such as notes on child abuse, suicide, sexual harassment or violence, without prior review and approval by school district legal counsel. School counselors follow district policies and procedures when contacting legal counsel.

A. 14. Evaluation, Assessment and Interpretation
School counselors:

Use only valid and reliable research-based tests and assessments that are culturally sensitive, in the student's preferred language and free of bias.

Adhere to all professional standards and regulations when selecting, administering and interpreting standardized assessment tools, and only use assessment instruments that are within the scope of practice for school counselors and for which they are licensed, certified, competent and trained to use.

Follow confidentiality guidelines when using paper or electronic assessment instruments and programs.

Consider the student's developmental age, language skills, home language and competence level when determining an assessment's appropriateness.

Use multiple data points, both quantitative and qualitative whenever possible, to provide students and families with complete and accurate information to promote students' well-being.

Provide interpretation, in the student's preferred language, of the nature, purpose, results and potential impact of assessment/evaluation measures in terms students and parents/guardians can understand.

Monitor the use of assessment results and interpretation, and take reasonable steps to prevent others from misusing the information.

Use caution when selecting or using assessment techniques, making evaluations and interpreting the performance of populations not represented in the norm group on which an instrument is standardized.

Conduct and disseminate the results of school counseling program assessments to determine the effectiveness of activities supporting students' academic, college/career and social/emotional development through accountability measures, especially examining efforts to close opportunity gaps.

A. 15. Technical and Digital Citizenship
School counselors:

Advocate for equitable access to technology for all students.

Demonstrate appropriate selection and equitable use of culturally sustaining technology and software applications to enhance students' academic, career and social/emotional development. Attention is given to the legal and ethical considerations of technological applications, including confidentiality concerns, security issues, potential limitations and benefits, and communication practices in electronic media.

Take appropriate and reasonable measures to maintain the confidentiality of student information and educational records stored or transmitted through the use of computers, social media, facsimile machines, telephones, voicemail, answering machines and other electronic technology.

Promote the safe and responsible use of technology in collaboration with educators and families.

Promote the benefits and clarify the limitations of various appropriate technological applications.

Use established and approved means of communication with students, maintaining appropriate boundaries, and help educate students about appropriate communication and boundaries.

Understand challenges with confidentiality when using email and establish protocols and boundaries for responding to emails.

Advocate for the use of virtual learning tools that include safeguards and protocols protecting highly sensitive student information.

Advocate against alert tools or apps requiring constant monitoring by school personnel. These tools are not aligned with the nature and function of school counseling.

A. 16. Virtual/Distance School Counseling
School counselors:

Adhere to the same legal and ethical standards in a virtual/distance/hybrid setting as in face-to-face settings.

Recognize, acknowledge and problem-solve the unique challenges and limitations of virtual/distance/hybrid school counseling.

Establish procedures, in collaboration with school administrators and other support staff, for students to follow in both emergency and nonemergency situations when the school counselor is not available.

Recognize and address the limitation of virtual/distance/hybrid school counseling confidentiality, which may include unintended viewers or recipients.

Inform both students and parents/guardians of the benefits and limitations of virtual/distance/hybrid school counseling.

Educate students on how to participate in the electronic school counseling relationship to minimize and prevent potential misunderstandings that could occur due to lack of verbal cues and inability to read body language or other visual cues that provide contextual meaning to the school counseling process and relationship.

Recognize the challenges in virtual/distance/hybrid settings of assisting students considering suicide, including but not limited to identifying their physical location, keeping them engaged on the call or device, contacting their parents/guardians and getting help to their location.

B. RESPONSIBILITIES TO PARENTS/GUARDIANS, SCHOOL AND SELF B.1. Responsibilities to Parents/Guardians
School counselors:

Recognize, honor and respect the importance of parents/guardians when providing services to students in a school setting and collaborate with students' parents/guardians as appropriate.

Respect the rights and responsibilities of custodial and noncustodial parents/guardians and, as appropriate, establish a collaborative relationship to facilitate and advocate for students' maximum growth in the areas of academic, career and social/emotional development.

Promote equity and inclusion through culturally affirming and sustaining practices honoring the diversity of families. Recognize that all parents/guardians, custodial and noncustodial, are vested with certain rights and responsibilities for their children's welfare by virtue of their role and according to law.

Inform parents of the school counseling program's mission and standards in academic, career and social/emotional domains that promote and enhance the learning process and outcomes for all students.

Adhere to the Protection of Pupil Rights Amendment when using universal screeners, surveys or needs assessments by informing parents/guardians prior to their use in accordance with school district policies and local, state and federal law.

Engage a diverse sample of parents/guardians and caregivers to provide opportunities for meaningful contributions to the school counseling program.

Adhere to federal, state and local laws; district policy; and ethical practice when assisting parents/guardians experiencing family difficulties interfering with their student's welfare.

Inform parents/guardians of the confidential nature of the school counseling relationship between the school counselor and student, while recognizing parents/guardians have inherent legal rights to student information.

Respect the privacy of parents/guardians in accordance with the student's best interests.

Provide parents/guardians with accurate, comprehensive and relevant information in a caring manner as appropriate and consistent with legal and ethical responsibilities to the students and parents/guardians. Exercise due diligence in a timely, efficient manner to communicate concerns that affect the students' safety and welfare.

Follow the directions and stipulations of the legal documentation in divorce, separation or custody cases, maintaining focus on the student. Adhere to clear boundaries and a position of neutrality when working with parents/guardians.

B.2. Responsibilities to the School
School counselors:

Develop and maintain professional relationships and systems of communication with faculty, staff and administrators to support students.

Design and deliver comprehensive school counseling programs that are integral to the school's academic mission, informed by analysis of student data, based on the ASCA National Model.

Advocate for a school counseling program free of non-school-counseling assignments identified by "The ASCA National Model: A Framework for School Counseling Programs."

Exercise leadership to create systemic change to create a safe and supportive environment and equitable outcomes for all students.

Collaborate with appropriate officials to remove barriers that may impede the effectiveness of the school and/or the school counseling program in promoting equitable student outcomes.

Provide support, consultation and mentoring to professionals in need of assistance when appropriate to enhance school climate and student outcomes.

Inform appropriate officials, in accordance with federal and state law and school and district policy, of conditions that may be potentially disruptive or damaging to the school's mission, personnel and property, while honoring the confidentiality between students and school counselors to the extent possible.

Advocate for administrators to place licensed/certified school counselors who are competent, qualified and hold a master's degree or higher in school counseling from an accredited institution.

Advocate for equitable school counseling program policies and practices for all students and stakeholders.

Advocate for the use of vetted, bilingual/multilingual translators to represent languages used by families in the school community and support broader cultural communication and engagement.

Affirm the abilities of all students and advocate for their learning needs, supporting the provision of appropriate accommodations and accessibility.

Provide culturally responsive information to families to increase understanding, improve communication, promote engagement and improve student outcomes.

Promote culturally sustaining practices to help create a safe and inclusive school environment with equitable outcomes for all students.

Adhere to educational/psychological research practices, confidentiality safeguards, security practices and school district policies when conducting research.

Use school and community resources to promote equity and access for all students.

Use inclusive language in all forms of communication and ensure students and stakeholders have access to materials in their preferred languages when possible.

Collaborate as needed to provide optimum services with other school and community professionals with legitimate educational interests (e.g., school nurse, school psychologist, school social worker, speech-language pathologist), following all local, state and federal laws.

Strive to address and remedy the work environment and conditions that do not reflect the school counseling profession's ethics, using advocacy and problem-solving skills.

B. 3. Responsibilities to Self
School counselors:

Have earned a master's degree or higher in school counseling or the substantial equivalent from an accredited institution.

Maintain membership in school counselor professional organizations to stay up to date on current research and to maintain professional competence in current school counseling issues and topics.

Accept employment only for positions for which they are qualified by education, training, supervised experience and state/national professional credentials.

Adhere to the profession's ethical standards and other official policy statements such as ASCA position statements and role statements, school board policies and relevant laws. When laws and ethical codes are in conflict, school counselors work to adhere to both as much as possible.

Engage in routine, content-applicable professional development to stay up to date on trends and needs of students and other stakeholders, and regularly attend training on current legal and ethical responsibilities.

Explore and examine implicit biases and the impact on practice and interaction with students; apply learning to program practice and development.

Develop knowledge and understanding of historic and systemic oppression, social justice and cultural models (e.g., multicultural counseling, anti-racism, culturally sustaining practices) to further develop skills for systemic change and equitable outcomes for all students.

Recognize the potential for stress and secondary trauma. Practice wellness and self-care through monitoring mental, emotional and physical health, while seeking consultation from an experienced school counseling practitioner and/or others when needed.

Monitor personal behaviors and recognize the high standard of care a professional in this critical position of trust must maintain on and off the job. School counselors are cognizant of and refrain from activity that may diminish their effectiveness within the school community.

Apply an ethical decision-making model and seek consultation and supervision from colleagues and other professionals who are knowledgeable of the profession's practices when ethical questions arise.

Honor the diversity and identities of students and seek training/supervision when prejudice or biases interfere with providing comprehensive school counseling services to all pre-K-12 students. School counselors will not refuse services to students based solely on personally held beliefs/values rooted in one's religion, culture or ethnicity. School counselors work toward a school climate that embraces diverse identities and promotes equitable outcomes in academic, career and social/emotional development for all students.

Have an awareness of and make clear distinctions between actions and statements (verbal or written) made as a private individual versus those made as a representative of the school counseling profession and of the school district/school entity.

Respect the intellectual property of others and adhere to copyright laws and correctly cite others' work when using it.

C. SCHOOL COUNSELOR DIRECTORS/ADMINISTRATORS/SUPERVISORS
School counselor directors/administrators/supervisors support school counselors in their charge by:

Advocating both within and outside of their schools or districts for adequate resources to implement a school counseling program and meet students' needs and the school community's needs.

Advocating for fair and open distribution of resources among programs supervised, using an allocation procedure that is nondiscriminatory, equitable, informed by comprehensive data and consistently applied.

Taking reasonable steps to ensure school and other resources are available to provide staff supervision and training.

Providing opportunities for professional development in current research related to school counseling practices, competencies and ethics.

Taking steps to eliminate conditions or practices in their schools or organizations that may violate, discourage or interfere with compliance with the laws and ethics related to the school counseling profession or equitable outcomes for students.

Monitoring school and organizational policies, regulations and procedures to ensure practices are consistent with the ASCA Ethical Standards for School Counselors.

Using and/or advocating for a performance appraisal instrument aligned with the ASCA School Counselor Professional Standards & Competencies that assesses school counselors' knowledge, skills and attitudes.

Understanding the ASCA Ethical Standards for School Counselors, the ASCA National Model and the ASCA School Counselor Professional Standards & Competencies.

Providing staff with opportunities and support to develop knowledge and understanding of historic and systemic oppression, social justice and cultural models (e.g., multicultural counseling, anti-racism, culturally sustaining practices) to further develop skills for systemic change and equitable outcomes for all students.

Collaborating and consulting with school counseling graduate programs to support appropriate site placement for supervisees and ensure high-quality training that is essential for school counselor preparation.

D. SCHOOL COUNSELING PRACTICUM/INTERNSHIP SITE SUPERVISORS Practicum/internship site supervisors:

Are licensed or certified school counselors with an understanding of school counseling programs and school counselors' ethical practices.

Have the education and training to provide school counseling supervision and regularly pursue continuing education activities on both counseling and supervision topics and skills.

Use a model of supervision that is developmental, ongoing and includes but is not limited to promoting professional growth, supporting best practices and ethical practice, assessing supervisee performance and developing plans for improvement, consulting on specific cases and assisting in the development of a course of action.

Engage in culturally affirming supervision, maintain cultural competence and consider cultural and historic factors and power dynamics that may have an impact on the supervisory relationship.

Avoid supervisory relationships with individuals with whom they have the inability to remain objective (e.g., family members or close friends).

Are competent with technology used to perform supervisory responsibilities and online supervision, if applicable. Supervisors protect all electronically transmitted confidential information.

Understand there are differences in face-to face and virtual communication (e.g., absence of verbal and nonverbal cues) that may have an impact on virtual supervision. Supervisors educate supervisees on how to communicate electronically to prevent and avoid potential problems and negative outcomes.

Provide information about how and when virtual supervisory services will be utilized, and provide school counselors with reasonable access to pertinent applications.

Ensure performance evaluations are completed in a timely, fair and considerate manner; base evaluations on clearly stated criteria; and use data when available.

Ensure supervisees are aware of policies and procedures related to supervision and evaluation and provide due-process procedures if supervisees appeal their evaluations.

Understand supervisee limitations and communicate concerns to the university/college supervisor in a timely manner.

Help supervisees select appropriate professional development based on identified needs.

Contact university/college supervisors and consult with school administrators to recommend assistance or dismissal when supervisees are unable to demonstrate competence as a school counselor as defined by the ASCA School Counselor Professional Standards & Competencies. Document recommendations and ensure supervisees are aware of such decisions and the resources available to them.

Recognize and acknowledge the specific roles of school counselor educators, site supervisors and the practicum/internship student. Supervisors ensure that supervisees are able to participate in a variety of academic, college/career and social/emotional activities through individual, group and classroom interventions.

E. MAINTENANCE OF STANDARDS
When the absence of a settled opinion or conviction exists as to the ethical behavior of a colleague(s), the following procedures may serve as a guide:

School counselors confidentially consult with professional colleagues to discuss the potentially unethical behavior and determine if the situation is an ethical violation.

School counselors discuss and seek resolution directly with the colleague whose behavior is in question unless the behavior is unlawful, abusive, egregious or dangerous, in which case proper school or community authorities are contacted.

School counselors understand mandatory reporting responsibilities in their respective districts and states.

School counselors take appropriate action in the following sequence if the matter remains unresolved at the school, school district, state department of education and/or professional practice/standards commission level: 1. Contact the state school counselor association's ethics committee if applicable. i. If no such committee exists, contact the state school counselor association leadership. ii. If the issue remains unresolved, proceed to step 2. 2. Contact the American School Counselor Association. Formal documentation of the steps taken and the response of the complainant and respondent should be submitted in hard copy to the ASCA Ethics Committee, c/o the Executive Director, American School Counselor Association, 277 S. Washington St., Suite 390, Alexandria, VA 22314.

F. ETHICAL DECISION-MAKING
When faced with an ethical dilemma, school counselors and school counseling program directors/supervisors use an ethical decision-making model.

Define the ethical dilemma.

Identify potential cultural, religious and worldview factors and power dynamics that are present within a potential ethical dilemma.

Apply the ASCA Ethical Standards for School Counselors and the relevant district policies and procedures.

Consult with appropriate professionals (e.g., supervisors, other student service professionals, school counseling peers, cultural experts).

Consider the student's chronological age and developmental level.

Consider parental/guardian and student rights

Apply the ethical principles of: Beneficence: working for the good of the individual and society by promoting mental health and well-being; Autonomy: fostering the right to control the direction of one's life; Nonmaleficence: avoiding actions that cause harm Justice: treating individuals equitably and fostering fairness and equality; Fidelity: honoring commitments and keeping promises, including fulfilling one's responsibilities of trust in professional relationships; Veracity: dealing truthfully with individuals with whom school counselors come into professional contact

Determine potential courses of action and their consequences.

Evaluate the selected action.

Implement the course of action and analyze the outcome.

Identify any inconsistencies in school/district policy for potential revision.

See other ethical decision-making models: Intercultural Model of Ethical Decision Making, Luke et al., (2013) Solutions to Ethical Problems in Schools (STEPS), Stone (2003) Ethical Justification Model, Kitchener (1984)

GLOSSARY OF TERMS
Advocate: a person who speaks, writes or acts to promote the well-being of students, parents/guardians, school and community stakeholders, and the school counseling profession. School counselors advocate to create and maintain equitable systems, policies and practices.

Anti-Racist: one who expresses the idea that race is a social construct and does not biologically exist while supporting policy that eliminates racial inequity and fighting against racism.

Assent: to demonstrate agreement when a student is not competent to give informed consent to counseling or other services the school counselor is providing.

Assessment: collecting in-depth information about a person to develop a comprehensive plan that will guide the collaborative counseling and service provision process.

Bias Incident: use of hateful imagery, language or acts that are often noncriminal in nature motivated by bigotry, prejudice or hate toward individuals because of the targets' perceived disability, ethnicity, gender, gender identity, nationality, race, sex or sexual orientation.

Boundaries: something that indicates or affixes an extent or limits.

Breach: disclosure of information given in private or confidential communication such as information given during counseling.

Bullying: intentional, repeated harmful acts, words or other behavior such as name calling, threatening and/or shunning committed by one or more children against another. These negative acts are not intentionally provoked by the victims, and for such acts to be defined as bullying, an imbalance in real or perceived power must exist between the bully and the victim. Bullying may be physical, verbal, emotional or sexual in nature.

Competence: the quality of being competent; adequacy; possession of required skill, knowledge, qualification or capacity.

Confidentiality: the ethical duty of school counselors to responsibly protect a student's private communications shared in counseling.

Conflict of Interest: a situation in which a school counselor stands to personally profit from a decision involving a student.

Consent: permission, approval or agreement; compliance.

Consultation: a professional relationship in which individuals meet to seek advice, information and/or deliberation to address a student's need.

Conventional Parameters: general agreement or accepted standards regarding limits, boundaries or guidelines.

Cultural Sensitivity: a set of skills enabling you to know, understand and value the similarities and differences in people; modify your behavior to be most effective and respectful of students and families; and deliver programs that fit diverse learners' needs.

Culturally Sustaining School Counseling policies and practices that affirm and embrace cultural pluralism, promote cultural dexterity and actively advocate for equitable systems and outcomes.

Custodial and Noncustodial: physical custody: a phrase used to determine which parent a minor student lives with as a result of a court order. A custodial parent has physical custody of the minor child while a noncustodial parent does not have physical custody of the minor child, as the result of a court order. Legal custody: both custodial and noncustodial parents have educational rights to their child's records unless noted by court documentation.

Data Dialogues: inquiry with others around student information to uncover inequities, promote informed investigations and assist in understanding the meaning of data and the next steps to have an impact on data.

Data Informed: accessing data, applying meaning to it and using data to have an impact on student success.

Developmental Level/Age: the age of an individual determined by degree of emotional, mental and physiological maturity as compared with typical behaviors and characteristics of that chronological age.

Disclosure: the act or an instance of exposure or revelation.

Diversity: the inclusion of individuals representing more than one national origin, gender identity, gender expression, ethnicity, religion, socioeconomic stratum, sexual orientation and the intersection of cultural and social identities.

Dual Relationship: a relationship in which a school counselor is concurrently participating in two or more roles with a student.

Empathy: the action of understanding, being aware of, being sensitive to and vicariously experiencing the feelings, thoughts and experience of another without having the feelings, thoughts and experience fully communicated in an objectively explicit manner.

Emancipated Minors: minors who are legally freed from control by their parents/guardians, and the parents/guardians are freed from any and all responsibility toward the children.

Encryption: process of putting information into a coded form to control and limit access to authorized users.

Equity: treated fairly; educational equity occurs when educators provide all students with the high-quality instruction and support they need to reach and exceed a common standard.

Ethics: the norms and principles of conduct and philosophy governing the profession.

Ethical Behavior: actions defined by standards of conduct for the profession.

Ethical Obligation: a standard or set of standards defining the course of action for the profession.

Ethical Rights: the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention or ethical theory.

Feasible: capable of being done, affected or accomplished easily or conveniently.

Gender Expression: the ways in which students manifest masculinity or femininity in terms of clothing, communication patterns and interests, which may or may not reflect the student's gender identity.

Gender Identity: one's personal experience of one's own gender. When one's gender identity and biological sex are not congruent, the student may identify as transgender.

Guardian Ad Litem: a guardian appointed by a court to watch after someone during a case.

Harassment: the act of systematic and/or continued unwanted disturbing or troubling persecution.

Informed Consent: assisting students in acquiring an understanding of the limits of confidentiality, the benefits, facts and risks of entering into a counseling relationship.

Intervention: to provide modifications, materials, advice, aids, services or other forms of support to have a positive impact on the outcome or course of a condition.

Legal Mandates: a judicial command or precept issued by a court or magistrate, directing proper behavior to enforce a judgment, sentence or decree.

Legal Rights: those rights bestowed onto a person by a given legal system.

Mandatory Reporting: the legal requirement to report to authorities.

Minors: persons under the age of 18 years unless otherwise designated by statute or regulation.

Oppression: unjust or cruel exercise of authority or power.

Perception: a mental image or awareness of environment through a physical sensation; a capacity for understanding or a result of an observation.

Peer Helper: peer-to-peer interaction in which individuals who are of approximately the same age take on a helping role assisting students who may share related values, experiences and lifestyles.

Peer Support: programs enhancing the effectiveness of the school counseling program while increasing outreach and raising student awareness of services.

Privacy: the right of an individual to keep oneself and one's personal information free from unauthorized disclosure.

Privileged Communication: conversation that takes place within the context of a protected relationship, such as that between an attorney and client, spouses, a priest and penitent, a doctor and patient and, in some states, a school counselor and student.

Professional Development: the process of improving and increasing capabilities through access to education and training opportunities.

Racial Bias: a personal and unreasoned judgment made solely on an individual's race.

Racism: when individuals, systems or institutions show more favorable evaluation or treatment of an individual or group based on race or ethnicity.

Relationship: a connection, association or involvement.

Risk Assessment: a systematic process of evaluating potential risks.

School Counseling Supervisor: a qualified professional who provides guidance, teaching and support for the professional development of school counselors and school counseling candidates.

Serious and Foreseeable Harm: when a reasonable person can anticipate significant and harmful possible consequences.

Sole-Possession Records: records used only as a personal memory aid that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record and provide only professional opinion or personal observations. Sole-possession records are exempted from the definition of educational records and FERPA protection.

Stakeholder: a person or group sharing an investment or interest in the students and/or school community (e.g., parents/guardians, school staff, administrators, business and community interest groups, school board members, etc.).

Systemic Change: change affecting the entire system; transformational; change affecting more than an individual or series of individuals; focused upon the dynamic of the environment, not the individual.

Supervision: a collaborative relationship in which one person promotes and/or evaluates the development of another.

Title IX of the Education Amendments of 1972: a law that demands that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Universal Screener: gathers information regarding behavioral and mental health issues by either reviewing existing data/input from educators or by asking questions directly of students. Schools receiving federal funding that use a universal screener asking even one question from one of the eight protected areas under the Protection of Pupil Rights Amendment (PPRA) must obtain active consent from parents/guardians if a student is required to complete the screening and passive consent if the screening is voluntary (U.S. Department of Education, PPRA, 2022).

Virtual/Distance Counseling: counseling by electronic means.

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ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA)

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Texas Administrative Code, Title 19, Part 7, Chapter 239

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Texas Administrative Code, Title 19, Part 7, Chapter 239

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Law: Administrative

Citation: Texas Administrative Code Title 19, Part 7, Chapter 239, Subchapter A.

Link to Full Text: https://tea.texas.gov/about-tea/laws-and-rules/sbec-rules-tac/sbec-tac-currently-in-effect/ch239a.pdf

Summary:

The Texas Administrative Code, Title 19, Part 7, Chapter 239, outlines the certification requirements for school counselors, emphasizing training on legal and ethical responsibilities, such as balancing confidentiality with the obligation to report. Together, these laws create a comprehensive legal structure that ensures the safety of students while guiding school counselors in fulfilling their ethical and professional duties.

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FERPA (Family Educational Rights and Privacy Act)

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FERPA (Family Educational Rights and Privacy Act)

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Source of Law: Federal Statute

Citation: 20 U.S.C. § 1232g; 34 CFR Part 99

Link to Full Text: U.S. Department of Education. (n.d.). Family Educational Rights and Privacy Act (FERPA). Student Privacy. https://studentprivacy.ed.gov/ferpa

Summary:

Limits disclosure of personally identifiable information from student records without parental consent. Allows disclosure without consent if it is necessary to protect health or safety, which includes reporting abuse or neglect. FERPA does not prevent mandated reporting obligations under state law.

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34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY

Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

The current regulations can also be found at the Electronic Code of Federal Regulations: Title 34, Part 99--Family Educational Rights and Privacy.

The current statutes can be found at 20 U.S.C. 1232g - Family educational and privacy rights

To learn more about FERPA, please refer to the General Guidance for Parents or Students.

Parents and eligible students who wish to file a complaint under FERPA may do so on the File a Complaint page.
The Federal Register Notices of amendments to FERPA regulations can be found here:
34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY
Contents Subpart A-General§99.1 To which educational agencies or institutions do these regulations apply?
§99.2 What is the purpose of these regulations?
§99.3 What definitions apply to these regulations?
§99.4 What are the rights of parents?
§99.5 What are the rights of students?
§99.6 [Reserved]
§99.7 What must an educational agency or institution include in its annual notification?
§99.8 What provisions apply to records of a law enforcement unit? Subpart B-What Are the Rights of Inspection and Review of Education Records?§99.10 What rights exist for a parent or eligible student to inspect and review education records?
§99.11 May an educational agency or institution charge a fee for copies of education records?
§99.12 What limitations exist on the right to inspect and review records? Subpart C-What Are the Procedures for Amending Education Records?§99.20 How can a parent or eligible student request amendment of the student's education records?
§99.21 Under what conditions does a parent or eligible student have the right to a hearing?
§99.22 What minimum requirements exist for the conduct of a hearing? Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?§99.30 Under what conditions is prior consent required to disclose information?
§99.31 Under what conditions is prior consent not required to disclose information?
§99.32 What recordkeeping requirements exist concerning requests and disclosures?
§99.33 What limitations apply to the redisclosure of information?
§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?
§99.35 What conditions apply to disclosure of information for Federal or State program purposes?
§99.36 What conditions apply to disclosure of information in health and safety emergencies?
§99.37 What conditions apply to disclosing directory information?
§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?
§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses? Subpart E-What Are the Enforcement Procedures?§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?
§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?
§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?
§99.63 Where are complaints filed?
§99.64 What is the investigation procedure?
§99.65 What is the content of the notice of investigation issued by the Office?
§99.66 What are the responsibilities of the Office in the enforcement process?
§99.67 How does the Secretary enforce decisions?
Appendix A to Part 99-Crimes of Violence Definitions
Subpart A-General

§99.1 To which educational agencies or institutions do these regulations apply?

(a) Except as otherwise noted in §99.10, this part applies to an educational agency or institution to which funds have been made available under any program administered by the Secretary, if-

(1) The educational institution provides educational services or instruction, or both, to students; or

(2) The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

(b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non-monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution.

(c) The Secretary considers funds to be made available to an educational agency or institution of funds under one or more of the programs referenced in paragraph (a) of this section-

(1) Are provided to the agency or institution by grant, cooperative agreement, contract, subgrant, or subcontract; or

(2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (titles IV-A-1 and IV-B, respectively, of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives funds under one or more of the programs covered by this section, the regulations in this part apply to the recipient as a whole, including each of its components (such as a department within a university).

(Authority: 20 U.S.C. 1232g)

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000]

§99.2 What is the purpose of these regulations?

The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as amended.

(Authority: 20 U.S.C. 1232g)

Note to §99.2: 34 CFR 300.610 through 300.626 contain requirements regarding the confidentiality of information relating to children with disabilities who receive evaluations, services or other benefits under Part B of the Individuals with Disabilities Education Act (IDEA). 34 CFR 303.402 and 303.460 identify the confidentiality of information requirements regarding children and infants and toddlers with disabilities and their families who receive evaluations, services, or other benefits under Part C of IDEA. 34 CFR 300.610 through 300.627 contain the confidentiality of information requirements that apply to personally identifiable data, information, and records collected or maintained pursuant to Part B of the IDEA.

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 73 FR 74851, Dec. 9, 2008]

§99.3 What definitions apply to these regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section 444 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g)

Attendance includes, but is not limited to-

(a) Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and

(b) The period during which a person is working under a work-study program.

(Authority: 20 U.S.C. 1232g)

Authorized representative means any entity or individual designated by a State or local educational authority or an agency headed by an official listed in §99.31(a)(3) to conduct-with respect to Federal- or State-supported education programs-any audit or evaluation, or any compliance or enforcement activity in connection with Federal legal requirements that relate to these programs.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

Biometric record, as used in the definition of personally identifiable information, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.

(Authority: 20 U.S.C. 1232g)

Dates of attendance. (a) The term means the period of time during which a student attends or attended an educational agency or institution. Examples of dates of attendance include an academic year, a spring semester, or a first quarter.

(b) The term does not include specific daily records of a student's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

(a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status ( e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

(b) Directory information does not include a student's-

(1) Social security number; or

(2) Student identification (ID) number, except as provided in paragraph (c) of this definition.

(c) In accordance with paragraphs (a) and (b) of this definition, directory information includes-

(1) A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and

(2) A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Disciplinary action or proceeding means the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution.

Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(2))

Early childhood education program means-

(a) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq.), including a migrant or seasonal Head Start program, an Indian Head Start program, or a Head Start program or an Early Head Start program that also receives State funding;

(b) A State licensed or regulated child care program; or

(c) A program that-

(1) Serves children from birth through age six that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and

(2) Is-

(i) A State prekindergarten program;

(ii) A program authorized under section 619 or part C of the Individuals with Disabilities Education Act; or

(iii) A program operated by a local educational agency.

Educational agency or institution means any public or private agency or institution to which this part applies under §99.1(a).

(Authority: 20 U.S.C. 1232g(a)(3))

Education program means any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(3), (b)(5))

Education records. (a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8.

(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's capacity as an employee; and

(C) Are not available for use for any other purpose.

(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.

(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:

(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection with treatment of the student; and

(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, "treatment" does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and

(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student.

(6) Grades on peer-graded papers before they are collected and recorded by a teacher.

(Authority: 20 U.S.C. 1232g(a)(4))

Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.

(Authority: 20 U.S.C. 1232g(d))

Institution of postsecondary education means an institution that provides education to students beyond the secondary school level; "secondary school level" means the educational level (not beyond grade 12) at which secondary education is provided as determined under State law.

(Authority: 20 U.S.C. 1232g(d))

Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

(Authority: 20 U.S.C. 1232g)

Party means an individual, agency, institution, or organization.

(Authority: 20 U.S.C. 1232g(b)(4)(A))

Personally Identifiable Information

The term includes, but is not limited to-

(a) The student's name;

(b) The name of the student's parent or other family members;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number, student number, or biometric record;

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

(Authority: 20 U.S.C. 1232g)

Record means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

(Authority: 20 U.S.C. 1232g)

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of authority.

(Authority: 20 U.S.C. 1232g)

Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.

(Authority: 20 U.S.C. 1232g(a)(6))

[53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000; 73 FR 74851, Dec. 9, 2008; 76 FR 75641, Dec. 2, 2011]

§99.4 What are the rights of parents?

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.

(Authority: 20 U.S.C. 1232g)

§99.5 What are the rights of students?

(a)(1) When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student.

(2) Nothing in this section prevents an educational agency or institution from disclosing education records, or personally identifiable information from education records, to a parent without the prior written consent of an eligible student if the disclosure meets the conditions in §99.31(a)(8), §99.31(a)(10), §99.31(a)(15), or any other provision in §99.31(a).

(b) The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.

(c) An individual who is or has been a student at an educational institution and who applies for admission at another component of that institution does not have rights under this part with respect to records maintained by that other component, including records maintained in connection with the student's application for admission, unless the student is accepted and attends that other component of the institution.

(Authority: 20 U.S.C. 1232g(d))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008]

§99.6 [Reserved]

§99.7 What must an educational agency or institution include in its annual notification?

(a)(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

(2) The notice must inform parents or eligible students that they have the right to-

(i) Inspect and review the student's education records;

(ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

(iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent; and

(iv) File with the Department a complaint under §§99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the Act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to inspect and review education records.

(ii) The procedure for requesting amendment of records under §99.20.

(iii) If the educational agency or institution has a policy of disclosing education records under §99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effectively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than English.

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g (e) and (f))

[61 FR 59295, Nov. 21, 1996]

§99.8 What provisions apply to records of a law enforcement unit?

(a)(1) Law enforcement unit means any individual, office, department, division, or other component of an educational agency or institution, such as a unit of commissioned police officers or non-commissioned security guards, that is officially authorized or designated by that agency or institution to-

(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or Federal law against any individual or organization other than the agency or institution itself; or

(ii) Maintain the physical security and safety of the agency or institution.

(2) A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non-law enforcement functions for the agency or institution, including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student.

(b)(1) Records of a law enforcement unit means those records, files, documents, and other materials that are-

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of a law enforcement unit does not mean-

(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or

(ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.

(c)(1) Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.

(2) Education records, and personally identifiable information contained in education records, do not lose their status as education records and remain subject to the Act, including the disclosure provisions of §99.30, while in the possession of the law enforcement unit.

(d) The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records.

(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))

[60 FR 3469, Jan. 17, 1995]

Subpart B-What Are the Rights of Inspection and Review of Education Records?

§99.10 What rights exist for a parent or eligible student to inspect and review education records?

(a) Except as limited under §99.12, a parent or eligible student must be given the opportunity to inspect and review the student's education records. This provision applies to-

(1) Any educational agency or institution; and

(2) Any State educational agency (SEA) and its components.

(i) For the purposes of subpart B of this part, an SEA and its components constitute an educational agency or institution.

(ii) An SEA and its components are subject to subpart B of this part if the SEA maintains education records on students who are or have been in attendance at any school of an educational agency or institution subject to the Act and this part.

(b) The educational agency or institution, or SEA or its component, shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request.

(c) The educational agency or institution, or SEA or its component shall respond to reasonable requests for explanations and interpretations of the records.

(d) If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall-

(1) Provide the parent or eligible student with a copy of the records requested; or

(2) Make other arrangements for the parent or eligible student to inspect and review the requested records.

(e) The educational agency or institution, or SEA or its component shall not destroy any education records if there is an outstanding request to inspect and review the records under this section.

(f) While an education agency or institution is not required to give an eligible student access to treatment records under paragraph (b)(4) of the definition of Education records in §99.3, the student may have those records reviewed by a physician or other appropriate professional of the student's choice.

(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.11 May an educational agency or institution charge a fee for copies of education records?

(a) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student.

(b) An educational agency or institution may not charge a fee to search for or to retrieve the education records of a student.

(Authority: 20 U.S.C. 1232g(a)(1))

§99.12 What limitations exist on the right to inspect and review records?

(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.

(b) A postsecondary institution does not have to permit a student to inspect and review education records that are:

(1) Financial records, including any information those records contain, of his or her parents;

(2) Confidential letters and confidential statements of recommendation placed in the education records of the student before January 1, 1975, as long as the statements are used only for the purposes for which they were specifically intended; and

(3) Confidential letters and confidential statements of recommendation placed in the student's education records after January 1, 1975, if:

(i) The student has waived his or her right to inspect and review those letters and statements; and

(ii) Those letters and statements are related to the student's:

(A) Admission to an educational institution;

(B) Application for employment; or

(C) Receipt of an honor or honorary recognition.

(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:

(i) The educational agency or institution does not require the waiver as a condition for admission to or receipt of a service or benefit from the agency or institution; and

(ii) The waiver is made in writing and signed by the student, regardless of age.

(2) If a student has waived his or her rights under paragraph (b)(3)(i) of this section, the educational institution shall:

(i) Give the student, on request, the names of the individuals who provided the letters and statements of recommendation; and

(ii) Use the letters and statements of recommendation only for the purpose for which they were intended.

(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions occurring after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.

(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Subpart C-What Are the Procedures for Amending Education Records?

§99.20 How can a parent or eligible student request amendment of the student's education records?

(a) If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record.

(b) The educational agency or institution shall decide whether to amend the record as requested within a reasonable time after the agency or institution receives the request.

(c) If the educational agency or institution decides not to amend the record as requested, it shall inform the parent or eligible student of its decision and of his or her right to a hearing under §99.21.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.21 Under what conditions does a parent or eligible student have the right to a hearing?

(a) An educational agency or institution shall give a parent or eligible student, on request, an opportunity for a hearing to challenge the content of the student's education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student.

(b)(1) If, as a result of the hearing, the educational agency or institution decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall:

(i) Amend the record accordingly; and

(ii) Inform the parent or eligible student of the amendment in writing.

(2) If, as a result of the hearing, the educational agency or institution decides that the information in the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall inform the parent or eligible student of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution, or both.

(c) If an educational agency or institution places a statement in the education records of a student under paragraph (b)(2) of this section, the agency or institution shall:

(1) Maintain the statement with the contested part of the record for as long as the record is maintained; and

(2) Disclose the statement whenever it discloses the portion of the record to which the statement relates.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.22 What minimum requirements exist for the conduct of a hearing?

The hearing required by §99.21 must meet, at a minimum, the following requirements:

(a) The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student.

(b) The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.

(c) The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing.

(d) The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised under §99.21. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

(e) The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.

(f) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

(Authority: 20 U.S.C. 1232g(a)(2))

Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?

§99.30 Under what conditions is prior consent required to disclose information?

(a) The parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in §99.31.

(b) The written consent must:

(1) Specify the records that may be disclosed;

(2) State the purpose of the disclosure; and

(3) Identify the party or class of parties to whom the disclosure may be made.

(c) When a disclosure is made under paragraph (a) of this section:

(1) If a parent or eligible student so requests, the educational agency or institution shall provide him or her with a copy of the records disclosed; and

(2) If the parent of a student who is not an eligible student so requests, the agency or institution shall provide the student with a copy of the records disclosed.

(d) "Signed and dated written consent" under this part may include a record and signature in electronic form that-

(1) Identifies and authenticates a particular person as the source of the electronic consent; and

(2) Indicates such person's approval of the information contained in the electronic consent.

(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 2004]

§99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:

(1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party-

( 1) Performs an institutional service or function for which the agency or institution would otherwise use employees;

( 2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and

( 3) Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records.

(ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section.

(2) The disclosure is, subject to the requirements of §99.34, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer.

Note: Section 4155(b) of the No Child Left Behind Act of 2001, 20 U.S.C. 7165(b), requires each State to assure the Secretary of Education that it has a procedure in place to facilitate the transfer of disciplinary records with respect to a suspension or expulsion of a student by a local educational agency to any private or public elementary or secondary school in which the student is subsequently enrolled or seeks, intends, or is instructed to enroll.

(3) The disclosure is, subject to the requirements of §99.35, to authorized representatives of-

(i) The Comptroller General of the United States;

(ii) The Attorney General of the United States;

(iii) The Secretary; or

(iv) State and local educational authorities.

(4)(i) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to:

(A) Determine eligibility for the aid;

(B) Determine the amount of the aid;

(C) Determine the conditions for the aid; or

(D) Enforce the terms and conditions of the aid.

(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided to an individual (or a payment in kind of tangible or intangible property to the individual) that is conditioned on the individual's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(1)(D))

(5)(i) The disclosure is to State and local officials or authorities to whom this information is specifically-

(A) Allowed to be reported or disclosed pursuant to State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released; or

(B) Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38.

(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or type of State or local officials to whom disclosures may be made under that paragraph.

(6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(C) Improve instruction.

(ii) Nothing in the Act or this part prevents a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section from entering into agreements with organizations conducting studies under paragraph (a)(6)(i) of this section and redisclosing personally identifiable information from education records on behalf of educational agencies and institutions that disclosed the information to the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section in accordance with the requirements of §99.33(b).

(iii) An educational agency or institution may disclose personally identifiable information under paragraph (a)(6)(i) of this section, and a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section may redisclose personally identifiable information under paragraph (a)(6)(i) and (a)(6)(ii) of this section, only if-

(A) The study is conducted in a manner that does not permit personal identification of parents and students by individuals other than representatives of the organization that have legitimate interests in the information;

(B) The information is destroyed when no longer needed for the purposes for which the study was conducted; and

(C) The educational agency or institution or the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section enters into a written agreement with the organization that-

( 1) Specifies the purpose, scope, and duration of the study or studies and the information to be disclosed;

( 2) Requires the organization to use personally identifiable information from education records only to meet the purpose or purposes of the study as stated in the written agreement;

( 3) Requires the organization to conduct the study in a manner that does not permit personal identification of parents and students, as defined in this part, by anyone other than representatives of the organization with legitimate interests;

and

( 4) Requires the organization to destroy all personally identifiable information when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destroyed.

(iv) An educational agency or institution or State or local educational authority or Federal agency headed by an official listed in paragraph (a)(3) of this section is not required to initiate a study or agree with or endorse the conclusions or results of the study.

(v) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not limited to, Federal, State, and local agencies, and independent organizations.

(7) The disclosure is to accrediting organizations to carry out their accrediting functions.

(8) The disclosure is to parents, as defined in §99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986.

(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.

(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action, unless the disclosure is in compliance with-

(A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;

(B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or

(C) An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.

(iii)(A) If an educational agency or institution initiates legal action against a parent or student, the educational agency or institution may disclose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff.

(B) If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student's education records that are relevant for the educational agency or institution to defend itself.

(10) The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36.

(11) The disclosure is information the educational agency or institution has designated as "directory information", under the conditions described in §99.37.

(12) The disclosure is to the parent of a student who is not an eligible student or to the student.

(13) The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.

(14)(i) The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. The institution must not disclose the final results of the disciplinary proceeding unless it determines that-

(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and

(B) With respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.

(ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.

(iii) This section applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998.

(15)(i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student's violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if-

(A) The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and

(B) The student is under the age of 21 at the time of the disclosure to the parent.

(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an institution of postsecondary education from disclosing information.

(16) The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educational agency or institution under 42 U.S.C. 14071 and applicable Federal guidelines.

(b)(1) De-identified records and information. An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by §99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.

(2) An educational agency or institution, or a party that has received education records or information from education records under this part, may release de-identified student level data from education records for the purpose of education research by attaching a code to each record that may allow the recipient to match information received from the same source, provided that-

(i) An educational agency or institution or other party that releases de-identified data under paragraph (b)(2) of this section does not disclose any information about how it generates and assigns a record code, or that would allow a recipient to identify a student based on a record code;

(ii) The record code is used for no purpose other than identifying a de-identified record for purposes of education research and cannot be used to ascertain personally identifiable information about a student; and

(iii) The record code is not based on a student's social security number or other personal information.

(c) An educational agency or institution must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the agency or institution discloses personally identifiable information from education records.

(d) Paragraphs (a) and (b) of this section do not require an educational agency or institution or any other party to disclose education records or information from education records to any party except for parties under paragraph (a)(12) of this section.

(Authority: 20 U.S.C. 1232g(a)(5)(A), (b), (h), (i), and (j)).

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 61 FR 59296, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008; 74 FR 401, Jan. 6, 2009; 76 FR 75641, Dec. 2, 2011]

§99.32 What recordkeeping requirements exist concerning requests and disclosures?

(a)(1) An educational agency or institution must maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student, as well as the names of State and local educational authorities and Federal officials and agencies listed in §99.31(a)(3) that may make further disclosures of personally identifiable information from the student's education records without consent under §99.33(b).

(2) The agency or institution shall maintain the record with the education records of the student as long as the records are maintained.

(3) For each request or disclosure the record must include:

(i) The parties who have requested or received personally identifiable information from the education records; and

(ii) The legitimate interests the parties had in requesting or obtaining the information.

(4) An educational agency or institution must obtain a copy of the record of further disclosures maintained under paragraph (b)(2) of this section and make it available in response to a parent's or eligible student's request to review the record required under paragraph (a)(1) of this section.

(5) An educational agency or institution must record the following information when it discloses personally identifiable information from education records under the health or safety emergency exception in §99.31(a)(10) and §99.36:

(i) The articulable and significant threat to the health or safety of a student or other individuals that formed the basis for the disclosure; and

(ii) The parties to whom the agency or institution disclosed the information.

(b)(1) Except as provided in paragraph (b)(2) of this section, if an educational agency or institution discloses personally identifiable information from education records with the understanding authorized under §99.33(b), the record of the disclosure required under this section must include:

(i) The names of the additional parties to which the receiving party may disclose the information on behalf of the educational agency or institution; and

(ii) The legitimate interests under §99.31 which each of the additional parties has in requesting or obtaining the information.

(2)(i) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) that makes further disclosures of information from education records under §99.33(b) must record the names of the additional parties to which it discloses information on behalf of an educational agency or institution and their legitimate interests in the information under §99.31 if the information was received from:

(A) An educational agency or institution that has not recorded the further disclosures under paragraph (b)(1) of this section; or

(B) Another State or local educational authority or Federal official or agency listed in §99.31(a)(3).

(ii) A State or local educational authority or Federal official or agency that records further disclosures of information under paragraph (b)(2)(i) of this section may maintain the record by the student's class, school, district, or other appropriate grouping rather than by the name of the student.

(iii) Upon request of an educational agency or institution, a State or local educational authority or Federal official or agency listed in §99.31(a)(3) that maintains a record of further disclosures under paragraph (b)(2)(i) of this section must provide a copy of the record of further disclosures to the educational agency or institution within a reasonable period of time not to exceed 30 days.

(c) The following parties may inspect the record relating to each student:

(1) The parent or eligible student.

(2) The school official or his or her assistants who are responsible for the custody of the records.

(3) Those parties authorized in §99.31(a) (1) and (3) for the purposes of auditing the recordkeeping procedures of the educational agency or institution.

(d) Paragraph (a) of this section does not apply if the request was from, or the disclosure was to:

(1) The parent or eligible student;

(2) A school official under §99.31(a)(1);

(3) A party with written consent from the parent or eligible student;

(4) A party seeking directory information; or

(5) A party seeking or receiving records in accordance with §99.31(a)(9)(ii)(A) through (C).

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74853, Dec. 9, 2008]

§99.33 What limitations apply to the redisclosure of information?

(a)(1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student.

(2) The officers, employees, and agents of a party that receives information under paragraph (a)(1) of this section may use the information, but only for the purposes for which the disclosure was made.

(b)(1) Paragraph (a) of this section does not prevent an educational agency or institution from disclosing personally identifiable information with the understanding that the party receiving the information may make further disclosures of the information on behalf of the educational agency or institution if-

(i) The disclosures meet the requirements of §99.31; and

(ii)(A) The educational agency or institution has complied with the requirements of §99.32(b); or

(B) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) has complied with the requirements of §99.32(b)(2).

(2) A party that receives a court order or lawfully issued subpoena and rediscloses personally identifiable information from education records on behalf of an educational agency or institution in response to that order or subpoena under §99.31(a)(9) must provide the notification required under §99.31(a)(9)(ii).

(c) Paragraph (a) of this section does not apply to disclosures under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f) (Clery Act), to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(d) An educational agency or institution must inform a party to whom disclosure is made of the requirements of paragraph (a) of this section except for disclosures made under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Clery Act to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(Authority: 20 U.S.C. 1232g(b)(4)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74853, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?

(a) An educational agency or institution that discloses an education record under §99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless:

(i) The disclosure is initiated by the parent or eligible student; or

(ii) The annual notification of the agency or institution under §99.7 includes a notice that the agency or institution forwards education records to other agencies or institutions that have requested the records and in which the student seeks or intends to enroll or is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer;

(2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and

(3) Give the parent or eligible student, upon request, an opportunity for a hearing under subpart C.

(b) An educational agency or institution may disclose an education record of a student in attendance to another educational agency or institution if:

(1) The student is enrolled in or receives services from the other agency or institution; and

(2) The disclosure meets the requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1232g(b)(1)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.35 What conditions apply to disclosure of information for Federal or State program purposes?

(a)(1) Authorized representatives of the officials or agencies headed by officials listed in §99.31(a)(3) may have access to education records in connection with an audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs.

(2) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) is responsible for using reasonable methods to ensure to the greatest extent practicable that any entity or individual designated as its authorized representative-

(i) Uses personally identifiable information only to carry out an audit or evaluation of Federal- or State-supported education programs, or for the enforcement of or compliance with Federal legal requirements related to these programs;

(ii) Protects the personally identifiable information from further disclosures or other uses, except as authorized in paragraph (b)(1) of this section; and

(iii) Destroys the personally identifiable information in accordance with the requirements of paragraphs (b) and (c) of this section.

(3) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) must use a written agreement to designate any authorized representative, other than an employee. The written agreement must-

(i) Designate the individual or entity as an authorized representative;

(ii) Specify-

(A) The personally identifiable information from education records to be disclosed;

(B) That the purpose for which the personally identifiable information from education records is disclosed to the authorized representative is to carry out an audit or evaluation of Federal- or State-supported education programs, or to enforce or to comply with Federal legal requirements that relate to those programs; and

(C) A description of the activity with sufficient specificity to make clear that the work falls within the exception of §99.31(a)(3), including a description of how the personally identifiable information from education records will be used;

(iii) Require the authorized representative to destroy personally identifiable information from education records when the information is no longer needed for the purpose specified;

(iv) Specify the time period in which the information must be destroyed; and

(v) Establish policies and procedures, consistent with the Act and other Federal and State confidentiality and privacy provisions, to protect personally identifiable information from education records from further disclosure (except back to the disclosing entity) and unauthorized use, including limiting use of personally identifiable information from education records to only authorized representatives with legitimate interests in the audit or evaluation of a Federal- or State-supported education program or for compliance or enforcement of Federal legal requirements related to these programs.

(b) Information that is collected under paragraph (a) of this section must-

(1) Be protected in a manner that does not permit personal identification of individuals by anyone other than the State or local educational authority or agency headed by an official listed in §99.31(a)(3) and their authorized representatives, except that the State or local educational authority or agency headed by an official listed in §99.31(a)(3) may make further disclosures of personally identifiable information from education records on behalf of the educational agency or institution in accordance with the requirements of §99.33(b); and

(2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of this section.

(c) Paragraph (b) of this section does not apply if:

(1) The parent or eligible student has given written consent for the disclosure under §99.30; or

(2) The collection of personally identifiable information is specifically authorized by Federal law.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.36 What conditions apply to disclosure of information in health and safety emergencies?

(a) An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

(b) Nothing in this Act or this part shall prevent an educational agency or institution from-

(1) Including in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community;

(2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials within the agency or institution who the agency or institution has determined have legitimate educational interests in the behavior of the student; or

(3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.

(c) In making a determination under paragraph (a) of this section, an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.37 What conditions apply to disclosing directory information?

(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:

(1) The types of personally identifiable information that the agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and

(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.

(b) An educational agency or institution may disclose directory information about former students without complying with the notice and opt out conditions in paragraph (a) of this section. However, the agency or institution must continue to honor any valid request to opt out of the disclosure of directory information made while a student was in attendance unless the student rescinds the opt out request.

(c) A parent or eligible student may not use the right under paragraph (a)(2) of this section to opt out of directory information disclosures to-

(1) Prevent an educational agency or institution from disclosing or requiring a student to disclose the student's name, identifier, or institutional email address in a class in which the student is enrolled; or

(2) Prevent an educational agency or institution from requiring a student to wear, to display publicly, or to disclose a student ID card or badge that exhibits information that may be designated as directory information under §99.3 and that has been properly designated by the educational agency or institution as directory information in the public notice provided under paragraph (a)(1) of this section.

(d) In its public notice to parents and eligible students in attendance at the agency or institution that is described in paragraph (a) of this section, an educational agency or institution may specify that disclosure of directory information will be limited to specific parties, for specific purposes, or both. When an educational agency or institution specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, the educational agency or institution must limit its directory information disclosures to those specified in its public notice that is described in paragraph (a) of this section.

(e) An educational agency or institution may not disclose or confirm directory information without meeting the written consent requirements in §99.30 if a student's social security number or other non-directory information is used alone or combined with other data elements to identify or help identify the student or the student's records.

(Authority: 20 U.S.C. 1232g(a)(5) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?

(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B).

(b) The officials and authorities to whom the records are disclosed shall certify in writing to the educational agency or institution that the information will not be disclosed to any other party, except as provided under State law, without the prior written consent of the parent of the student.

(Authority: 20 U.S.C. 1232g(b)(1)(J))

[61 FR 59297, Nov. 21, 1996]

§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that would, if proven, constitute any of the following offenses or attempts to commit the following offenses that are defined in appendix A to this part:

Arson

Assault offenses

Burglary

Criminal homicide-manslaughter by negligence

Criminal homicide-murder and nonnegligent manslaughter

Destruction/damage/vandalism of property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed acts that, if proven, would constitute statutory rape or incest. These offenses are defined in appendix A to this part.

Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.

Sanction imposed means a description of the disciplinary action taken by the institution, the date of its imposition, and its duration.

Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution's conclusion that the violation was committed.

(Authority: 20 U.S.C. 1232g(b)(6))

[65 FR 41853, July 6, 2000]

Subpart E-What Are the Enforcement Procedures?

§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?

(a) For the purposes of this subpart, Office means the Office of the Chief Privacy Officer, U.S. Department of Education.

(b) The Secretary designates the Office to:

(1) Investigate, process, and review complaints and violations under the Act and this part; and

(2) Provide technical assistance to ensure compliance with the Act and this part.

(c) The Secretary designates the Office of Administrative Law Judges to act as the Review Board required under the Act to enforce the Act with respect to all applicable programs. The term applicable program is defined in section 400 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g (f) and (g), 1234)

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 82 FR 6253, Jan. 19, 2017]

§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it must notify the Office within 45 days, giving the text and citation of the conflicting law. If another recipient of Department funds under any program administered by the Secretary or a third party to which personally identifiable information from education records has been non-consensually disclosed determines that it cannot comply with the Act or this part due to a conflict with State or local law, it also must notify the Office within 45 days, giving the text and citation of the conflicting law.

(Authority: 20 U.S.C. 1232g(f))

[76 FR 75642, Dec. 2, 2011]

§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?

The Office may require an educational agency or institution, other recipient of Department funds under any program administered by the Secretary to which personally identifiable information from education records is non-consensually disclosed, or any third party outside of an educational agency or institution to which personally identifiable information from education records is non-consensually disclosed to submit reports, information on policies and procedures, annual notifications, training materials, or other information necessary to carry out the Office's enforcement responsibilities under the Act or this part.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.63 Where are complaints filed?

A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part. The Office's address is: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202.

(Authority: 20 U.S.C. 1232g(g))

[65 FR 41854, July 6, 2000, as amended at 73 FR 74854, Dec. 9, 2008]

§99.64 What is the investigation procedure?

(a) A complaint must contain specific allegations of fact giving reasonable cause to believe that a violation of the Act or this part has occurred. A complaint does not have to allege that a violation is based on a policy or practice of the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or any third party outside of an educational agency or institution.

(b) The Office investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part. If the Office determines that an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part, it may also determine whether the failure to comply is based on a policy or practice of the agency or institution or other recipient. The Office also investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether a third party outside of the educational agency or institution has failed to comply with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

(c) A timely complaint is defined as an allegation of a violation of the Act that is submitted to the Office within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation.

(d) The Office may extend the time limit in this section for good cause shown.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 65 FR 41854, July 6, 2000; 73 FR 74854, Dec. 9, 2008; 76 FR 75643, Dec. 2, 2011]

§99.65 What is the content of the notice of investigation issued by the Office?

(a) The Office notifies in writing the complainant, if any, and the educational agency or institution, the recipient of Department funds under any program administered by the Secretary, or the third party outside of an educational agency or institution if it initiates an investigation under §99.64(b). The written notice-

(1) Includes the substance of the allegations against the educational agency or institution, other recipient, or third party; and

(2) Directs the agency or institution, other recipient, or third party to submit a written response and other relevant information, as set forth in §99.62, within a specified period of time, including information about its policies and practices regarding education records.

(b) The Office notifies the complainant if it does not initiate an investigation because the complaint fails to meet the requirements of §99.64.

(Authority: 20 U.S.C. 1232g(g))

[73 FR 74855, Dec. 9, 2008, as amended at 76 FR 75643, Dec. 2, 2011]

§99.66 What are the responsibilities of the Office in the enforcement process?

(a) The Office reviews a complaint, if any, information submitted by the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or third party outside of an educational agency or institution, and any other relevant information. The Office may permit the parties to submit further written or oral arguments or information.

(b) Following its investigation, the Office provides to the complainant, if any, and the educational agency or institution, other recipient, or third party a written notice of its findings and the basis for its findings.

(c) If the Office finds that an educational agency or institution or other recipient has not complied with a provision of the Act or this part, it may also find that the failure to comply was based on a policy or practice of the agency or institution or other recipient. A notice of findings issued under paragraph (b) of this section to an educational agency or institution, or other recipient that has not complied with a provision of the Act or this part-

(1) Includes a statement of the specific steps that the agency or institution or other recipient must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the educational agency or institution or other recipient may comply voluntarily.

(d) If the Office finds that a third party outside of an educational agency or institution has not complied with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33, the Office's notice of findings issued under paragraph (b) of this section-

(1) Includes a statement of the specific steps that the third party outside of the educational agency or institution must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the third party may comply voluntarily.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.67 How does the Secretary enforce decisions?

(a) If an educational agency or institution or other recipient of Department funds under any program administered by the Secretary does not comply during the period of time set under §99.66(c), the Secretary may take any legally available enforcement action in accordance with the Act, including, but not limited to, the following enforcement actions available in accordance with part D of the General Education Provisions Act-

(1) Withhold further payments under any applicable program;

(2) Issue a complaint to compel compliance through a cease and desist order; or

(3) Terminate eligibility to receive funding under any applicable program.

(b) If, after an investigation under §99.66, the Secretary finds that an educational agency or institution, other recipient, or third party has complied voluntarily with the Act or this part, the Secretary provides the complainant and the agency or institution, other recipient, or third party with written notice of the decision and the basis for the decision.

(c) If the Office finds that a third party, outside the educational agency or institution, violates §99.31(a)(6)(iii)(B), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation of §99.31(a)(6)(iii)(B) access to personally identifiable information from education records for at least five years.

(d) If the Office finds that a State or local educational authority, a Federal agency headed by an official listed in §99.31(a)(3), or an authorized representative of a State or local educational authority or a Federal agency headed by an official listed in §99.31(a)(3), improperly rediscloses personally identifiable information from education records, then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the improper redisclosure access to personally identifiable information from education records for at least five years.

(e) If the Office finds that a third party, outside the educational agency or institution, improperly rediscloses personally identifiable information from education records in violation of §99.33 or fails to provide the notification required under §99.33(b)(2), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation access to personally identifiable information from education records for at least five years.

(Authority: 20 U.S.C. 1232g(b)(4)(B) and (f); 20 U.S.C. 1234c)

[76 FR 75643, Dec. 2, 2011]

Appendix A to Part 99-Crimes of Violence Definitions

Arson

Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.

Assault Offenses

An unlawful attack by one person upon another.

Note: By definition there can be no "attempted" assaults, only "completed" assaults.

(a) Aggravated Assault. An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious injury if the crime were successfully completed.)

(b) Simple Assault. An unlawful physical attack by one person upon another where neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury involving apparent broken bones, loss of teeth, possible internal injury, severe laceration, or loss of consciousness.

(c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm through the use of threatening words or other conduct, or both, but without displaying a weapon or subjecting the victim to actual physical attack.

Note: This offense includes stalking.

Burglary

The unlawful entry into a building or other structure with the intent to commit a felony or a theft.

Criminal Homicide-Manslaughter by Negligence

The killing of another person through gross negligence.

Criminal Homicide-Murder and Nonnegligent Manslaughter

The willful (nonnegligent) killing of one human being by another.

Destruction/Damage/Vandalism of Property

To willfully or maliciously destroy, damage, deface, or otherwise injure real or personal property without the consent of the owner or the person having custody or control of it.

Kidnapping/Abduction

The unlawful seizure, transportation, or detention of a person, or any combination of these actions, against his or her will, or of a minor without the consent of his or her custodial parent(s) or legal guardian.

Note: Kidnapping/Abduction includes hostage taking.

Robbery

The taking of, or attempting to take, anything of value under confrontational circumstances from the control, custody, or care of a person or persons by force or threat of force or violence or by putting the victim in fear.

Note: Carjackings are robbery offenses where a motor vehicle is taken through force or threat of force.

Sex Offenses, Forcible

Any sexual act directed against another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent.

(a) Forcible Rape (Except "Statutory Rape"). The carnal knowledge of a person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her temporary or permanent mental or physical incapacity (or because of his or her youth).

(b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

(c) Sexual Assault With An Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: An "object" or "instrument" is anything used by the offender other than the offender's genitalia. Examples are a finger, bottle, handgun, stick, etc.

(d) Forcible Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: Forcible Fondling includes "Indecent Liberties" and "Child Molesting."

Nonforcible Sex Offenses (Except "Prostitution Offenses")

Unlawful, nonforcible sexual intercourse.

(a) Incest. Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

(b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent.

(Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16)

[65 FR 41854, July 6, 2000]

# data[].attributes.attachment_link.description
Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

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Writing and Other Classes Should Receive Exceptions from Title IX Mandatory-Reporting Requirements

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Writing and Other Classes Should Receive Exceptions from Title IX Mandatory-Reporting Requirements

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Citation: Retief, G. (2017, December 19). Writing and other classes should receive exceptions from Title IX mandatory-reporting requirements. Inside Higher Ed. https://www.insidehighered.com/views/2017/12/19/writing-and-other-classes-should-receive-exceptions-title-ix-mandatory-reporting

Summary:

The author argues that certain classes, such as writing courses, should be exempt from mandatory reporting requirements to foster open dialogue and personal reflection. Mandatory reporting in all contexts may hinder educational experiences where students explore sensitive topics, potentially stifling important conversations. The piece discusses the challenge of balancing the legal obligations of mandatory reporting with the educational goal of creating a safe space for student expression.

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Inside Higher Ed | Higher Education News, Events and Jobs

# data[].attributes.attachment_link.title
Writing and other classes should receive exceptions from Title IX mandatory-reporting requirements (opinion)

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Title IX reforms offer fresh chances for students to reflect on sexual assault, writes Glen Retief, if more exceptions can be made to mandatory-reporting requirements.

# data[].attributes.headline
"Title IX Mandatory Reporting Expansion Under Fire"

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"Title IX Mandatory Reporting Expansion Under Fire"

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Citation: Knott, K. (2022, September 27). Title IX mandatory reporting expansion under fire. Inside Higher Ed. https://www.insidehighered.com/news/2022/09/27/title-ix-mandatory-reporting-expansion-criticized

Summary:

The U.S. Department of Education proposed regulations requiring most campus employees to report potential sex discrimination cases to Title IX coordinators. Faculty members, advocacy groups, and students expressed concerns that such expansive mandatory reporting could deter survivors from seeking help and compromise confidentiality.

Impact on Confidentiality: The article highlights the tension between ensuring campus safety through mandatory reporting and maintaining the trust and confidentiality that encourage individuals to come forward.

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Inside Higher Ed | Higher Education News, Events and Jobs

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Title IX mandatory reporting expansion criticized

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The Education Department wants to change who on college campuses must tell the Title IX coordinator about reports of sexual misconduct. Advocates say the change is ill-advised.

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Humble ISD Child Abuse and Neglect Reporting Policy

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Humble ISD Child Abuse and Neglect Reporting Policy

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Policy: Humble ISD Child Abuse and Neglect Reporting Policy

Citation: Humble Independent School District. (2024). Humble ISD Employee Handbook 2024-2025, p. 60.

Source of Law: Administrative Law

Link to Policy: Humble ISD Employee Handbook 2024-2025:

https://core-docs.s3.us-east-.amazonaws.com/documents/asset/uploaded_file/3592/HumbleISD/3089148/

Humble_ISD_HB_Final_2024.25.pdf

Brief Summary:

On page 60, the Humble ISD Employee Handbook outlines the district's expectations for reporting suspected child abuse or neglect. Employees must report to Child Protective Services or local law enforcement within 48 hours of suspecting abuse, as mandated by Texas Family Code §261.001. The policy assures legal protections for individuals who report in good faith and highlights the importance of confidentiality while fulfilling reporting obligations. Training is provided to all employees to recognize abuse and follow reporting procedures effectively.

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Law: Texas Education Code § 38.004

Citation: Texas Education Code § 38.004 (2023).

Source of Law: Statutory Law

Link to Full Text: https://statutes.capitol.texas.gov/Docs/ED/htm/ED.38.htm

Brief Summary:

This section requires Texas schools to implement policies to prevent and address child abuse, including mandatory training for staff. It ensures school personnel understand their responsibility to identify and report suspected abuse, balancing the ethical duty of confidentiality with the legal duty to report.

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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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Law: Texas Family Code § 261.101

Citation: Texas Family Code § 261.101 (2023).

Source of Law: Statutory Law

Link to Full Text:

https://statutes.capitol.texas.gov/docs/fa/htm/fa.261.htm#:~:text=261.101.,as%20provided%20by%20this%20subchapter.

Brief Summary:

This section mandates that any individual with knowledge of suspected child abuse or neglect must report it immediately. Professionals, such as school counselors, have a higher standard to report within 48 hours of learning about the incident. The law emphasizes mandatory reporting to Child Protective Services (CPS) and protects individuals making reports in good faith from civil or criminal liability.

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FAMILY CODE CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT

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American School Counselor Association. (2016). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

Summary:

The ASCA Ethical Standards for School Counselors outlines the ethical responsibilities of school counselors, including the balance between confidentiality and mandated reporting. It provides a framework for counselors to navigate complex ethical dilemmas, ensuring they protect students' rights while adhering to legal requirements. This resource is critical for understanding the professional guidelines that inform counselors' decision-making processes, especially when confidentiality is in question due to safety concerns or legal mandates.

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(Adopted 1984; revised 1992, 1998, 2004, 2010, 2016, 2022)

Preamble

The American School Counselor Association (ASCA) is a professional organization supporting school counselors, school counseling students/interns, school counseling program directors/supervisors and school counselor educators. These standards are the ethical responsibility of all school counseling professionals.

School counselors have unique qualifications and skills to implement a comprehensive school counseling program that addresses pre-K-12 students' academic, career and social/emotional development needs. School counselors are leaders, advocates, collaborators and consultants who create systemic change to ensure equitable educational outcomes through the school counseling program. School counselors demonstrate the belief that all students have the ability to learn by advocating for and contributing to an education system that provides optimal learning environments for all students.

All students have the right to:

Be respected and treated with dignity.

A physically and emotionally safe, inclusive and healthy school environment, both in-person and through digital platforms, free from abuse, bullying, harassment, discrimination and any other forms of violence.

Equitable access to a school counseling program that promotes academic, career and social/emotional development and improves student outcomes for all students, including students historically and currently marginalized by the education system.

Equitable access to school counselors who support students from all backgrounds and circumstances and who advocate for and affirm all students regardless of but not limited to ethnic/racial identity; nationality; age; social class; economic status; abilities/disabilities; language; immigration status; sexual orientation; gender identity; gender expression; family type; religious/spiritual identity; and living situations, including emancipated minor status, wards of the state, homelessness or incarceration.

Information and support needed to enhance self-development and affirmation within one's group identities.

Critical, timely information, beginning with pre-K through grade 12, on how college/university, career and technical school, military, workforce and other postsecondary options can have an impact on their educational choices and future opportunities.

Privacy that is honored to the greatest extent possible, which at times may be limited by school counselors' balance of other competing interests (e.g., best interests of students, the safety of others, parental rights) and adherence to laws, policies and ethical standards pertaining to confidentiality and disclosure in the school setting.

Purpose

In this document, ASCA specifies the obligation to the principles of ethical behavior necessary to maintain the highest standards of integrity, leadership and professionalism. The ASCA Ethical Standards for School Counselors were developed in collaboration with school counselors, state school counselor associations, school counseling district and state leaders, and school counselor educators across the nation to clarify the profession's norms, values and beliefs.

The purpose of this document is to:

Serve as a guide for the ethical practices of all individuals serving in a school counseling capacity, including school counselors, school counseling students/interns, supervisors/directors of school counseling programs and school counselor educators regardless of grade level, geographic area, population served or ASCA membership.

Provide support and direction for self-assessment, peer consultation and performance appraisal regarding school counselors' responsibilities to students, parents/guardians, colleagues and professional associates, school district and employees, communities and the school counseling profession.

Inform all educational stakeholders, including but not limited to students, parents/guardians, teachers/staff, administrators, community members, legal professionals and courts of justice, regarding the ethical practices, values and expected behaviors of the school counseling professional.

A. RESPONSIBILITY TO STUDENTS A.1. Supporting Student Development
School counselors:

Have a primary obligation to the students, who are to be treated with dignity and respect as unique individuals.

Foster and affirm all students and their identity and psychosocial development.

Support all students and their development by actively working to eliminate systemic barriers or bias impeding student development.

Provide culturally responsive instruction and appraisal and advisement to students.

Provide culturally responsive counseling to students in a brief context and support students and families/guardians in obtaining outside services if students need long-term clinical/mental health counseling. image ASCA Ethical Standards for School Counselors

Do not diagnose but recognize how a student's diagnosis and environment can potentially affect the student's access, participation and ability to achieve academic, postsecondary and social/emotional success.

Acknowledge the vital role and rights of parents/guardians, families and tribal communities.

Respect students' and families' values, beliefs and cultural background, as well as students' sexual orientation, gender identity and gender expression, and exercise great care to avoid imposing personal biases, beliefs or values rooted in one's religion, culture or ethnicity.

Are knowledgeable of local, state and federal laws, as well as school and district policies and procedures affecting students and families and strive to protect and inform students and families regarding their rights.

Advocate for equitable, anti-oppressive and anti-bias policies and procedures, systems and practices, and provide effective, evidence-based and culturally sustaining interventions to address student needs.

Involve diverse networks of support, including but not limited to educational teams, community and tribal agencies and partners, wraparound services and vocational rehabilitation services as needed to best serve students.

Maintain appropriate boundaries and are aware that any sexual or romantic relationship with students (whether legal or illegal in the state of employment) is a grievous breach of ethics and is prohibited regardless of a student's age or consent. This prohibition applies to both in-person and electronic interactions and relationships.

A. 2. Confidentiality
School counselors:

Promote awareness of school counselors' ethical standards and legal mandates regarding confidentiality and the appropriate rationale and procedures for disclosure of student data and information to school staff.

Inform students of the purposes, goals, techniques, rules and procedures under which they may receive counseling. Disclosure includes informed consent and clarification of the limits of confidentiality.

Recognize that informed consent requires competence, voluntariness and knowledge on students' part to understand the limits of confidentiality and, therefore, can be difficult to obtain from students of certain developmental levels and special-needs populations. The school counselor should make attempts to gain assent appropriate to the individual student (e.g., in the student's preferred language) prior to disclosure.

Are aware that even though attempts are made to obtain informed consent, it is not always possible. When needed, school counselors make decisions on students' behalf that promote students' welfare.

Explain the limits of confidentiality in developmentally appropriate terms through multiple methods, such as student handbooks; classroom lessons; verbal notification to individual students; and school counseling department websites, brochures and social media accounts.

Keep information confidential unless legal requirements demand confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student or others. Serious and foreseeable harm is different for each minor in schools and is determined by a student's developmental and chronological age, the setting, parental/guardian rights and the nature of the harm. School counselors consult with appropriate professionals when in doubt as to the validity of an exception.

Recognize their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of parents'/guardians' legal and inherent rights to be the guiding voice in their children's lives. School counselors understand the need to balance students' ethical rights to make choices, their capacity to give consent or assent, and parental or familial legal rights and responsibilities to make decisions on their child's behalf.

Collaborate with and involve students to the extent possible and use the most appropriate and least intrusive method to breach confidentiality if such action is warranted. The child's developmental age and the circumstances requiring the breach are considered and, as appropriate, students are engaged in a discussion about the method and timing of the breach. Consultation with professional peers and/or supervision is recommended.

Request of the court that disclosure not be required when the school counselor's testimony or case notes are subpoenaed if the release of confidential information may potentially harm a student or the counseling relationship.

Protect the confidentiality of students' records and release of personal data in accordance with prescribed federal and state laws and district and school policies.

Recognize the vulnerability of confidentiality in electronic communications and only transmit student information electronically in a way that follows currently accepted security standards and meets federal, state and local laws and school board policy.

Convey a student's highly sensitive information (e.g., a student's suicidal ideation) through personal contact such as a phone call or visit and not less-secure means such as a notation in the educational record or an email. Adhere to federal, state and local laws and school board policy when conveying sensitive information.

Advocate for appropriate safeguards and protocols so highly sensitive student information is not disclosed accidentally to individuals who do not have a need to know such information. Best practice suggests a very limited number of educators would have access to highly sensitive information on a need-to-know basis.

Advocate with appropriate school officials for acceptable encryption standards to be utilized for stored data and currently acceptable algorithms to be utilized for data in transit.

Avoid using software programs without the technological capabilities to protect student information based upon legal specifications and currently acceptable security standards.

Advocate for physical and virtual workspaces that are arranged to protect the confidentiality of students' communications and records.

A. 3. Comprehensive School Counseling Program
School counselors:

Provide students with a culturally responsive school counseling program that promotes academic, career and social/emotional development and equitable opportunity and achievement outcomes for all students.

Collaborate with administration, teachers, staff and stakeholders for equitable school improvement goals.

Use data-collection tools adhering to standards of confidentiality as expressed in A.2.

Review and use school and student data to assess and address needs, including but not limited to data on strengths and disparities that may exist related to gender, race, ethnicity, socioeconomic status, disability and/or other relevant classifications.

Deliver research-based interventions to help close achievement, attainment, information, attendance, discipline, resource and opportunity gaps.

Collect and analyze participation, ASCA Mindsets & Behaviors and outcome data to determine the progress and effectiveness of the school counseling program.

Share data outcomes with stakeholders.

A.4. Academic, Career and Social/Emotional Planning
School counselors:

Collaborate with a community of stakeholders to create a culture of postsecondary readiness.

Provide and advocate for all students' pre-K-postsecondary career awareness, exploration, and postsecondary planning and decision-making to support students' right to choose from the wide array of career and postsecondary options, including but not limited to college/university, career and technical school, military or workforce.

Identify and examine gaps in college and career access and address both intentional and unintentional biases in postsecondary and career counseling.

Provide opportunities for all students to develop a positive attitude toward learning, effective learning strategies, self-management and social skills and an understanding that lifelong learning is part of long-term career success.

Address their personal biases related to students' postsecondary choices.

Address any inequitable systemic policies and practices related to students' postsecondary choices.

A. 5. Sustaining Healthy Relationships and Managing Boundaries
School counselors:

Engage in professional roles and relationships with students and stakeholders that foster wellness and student success.

Recognize that establishing credibility, rapport and an effective working alliance with some students and stakeholders may be facilitated by developing relationships that extend beyond the school day and building (e.g., attending community events, advocating for community improvement for and with students and stakeholders, joining community enhancement organizations).

Assess potential risks and benefits prior to extending relationships beyond the school building and school hours (e.g., attending students off-site extracurricular activities, celebrations honoring students, hospital visits, funerals).

Document the nature of relationship extensions, including the rationale, potential benefit and possible consequences for the student and school counselor.

Act to eliminate and/or reduce the potential for harm to students and stakeholders in any relationships or interactions by using safeguards, such as informed consent, consultation, supervision and documentation.

Prevent potential harm to students and stakeholders with whom the school counselor's judgment may be compromised (e.g., family members, children of close friends) by helping facilitate the provision of alternative services or resources when available.

Adhere to legal, ethical, district and school policies and guidelines regarding relationships with students and stakeholders.

Refrain from the use of personal social media, text and email accounts to interact with students unless sanctioned by the school district. Adhere to legal, ethical, district and school policies and guidelines when using technology with students and stakeholders.

Avoid inappropriate roles and relationships such as providing direct discipline, teaching courses that involve grading students and accepting administrative duties in the absence of an administrator.

Strive to avoid a conflict of interest through self-promotion that would benefit the school counselor personally and/or financially (e.g., advertising their products and/or services).

A. 6. Appropriate Collaboration, Advocacy and Referrals for Counseling
School counselors:

Collaborate with all relevant stakeholders, including students, school faculty/staff and parents/guardians, when students need assistance, including when early warning signs of student distress are identified.

Provide a list of outside agencies and resources in their community, or the closest available, to students and parents/guardians when students need or request additional support. School counselors provide multiple referral options or the district-vetted list of referrals options and are careful not to indicate an endorsement or preference for one individual or practice. School counselors encourage parents/guardians to research outside professionals' skills/experience to inform their personal decision regarding the best source of assistance for their student.

Connect students with services provided through the local school district and community agencies and remain aware of state laws and local district policies related to students with special needs, including limits to confidentiality and notification to authorities as appropriate.

Develop a plan for the transitioning of primary counseling services with minimal interruption of services. Students retain the right for the referred services to be conducted in coordination with the school counselor or to discontinue counseling services with the school counselor while maintaining an appropriate relationship that may include participation in other school support services.

Refrain from referring students based solely on the school counselor's personal beliefs or values rooted in one's religion, culture, ethnicity or personal worldview. School counselors maintain the highest respect for student cultural identities and worldviews. School counselors pursue additional training and supervision when their values are discriminatory in nature (e.g., sexual orientation, gender identity, gender expression, reproductive rights, race, religion, ability status). School counselors do not impose their values on students and/or families when making referrals to outside resources for student and/or family support.

Attempt to establish a collaborative relationship with outside service providers to best serve students. Request a release of information signed by the student and/or parents/guardians before attempting to collaborate with the student's external provider.

Provide internal and external service providers with accurate and meaningful data necessary to adequately assess, counsel and assist students.

Ensure there is not a conflict of interest in providing referral resources. School counselors do not refer or accept a referral to counsel students from their school if they also work in a private counseling practice.

A. 7. Group Work
School counselors:

Offer culturally sustaining small-group counseling services based on individual student, school and community needs; student data; a referral process; and/or other relevant data.

Provide equitable access to participation in groups, including alleviating physical, language and other obstacles.

Assess student needs to determine if participating in the group is appropriate for the student.

Inform parents/guardians of student participation in and the purpose of the small group.

Facilitate short-term groups to address students' academic achievement, postsecondary and career exploration, and social/emotional well-being.

Use data to inform group topics, establish well-defined expectations and measure the outcomes of group participation.

Reflect on group outcomes and determine adjustments that may improve future group interventions.

Communicate the aspiration of confidentiality as a group norm, while recognizing and working from the protective posture that confidentiality for students in small groups cannot be guaranteed.

Select topics for groups with the clear understanding that some topics are not suitable for groups in schools (e.g., incest survivorship, eating disorders, dating violence) and accordingly take precautions to protect members from harm as a result of interactions with the group.

Facilitate culturally sustaining groups from the framework of evidence-based or research-based practices.

Practice within their competence level and develop professional competence through training and supervision.

Provide necessary follow-up and/or referrals to additional resources for group members.

A. 8. Student Peer-Support Program
School counselors:

Share the student peer-support program's goal and purpose with stakeholders.

Safeguard the welfare of students participating in peer-to-peer programs under their direction.

Strive to protect the confidentiality of students receiving peer support services by not sharing or disclosing personal information (e.g., special education services, academic information).

Work to select peer helpers who reflect the diversity of the population to be served.

Facilitate equitable access, representation and cultural sustainability in peer-support programs.

Develop, train and supervise students in school counseling peer-support programs, using culturally relevant frameworks that promote inclusion and belonging.

Inform peer-support students about when students need to report information to a responsible adult at school.

A. 9. Serious and Foreseeable Harm to Self and Others
School counselors:

Inform parents/guardians and school administration when a student poses a serious and foreseeable risk of harm to self or others. This notification is to be done after careful deliberation and consultation with appropriate professionals, such as other school counselors, the school nurse, school psychologist, school social worker, school resource officer or child protective services. Even if the danger appears relatively remote, parents/guardians must be notified. The consequence of the risk of not giving parents/guardians a chance to intervene on behalf of their child is too great.

Recognize the level of suicide risk (e.g., low, medium, high) is difficult to accurately quantify. If required to use a risk assessment, it must be completed with the realization that it is an information-gathering tool and only one element in the risk-assessment process. When reporting risk-assessment results to parents/guardians, school counselors do not negate the risk of students' potential harm to self even if the assessment reveals a low risk, as students may minimize risk to avoid further scrutiny and/or parental/guardian notification. The purpose of reporting any risk-assessment results to parents/guardians is to underscore the need for parents/guardians to act, not to report a judgment of risk.

Collaborate with school administration to ensure a student has proper supervision and support. If parents/guardians will not provide proper support, the school counselor takes necessary steps to underscore to parents/guardians the necessity to seek help and, at times, may include a report to child protective services.

Provide culturally responsive mental health resources to parents/guardians.

Report to administration and/or appropriate authorities (e.g., law enforcement) when a student discloses a perpetrated or a perceived threat to another person's physical or mental well-being. This threat may include but is not limited to verbal abuse, physical abuse, sexual abuse, dating violence, bullying or harassment. The school counselor follows applicable federal and state laws and school and district policy.

A. 10. Marginalized Populations
School counselors:

Advocate with and on behalf of students to ensure they remain safe at home, in their communities and at school. A high standard of care includes determining what information is shared with parents/guardians and when information creates an unsafe environment for students.

Actively work to establish a safe, equitable, affirming school environment in which all members of the school community demonstrate respect, inclusion and acceptance.

Identify and advocate for resources needed to optimize and support academic, career and social/emotional development opportunities.

Collaborate with parents/guardians when appropriate and strive to establish consistent, constructive two-way communication in their preferred language to ensure students' needs are met.

Understand and advocate for all students' right to be treated in a manner that honors and respects their identity and expression, including but not limited to race, gender identity, gender expression, sexual orientation, language and ability status, and to be free from any form of discipline, harassment or discrimination based on their identity or expression.

Advocate for the equitable right and access to free, appropriate public education for all youth in which students are not stigmatized or isolated based on race, gender identity, gender expression, sexual orientation, language, immigration status, juvenile justice/court involvement, housing, socioeconomic status, ability, foster care, transportation, special education, mental health and/or any other exceptionality or special need.

Advocate for access to and inclusion in opportunities (e.g., Advanced Placement, International Baccalaureate, gifted and talented, honors, dual enrollment) in which students are not stigmatized, isolated or excluded based on race, gender identity, gender expression, sexual orientation, language, immigration status, juvenile justice/court involvement, housing, socioeconomic status, ability, foster care, transportation, special education, mental health and/or any other exceptionality or special need.

Actively advocate for systemic and other changes needed for equitable participation and outcomes in educational programs when disproportionality exists regarding enrollment in such programs by race, gender identity, gender expression, sexual orientation, language, immigration status, juvenile justice/court involvement, housing, socioeconomic status, ability, foster care, transportation, special education, mental health and/or any other exceptionality or special need.

Recognize the strengths of students with disabilities as well as their challenges and provide best practices in supporting their academic, career and social/emotional needs.

A. 11. Bullying, Harassment, Discrimination, Bias and Hate Incidents
School counselors:

Recognize that bullying, discrimination, bias and hate incidents rooted in race, gender, sexual orientation and ethnicity are violations of federal law and many state and local laws and district policies.

Advocate for schoolwide policies, protocols and training for response to bullying, harassment and bias incidents centered in safety, belonging and justice.

Advocate for accessible, effective tools for students or community to report incidents of bullying, hate or bias.

Report all incidents of bullying, dating violence or harassment to the administration, recognizing these behaviors may fall under Title IX of the Education Amendments of 1972 or other federal and state laws as illegal and require administrator intervention.

Recognize that bias incidents are not only potentially traumatizing for students but can lead to significant damage and disruption of the school environment. Facilitate and monitor schoolwide prevention of bullying, harassment, discrimination, hate and bias through active practices that support a positive school climate, culture and belonging.

In response to a hate or bias incident (e.g. discrimination, explicit bias, hate speech), collaborate with administrative teams to ensure safety, provide support for targeted students, facilitate effective communication, provide education, connect students to resources and promote healing and recovery within the school community.

In developmentally appropriate ways and in the context of the incident, support victims, and encourage growth and provide tools for accountability and change (e.g. restorative practices) in perpetrators, and promote healing in the school community while deferring to administration for all discipline issues or any other violation of federal and state laws or district and school policies.

Actively respond to incidents of bias or hate, demonstrating a commitment to equity and promoting a safe, inclusive school community.

A.12. Child Abuse
School counselors:

Report to the proper authorities, as mandated by the state, all suspected cases of child abuse and neglect, recognizing that certainty is not required, only reasonable suspicion. School counselors are held to a higher standard regarding their absolute duty as a mandated reporter to report suspected child abuse and neglect.

Develop and maintain the expertise to recognize the signs of child abuse and neglect. Advocate for training to enable students and staff to have the knowledge and skills needed to recognize the signs and to whom they should report suspected child abuse and neglect.

Take reasonable precautions to protect the privacy of students for whom abuse or neglect is suspected from those who do not have a legitimate need to know.

Know current state laws and the school system's procedures for reporting child abuse and neglect and methods to advocate for students' physical and emotional safety following abuse/neglect reports.

Connect students who have experienced abuse and neglect with services provided through the local school district and community agencies.

A. 13. Student Records
School counselors:

Abide by the Family Educational Rights and Privacy Act (FERPA), which defines who has access to students' educational records and allows parents/guardians the right to review the records and challenge perceived inaccuracies in their child's records.

Advocate for the ethical use of student data and records and inform administration of inappropriate or harmful practices.

Recognize the difficulty in adhering to FERPA's definition of sole-possession records.

Recognize that sole-possession records and case notes can be subpoenaed unless there is a specific state statute for privileged communication expressly protecting student/school counselor communication.

Recognize that electronic communications with school officials regarding individual students, even without using student names, are likely to create student records that must be addressed in accordance with FERPA and state laws.

Establish a reasonable timeline for purging sole-possession records or case notes. Suggested guidelines include shredding paper sole-possession records or deleting electronic sole-possession records when a student transitions to the next level, transfers to another school or graduates. School counselors do not destroy sole-possession records that may be needed by a court of law, such as notes on child abuse, suicide, sexual harassment or violence, without prior review and approval by school district legal counsel. School counselors follow district policies and procedures when contacting legal counsel.

A. 14. Evaluation, Assessment and Interpretation
School counselors:

Use only valid and reliable research-based tests and assessments that are culturally sensitive, in the student's preferred language and free of bias.

Adhere to all professional standards and regulations when selecting, administering and interpreting standardized assessment tools, and only use assessment instruments that are within the scope of practice for school counselors and for which they are licensed, certified, competent and trained to use.

Follow confidentiality guidelines when using paper or electronic assessment instruments and programs.

Consider the student's developmental age, language skills, home language and competence level when determining an assessment's appropriateness.

Use multiple data points, both quantitative and qualitative whenever possible, to provide students and families with complete and accurate information to promote students' well-being.

Provide interpretation, in the student's preferred language, of the nature, purpose, results and potential impact of assessment/evaluation measures in terms students and parents/guardians can understand.

Monitor the use of assessment results and interpretation, and take reasonable steps to prevent others from misusing the information.

Use caution when selecting or using assessment techniques, making evaluations and interpreting the performance of populations not represented in the norm group on which an instrument is standardized.

Conduct and disseminate the results of school counseling program assessments to determine the effectiveness of activities supporting students' academic, college/career and social/emotional development through accountability measures, especially examining efforts to close opportunity gaps.

A. 15. Technical and Digital Citizenship
School counselors:

Advocate for equitable access to technology for all students.

Demonstrate appropriate selection and equitable use of culturally sustaining technology and software applications to enhance students' academic, career and social/emotional development. Attention is given to the legal and ethical considerations of technological applications, including confidentiality concerns, security issues, potential limitations and benefits, and communication practices in electronic media.

Take appropriate and reasonable measures to maintain the confidentiality of student information and educational records stored or transmitted through the use of computers, social media, facsimile machines, telephones, voicemail, answering machines and other electronic technology.

Promote the safe and responsible use of technology in collaboration with educators and families.

Promote the benefits and clarify the limitations of various appropriate technological applications.

Use established and approved means of communication with students, maintaining appropriate boundaries, and help educate students about appropriate communication and boundaries.

Understand challenges with confidentiality when using email and establish protocols and boundaries for responding to emails.

Advocate for the use of virtual learning tools that include safeguards and protocols protecting highly sensitive student information.

Advocate against alert tools or apps requiring constant monitoring by school personnel. These tools are not aligned with the nature and function of school counseling.

A. 16. Virtual/Distance School Counseling
School counselors:

Adhere to the same legal and ethical standards in a virtual/distance/hybrid setting as in face-to-face settings.

Recognize, acknowledge and problem-solve the unique challenges and limitations of virtual/distance/hybrid school counseling.

Establish procedures, in collaboration with school administrators and other support staff, for students to follow in both emergency and nonemergency situations when the school counselor is not available.

Recognize and address the limitation of virtual/distance/hybrid school counseling confidentiality, which may include unintended viewers or recipients.

Inform both students and parents/guardians of the benefits and limitations of virtual/distance/hybrid school counseling.

Educate students on how to participate in the electronic school counseling relationship to minimize and prevent potential misunderstandings that could occur due to lack of verbal cues and inability to read body language or other visual cues that provide contextual meaning to the school counseling process and relationship.

Recognize the challenges in virtual/distance/hybrid settings of assisting students considering suicide, including but not limited to identifying their physical location, keeping them engaged on the call or device, contacting their parents/guardians and getting help to their location.

B. RESPONSIBILITIES TO PARENTS/GUARDIANS, SCHOOL AND SELF B.1. Responsibilities to Parents/Guardians
School counselors:

Recognize, honor and respect the importance of parents/guardians when providing services to students in a school setting and collaborate with students' parents/guardians as appropriate.

Respect the rights and responsibilities of custodial and noncustodial parents/guardians and, as appropriate, establish a collaborative relationship to facilitate and advocate for students' maximum growth in the areas of academic, career and social/emotional development.

Promote equity and inclusion through culturally affirming and sustaining practices honoring the diversity of families. Recognize that all parents/guardians, custodial and noncustodial, are vested with certain rights and responsibilities for their children's welfare by virtue of their role and according to law.

Inform parents of the school counseling program's mission and standards in academic, career and social/emotional domains that promote and enhance the learning process and outcomes for all students.

Adhere to the Protection of Pupil Rights Amendment when using universal screeners, surveys or needs assessments by informing parents/guardians prior to their use in accordance with school district policies and local, state and federal law.

Engage a diverse sample of parents/guardians and caregivers to provide opportunities for meaningful contributions to the school counseling program.

Adhere to federal, state and local laws; district policy; and ethical practice when assisting parents/guardians experiencing family difficulties interfering with their student's welfare.

Inform parents/guardians of the confidential nature of the school counseling relationship between the school counselor and student, while recognizing parents/guardians have inherent legal rights to student information.

Respect the privacy of parents/guardians in accordance with the student's best interests.

Provide parents/guardians with accurate, comprehensive and relevant information in a caring manner as appropriate and consistent with legal and ethical responsibilities to the students and parents/guardians. Exercise due diligence in a timely, efficient manner to communicate concerns that affect the students' safety and welfare.

Follow the directions and stipulations of the legal documentation in divorce, separation or custody cases, maintaining focus on the student. Adhere to clear boundaries and a position of neutrality when working with parents/guardians.

B.2. Responsibilities to the School
School counselors:

Develop and maintain professional relationships and systems of communication with faculty, staff and administrators to support students.

Design and deliver comprehensive school counseling programs that are integral to the school's academic mission, informed by analysis of student data, based on the ASCA National Model.

Advocate for a school counseling program free of non-school-counseling assignments identified by "The ASCA National Model: A Framework for School Counseling Programs."

Exercise leadership to create systemic change to create a safe and supportive environment and equitable outcomes for all students.

Collaborate with appropriate officials to remove barriers that may impede the effectiveness of the school and/or the school counseling program in promoting equitable student outcomes.

Provide support, consultation and mentoring to professionals in need of assistance when appropriate to enhance school climate and student outcomes.

Inform appropriate officials, in accordance with federal and state law and school and district policy, of conditions that may be potentially disruptive or damaging to the school's mission, personnel and property, while honoring the confidentiality between students and school counselors to the extent possible.

Advocate for administrators to place licensed/certified school counselors who are competent, qualified and hold a master's degree or higher in school counseling from an accredited institution.

Advocate for equitable school counseling program policies and practices for all students and stakeholders.

Advocate for the use of vetted, bilingual/multilingual translators to represent languages used by families in the school community and support broader cultural communication and engagement.

Affirm the abilities of all students and advocate for their learning needs, supporting the provision of appropriate accommodations and accessibility.

Provide culturally responsive information to families to increase understanding, improve communication, promote engagement and improve student outcomes.

Promote culturally sustaining practices to help create a safe and inclusive school environment with equitable outcomes for all students.

Adhere to educational/psychological research practices, confidentiality safeguards, security practices and school district policies when conducting research.

Use school and community resources to promote equity and access for all students.

Use inclusive language in all forms of communication and ensure students and stakeholders have access to materials in their preferred languages when possible.

Collaborate as needed to provide optimum services with other school and community professionals with legitimate educational interests (e.g., school nurse, school psychologist, school social worker, speech-language pathologist), following all local, state and federal laws.

Strive to address and remedy the work environment and conditions that do not reflect the school counseling profession's ethics, using advocacy and problem-solving skills.

B. 3. Responsibilities to Self
School counselors:

Have earned a master's degree or higher in school counseling or the substantial equivalent from an accredited institution.

Maintain membership in school counselor professional organizations to stay up to date on current research and to maintain professional competence in current school counseling issues and topics.

Accept employment only for positions for which they are qualified by education, training, supervised experience and state/national professional credentials.

Adhere to the profession's ethical standards and other official policy statements such as ASCA position statements and role statements, school board policies and relevant laws. When laws and ethical codes are in conflict, school counselors work to adhere to both as much as possible.

Engage in routine, content-applicable professional development to stay up to date on trends and needs of students and other stakeholders, and regularly attend training on current legal and ethical responsibilities.

Explore and examine implicit biases and the impact on practice and interaction with students; apply learning to program practice and development.

Develop knowledge and understanding of historic and systemic oppression, social justice and cultural models (e.g., multicultural counseling, anti-racism, culturally sustaining practices) to further develop skills for systemic change and equitable outcomes for all students.

Recognize the potential for stress and secondary trauma. Practice wellness and self-care through monitoring mental, emotional and physical health, while seeking consultation from an experienced school counseling practitioner and/or others when needed.

Monitor personal behaviors and recognize the high standard of care a professional in this critical position of trust must maintain on and off the job. School counselors are cognizant of and refrain from activity that may diminish their effectiveness within the school community.

Apply an ethical decision-making model and seek consultation and supervision from colleagues and other professionals who are knowledgeable of the profession's practices when ethical questions arise.

Honor the diversity and identities of students and seek training/supervision when prejudice or biases interfere with providing comprehensive school counseling services to all pre-K-12 students. School counselors will not refuse services to students based solely on personally held beliefs/values rooted in one's religion, culture or ethnicity. School counselors work toward a school climate that embraces diverse identities and promotes equitable outcomes in academic, career and social/emotional development for all students.

Have an awareness of and make clear distinctions between actions and statements (verbal or written) made as a private individual versus those made as a representative of the school counseling profession and of the school district/school entity.

Respect the intellectual property of others and adhere to copyright laws and correctly cite others' work when using it.

C. SCHOOL COUNSELOR DIRECTORS/ADMINISTRATORS/SUPERVISORS
School counselor directors/administrators/supervisors support school counselors in their charge by:

Advocating both within and outside of their schools or districts for adequate resources to implement a school counseling program and meet students' needs and the school community's needs.

Advocating for fair and open distribution of resources among programs supervised, using an allocation procedure that is nondiscriminatory, equitable, informed by comprehensive data and consistently applied.

Taking reasonable steps to ensure school and other resources are available to provide staff supervision and training.

Providing opportunities for professional development in current research related to school counseling practices, competencies and ethics.

Taking steps to eliminate conditions or practices in their schools or organizations that may violate, discourage or interfere with compliance with the laws and ethics related to the school counseling profession or equitable outcomes for students.

Monitoring school and organizational policies, regulations and procedures to ensure practices are consistent with the ASCA Ethical Standards for School Counselors.

Using and/or advocating for a performance appraisal instrument aligned with the ASCA School Counselor Professional Standards & Competencies that assesses school counselors' knowledge, skills and attitudes.

Understanding the ASCA Ethical Standards for School Counselors, the ASCA National Model and the ASCA School Counselor Professional Standards & Competencies.

Providing staff with opportunities and support to develop knowledge and understanding of historic and systemic oppression, social justice and cultural models (e.g., multicultural counseling, anti-racism, culturally sustaining practices) to further develop skills for systemic change and equitable outcomes for all students.

Collaborating and consulting with school counseling graduate programs to support appropriate site placement for supervisees and ensure high-quality training that is essential for school counselor preparation.

D. SCHOOL COUNSELING PRACTICUM/INTERNSHIP SITE SUPERVISORS Practicum/internship site supervisors:

Are licensed or certified school counselors with an understanding of school counseling programs and school counselors' ethical practices.

Have the education and training to provide school counseling supervision and regularly pursue continuing education activities on both counseling and supervision topics and skills.

Use a model of supervision that is developmental, ongoing and includes but is not limited to promoting professional growth, supporting best practices and ethical practice, assessing supervisee performance and developing plans for improvement, consulting on specific cases and assisting in the development of a course of action.

Engage in culturally affirming supervision, maintain cultural competence and consider cultural and historic factors and power dynamics that may have an impact on the supervisory relationship.

Avoid supervisory relationships with individuals with whom they have the inability to remain objective (e.g., family members or close friends).

Are competent with technology used to perform supervisory responsibilities and online supervision, if applicable. Supervisors protect all electronically transmitted confidential information.

Understand there are differences in face-to face and virtual communication (e.g., absence of verbal and nonverbal cues) that may have an impact on virtual supervision. Supervisors educate supervisees on how to communicate electronically to prevent and avoid potential problems and negative outcomes.

Provide information about how and when virtual supervisory services will be utilized, and provide school counselors with reasonable access to pertinent applications.

Ensure performance evaluations are completed in a timely, fair and considerate manner; base evaluations on clearly stated criteria; and use data when available.

Ensure supervisees are aware of policies and procedures related to supervision and evaluation and provide due-process procedures if supervisees appeal their evaluations.

Understand supervisee limitations and communicate concerns to the university/college supervisor in a timely manner.

Help supervisees select appropriate professional development based on identified needs.

Contact university/college supervisors and consult with school administrators to recommend assistance or dismissal when supervisees are unable to demonstrate competence as a school counselor as defined by the ASCA School Counselor Professional Standards & Competencies. Document recommendations and ensure supervisees are aware of such decisions and the resources available to them.

Recognize and acknowledge the specific roles of school counselor educators, site supervisors and the practicum/internship student. Supervisors ensure that supervisees are able to participate in a variety of academic, college/career and social/emotional activities through individual, group and classroom interventions.

E. MAINTENANCE OF STANDARDS
When the absence of a settled opinion or conviction exists as to the ethical behavior of a colleague(s), the following procedures may serve as a guide:

School counselors confidentially consult with professional colleagues to discuss the potentially unethical behavior and determine if the situation is an ethical violation.

School counselors discuss and seek resolution directly with the colleague whose behavior is in question unless the behavior is unlawful, abusive, egregious or dangerous, in which case proper school or community authorities are contacted.

School counselors understand mandatory reporting responsibilities in their respective districts and states.

School counselors take appropriate action in the following sequence if the matter remains unresolved at the school, school district, state department of education and/or professional practice/standards commission level: 1. Contact the state school counselor association's ethics committee if applicable. i. If no such committee exists, contact the state school counselor association leadership. ii. If the issue remains unresolved, proceed to step 2. 2. Contact the American School Counselor Association. Formal documentation of the steps taken and the response of the complainant and respondent should be submitted in hard copy to the ASCA Ethics Committee, c/o the Executive Director, American School Counselor Association, 277 S. Washington St., Suite 390, Alexandria, VA 22314.

F. ETHICAL DECISION-MAKING
When faced with an ethical dilemma, school counselors and school counseling program directors/supervisors use an ethical decision-making model.

Define the ethical dilemma.

Identify potential cultural, religious and worldview factors and power dynamics that are present within a potential ethical dilemma.

Apply the ASCA Ethical Standards for School Counselors and the relevant district policies and procedures.

Consult with appropriate professionals (e.g., supervisors, other student service professionals, school counseling peers, cultural experts).

Consider the student's chronological age and developmental level.

Consider parental/guardian and student rights

Apply the ethical principles of: Beneficence: working for the good of the individual and society by promoting mental health and well-being; Autonomy: fostering the right to control the direction of one's life; Nonmaleficence: avoiding actions that cause harm Justice: treating individuals equitably and fostering fairness and equality; Fidelity: honoring commitments and keeping promises, including fulfilling one's responsibilities of trust in professional relationships; Veracity: dealing truthfully with individuals with whom school counselors come into professional contact

Determine potential courses of action and their consequences.

Evaluate the selected action.

Implement the course of action and analyze the outcome.

Identify any inconsistencies in school/district policy for potential revision.

See other ethical decision-making models: Intercultural Model of Ethical Decision Making, Luke et al., (2013) Solutions to Ethical Problems in Schools (STEPS), Stone (2003) Ethical Justification Model, Kitchener (1984)

GLOSSARY OF TERMS
Advocate: a person who speaks, writes or acts to promote the well-being of students, parents/guardians, school and community stakeholders, and the school counseling profession. School counselors advocate to create and maintain equitable systems, policies and practices.

Anti-Racist: one who expresses the idea that race is a social construct and does not biologically exist while supporting policy that eliminates racial inequity and fighting against racism.

Assent: to demonstrate agreement when a student is not competent to give informed consent to counseling or other services the school counselor is providing.

Assessment: collecting in-depth information about a person to develop a comprehensive plan that will guide the collaborative counseling and service provision process.

Bias Incident: use of hateful imagery, language or acts that are often noncriminal in nature motivated by bigotry, prejudice or hate toward individuals because of the targets' perceived disability, ethnicity, gender, gender identity, nationality, race, sex or sexual orientation.

Boundaries: something that indicates or affixes an extent or limits.

Breach: disclosure of information given in private or confidential communication such as information given during counseling.

Bullying: intentional, repeated harmful acts, words or other behavior such as name calling, threatening and/or shunning committed by one or more children against another. These negative acts are not intentionally provoked by the victims, and for such acts to be defined as bullying, an imbalance in real or perceived power must exist between the bully and the victim. Bullying may be physical, verbal, emotional or sexual in nature.

Competence: the quality of being competent; adequacy; possession of required skill, knowledge, qualification or capacity.

Confidentiality: the ethical duty of school counselors to responsibly protect a student's private communications shared in counseling.

Conflict of Interest: a situation in which a school counselor stands to personally profit from a decision involving a student.

Consent: permission, approval or agreement; compliance.

Consultation: a professional relationship in which individuals meet to seek advice, information and/or deliberation to address a student's need.

Conventional Parameters: general agreement or accepted standards regarding limits, boundaries or guidelines.

Cultural Sensitivity: a set of skills enabling you to know, understand and value the similarities and differences in people; modify your behavior to be most effective and respectful of students and families; and deliver programs that fit diverse learners' needs.

Culturally Sustaining School Counseling policies and practices that affirm and embrace cultural pluralism, promote cultural dexterity and actively advocate for equitable systems and outcomes.

Custodial and Noncustodial: physical custody: a phrase used to determine which parent a minor student lives with as a result of a court order. A custodial parent has physical custody of the minor child while a noncustodial parent does not have physical custody of the minor child, as the result of a court order. Legal custody: both custodial and noncustodial parents have educational rights to their child's records unless noted by court documentation.

Data Dialogues: inquiry with others around student information to uncover inequities, promote informed investigations and assist in understanding the meaning of data and the next steps to have an impact on data.

Data Informed: accessing data, applying meaning to it and using data to have an impact on student success.

Developmental Level/Age: the age of an individual determined by degree of emotional, mental and physiological maturity as compared with typical behaviors and characteristics of that chronological age.

Disclosure: the act or an instance of exposure or revelation.

Diversity: the inclusion of individuals representing more than one national origin, gender identity, gender expression, ethnicity, religion, socioeconomic stratum, sexual orientation and the intersection of cultural and social identities.

Dual Relationship: a relationship in which a school counselor is concurrently participating in two or more roles with a student.

Empathy: the action of understanding, being aware of, being sensitive to and vicariously experiencing the feelings, thoughts and experience of another without having the feelings, thoughts and experience fully communicated in an objectively explicit manner.

Emancipated Minors: minors who are legally freed from control by their parents/guardians, and the parents/guardians are freed from any and all responsibility toward the children.

Encryption: process of putting information into a coded form to control and limit access to authorized users.

Equity: treated fairly; educational equity occurs when educators provide all students with the high-quality instruction and support they need to reach and exceed a common standard.

Ethics: the norms and principles of conduct and philosophy governing the profession.

Ethical Behavior: actions defined by standards of conduct for the profession.

Ethical Obligation: a standard or set of standards defining the course of action for the profession.

Ethical Rights: the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention or ethical theory.

Feasible: capable of being done, affected or accomplished easily or conveniently.

Gender Expression: the ways in which students manifest masculinity or femininity in terms of clothing, communication patterns and interests, which may or may not reflect the student's gender identity.

Gender Identity: one's personal experience of one's own gender. When one's gender identity and biological sex are not congruent, the student may identify as transgender.

Guardian Ad Litem: a guardian appointed by a court to watch after someone during a case.

Harassment: the act of systematic and/or continued unwanted disturbing or troubling persecution.

Informed Consent: assisting students in acquiring an understanding of the limits of confidentiality, the benefits, facts and risks of entering into a counseling relationship.

Intervention: to provide modifications, materials, advice, aids, services or other forms of support to have a positive impact on the outcome or course of a condition.

Legal Mandates: a judicial command or precept issued by a court or magistrate, directing proper behavior to enforce a judgment, sentence or decree.

Legal Rights: those rights bestowed onto a person by a given legal system.

Mandatory Reporting: the legal requirement to report to authorities.

Minors: persons under the age of 18 years unless otherwise designated by statute or regulation.

Oppression: unjust or cruel exercise of authority or power.

Perception: a mental image or awareness of environment through a physical sensation; a capacity for understanding or a result of an observation.

Peer Helper: peer-to-peer interaction in which individuals who are of approximately the same age take on a helping role assisting students who may share related values, experiences and lifestyles.

Peer Support: programs enhancing the effectiveness of the school counseling program while increasing outreach and raising student awareness of services.

Privacy: the right of an individual to keep oneself and one's personal information free from unauthorized disclosure.

Privileged Communication: conversation that takes place within the context of a protected relationship, such as that between an attorney and client, spouses, a priest and penitent, a doctor and patient and, in some states, a school counselor and student.

Professional Development: the process of improving and increasing capabilities through access to education and training opportunities.

Racial Bias: a personal and unreasoned judgment made solely on an individual's race.

Racism: when individuals, systems or institutions show more favorable evaluation or treatment of an individual or group based on race or ethnicity.

Relationship: a connection, association or involvement.

Risk Assessment: a systematic process of evaluating potential risks.

School Counseling Supervisor: a qualified professional who provides guidance, teaching and support for the professional development of school counselors and school counseling candidates.

Serious and Foreseeable Harm: when a reasonable person can anticipate significant and harmful possible consequences.

Sole-Possession Records: records used only as a personal memory aid that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record and provide only professional opinion or personal observations. Sole-possession records are exempted from the definition of educational records and FERPA protection.

Stakeholder: a person or group sharing an investment or interest in the students and/or school community (e.g., parents/guardians, school staff, administrators, business and community interest groups, school board members, etc.).

Systemic Change: change affecting the entire system; transformational; change affecting more than an individual or series of individuals; focused upon the dynamic of the environment, not the individual.

Supervision: a collaborative relationship in which one person promotes and/or evaluates the development of another.

Title IX of the Education Amendments of 1972: a law that demands that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Universal Screener: gathers information regarding behavioral and mental health issues by either reviewing existing data/input from educators or by asking questions directly of students. Schools receiving federal funding that use a universal screener asking even one question from one of the eight protected areas under the Protection of Pupil Rights Amendment (PPRA) must obtain active consent from parents/guardians if a student is required to complete the screening and passive consent if the screening is voluntary (U.S. Department of Education, PPRA, 2022).

Virtual/Distance Counseling: counseling by electronic means.

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ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA)

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Why the Legal Guide Topic is Important in Your Field of Education?

The topic of Confidentiality vs. Mandated Reporting is critical in the field of school counseling because it directly affects how counselors manage sensitive information while ensuring the safety and well-being of students. Counselors must strike a delicate balance between maintaining trust with students and fulfilling their legal obligation to report suspected abuse or harm. Misunderstanding or mishandling these legal responsibilities can lead to serious consequences, including legal action or harm to the students involved. By understanding the nuances of confidentiality and mandated reporting, counselors are better equipped to navigate these challenges, create a safer school environment, and ensure compliance with the law.

Emerging Issue Related to Your Topic:

One emerging issue related to Confidentiality vs. Mandated Reporting is the increasing use of digital communication between students and school counselors. As technology becomes more integrated into counseling services, educators must consider how privacy laws apply to online communications, such as emails, text messages, or virtual counseling sessions. The challenge is determining how confidentiality is maintained in a digital space and what constitutes "mandated reporting" in virtual settings. With increasing reliance on remote counseling, educators should monitor how courts and lawmakers address the intersection of technology, student privacy, and mandated reporting to ensure that digital platforms comply with existing legal standards and protect students' rights.

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Professional Perspective and Field of Education:

As a future school counselor obtaining a Master’s degree in School Counseling, I work to provide emotional support, guidance, and resources to students in a K-12 educational environment. My role includes helping students navigate personal, academic, and social challenges while fostering a safe, inclusive environment where they feel heard and understood. Through individual and group counseling, as well as collaborating with teachers, administrators, and parents, I aim to support students' well-being and growth. In addition to providing mental health services, part of my responsibility is to understand and balance the legal and ethical boundaries that come with my role, particularly when it comes to confidentiality and mandated reporting.

Audience and Topic of the Legal Guide:

This Legal Guide is designed for school counselors, educators, and other professionals working within the school setting, as well as parents and guardians. The topic of the guide focuses on Confidentiality vs. Mandated Reporting in school counseling. The guide explores the delicate balance counselors must strike between maintaining student confidentiality and mandated reporting laws, particularly in cases where there are concerns about child abuse, neglect, or other threats to student safety.

Why I Chose This Topic:

I chose this topic because it is crucial for school counselors to understand the legal and ethical implications of confidentiality and mandated reporting. Counselors are often the first to hear about sensitive or potentially harmful situations involving students, and it's important to know when they are required to break confidentiality to report to authorities. Misunderstanding these laws can have serious consequences, both for the students and for the counselor. This guide aims to provide clear, practical information on how counselors can navigate these legal responsibilities while maintaining trust with students. The guide will offer strategies for handling sensitive conversations with students, ensuring that they understand the limits of confidentiality and the reasons behind mandated reporting laws. Ultimately, it empowers counselors to make informed decisions that protect students and comply with legal requirements.