PRINTER'S NO. 427
No. 110 Session of 1999
INTRODUCED BY ROHRER, ARMSTRONG, BAKER, BARRAR, HARHAI, HERSHEY,
HORSEY, LEH, MAITLAND, McNAUGHTON, ORIE, PETRARCA, RAMOS,
SATHER, SEYFERT, SHANER, STABACK, STAIRS, STERN, STEVENSON,
J. TAYLOR, THOMAS, TRELLO, BASTIAN, METCALFE, BELARDI,
BENNINGHOFF, BIRMELIN, BROWNE, CALTAGIRONE, CLARK, CLYMER,
CORRIGAN, EGOLF, FARGO, FEESE, FLICK, FORCIER, GEIST,
HENNESSEY, HESS, LAUGHLIN, LYNCH, MARKOSEK, MELIO, PESCI,
PLATTS, READSHAW AND SCRIMENTI, FEBRUARY 9, 1999
REFERRED TO COMMITTEE ON EDUCATION, FEBRUARY 9, 1999
AN ACT
1 Providing for student and family privacy and protection.
2 The General Assembly of the Commonwealth of Pennsylvania
3 hereby enacts as follows:
4 Section 1. Short title.
5 This act shall be known and may be cited as the Student and
6 Family Privacy and Protection Act.
7 Section 2. Declaration of policy.
8 The purposes of this act are as follows:
9 (1) To require informed consent for the provision of
10 school health care services with limited exceptions.
11 (2) To protect the privacy of students and their
12 families.
13 (3) To protect against the inappropriate collection and
14 release of student educational records or student records.
1 Section 3. Definitions.
2 The following words and phrases when used in this act shall
3 have the meanings given to them in this section unless the
4 context clearly indicates otherwise:
5 "Department." The Department of Education of the
6 Commonwealth.
7 "Directory information." A student's name, age, municipality
8 of residence, participation in officially recognized activities
9 and sports, including weight and height when the student is a
10 member of an athletic team, and any awards, certificates and
11 diplomas received by the student.
12 "Educational entity." The Department of Education, the State
13 Board of Education, a school district, a vocational-technical
14 school, an intermediate unit and any of their officers,
15 employees or persons acting as their agents.
16 "Health care services." An examination, screening,
17 diagnosis, evaluation, referral, therapy, counseling or
18 treatment for physical, mental or emotional health problems. The
19 term includes screening, counseling and referrals, for
20 behavioral, social or emotional problems by school support team
21 programs, student assistance programs and similar programs and
22 referrals to and by such programs.
23 "Informed consent." The signature of a parent or guardian of
24 a student giving prior written consent on the form required by
25 section 14 to the release or inspection of a student record, for
26 student disclosure of information under section 7 and for the
27 provision of health care services, including counseling
28 services, to the student. For a student who is a high school
29 graduate, is married, is 18 years of age or older or is
30 emancipated, the term means the signature of the student rather
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1 than the signature of a parent or guardian of the student.
2 "Instructional materials." All materials to which a student
3 shall or may be directly exposed, including textbooks, materials
4 in the school library accessible to students, videos, films,
5 tapes, computer discs, charts or graphs.
6 "Parent." A biological or adoptive parent who has legal
7 custody of a student.
8 "Person." Any individual, corporation, partnership, limited
9 liability company, business trust, association, government
10 entity, estate, trust or foundation.
11 "Requirement of Federal law." A specific mandate imposed by
12 any Federal statute, regulation, court order or consent decree.
13 The term includes conditions required in order to participate in
14 the Federal Medicaid program and the Federal special education
15 program provided for under the Individuals with Disabilities
16 Education Act (Public Law 91-230, 20 U.S.C. § 1400 et seq.).
17 "School entity." A public school district, vocational-
18 technical school or intermediate unit.
19 "Student." An individual who is enrolled in a school entity
20 or who becomes subject to the protections accorded under this
21 act by reason of past enrollment in a school entity.
22 "Student educational record." The record or file of a
23 student, which may be in the form of an electronic portfolio.
24 The term includes personal achievement or credit for courses
25 taken, grades, attendance, graduation project, disciplinary or
26 behavioral record or information and any other record or
27 information relating to the overall performance of that
28 particular student in regard to the academic educational
29 program. The term excludes a student medical record.
30 "Student record." A student educational record or a student
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1 medical record.
2 Section 4. Student records.
3 (a) Prohibition.--Except as set forth in subsection (b), no
4 educational entity may release or allow access to a student
5 record or disclose information contained in such record.
6 (b) Exception.--An educational entity may:
7 (1) Release or allow access to directory information.
8 (2) Permit access to or release a student record or
9 personal or private information on the student or family to
10 any of the following persons or under the following
11 circumstances:
12 (i) To law enforcement officials in the course of a
13 criminal investigation.
14 (ii) To a court of competent jurisdiction pursuant
15 to a court order or subpoena.
16 (iii) To a parent or guardian of the student or to
17 the student if the student is a high school graduate, is
18 married, is 18 years of age or older or is emancipated.
19 After the student attains 21 years of age, the
20 information may only be released to a parent or guardian
21 during any period the student is adjudged incompetent.
22 (iv) To a person authorized to receive such
23 information pursuant to the informed written consent of
24 the student, or the parent or guardian of the student,
25 whose records are sought if the student is a high school
26 graduate, is 18 years of age or older, is married or is
27 emancipated. After the student attains 21 years of age,
28 the information may only be authorized for release by a
29 parent or guardian during any period the student is
30 adjudged incompetent.
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1 (v) To protect the immediate health or safety of the
2 student or other persons if a parent or guardian of the
3 student is given written notification of release within
4 two business days after release.
5 (vi) To State or local officials or authorities to
6 whom such information must be reported or disclosed
7 pursuant to statutes.
8 (vii) To comply with Federal law as certified by the
9 Attorney General.
10 (viii) To employees or officers of the school entity
11 within which the student is enrolled who have a
12 legitimate interest in access to the records.
13 (ix) To employees or officers of the school entity
14 in which the student transfers or seeks to enroll.
15 (c) Social Security number.--Except where required under
16 Federal law, no Social Security number may be used as a personal
17 identifier for a student record. No educational entity may
18 request or require that the Social Security number of a student
19 be disclosed as a condition of admission to a school entity or
20 for any other reason.
21 Section 5. Health care service protections.
22 (a) Prohibition.--Except as set forth in subsection (b), no
23 school entity may permit its school personnel or public or
24 private providers of health care services to utilize facilities
25 or resources of the school entity for the purpose of providing
26 health care services to an individual student unless the
27 informed consent required by this act for the provisions of
28 health services has been obtained on the form required under
29 section 14.
30 (b) Exception.--Subsection (a) shall be inapplicable to any
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1 of the following:
2 (1) Medical emergencies.
3 (2) A requirement of Federal law as certified by the
4 Attorney General, including individual education plans and
5 other requirements prescribed for special education students
6 under the Individuals with Disabilities Education Act (Public
7 Law 91-230, 20 U.S.C. § 1400 et seq.).
8 (3) Ordinary and reasonable discipline, as defined under
9 school policy or which is necessary to maintain safety or
10 school order.
11 (4) First aid services.
12 (5) Lice detection.
13 (6) Dental examinations.
14 (7) Vision screening tests.
15 (8) Hearing screening tests.
16 (9) Height and weight measurements.
17 (10) Maintenance of medical and dental records.
18 (11) Tuberculosis tests.
19 (12) Immunizations.
20 (c) Expansion.--Nothing in this act shall be deemed to
21 expand any legal authority to utilize the resources, personnel
22 or facilities of a school entity to provide health care
23 services.
24 Section 6. Inspection of educational materials.
25 A parent or guardian of the student shall, within two
26 business days of making a written request, be entitled to
27 inspect all instructional materials and teacher manuals, other
28 than test questions or examination materials when used in
29 connection with a course or program taught at the school entity.
30 Each school entity shall establish a reasonable procedure for
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1 implementing this section.
2 Section 7. Restrictions on requiring or permitting student
3 disclosure of certain information.
4 (a) General information.--No school entity may require or
5 permit a student to participate in any survey, questionnaire,
6 analysis or evaluation or in a course of instruction which would
7 require or provide for the disclosure of the following
8 information about the student or family of the student without
9 first obtaining the informed consent required under this act:
10 (1) Personal values, attitudes, opinions or beliefs.
11 (2) Family members' values, attitudes, opinions or
12 beliefs.
13 (3) Religious affiliations or beliefs.
14 (4) Political affiliations or beliefs.
15 (5) Sexual attitudes or beliefs.
16 (6) Sexual behavior.
17 (7) Illegal, anti-social or self-incriminating or
18 demeaning behavior.
19 (8) Critical appraisals of individuals with whom the
20 student has personal relationships.
21 (9) The disclosure of information protected by legally
22 recognized privileged and analogous relationships, such as
23 those of attorneys, medical personnel or ministers.
24 (10) Income, other than required by law to determine
25 eligibility for participation in a program for financial
26 assistance.
27 (11) Mental and psychological problems potentially
28 embarrassing to the student or the student's family.
29 (b) Courses of instruction.--Except as otherwise provided in
30 this subsection, courses of instruction shall not be subject to
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1 the informed consent requirement of subsection (a), unless the
2 courses require or permit testing or student discussion on any
3 of the matters set forth in subsection (a)(6) through (11).
4 Health, sex education or similar courses shall be subject to the
5 informed consent requirement of subsection (a). No student shall
6 be penalized or rewarded in any subject, test or assignment
7 because of the nondisclosure of information described in
8 subsection (a).
9 Section 8. Counseling matters.
10 (a) Student.--Nothing in this act shall prohibit or restrict
11 counseling or advice in regard to any physical, mental or
12 emotional problem or concern of a student without the informed
13 consent of a parent or guardian or student if the counseling or
14 advice is provided in response to student-initiated contacts
15 with a teacher, counselor, nurse, school administrator or other
16 person authorized by the school entity to provide such advice
17 and counseling.
18 (b) School.--Nothing in this act shall prohibit or restrict
19 school initiated contacts with a parent or guardian of a student
20 regarding any physical, mental or emotional problem or concern
21 relating to the student.
22 (c) Teachers and administrators.--A teacher or school
23 administrator may initiate contacts with a student regarding any
24 physical, mental or emotional problem of the student without
25 first obtaining the informed consent of a parent or guardian if
26 the teacher or administrator:
27 (1) notifies the principal or superintendent, or
28 designee of the principal or superintendent, within two
29 business days after the contact; or
30 (2) notifies the parent or guardian of the student
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1 within six business days after the contact.
2 (d) Principals.--If a teacher or school administrator gives
3 notice under subsection (c)(1), the principal, superintendent or
4 designee shall notify a parent or guardian of a student within
5 six business days after the contact. This subsection shall not
6 apply if:
7 (1) a report is made under 23 Pa.C.S. Ch. 63 (relating
8 to child protective services); or
9 (2) a report is made to law enforcement authorities.
10 (e) Casual inquiry.--No notice is required if a teacher or
11 school administrator contact with the student regarding a
12 physical, mental or emotional problem is confined to a casual
13 inquiry.
14 Section 9. Religious objections.
15 A parent or guardian has the right to have the student of the
16 parent or guardian excused from specific instruction which
17 conflicts with the religious beliefs of the parent or guardian,
18 upon submission to the school entity of a written request for
19 excusal on the basis of the religious belief.
20 Section 10. School entity procedure for compliance.
21 (a) Information.--Parents and guardians of students shall be
22 given written information about their rights under this act,
23 including the name, telephone number and address of the person
24 in each school district responsible for compliance.
25 (b) Designation.--Each school entity shall designate one
26 person to be responsible to parents and guardians of students to
27 make sure that the rights of students, parents and guardians
28 under this act are protected.
29 (c) Rules.--Each school entity may adopt reasonable rules
30 and regulations to implement this act. Rules may include a
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1 policy which excludes a child from attending school unless a
2 medical examination has been conducted according to section 2.
3 Rules must be consistent with regulations promulgated under
4 section 11.
5 Section 11. Regulations.
6 The department shall promulgate regulations to implement this
7 act.
8 Section 12. Remedies.
9 (a) Injunction.--The Attorney General or aggrieved student,
10 parent or guardian of a student may seek an injunction against
11 any violation of this act from a court of competent
12 jurisdiction.
13 (b) Advice.--Upon the request of the governing body,
14 superintendent, chairman, secretary or executive director of an
15 educational entity, the Attorney General shall furnish written
16 legal advice concerning any matter or issue arising in
17 connection with the exercise of the official powers or
18 performance of the official duties of the educational entity
19 under this act.
20 (1) The written advice, if given, shall be followed. The
21 recipient of the advice shall not be liable for following the
22 advice, upon any official bond or otherwise.
23 (2) If the governing body or head of the educational
24 entity disagrees with the legal advice rendered by the
25 Attorney General, the educational entity may seek a
26 declaratory judgment in the Commonwealth Court. The legal
27 advice of the Attorney General shall be binding until the
28 Commonwealth Court issues a final order on the petition
29 requesting the declaratory judgment.
30 (3) Written legal advice given under this subsection
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1 shall be a public record. If the Attorney General deems the
2 legal advice to be of substantial importance to educational
3 entities, parents, guardians and other persons throughout
4 this Commonwealth, the Attorney General may publish the
5 advice in the Pennsylvania Bulletin in the form of an
6 official opinion.
7 (c) Other remedies.--Nothing in this section shall weaken or
8 abrogate any other legal or equitable remedy which may be
9 available to a student, parent or guardian in connection with a
10 violation of this act.
11 Section 13. Preservation of existing privacy rights and law.
12 (a) General.--Nothing in this act shall be construed to
13 eliminate or weaken any of the following:
14 (1) A privacy protection accorded by statute or
15 regulation against the collection of information regarding a
16 student and the student's family or against the release of
17 such information to a party other than the student or a
18 parent or guardian.
19 (2) A right accorded by statute or regulation of a
20 parent or guardian to have or to have access to information
21 regarding educational activities affecting the student.
22 (3) The legal authority of a parent or guardian under
23 any statute or regulation regarding the provision of health
24 care services to the student or the education or rearing of
25 the student.
26 (b) Specific.--Nothing in this act shall abrogate any of the
27 following:
28 (1) The act of October 20, 1966 (3rd Sp.Sess., P.L.96,
29 No.6), known as the Mental Health and Mental Retardation Act
30 of 1966.
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1 (2) The act of July 9, 1976 (P.L.817, No.143), known as
2 the Mental Health Procedures Act.
3 Section 14. Informed consent.
4 (a) Form.--Informed consent required under this act must be
5 manifested on a form or paper used solely for the purpose of
6 obtaining consent and providing written notice which, insofar as
7 applicable, contains a reasonable description of all of the
8 following:
9 (1) The health care services for which informed consent
10 is sought. This paragraph includes clear and conspicuous
11 notice regarding any health care service which may involve:
12 (i) an examination of the genital area or the
13 removal of undergarments; or
14 (ii) mental or emotional health screening,
15 diagnosis, treatment, counseling or referral.
16 (2) The student record and the purpose for which the
17 student record is sought.
18 (3) The entities or persons who will have access to the
19 student record or provide the health care services in
20 question if informed consent is granted.
21 (4) The questionnaire, survey, analysis, evaluation or
22 course within the scope of section 7 and a list of those
23 categories itemized in section 7(a) for which student
24 disclosure may or will be required or permitted.
25 (b) Statement.--In addition to the requirements of
26 subsection (a), each form shall contain a statement informing
27 the parent or guardian of the right of the parent or guardian to
28 seek additional information regarding the proposed health care
29 service and providing the name and telephone number of a contact
30 person designated by the school entity for this purpose. This
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1 statement shall be at the end of the form directly above the
2 place designated for the signature of the parent or guardian.
3 (c) Specificity.--A general consent for the release of or
4 access to student records or for the provision of health care
5 services shall not constitute the informed consent required
6 under this act.
7 (d) Additional consent.--Nothing in this act shall require
8 additional consent for each subsequent occasion during the
9 school term on which a health care service is provided to a
10 student if it is clear from the consent form that the health
11 care services specifically described on the form will be
12 provided on a periodic basis. Under no circumstances shall any
13 informed consent extend beyond the school term for which it is
14 given.
15 (e) Reliance.--A school entity may act in reliance upon the
16 informed consent signature of a noncustodial parent unless the
17 school entity has been notified about the noncustodial status of
18 such parent.
19 (f) Revocation.--A parent or guardian may revoke informed
20 consent in writing at any time.
21 Section 15. Limitation on discretion with respect to Federal
22 programs.
23 No educational entity or State executive branch agency may
24 exercise its discretion with respect to any State plan, block
25 grant, waiver or other initiative relating to Commonwealth or
26 school entity participation in a Federal program to the extent
27 that the exercise of such discretion will conflict with this
28 act.
29 Section 16. Effective date.
30 This act shall take effect in 60 days.
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