H 4930 Session 112 (1997-1998)
H 4930 General Bill, By Haskins, Altman, Barfield, T. Brown, Campsen, Cato,
Davenport, Easterday, Hamilton, Lanford, Tripp and Whatley
A BILL TO AMEND TITLE 59, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
EDUCATION, BY ADDING CHAPTER 64 SO AS TO ENACT "THE SOUTH CAROLINA STUDENT AND
FAMILY PRIVACY AND PROTECTION ACT OF 1998" WHICH PROVIDE PROTECTIONS AGAINST
DISCLOSURE OF STUDENT RECORDS AND HEALTH SERVICES WHICH ARE NONCONSENSUAL,
ALLOW PARENTAL INSPECTION OF EDUCATIONAL MATERIALS, PROHIBITS UNAUTHORIZED
STUDENT SURVEYS, QUESTIONNAIRES, OR EVALUATIONS, ALLOWS STUDENTS TO BE EXCUSED
FROM CERTAIN INSTRUCTION IF IT CONFLICTS WITH THEIR RELIGIOUS BELIEFS,
PRESERVES STUDENT PRIVACY RIGHTS, AND PROVIDES PROCEDURES AND REMEDIES TO
IMPLEMENT OR PRESERVE THE ABOVE PROTECTIONS.
04/01/98 House Introduced and read first time HJ-16
04/01/98 House Referred to Committee on Education and Public
Works HJ-16
A BILL
TO AMEND TITLE 59, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO EDUCATION BY ADDING
CHAPTER 64 SO AS TO ENACT "THE SOUTH
CAROLINA STUDENT AND FAMILY PRIVACY AND
PROTECTION ACT OF 1998" WHICH PROVIDES
PROTECTIONS AGAINST DISCLOSURE OF STUDENT
RECORDS AND HEALTH SERVICES WHICH ARE
NONCONSENSUAL, ALLOWS PARENTAL INSPECTION OF
EDUCATIONAL MATERIALS, PROHIBITS UNAUTHORIZED
STUDENT SURVEYS, QUESTIONNAIRES, OR EVALUATIONS,
ALLOWS STUDENTS TO BE EXCUSED FROM CERTAIN
INSTRUCTION IF IT CONFLICTS WITH THEIR RELIGIOUS
BELIEFS, PRESERVES STUDENT PRIVACY RIGHTS, AND
PROVIDES PROCEDURES AND REMEDIES TO IMPLEMENT
OR PRESERVE THE ABOVE PROTECTIONS.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 59 of the 1976 Code is amended by adding:
"CHAPTER 64
South Carolina Student and Family Privacy and
Protection
Section 59-64-10. This chapter shall be known and may be cited
as the 'South Carolina Student and Family Privacy and Protection Act
of 1998'.
Section 59-64-20. The purpose of this chapter is to require
informed consent for the provision of school health care services,
with limited exceptions as provided by this chapter, to protect the
privacy of students and their families, and to protect against the
inappropriate collection and release of student educational records or
student records.
Section 59-64-30. Unless the context otherwise requires, the
following definitions apply in this chapter:
(1) 'Directory information' means a student's name, age,
municipality or county of residence, participation in officially
recognized activities and sports, including weight and height when
the student is a member of an athletic team, and any awards,
certificates, and diplomas received by the student.
(2) 'Educational entity' means the Department of Education, the
State Board of Education, a school district, a vocational-technical
school, or related entity and any of their officers, employees, or
persons acting as their agents.
(3) 'Health care services' means an examination, screening
diagnosis, evaluation, or treatment for physical, mental, or emotional
health problems. This term includes screening, counseling, and
referrals for behavioral, social, or emotional problems by school-
support team programs, student assistance programs, and similar
programs and referrals to and by such programs.
(4) 'Informed consent' means the signature of a parent or guardian
of a student giving prior written consent on the form required by
Section 59-64-140 to the release or inspection of a student record or
the provision of health care services to the student. For a student who
is a high school graduate, is married, or is eighteen years of age or
older, this term means the signature of the student rather than the
signature of the parent or guardian of the student.
(5) 'Instructional materials' means all materials to which a student
is directly exposed to or has access to, including, but not limited to,
textbooks, materials in school library, videos, films, tapes, computer
discs, charts, or graphs.
(6) 'Medical emergency' means a condition in which immediate
medical care is necessary to prevent the death or serious impairment
of the health of a student.
(7) 'Requirement of federal law' means any specific mandate
imposed by any federal statute, regulation, court order, or consent
decree. This term also includes any condition required in order to
participate in the federal Medicaid program and the federal special
education program provided for under the Individuals with
Disabilities Education Act (Public Law 91-230).
(8) 'School entity' means a school district, vocational-technical
school, or related entity and any of their officers, employees, or
person acting as their agent.
(9) 'Student' means a person who is enrolled in a school entity or
who becomes subject to the protections accorded under this chapter
by reason of past enrollment in a school entity.
(10) 'Student educational record' means the permanent record or file
of a student which may be in the form of an electronic portfolio,
including, but not limited to, personal achievement or credit for
courses taken, grades, attendance, any graduation project, any
disciplinary or behavioral record or information, and any other record
or information relating to overall performance of that particular
student in regard to the academic educational program, including any
other record, other than a student's medical record, directly related to
the student.
(11) 'Student record' means a student educational record or a
student medical report.
Section 59-64-40. (A) Except for directory information, no
educational entity shall release or allow access to any student or any
personal or private information relating to personally identifiable
information on the student or family of the student.
(B) Nothing in this chapter shall prohibit an educational entity
from permitting access to or releasing any student record or any
personal or private information on the student or family to any of the
following persons or under the following circumstances:
(1) to law enforcement officials in the course of a criminal
investigation;
(2) to a court of competent jurisdiction pursuant to a court order
or subpoena;
(3) to a parent or guardian of the student or to the student if
such student is a high school graduate, is married, or is eighteen years
of age or older, provided that a student may not authorize the release
of personal or private information of a derogatory nature on any other
living family member without the written consent of that family
member;
(4) to any person authorized to receive such information
pursuant to the informed written consent of the parent, guardian of
the student, or student whose records are sought if the student is
eighteen years of age or older and is emancipated;
(5) where the release of such information is necessary to protect
the immediate health or safety of the student, provided the parent or
guardian of the student is given written notification of such release
within two business days thereafter;
(6) state or local officials or authorities to whom such
information must be reported or disclosed as required by law;
(7) where the release of the information is a requirement of
federal law as certified by the attorney general;
(8) employees or officers of the school entity within which the
student is enrolled who have a legitimate interest in access to such
records;
(9) employees or officers of the school entity in which the
student transfers or seeks to enroll.
(B) Except where required under federal law, no social security
number may be used as a personal identifier for a student record. No
educational entity shall request or require that the social security
number of a student be disclosed as a condition of admission to any
school entity or for any other reason.
Section 59-64-50. (A) No school entity shall permit its school
personnel or any public or private providers of health care services
to utilize facilities or resources of the school entity for the purpose of
providing health care services to students, unless the informed
consent required by this chapter for the provisions of health services
has been obtained on the form under Section 59-64-140.
(B) Subsection (A) shall be inapplicable to any of the following:
(1) medical emergencies;
(2) a requirement of federal law as certified by the attorney
general, including individual education plans and other requirements
prescribed for special education students under the Individuals with
Disabilities Education Act (Public Law 91-230);
(3) ordinary and reasonable discipline as defined under school
policy or that which is necessary to maintain safety or school order.
(C) Nothing in this chapter shall be deemed to expand any legal
authority to utilize the resources, personnel, or facilities of any school
entity to provide health care services.
Section 59-64-60. A parent or guardian of the student, upon
written request, shall be entitled to inspect all instructional materials
and teacher manuals, other than test questions or examination
materials that are used in connection with any course or program
taught at the school entity within two business days after the parent
or guardian makes a request to inspect the materials. Each school
entity shall establish a reasonable procedure for implementing this
section.
Section 59-64-70. (A) No school entity shall require or permit a
student to participate in any survey, questionnaire, analysis, or
evaluation that would require or provide for the disclosure of the
informed consent required under this chapter.
(1) personal values, attitudes, opinions, or beliefs;
(2) family members' values, attitudes, opinions, or beliefs;
(3) religious affiliations or beliefs;
(4) political affiliations or beliefs;
(5) sexual attitudes or beliefs;
(6) sexual behavior;
(7) illegal, anti-social or self-incriminating, or demeaning
behavior;
(8) critical appraisals of individuals with whom the student has
personal relationships;
(9) the disclosure of information protected by legally recognized
privileged and analogous relationships, such as those of attorneys,
medical personnel, or ministers;
(10) income, other than required by law, to determine eligibility
for participation in a program for financial assistance;
(11) mental and psychological problems potentially embarrassing
to the student or the student's family.
(B) Except for the matters set out in subsection (A)(6) through
(11), nothing in this section shall restrict discussion or testing on
matters directly related to course instruction on core academic
subjects, other than health, sex, education, or similar subjects which
shall be subject to the informed consent requirement of subsection
(A). No student shall be penalized or rewarded in any subject, test,
or assignment because of the disclosure of any information described
in subsection (A).
Section 59-64-80. (A) Nothing in this chapter shall prohibit or
restrict any counseling or advice provided in response to
student-initiated contacts with a teacher, counselor, nurse, school
administrator, or other person authorized by the school entity to
provide such advice and counseling.
(B) Nothing in this chapter shall prohibit or restrict school initiated
contacts with the parent or guardian of a student regarding any
physical, mental or emotional problem, or concern relating to the
student.
(C) A teacher or school administrator may initiate contacts with a
student regarding a physical, mental, or emotional problem of the
student if the teacher or administrator notifies a parent or guardian of
the student within two business days after the contact. The teacher
or school administrator is not required to provide such notification to
the parent or guardian in cases where a report is made or a report is
made to law enforcement authorities.
Section 59-64-90. A parent or guardian has the right to have the
student of the parent or guardian excused from specific instruction
which conflicts with the religious beliefs of the parent or guardian
upon submission to the school entity or a written request to be
excused on the basis of the religious belief.
Section 59-64-100. (A) Parents and guardians of students shall
be given written information about their rights under this act,
including the name, telephone number, and address of the person in
each school district responsible for compliance.
(B) Each school entity shall designate one person to be responsible
to parents and guardians of students to make sure that the rights of
students, parents, and guardians under this chapter are protected.
(C) Each school entity may adopt reasonable procedures to
implement this chapter, provided they are consistent with the
regulations promulgated under Section 59-64-110.
Section 59-64-110. The Department of Education shall
promulgate regulations necessary for the implementation of this
chapter.
Section 59-64-120. (A) The attorney general, any aggrieved
student, parent, or guardian of a student may seek an injunction
against any violation of this chapter from a court with appropriate
jurisdiction.
(B) Upon the request of the governing body, superintendent, or
director of an educational entity, the attorney general shall furnish
written legal advice concerning any matter or issue arising in
connection with the exercise of the official powers or performance of
the official duties of the educational entity under this chapter.
(1) The written advice, if given, shall be followed, and when
followed the recipient shall not in any way be liable for doing so,
upon any official bond or otherwise.
(2) If the governing body of the educational entity disagrees
with the legal advice rendered by the attorney general, the
educational entity may seek a declaratory judgment in a court of
competent jurisdiction. The legal advice of the attorney general shall
be binding until a court of competent jurisdiction issues a final order
on the petition requesting the declaratory judgment.
(3) Any written legal advice given pursuant to this subsection
shall be a public record. If the attorney general considers the legal
advice to be of substantial importance to educational entities, parents,
guardians, and other persons throughout this State, the attorney
general may publish such advice in a form he considers appropriate.
(C) Nothing in this chapter shall eliminate or abrogate any other
legal or equitable remedy which may be available to a student, parent,
or guardian of a student in connection with a violation of this chapter.
Section 59-64-130. Nothing in this chapter shall be construed to
eliminate or weaken the following:
(1) a privacy protection, which is accorded by law or regulation,
against the collection of information regarding a student and the
student's family or against the release or such information to a party
other than the student or a parent or guardian of the student;
(2) a right, which is accorded by law or regulation, of a parent or
guardian of a student to have or to have access to information
regarding educational activities affecting the student;
(3) the legal authority of a parent or guardian of a student
regarding the educational or rearing of the student.
Section 59-64-140. When informed consent is required under this
chapter, the consent shall be manifested on a form or paper used
solely for the purpose of obtaining consent and providing written
notice which contains a reasonable description of:
(1) the health care services for which informed consent is sought.
This item requires clear and conspicuous notice regarding any health
care service which may involve:
(a) an examination of the genital area or the removal of
undergarments; or
(b) mental or emotional health screening, diagnosis, treatment,
counseling, or referral.
(2) The student record and the purpose for which the student
record is sought.
(3) The entities or persons who shall have access to the student
record or provide the health care services in question if consent is
granted.
(B) In addition to the requirements of subsection (A), each form
shall contain a statement encouraging the parent or guardian to seek
additional information regarding the proposed health care service and
providing the name and telephone number of a contact person
designated by the school entity for this purpose. This statement shall
be at the end of the form directly above the place designated for the
signature of the parent or guardian.
(C) A general consent for the release of or access to student
records or for the provision of health care services shall not constitute
the informed consent required under this chapter.
(D) Nothing in this chapter shall require additional consent for
each subsequent occasion during the school term on which a health
care service is provided to a student if it is clear from the consent
form that the health care services specifically described on the form
shall be provided on a periodic basis. Informed consent under this
subsection may be revoked at any time. Under no circumstances
shall any informed consent extend beyond the school term for which
it is given."
SECTION 2. This act takes effect sixty days after approval by the
Governor.
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