MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Public Health and Human Services
By: Representative Crawford
AN ACT TO EXEMPT ANY OFFICIAL, AGENT OR EMPLOYEE OF THE STATE OR A POLITICAL SUBDIVISION THEREOF FROM ENFORCING OR BEING ORDERED TO ENFORCE ANY FEDERAL DIRECTIVE THAT ALLOWS ANY MEDICAL, HEALTH CARE, BEHAVIORAL, OR MENTAL HEALTH TREATMENT, SERVICE, THERAPY OR COUNSELING TO PROVIDE ACCESS TO A STUDENT WITH A DISABILITY'S PERSONALLY IDENTIFIABLE INFORMATION, PUBLIC BENEFITS INFORMATION OR MAKE ANY MODIFICATION TO THAT STUDENTS IEP OR SERVICE PLANS WITHOUT THE CONSENT OF THE CHILD'S PARENT OR LEGAL GUARDIAN; TO PROVIDE A CAUSE OF ACTION BY A PARENT OR LEGAL GUARDIAN AGAINST ANY PERSON, CORPORATION OR OTHER ENTITY, WHO VIOLATES THE MEDICAL AND MENTAL HEALTH RELATED PARENTAL NOTIFICATION AND CONSENT REQUIREMENTS; TO BRING FORWARD SECTION 41-41-3, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENTS; TO AMEND SECTION 37-23-137, MISSISSIPPI CODE OF 1972, TO REQUIRE WRITTEN PRIOR NOTICE AND REQUEST FOR CONSENT SHALL BE PROVIDED TO THE PARENTS OF A CHILD WITH A DISABILITY EACH TIME CERTAIN REVISIONS ARE MADE TO THE CHILD'S IEP, WHEN THE CHILD'S PUBLIC BENEFITS ARE SOUGHT TO BE ACCESSED AND WHEN THE CHILD'S PERSONAL IDENTIFIABLE INFORMATION IS SOUGHT TO BE DISCLOSED FOR BILLING PURPOSES; TO PROVIDE FOR THE SEVERABILITY OF THE PROVISIONS OF THIS SECTION; AND FOR RELATED PURPOSES.
WHEREAS, the United States Supreme Court has held that under the Tenth Amendment, "Congress cannot compel the States to enact or enforce a federal regulatory program ... Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." (Printz v. U.S., 521 U.S. 898, 935 (1997)); and,
WHEREAS, Chief Justice John Roberts in NFIB v. Sebelius, 567 U.S. 519 (2012) cites with approval the warning that "it is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power"; and
WHEREAS, Section 41-41-3 provides that health care cannot be provided to a minor without the consent of a parent, guardian or other authorized person as provided therein; and,
WHEREAS, the United States Secretary of Health and Human Services has issued a notice of proposed rulemaking to rescind 34 CFR Section 300.154(d)(2)(iv), which would remove the requirement for parental consent prior to accessing a child's or parent's public benefits or insurance for the first time; and
WHEREAS, the referenced notice of proposed rulemaking further proposes to rescind the requirement in 34 CFR Section 300.154(d)(2)(v) that notices to parents of children with an IDEA no longer include the following two statements: (i) a statement that the parents have the right to withdraw consent to disclose their child's personal identifying information (PII) to the agency responsible for the administration of the State's public benefits or insurance program at any time; and (ii) a statement that refusal to provide consent or withdrawal of consent to disclose PII to the agency responsible for the administration of the State's public benefits or insurance program does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents: NOW, THEREFORE,
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. It is the purpose and intention of the Legislature to protect the rights of the state government and of the people of this state reserved to them in our federal system of government under the Ninth and Tenth Amendments to the United States Constitution, insofar as the rights of parents to govern and direct medical and health care decisions of their children and to protect their children's privacy are concerned.
SECTION 2. No federal executive order, agency order, rule, guidance document, memorandum, directive, regulation or administrative interpretation of a law or statute enrolled by the United States Congress and signed by the President of the United States, including, without limitation, any of the above referenced proposed rule changes, which allow any medical, health care, behavioral, or mental health treatment, service, therapy or counseling without parental notification or consent in contravention of the provisions of Sections 37-23-137 or 41-4-3, or any other applicable laws of the state governing such parental notification or consent, shall be enforced or ordered to be enforced by any official, agent or employee of this state or a political subdivision thereof, or any person acting under color of state law.
SECTION 3. (1) Notwithstanding any federal executive order, agency order, rule, guidance document, memorandum, directive, regulation or administrative interpretation of a law or statute enrolled by the United States Congress and signed by the President of the United States, including, without limitation, any proposed rule as referenced in Section 1 of this act, any state agency, school district, health care institution or health care provider, as defined in Section 41-41-203, who violates the provisions of Sections 37-23-137, 41-41-3, or other applicable laws of the state governing such parental notification or consent, may be subject to a civil suit for damages brought by any parent whose rights secured by those sections were violated. Relief available in such a civil suit may include, without limitation, actual damages, court costs, reasonable attorney fees as ordered by the court, and punitive damages if the violation satisfies the standards for imposition of punitive damages elsewhere provided by law.
(2) An individual may assert a violation of this act as a claim in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the government, any private person or any other party.
(3) An action under this act may be commenced, and relief may be granted, in a court of competent jurisdiction in the state without regard to whether the individual commencing the action has sought or exhausted available administrative remedies.
(4) Sovereign immunity shall not be an affirmative defense in any action pursuant to this act.
SECTION 4. Section 37-23-137, Mississippi Code of 1972, is amended as follows:
37-23-137. (1) Consent shall be obtained:
(a) Prior to initial evaluation;
(b) Prior to implementation of the initial individualized educational program for a child with a disability;
(c) Prior to reevaluation, except that such consent is not required, if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the parent failed to respond; and
(d) Prior to the release of educational records as required under the Family Educational Rights and Privacy Act and IDEA.
(2) If the parent of a child with a disability refuses consent for the evaluation, the local educational agency may continue to pursue an evaluation by utilizing the due process hearing procedures under IDEA, except to the extent these are not in conflict with Mississippi law relating to parental consent.
(3) (a) Written prior notice shall be provided to the parents of the child whenever a local educational agency proposes to initiate or change or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to that child.
(b) Notwithstanding any federal executive order, agency order, rule, guidance document, memorandum, directive, regulation or administrative interpretation of a law or statute enrolled by the United States Congress and signed by the President of the United States to the contrary, including, without limitation, Part B of the Individuals with Disabilities in Education Act, or any provisions of the Family Educational Rights and Privacy Act (FERPA) or the Bipartisan Safer Communities Act, written prior notice and request for consent shall be provided to the parents of the child each time:
(i) A public agency seeks to access a child's public benefits or insurance;
(ii) A child with a disability is required to be reevaluated; and
(iii) A public entity seeks disclosure of a child's personal identifiable information for Medicaid billing under FERPA or IDEA.
(4) Written prior notice shall be provided in the native language of the parents, unless it clearly is not feasible to do so.
(5) Written prior notice shall include:
(a) A description of the action proposed or refused by the local educational agency;
(b) An explanation of why the local educational agency proposes or refuses to take the action;
(c) A description of any other options that the local educational agency considered and the reasons why those options were rejected;
(d) A description of any other factors that are relevant to the local educational agency's proposal or refusal;
(e) A description of each evaluation procedure, test, record, or report the local educational agency used as a basis for the proposed or refused action;
(f) A description of any factors that are relevant to the local educational agency's proposal or refusal;
(g) A statement that the parents of a child with a disability have protection under the procedural safeguards under IDEA and, if the notice is not an initial referral for evaluation, notification of an individualized educational program meeting or notice for reevaluation, the means by which a copy of a description of procedural safeguards can be obtained; and
(h) Sources for parents to contact to obtain assistance in understanding the provisions under IDEA.
(6) A copy of the procedural safeguards established by the State Department of Education shall be given to the parents upon:
(a) Initial referral for evaluation, reevaluation or parent request for evaluation;
(b) The child's initial IEP meeting;
(c) Registration of a complaint under IDEA to the State Department of Education;
(d) Upon a request by a parent; and
(e) If there is no circumstance giving rise to the purpose of parents receiving a copy of the procedural safeguards under paragraphs (a), (b) and (c) of this subsection, then the parents shall be provided with a copy of the procedural safeguards at least once on an annual basis.
The procedural safeguards shall include provisions which allow parents to be informed of the parental right to record IEP meetings by means of an audio or visual recording device or written transcript at the parent's own expense if they so desire a record of the meeting.
(7) The State Department of Education and each local educational agency shall establish procedures to ensure parents of children with disabilities have the opportunity to participate in meetings with respect to the identification, evaluation, and education placement of the child, and the provision of a free appropriate public education of such child. Local educational agencies shall provide parents of children with disabilities an opportunity to provide input in the development of the agencies' application for funding, as required under IDEA.
(8) The parent or guardian or local educational agency shall have the right to audio record the proceedings of individualized education program team meetings. The parent or guardian or local educational agency shall notify the members of the individualized education program team of his, her, or its intent to audio record a meeting at least twenty-four (24) hours prior to the meeting.
(9) In conducting the evaluation, the local educational agency shall:
(a) Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;
(b) Not use any single procedure as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and
(c) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
(10) Each local educational agency shall ensure that:
(a) Tests and other evaluation materials used to assess a child are:
(i) Selected and administered so as not to be discriminatory on a racial or cultural basis; and
(ii) Provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so;
(b) Any standardized tests that are given to the child:
(i) Have been validated for the specific purpose for which they are used;
(ii) Are administered by trained and knowledgeable personnel; and
(iii) Are administered in accordance with any instructions provided by the producer of such tests;
(c) The child is assessed in all areas of suspected disability; and
(d) Assessment tools and strategies that provide relevant information that directly assist persons in determining the educational needs of the child are provided.
(11) Upon completion of administration of tests and other evaluation materials:
(a) The determination of whether the child is a child with a disability as defined under IDEA and state regulations established by the State Board of Education shall be made by a team of qualified professionals and the parent of the child and certified by a Screening Team as defined by the State Board of Education;
(b) In making such a determination of eligibility, a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency; and
(c) A copy of the evaluation report and the documentation of determination of eligibility will be given to the parent.
(12) Parents shall have an opportunity to obtain an independent educational evaluation of their child in accordance with the requirements under IDEA.
(13) An outside individual or entity contracting with a local educational agency for the purpose of performing an observation in order to make recommendations of possible changes in a child's IEP, or any outside individual or entity making an observation of a child which results in such recommendations, shall submit a report of the observation to the local educational agency. The local educational agency shall notify the parent upon receipt of this report.
(14) Parents and guardians shall have the right of review or to receive copies of all educational records, as such records are defined by the Family Educational Rights and Privacy Act and the Individuals with Disabilities Education Act, pertaining to their child. The local educational agency shall be responsible for making the educational records available to the parent or guardian. The cost of providing a copy of any information contained in a student's educational record to the parents or guardians shall be established by the local school board in accordance with the requirements of the Family Educational Rights and Privacy Act and the Individuals with Disabilities Education Act.
(15) If any subsection of this section or its application to any person or circumstance is held invalid, the invalidity does not affect other subsections or applications of this section which can be given effect without the invalid subsection or application, and to this end the provisions of this section are severable.
SECTION 5. Section 41-41-3, Mississippi Code of 1972, is brought forward as follows:
41-41-3. (1) It is hereby recognized and established that, in addition to such other persons as may be so authorized and empowered, any one (1) of the following persons who is reasonably available, in descending order of priority, is authorized and empowered to consent on behalf of an unemancipated minor, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed or directed by a duly licensed physician:
(a) The minor's guardian or custodian.
(b) The minor's parent.
(c) An adult brother or sister of the minor.
(d) The minor's grandparent.
(2) If none of the individuals eligible to act under subsection (1) is reasonably available, an adult who has exhibited special care and concern for the minor and who is reasonably available may act; the adult shall communicate the assumption of authority as promptly as practicable to the individuals specified in subsection (1) who can be readily contacted.
(3) Any female, regardless of age or marital status, is empowered to give consent for herself in connection with pregnancy or childbirth.
SECTION 6. If any one or more provisions, sections, subsections, sentences, clauses, phrases or words of this act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this act shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed this act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases or words be declared unconstitutional.
SECTION 7. This act shall take effect and be in force from and after July 1, 2024.