FFEB(LEGAL) - COUNSELING AND MENTAL HEALTH: MENTAL HEALTH
Note: For information about mental health curriculum and SHAC responsibilities, see EHAA. For information about threat assessments, see FFB.
Mental Health Condition
"Mental health condition" means a persistent or recurrent pattern of thoughts, feelings, or behaviors that:
- Constitutes a mental illness, disease, or disorder, other than or in addition to epilepsy, substance abuse, or an intellectual disability; or
- Impairs a person's social, emotional, or educational functioning and increases the risk of developing such a condition.
Education Code 5.001(5-a)
The Texas Education Agency (TEA), in coordination with the Health and Human Services Commission and regional education service centers (ESCs), shall provide and annually update a list of recommended best practice-based programs and research-based practices in the areas specified below for implementation in public elementary, junior high, middle, and high schools within the general education setting. Each district may select from the list a program or programs appropriate for implementation in the district.
The list must include programs and practices in the following areas:
- Early mental health prevention and intervention;
- Building skills related to managing emotions, establishing and maintaining positive relationships, and responsible decision-making;
- Substance abuse prevention and intervention;
- Suicide prevention, intervention, and postvention;
- Grief-informed and trauma-informed practices;
- Positive school climates;
- Positive behavior interventions and supports;
- Positive youth development; and
- Safe, supportive, and positive school climate.
"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 district, parents of those students, and personnel employed by the district.
[For information on employee training, see DMA.]
Practices and Procedures
A district shall develop practices and procedures concerning each area listed above, including mental health promotion and intervention, substance abuse prevention and intervention, and suicide prevention, that:
- Include a procedure for providing educational material to all parents and families in the district that contains information on identifying risk factors, accessing resources for treatment or support provided on and off campus, and accessing available student accommodations provided on campus;
- 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, which may include declining academic performance, depression, anxiety, isolation, unexplained changes in sleep or eating habits, and destructive behavior toward self and others;
- 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;
- 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;
- Set out available counseling alternatives for a parent or guardian to consider when his or her child is identified as possibly being in need of early mental health or substance abuse intervention or suicide prevention; and
- Include procedures:
- To support the return of a student to school following hospitalization or residential treatment for a mental health condition or substance abuse; and
- For suicide prevention, intervention, and postvention.
The practices and procedures may address multiple subject areas [see Subject Areas, above]. The practices and procedures 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.
The practices and procedures developed must be included in the annual student handbook and the district improvement plan under Education Code 11.252. [See BQ]
Nothing in these provisions 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 these provisions 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. These provisions do not give districts the authority to prescribe medications. Any and all medical decisions are to be made by a parent or guardian of a student.
"Postvention" includes activities that promote healing necessary to reduce the risk of suicide by a person affected by the suicide of another.
Education Code 38.351(a)–(f), (i)–(o)
The above requirements do not waive any immunity from liability of a district or of district officers or employees, create any liability for a cause of action against a district or against district officers or employees, or waive any immunity from liability under Civil Practice and Remedies Code 74.151. Education Code 38.352
Consent to Examinations, Tests, or Treatment
A district employee must obtain the written consent of a child's parent before the employee may conduct a psychological examination, test, or treatment, unless the examination, test, or treatment is required by:
- TEA's policy concerning child abuse investigations and reports under Education Code 38.004; or
- State or federal law regarding requirements for special education.
Education Code 26.009(a)(1) [See FNG]
[For more information about consent to medical treatment, including psychological treatment, see FFAC. For information about consent to counseling, see FFEA.]
A licensed or certified physician, psychologist, counselor, or social worker having reasonable grounds to believe that a child has been sexually, physically, or emotionally abused; is contemplating suicide; or is involved in chemical or drug addiction or dependency may:
- Counsel the child without the consent of the child's parents, managing conservator, or guardian;
- With or without the consent of a child who is a client, advise the parents, managing conservator, or guardian of the treatment given to or needed by the child;
- Rely on the written statement of the child containing the grounds on which the child has capacity to consent to his or her own treatment as provided above.
Exception: Court Order
The physician, psychologist, counselor, or social worker may not counsel a child if consent is prohibited by a court order, unless consent is obtained as otherwise allowed by law.
Family Code 32.004(b), (c)
[See DP for more information about LSSP and school counselor responsibilities.]
Consent to LSSP
Informed consent for a licensed specialist in school psychology (LSSP) must be obtained in accordance with the Individuals with Disabilities Education Improvement Act (IDEIA) and the U.S. Department of Education's rules governing parental consent when delivering school psychological services in the public schools, and is considered to meet the requirements for informed consent under the Texas State Board of Examiners of Psychologists (TSBEP) rules. No additional informed consent, specific to any TSBEP rules, is necessary in this context.
22 TAC 465.38(g)
A psychologist, counselor, or social worker licensed or certified by the state is not liable for damages except those damages that may result from his or her negligence or willful misconduct.
Family Code 32.004(d)
Neither a district nor an employee of a district may refer a student to an outside counselor for care or treatment of a chemical dependency or an emotional or psychological condition unless the district does all of the following:
- Obtains prior written consent for the referral from the student's parent, managing conservator, or guardian.
- Discloses to the student's parent, managing conservator, or guardian any relationship between the district and the outside counselor.
- Informs the student and the student's parent, managing conservator, or guardian of any alternative public or private source of care or treatment reasonably available in the area.
- Requires the approval of appropriate district personnel before a student may be referred for care or treatment or before a referral is suggested as being warranted.
- Specifically prohibits any disclosure of a student record that violates state or federal law.
Education Code 38.010
[See FFEA for information on the comprehensive guidance program. See FFB for mental health-care services provided by the threat assessment and safe and supportive school team.]
Psychotropics and Psychiatric Evaluations
A district employee may not:
- Recommend that a student use a psychotropic drug; or
- Suggest any particular diagnosis; or
- 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.
Psychotropic drug means a substance that is used in the diagnosis, treatment, or prevention of a disease or as a component of a medication and intended to have an altering effect on perception, emotion, or behavior.
Education Code 38.016(b) does not:
- Prevent an appropriate referral under the Child Find system required under 20 U.S.C. Section 1412, as amended; or
- 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
- 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.
A board shall adopt a policy to ensure implementation and enforcement of Education Code 38.016. [See FFAC]
A violation of Education Code 38.016(b) does not override the immunity from personal liability granted in Education Code 22.0511 or other law or a district's sovereign or governmental immunity.
Nonphysician mental health professional has the meaning assigned by Education Code 38.0101 [see DP].
Education Code 38.016
[For information regarding administration of medication, see FFAC.]
Child Abuse Reporting
An employee may not use or threaten to use the refusal of a parent, guardian, or managing or possessory conservator to administer or consent to the administration of a psychotropic drug to a child, or to consent to any other psychiatric or psychological testing or treatment of the child, as the sole basis for making a report of neglect, unless the employee has cause to believe that the refusal:
- Presents a substantial risk of death, disfigurement, or bodily injury to the child; or
- Has resulted in an observable and material impairment to the growth, development, or functioning of the child.
Education Code 26.0091; Family Code 261.111(a) [See FFG]