HOUSE CONSUMER AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

HOUSE BILL 567

54th legislature - STATE OF NEW MEXICO - first session, 2019

AN ACT

RELATING TO CHILDREN; ENACTING NEW SECTIONS OF THE PUBLIC SCHOOL CODE AS "MICHAEL'S LAW"; PROVIDING FOR THE PROTECTION OF STUDENTS IN NEED OF ACCOMMODATION WHO ARE ACCUSED OF SANCTIONED OFFENSES TO PROVIDE SUPPORTS AND DUE PROCESS; LIMITING THE USE OF RESTRAINT AND SECLUSION; PROVIDING FOR NOTICE TO PARENTS; AMENDING A SECTION OF THE CHILDREN'S MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES ACT TO PROVIDE PARENTS WITH TEMPORARY ACCESS TO INFORMATION IN CERTAIN CIRCUMSTANCES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of this act may be cited as "Michael's Law"."

     SECTION 2. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] DEFINITIONS.--As used in Michael's Law:

          A. "adverse childhood experience" means any of the following:

                (1) emotional abuse or neglect;

                (2) physical abuse or neglect;

                (3) sexual abuse;

                (4) substance abuse in the student's household;

                (5) mental illness of a household member of the student;

                (6) violence against the student's parent or caregiver;

                (7) incarceration of a household member of the student;

                (8) loss of contact with a parent of the student;

                (9) homelessness;

                (10) persistent poverty; or

                (11) the experience of being a child parent, or being raised by a child parent, without adequate social supports;

          B. "at-risk student" means a student who has been referred to juvenile justice, has been adjudicated, is in danger of not graduating or being promoted to the next grade level and is not attending class on a regular basis;

          C. "aversive intervention" means any device or intervention, consequences or procedure intended to cause pain or unpleasant sensations, including interventions causing physical pain, tissue damage, physical illness or injury; electric shock; isolation; forced exercise; withholding of food, water or sleep; humiliation; water mist; noxious taste, smell or skin agents; and overcorrection;

          D. "crisis team" means any of the following groups of persons who offer support in a crisis of a student and are trained to implement research-based practices designed to assist students and staff in identifying early warning signs and developing prevention, intervention and crisis plans:

                (1) a crisis intervention resource team;

                (2) a mobile crisis team;

                (3) an assertive community treatment team; or

                (4) a team composed of a behavioral health provider and any school employee;

          E. "disability" means a student that has been identified and met the criteria of the Developmental Disabilities Act, the federal Americans with Disabilities Act of 1990 or the Individuals with Disabilities Education Act;

          F. "evidence-based practice" means a practice that integrates individual expertise with the best available external evidence from systemic research;

          G. "IEP" means an individual education plan for a student with a disability;

          H. "manifestation determination" means that within ten school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, in which all relevant information in the student's file and information provided by the parent and teachers to determine if the conduct in question was caused by or had a direct and substantial relationship to the child's disability or if the conduct in question was the direct result of the failure to implement the IEP;

          I. "present danger" means imminent bodily harm or death to oneself or another or would pose a substantial threat to school safety;

          J. "seclusion":

                (1) means the involuntary confinement of a student alone in a room from which egress is prevented; "seclusion" does not mean the use of a voluntary behavior management technique, including a time out location, as part of a student's education plan, individual safety plan, behavioral plan or individualized education program that involves the student's separation from a larger group for purpose of calming; and

                (2) does not mean time out, where a child can leave when the child feels ready to reengage in the educational placement;

          K. "student in need of accommodation" means a student who has:

                (1) been suspected of or notified by the parent or guardian as having a serious mental illness, serious emotional disturbance or other behavioral health condition;

                (2) received an adverse childhood experiences screening and has been identified as having experienced at least two adverse childhood experiences;

                (3) has been identified and met the criteria of disability;

                (4) been referred multiple times for disciplinary action;

                (5) had formal or informal changes of educational setting; or 

                (6) been exhibiting behaviors that constitute a pattern for academic failure;

          L. "supports screenings" includes screenings of a student to determine whether the student is in need of accommodation or to assess a student as having one of the conditions that qualify the student as a student in need of accommodation; and

          M. "time out" means the brief removal, by choice of a student or at the request of a teacher, of a student to a quiet classroom area for students to self-regulate or become calm and from which the student can freely and voluntarily leave."

     SECTION 3. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] STUDENT SUPPORTS PLAN.--A school shall adopt a "student supports plan" for protecting students in need of accommodation from violations of the student's rights under state and federal law, including the student's right to accommodation of the student's disability, parental involvement and due process. The student supports plan shall include a plan for restorative, preventive and intervention services, which plan shall be documented and agreed upon by the student in need of accommodation, the student's parent and the school principal; provided that the parent of the student may refuse support and shall not be penalized for refusing services. A student supports plan shall include provisions for:

          A. training local law enforcement officers and school employees in responding to situations involving the student in need of accommodation so as to minimize aversive intervention or the classification of the responses of the student as intentional infractions of school policy;

          B. ensuring compliance with the provisions of Section 5 of Michael's Law relating to restraint and seclusion;

          C. recognizing the common characteristics and behaviors associated with students in need of accommodation;

          D. interaction and communication with the student in need of accommodation;

          E. recognition of the factors that have led the student to need accommodation;

          F. finding local resources to help deal with the child's problems and how to involve those resources, including crisis intervention teams and behavioral health providers;

          G. prevention of re-traumatization and accommodation;

          H. protecting students from unlawful searches and seizures;

          I. protocols for using crisis intervention teams, mobile crisis teams, assertive community treatment teams and behavioral health providers. These protocols shall incorporate training in the following areas:

                (1) health education;

                (2) social-emotional learning;

                (3) trauma-informed care;

                (4) youth mental health first aid; and

                (5) adult mental health first aid; and

          J. the rights of the student against unlawful search and seizure. The student has the right against unlawful search and seizure. The parent shall be notified and provided notice to be present unless not doing so would pose a substantial threat to school safety."

     SECTION 4. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] STUDENTS IN NEED OF ACCOMMODATION--IDENTIFICATION--PREVENTATIVE PLANS OF ACTION.--

          A. A local school board shall develop first-response policies and procedures for a student who has committed a first offense as defined by the school code of conduct and discipline that would result in a referral to juvenile justice or law enforcement involvement as determined by the local school board. These policies and procedures shall include:

                (1) a requirement that, before any arrest or referral for supports is made, the student, the student's parent and school principal meet after the student's first offense to discuss the events surrounding the first offense; provided that:

                     (a) an advocate of the student's or parent's choosing shall be allowed to attend the meeting; and

                     (b) unless the student is alleged to have committed a delinquent act where there is a present danger or would pose a threat to school safety, any referral to the juvenile justice division of the children, youth and families department shall be delayed pending the completion of supports screenings and a determination of whether preventative supports could deter escalation of the offense;

                (2) protocols for seeking and the administering of crisis intervention supports;

                (3) the provision to the student of:

                     (a) an adverse childhood experiences screening;

                     (b) a needs assessment, in accordance with the provisions of Subsection B of this section;

                     (c) a behavioral health screening; and

                     (d) any contractual agreement established between school districts that shall: 1) stipulate access to crisis intervention training, mobile crisis teams, assertive community treatment teams and youth mental health first aid training and certification; 2) establish policies, procedures and protocols for ensuring that the training of local law enforcement officers on responding to intentional infractions of school policy and student supports plans and provide that local law enforcement be notified that a student has a student supports plan; and 3) training school employees to respond to situations involving students in need of accommodation to minimize adverse interactions or classification of the responses of students in need of accommodation as intentional infractions of school policy;

                (4) provisions for the review of the student's disciplinary records to examine formal and informal offenses as defined by the student code of conduct and any measures taken to address the infractions by:

                     (a) the school principal;

                     (b) the appropriate instructional support providers; or

                     (c) a licensed or certified behavioral health professional employed by or under contract to the school or school district; and

                (5) a requirement that the student's teachers and parents be consulted during records review and supports screening but shall not be solely responsible for administering the supports screening, making referrals or contacting providers, completing reports or any other activity required pursuant to this subsection; provided that the records are shared in strict accordance with federal privacy laws.

          B. A needs assessment shall be developmentally specific, strengths-based, culturally sensitive and trauma-informed. It shall integrate the supports screening of the student's family and home environment, the classroom context, sensory integration needs, the family's spoken language, communication needs or deficit and educational history.

          C. Any record or document pertaining to the student, the student's education, supports screening and interventions shall be provided to the student's parent no later than thirty days after the first offense has occurred.

          D. After a student's first offense as defined by the school code of conduct and discipline as determined by the school principal, or within thirty days of exiting a juvenile detention center, the student, the student's parent, school officials, teachers and service providers shall develop a preventative plan of action that shall be documented in writing. The preventative plan of action shall include:

                (1) reports from any crisis intervention, incident of restraint or seclusion, behavioral health screening or supports screening needs assessment;

                (2) the identification of goals for optimizing the student's well-being; and

                (3) recommendations and considerations related to achieving the goals for the student, including:

                     (a) non-discriminatory, accessible and high-quality modifications and evidence-based practices for learning that coincide with any crisis intervention, behavioral health screening or needs assessment;

                     (b) daily schedules, expectations and monitoring of student activity and learning time;

                     (c) in-home and community-based models that include viable options for: 1) assisting the student with the acquisition of needed social and behavioral skills; or 2) providing other necessary services to the student;

                     (d) positive reinforcement and behavior support;

                     (e) goal-setting and assistance for reaching those goals, such as college preparatory or career preparatory guidance;

                     (f) parent training, involvement and support;

                     (g) individual, group or class services that respect evidence-based student-to-teacher ratios;

                     (h) communication interventions and the use of assistive technology;

                     (i) social skills support, including assistance in helping students participate in public school activities whenever possible so as to diminish or remove any stigma;

                     (j) creative outlets, including movement, exercise, art or music;

                     (k) assistance and training for appropriate school employees in implementing the preventative plan of action; and

                     (l) a trauma-informed approach to seclusion and restraint that: 1) identifies the impact of trauma on a student that has experienced adverse childhood experiences or other trauma; and 2) actively addresses the risk of re-traumatizing the student.

          E. A student's preventative plan of action shall include evidence from supporting documents, including information relating to any child protective services involvement, foster care placement, drug court involvement, past individual education plans and any past assessment or evaluation that was considered in determining the best interests of the student.

          F. A school shall not make a referral for a supports screening pursuant to a student's preventative plan of action without the approval of the student's parent. Supports identified in the plan shall be pragmatic and cannot unfairly burden the student's family. Any referral shall take into account the schedules of the student's parent and the student's family's access to transportation and include any necessary arrangements.

          G. Supports identified in the preventative plan of action shall not detract from a student's education.

          H. Supports identified in the preventative plan of action shall be available to all students in need of accommodation and shall not be dependent on a disability.

          I. The student, the student's parent and providers of supports indicated on the student's preventative plan of action shall evaluate the effectiveness and appropriateness of supports provided pursuant to the preventative plan of action every thirty days, and make modifications to the plan as needed, until the goals identified in the plan are reached. Supports shall not terminate solely by reason of a school year or a fiscal year ending. Supports must follow students as public schools, teachers, home environments and service providers change. A student's preventative plan of action shall:

                (1) be implemented regardless of whether the student has been adjudicated; and

                (2) not be used during the adjudication process unless the student's parent requests it.

          J. The student, the student's parent and identified supports indicated on the student's preventative plan of action shall work collaboratively on whether the goals identified in a student's preventative plan of action are reached and provide a two-month step-down plan for transition from supports. At the end of the two-month step-down plan, a transition monitoring plan shall be developed by the school and provided to the student, the student's parent and identified supports. The transition monitoring plan shall provide, at minimum, the needs assessments to be completed at least twice a year and the student may exit the monitoring plan after a year if the student is doing well in school.

          K. On the same calendar day of the referral, a school shall notify a student's parent verbally and in writing if the school refers the student to the juvenile justice division of the children, youth and families department.

          L. A school shall consult with the children, youth and families department when making a determination for referral of a student to the juvenile justice division for actions of the student that took place during the restraint or during a crisis team intervention.

          M. A school shall use state or local law enforcement as a last resort and not as a first response. School security or school resource officers shall defer to a student's social worker, psychologist, psychiatrist, counselor or therapist before taking action relating to a student.

          N. A school that refers a student with a known disability or an IEP to the juvenile justice division of the children, youth and families department must conduct a manifestation determination hearing. If the hearing determines that the student's behavior is not related to a disability, then a copy of the findings shall be provided to the student's parent and the juvenile justice division."

     SECTION 5. A new section of the Public School Code is enacted to read:

     "[NEW MATERIAL] ALTERNATIVES TO SECLUSION AND RESTRAINT.-- A local school board shall adopt and promulgate rules limiting use of restraint and seclusion on students in order to avoid re-traumatization. The rules shall:

          A. fully integrate evidence-based practices relating to trauma;

          B. provide for the recognition of the signs and symptoms of trauma in families and students; and

          C. provide for the restriction of interventions that would have a reasonable possibility of re-traumatizing a student."

     SECTION 6. Section 32A-6A-24 NMSA 1978 (being Laws 2007, Chapter 162, Section 24, as amended) is amended to read:

     "32A-6A-24. DISCLOSURE OF INFORMATION.--

          A. Except as otherwise provided in the Children's Mental Health and Developmental Disabilities Act, a person shall not, without the authorization of the child, disclose or transmit any confidential information from which a person well-acquainted with the child might recognize the child as the described person or any code, number or other means that could be used to match the child with confidential information regarding the child.

          B. When the child is under fourteen years of age, the child's legal custodian is authorized to consent to disclosure on behalf of the child. Information shall also be disclosed to a court-appointed guardian ad litem without consent of the child or the child's legal custodian.

          C. Except as provided pursuant to Subsection K of this section, a child fourteen years of age or older with capacity to consent to disclosure of confidential information shall have the right to consent to disclosure of mental health and habilitation records. A legal custodian who is authorized to make health care decisions for a child has the same rights as the child to request, receive, examine, copy and consent to the disclosure of medical or other health care information when evidence exists that such a child whose consent to disclosure of confidential information is sought does not have capacity to give or withhold valid consent and does not have a treatment guardian appointed by a court. If the legal custodian is not authorized to make decisions for a child under the Children's Mental Health and Developmental Disabilities Act, the person seeking authorization shall petition the court for the appointment of a treatment guardian to make a decision for such a child.

          D. Authorization from the child or legal custodian for a child less than fourteen years of age shall not be required for the disclosure or transmission of confidential information when the disclosure or transmission:

                (1) is necessary for treatment of the child and is made in response to a request from a clinician;

                (2) is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the child on self or another;

                (3) is determined by a clinician not to cause substantial harm to the child and a summary of the child's assessment, treatment plan, progress, discharge plan and other information essential to the child's treatment is made to a child's legal custodian or guardian ad litem;

                (4) is to the primary caregiver of the child and the information disclosed was necessary for the continuity of the child's treatment in the judgment of the treating clinician who discloses the information;

                (5) is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the child at the residential facility. The information disclosed shall be limited to data identifying the child, facility and treating or supervising physician and the dates and duration of the residential treatment. It shall not be a defense to an insurer's obligation to pay that the information relating to the residential treatment of the child, apart from information disclosed pursuant to this section, has not been disclosed to the insurer;

                (6) is to a protection and advocacy representative pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Individuals with Mental Illness Act; or

                (7) is pursuant to a court order issued for good cause shown after notice to the child and the child's legal custodian and opportunity to be heard is given. Before issuing an order requiring disclosure, the court shall find that:

                     (a) other ways of obtaining the information are not available or would not be effective; and

                     (b) the need for the disclosure outweighs the potential injury to the child, the clinician-child relationship and treatment services.

          E. A disclosure ordered by the court shall be limited to the information that is essential to carry out the purpose of the disclosure. Disclosure shall be limited to those persons whose need for the information forms the basis for the order. An order by the court shall include such other measures as are necessary to limit disclosure for the protection of the child, including sealing from public scrutiny the record of a proceeding for which disclosure of a child's record has been ordered.

          F. An authorization given for the transmission or disclosure of confidential information shall not be effective unless it:                                                                 (1) is in writing and signed; and

                (2) contains a statement of the child's right to examine and copy the information to be disclosed, the name or title of the proposed recipient of the information and a description of the use that may be made of the information.

          G. The child has a right of access to confidential information about the child and has the right to make copies of information about the child and submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The statements and other documentation shall be kept with the relevant confidential information, shall accompany it in the event of disclosure and shall be governed by the provisions of this section to the extent the statements or other documentation contain confidential information. Nothing in this subsection shall prohibit the denial of access to the records when a physician or other mental health or developmental disabilities professional believes and notes in the child's medical records that the disclosure would not be in the best interests of the child. In all cases, the child has the right to petition the court for an order granting access.

          H. Information concerning a child disclosed under this section shall not be released to any other person, agency or governmental entity or placed in files or computerized data banks accessible to any persons not otherwise authorized to obtain information under this section. Notwithstanding the confidentiality provisions of the Delinquency Act and the Abuse and Neglect Act, information disclosed under this section shall not be re-released without the express consent of the child or legal custodian authorized under the Children's Mental Health and Developmental Disabilities Act to give consent and any other consent necessary for redisclosure in conformance with state and federal law, including consent that may be required from the professional or the facility that created the document.

          I. Nothing in the Children's Mental Health and Developmental Disabilities Act shall limit the confidentiality rights afforded by federal statute or regulation.

          J. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the children's court rules.

          K. If a student is referred to the juvenile justice division of the department, the parent shall be allowed to fully participate in the process of developing or amending a student supports plan with the student and the student's school in accordance with the provisions of Michael's Law."

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