Be Fully Informed: Know Your Rights
SENATE BILL 2286 - CURRENT DRAFT

A bill to be entitled
An act relating to exceptional student evaluation; amending s. 1003.57 F.S.; requiring a parent to be fully informed of consequences and alternatives prior to his or her child’s evaluation for an emotional, behavioral, or mental disorder; specifying information relating to consequences of and alternatives for such evaluation; requiring the Department of Education to provide to school districts a form to obtain a parent’s informed consent; amending s. 1006.0625 F.S.; revising provisions relating to administration of psychotropic medication in public schools; requiring parental consent for psychological screening; prohibiting recommendations for use of psychotropic medications; providing an effective date.

WHEREAS, the Individuals with Disabilities Education Act (IDEA), which was first enacted in 1975 and provides for equal access to education for every disabled child, requires that every child referred for exceptional education programs first be evaluated by the school and requires that each state “shall obtain informed consent from the parent of such child before evaluation is conducted,” and
WHEREAS, Rule 6A-6.03311 (1)-(3), Florida Administrative Code, entitled “Exceptional Student Education Rules,” which implements IDEA, requires that before a student may be evaluated, the parent must be “fully informed of all information relevant to the activity for which consent is sought,” that “consent describes the activity,” that it must be “informed parental consent,” and that the parent must also be informed of “procedural safeguards,” and
WHEREAS, the legal definition of “informed consent” means, “a person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives,” and
WHEREAS, in practice, school districts throughout this state provide information only on the parent’s due process rights and should provide information to parents on the risks and alternatives to the evaluation process and the potential consequences of evaluation, including likely courses of treatment, NOW, THEREFORE,

Be It Enacted by the Legislature of the State of Florida:
Section 1. Subsections (8) and (9) are added to section 1003.57, Florida Statutes, to read:
1003.57 Exceptional students instruction. – Each district school board shall
provide for an appropriate program of special instruction, facilities, and services for exceptional students as prescribed by the State Board of Education as acceptable, including provisions that:
(8) Before a public school student may be evaluated for an emotional, behavioral, or mental disorder, the parent must be fully informed of all known and potential risks of and alternatives for such evaluation including but not limited to the following:
(a) The behaviors prompting the evaluation could be the result of underlying physical conditions including but not limited to one or more of the following: poor nutrition, exposure to toxins including, but not limited to, lead, mercury, pesticides, and other neurotoxins; allergies; seizure disorders; thyroid imbalances; or sleep deprivation.
(b) The parent may want to consider consulting a medical doctor to rule out physical causes before pursuing psychological or psychiatric evaluation for his or her child.
(c) Psychological and psychiatric evaluation and diagnosis of mental and behavioral disorders are based on subjective interpretation and not on objective medical tests or physical markers, such as blood tests, brain scans, or X-rays.
(d) Recommended treatment for emotional, behavioral or mental disorders may include psychotropic medications which may have potential dangerous side effects including suicidal and psychotic behavior and other side effects listed in the current FDA-approved package insert for the medication.
(e) There are alternative interventions for mental and behavioral disorders that do not include psychotropic medications which the parent has the right to consider and use. The specially designed instruction and related services of special education programs are available to the child regardless of the parent’s choice of behavioral, mental or medical care for their child.
(9) The Department of Education shall provide a written form to each of the school districts that includes the information contained in subsection (8), which shall be provided to the parent of any child referred for evaluation of an emotional, behavioral, or mental disorder or any other psychological or psychiatric disorder. The informed consent form must contain a provision for signed acknowledgement of having read the information and consent or lack of consent provided by the parent for the evaluation. The informed consent form shall be provided to each parent concurrent with any procedural safeguard notification provided to the parent of a student being considered for inclusion in an exceptional student education program.
Section 2. Section 1006.0625, Florida Statutes, is amended to read:
1006.0625 Administration of Psychotropic medication; prohibition; conditions –
(1) As used in this section, the term "psychotropic medication" means a prescription medication that is used for the treatment of mental disorders and includes, without limitation, antihypnotics hypnotics, antipsychotics, antidepressants, anxiety agents, sedatives, psychomotor neurostimulants, and mood stabilizers.
(2) A public school may not deny any student access to programs or services because the parent of the student has refused to place the student on psychotropic medication.
(3) A public school teacher and school district personnel may share school-based observations of a student's academic, functional, and behavioral performance with the student's parent and offer program options and other assistance that is available to the parent and the student based on the observations. However, a public school teacher and school district personnel may not compel or attempt to compel any specific actions by the parent or require that a student take medication. The A parent of a student must consent to any psychological screening of the student and may refuse such psychological screening of the student.
(4) Public school and school district personnel may not recommend psychotropic medications to any parent. The parent of a student who refuses to provide psychotropic medication to his or her child may not be charged with child neglect or abuse.
Any medical decision made to address a student's needs is a matter between the student, the student's parent, and a competent health care professional chosen by the parent.
Section 3. This act shall take effect July 1, 2006

Be Fully Informed: Know Your Rights
EXECUTIVE SUMMARY
Special Education Evaluation
Informed Consent Legislation
In the 2005 Florida legislative session, HB 209, “An act relating to administration of medication to public school students,” which would have required informed consent for parents whose children are referred for special education evaluation, was passed unanimously by both the Florida House and Senate.

On May 26, 2005 Governor Bush vetoed the bill, stating that the “Florida Department of Education administrative rules already require notification and consent of the parents prior to the evaluation of their children.”

Research was done to find out what Governor Bush meant when he said “notification and consent” already exists in our public school system. A public records request was made to all Florida district school superintendents asking for what “informed consent” information is given to parents prior to evaluation of their children. This disclosed that the only notification and information given to parents is regarding their right to refuse evaluation for their child, and of the legal procedure that school administrators can take to overcome the parents’ refusal. In other words, “notification” and “informed consent” has been reduced to informing parents of their legal due process rights while being informed of nothing concerning the substance of the evaluation and treatment process that the child is being subjected to.

The bill was modified for the 2006 Florida Legislative session and filed as HB 1213, which remained on the House floor at session end.

The Federal Individuals with Disabilities in Education Act (IDEA) of 2004 in unequivocal. This federal law, upon which the Florida special education program is based and which provides federal funds to Florida public schools to administer special education, directs that the State “shall obtain informed consent from the parent of such child before evaluation is conducted.” (20 U.S.C. § 1414 (a) (1) (C) (i).)

Black’s Law Dictionary defines “informed consent” as: “A person’s agreement to allow something to happen that is based on a full disclosure of facts needed to make the decision intelligently; i.e., knowledge of the risks involved, alternatives, etc. ...”
Federal Regulations written by the U.S. Department of Education state that under IDEA parents must provide “consent” for evaluation and states that consent means: “the parent has been fully informed of all information relevant to the activity for which consent is sought” and “consent describes that activity.” (Federal Register Vol 70 No. 118 § 300.9, June 21, 2005.)

State regulations written by the Florida Department of Education for the implementation of IDEA follow the Federal Regulations and also require, “informed parental consent,” as well as “provision of the procedural safeguards.” State regulations require that notification and information provided to parents includes, among other things, “a description of each evaluation procedure, test, record or report the district used as a basis for the proposed or refused action.” (Florida Administrative Code 6A-6.03311 September 20, 2004.)
The Federal Individuals with Disabilities in Education Act (IDEA) of 2004 is unequivocal. This federal law, upon which the Florida special education program is based and which provides federal funds to Florida public schools to administer special education, directs that the State “shall obtain informed consent from the parent of such child before evaluation is conducted.” (20 U.S.C. § 1414 (a) (1) (C) (i).)

The following changes to IDEA which went into effect this year relate to our proposed informed consent legislation:
Regarding an initial evaluation to determine if the child qualifies as a child with disability: The new regulation states that the "public agency" needs to make "reasonable" efforts to obtain the informed consent.

Also, that in order for a public agency "to meet the reasonable efforts requirement to obtain informed parental consent for an initial evaluation, initial services, or a reevaluation, a public agency must document its attempts to obtain parental consent..."

As can be seen, current practice by school administrators in Florida only provides notification to parents of “procedural safeguards,” and not “informed consent” which is required both under the spirit and letter of IDEA, as well as Federal and State regulations.
Thus, parents of children identified by school administrators for evaluation and placement in special education programs are told nothing about:
The methodology used for evaluation.
The potential consequences or outcome of evaluation including likely treatment modalities.
Alternatives to the evaluation methodology and treatment modality.
The risks of the evaluation and or treatment.
As a result, an acknowledged unscientific, subjective, evaluation procedure is used; and in 9 out of 10 cases children determined to be behaviorally or emotionally disabled are placed on unproven, dangerous, mind altering medications. This conclusion is not opinion but has been found to be true by many authorities including learned physicians, the U.S. Surgeon General, and the Food and Drug Administration.

Governor Bush was therefore misinformed and his veto was based on the false information that parents are properly notified as required under the law. The remedy is to legislate the exact informed consent requirements into the law. Considering the number of children put into the special education system who end up on drugs, the well recognized rampant over-drugging of children in America, the “epidemic” of ADHD and associated “diagnoses” as well as the associated massive increase in the prescription of Ritalin and other stimulants to children since 1991 when ADHD was first identified as a “disability” under IDEA, and considering the financial benefit to both schools and parents for children so “diagnosed” and “treated” through IDEA, and considering the number of children who die either through suicide or overdose with these drugs in their system or with a history of use of these drugs, this legislative remedy is warranted.