Student Health & Safety and Discipline Related Legislative Changes

November 17, 2014 | Bulletin No. 1159458.1

This update of student health & safety and discipline related legislative changes is issued by Kronick as part of a series of Legal Alerts about new education related laws from this latest 2014 legislative session.  All laws are effective January 1, 2015, unless otherwise stated.

Full Contact Football Practices: Concussions and Head injuries - AB 2127

AB 2127 adds Education Code section 35179.5.  “Full contact” means a practice where drills or live action is conducted that involves collisions at game speed, where players execute tackles and other activity that is typical of an actual tackle football game.  The new law limits practices to no more than two full contact practices per week during pre-season (30 days before) and regular season (first game or scrimmage until final game).  The full contact portion of practice shall not exceed 90 minutes in a given day and no full contact practice is allowed during off season (end of regular season until pre-season begins).  The new law also implements more restrictions when an athlete is suspected of sustaining a concussion or head injury.  Such students cannot return until evaluated by a licensed healthcare provider and written clearance is obtained.  If head injury or concussion is determined, the athlete must complete a graduated return-to-play protocol of no less than 7 days in duration. 

Student Vision Screening – AB 1840 and SB 1172

AB 1840 and SB 1172 amend Education Code section 49455 regarding student vision screening requirements.  Per the revisions, school districts must perform vision screening of students during their kindergarten year or upon their first enrollment at an elementary school, and again in grades 2, 5, and 8.  However, a student who first enrolled in grade 4 or 7 shall not be required to be tested in the year immediately following the year of first enrollment.  The screening must be performed by a school nurse or other authorized person specified in Education Code section 49452 and must now include near vision testing.  The revised law also requires school nurses and classroom teachers to continually and regularly observe students' eyes, appearance, behavior, visual performance, and perception that may indicate vision difficulties.  Guidelines regarding implementation of the vision screening requirements of Section 49455, including training requirements and a method of testing for near vision, are to be adopted by the California Department of Education.

Pesticides On Schoolsites – SB 1405

SB 1405 makes the following amendments to the Healthy Schools Act of 2000 which go into effect on January 1, 2015:

Posting of Integrated Pest Management Plan: By the start of the 2015-2016 school year, if  a school chooses to use certain pesticides, SB 1405 requires the school designee to develop and post on the school website, or, if the school does not maintain a website, the district website, an integrated pest management plan for the school or district.  If neither the school nor the district maintains a website, SB 1405 requires the school designee to include the integrated pest management plan with a certain annual notification sent to staff and parents of pupils enrolled at the school. The “integrated pest management plan” is a written plan based on a template provided or approved by the Department of Pesticide Regulation that outlines a strategy for integrated pest management.

Reporting of Specified Pesticides Used at a Schoolsite: If a schoolsite chooses to use certain pesticides, SB 1405 requires the school designee, at the end of each calendar year, or more often at his or her discretion, to submit to the Director of Pesticide Regulation a copy of the records of all pesticides used at the schoolsite. Reports are due no later than January 30 for the previous calendar year’s data and must be submitted on a form provided by the Department of Pesticide Regulation. The first reports are due January 30, 2016, and will include pesticide use from January 1, 2015 to December 31, 2015.

Commencing July 1, 2016, a school designee, or any person hired to apply a pesticide at a school will be required to annually complete at least a one-hour training course provided by the Department of Pesticide Regulation before applying pesticides at such school.  The training course will cover integrated pest management and the safe use of pesticides in relation to the unique nature of schools and children's health.  Also, anyone holding a license from the structural pest control board will be required to comply with the training requirements of the Healthy Schools Act of 2000 if the licensee intends to apply a pesticide at a school.

Emergency Epinephrine Auto-injectors - SB 1266

In order to prepare schools for incidents of anaphylaxis, a whole-body allergic reaction that requires almost immediate treatment, effective January 1, 2015, school districts, county offices of education, and charter schools will be required to stock and maintain emergency epinephrine auto-injectors and provide them to school nurses and trained volunteer personnel.  Each elementary school must have at least one junior and one regular epinephrine auto-injector.  Each junior high school, middle school, and high school, if no pupil requires a junior epinephrine auto-injectors, must have at least one regular epinephrine auto-injector.  SB 1266 also requires school districts, county offices of education, and charter schools to send out an annual notice requesting volunteers to be trained in the use of epinephrine auto-injectors and to provide defense and indemnification to employee volunteers. 

In addition, the bill requires school district, county office of education, and charter school supervisors of health or an administrator to obtain a prescription for the epinephrine auto-injectors and to fill the prescription at local or mail order pharmacies.  School districts, county offices of education, and charter schools are no longer required to create a plan for the use of epinephrine; instead, the bill requires the Superintendent of Public Instruction establish minimum standards of training for the use and storage of epinephrine auto-injectors.  Public schools are expressly authorized to accept gifts, grants, and donations from any source for the support of carrying out these new requirements, including but not limited to, the acceptance of epinephrine auto-injectors from a manufacturer or wholesaler.

Automated External Defibrillators – AB 2217

In an effort to encourage public schools to acquire and maintain an Automated External Defibrillator (AED) and to save lives, AB 2217 adds Section 49417 to the Education Code authorizing a public school to solicit and receive non-state funds to acquire an AED and provide training to school employees regarding AED use.  The new law would also extend civil damages immunity to a school district and its employees when using an AED for emergency care or treatment provided the requirements of certain Health and Safety Code sections are met.  The law specifies that the principal, among other things, shall at least annually notify school employees of each AED unit location on campus, and designate trained employees who shall be available to respond to an emergency that may involve the use of an AED during hours of classroom instruction and any school-sponsored activity occurring on school grounds.

Student Suspension for Disruption or Willful Defiance - AB 420

AB 420 amends Education Code section 48900(k) so that no student in Kindergarten through third (K-3) grade may be suspended from school or recommended for expulsion for disrupting school activities or otherwise willfully defying the valid authority of school personnel engaged in the performance of their duties.  The revision does not prohibit teachers from suspending students from class for disruption and/or willful defiance pursuant to Education Code section 48910.

Student Bullying: Counseling Services – AB 1455

AB 1455 adds Section 48900.9 to the Education Code enabling a school district superintendent, school principal, or designee to refer a victim of, witness to, or other student affected by the bullying of another student occurring after January 1, 2015, to the school counselor, school psychologist, social worker, child welfare attendance personnel, school nurse, or other school support service personnel for case management, counseling, and participation in a restorative justice program, as appropriate.  Per the new law, a student engaged in bullying can also be referred to counseling. 

Student Online Personal Information Protection Act – SB 1177

SB 1177 establishes the Student Online Personal Information Protection Act effective January 1, 2016.  The Act creates new obligations for operators of an Internet website, online service, online application, or mobile application, used primarily for K-12 school purposes and designed and marketed for K-12 school purposes.  "K-12 school purposes" pertains to purposes that customarily take place at the direction of a school teacher, school district, or aid in the administration of school activities, including, but not limited to, instruction in the classroom or home, administrative activities, and collaboration between students, school personnel, or parents, or for the use and benefit of the school.

Operators will be restricted from knowingly engaging in targeted advertising to students or their parents/guardians, using covered information to amass a profile about a K-12 student, selling a student's information, or disclosing covered information.  "Covered information" includes (1) personally identifiable information or materials, in any media or format that is created or provided by a student, or the student's parent/guardian, to an operator in the course of the student or parent/guardian's use of the operator's site, service, or application for K-12 school purposes; (2) is created or provided by an employee or agent of a K-12 school, school district, local education agency, or county office of education to an operator; (3) or gathered by an operator through the operation of their site, service, or application and is descriptive of a student or otherwise identifies a student (e.g. information in a student's educational record; contact information; photos). 

Operators will also be required to implement and maintain reasonable security procedures and practices appropriate to the nature of the covered information, and protect that information from unauthorized access, destruction, use, modification or disclosure; and to delete a student's covered information if the school or district requests deletion of data under the control of the school or district.

The Act expressly states that it does not limit Internet service providers from providing Internet connectivity to schools or students and their families and it does not impede the ability of students to download, export, or otherwise save or maintain student created data or documents.

Student Information Gathered from Social Media Sources - AB 1442

AB 1442 adds section 49073.6 to the Education Code.  This new law requires a school district, county office of education, or charter school that is considering a program to gather or maintain in its records information about any of its enrolled students obtained from social media (e.g., Facebook, Twitter, Instagram) to first (1) notify students and their parents/guardians about the proposed program, and (2) allow for public comment at a regularly scheduled public meeting of its governing board/body.  The notification can be provided as part of the annual notice required by Education Code 48980.  The information gathered/maintained is limited to information that pertains directly to school or student safety and students.  Students must be allowed access to the information gathered from social media and the opportunity to correct or delete the information.  The personal information collected about a student must be destroyed by the district, county office of education, or charter school within one year from when the student turns 18 years old or within one year after the student is no longer enrolled, whichever is first.

In addition to the above, if a school district, county office of education, or charter school contracts with a third party to gather the information from social media about a student enrolled in the district, the contract must specify that the third party shall: (1) not use the information for any purpose other than to satisfy the contract; (2) not sell or share the information with anyone other than the district/county office of education/charter school, or the students, or his/her parent/guardian; and (3) immediately destroy the gathered information when the terms of the contract are satisfied; and (4) following receipt of notice from the school district, county office of education, or charter school, destroy the information when the student turns 18 years or is no longer enrolled in the school district, county office of education, or charter school, whichever occurs first.

Third Party Contracts: Student Records Privacy Protection – AB 1584

AB 1584 adds 49073.1 to the Education Code to expressly authorize school districts, county offices of education, and charter schools to enter into a contract with a third party to provide services, including cloud-based services, for digital storage, management, and retrieval of pupil records, or to provide digital educational software, or both, if a policy is adopted by the local education agency's governing board/body authorizing such contract and such contract includes provisions regarding the security, use, ownership and control of the student records, as specified in Section 49073.1.  The definition of "pupil records" now expressly includes any information acquired directly from a pupil through the use of instructional software or applications assigned to the pupil by a teacher or other local educational agency employee.

Contracts entered into or effective on or after January 1, 2015, that do not comply with the requirements of the Section shall be void if the noncompliant party fails to come into compliance after being given a reasonable opportunity to cure.  However, the terms of this new law do not apply to any third-party contract in effect prior to January 1, 2015, until the expiration, amendment, or renewal of such contract.

What This Means To You

Board policies and administrative regulations should be reviewed to ensure compliance with the newest changes in the law.  School administration and staff should be updated as to any changes so that the appropriate policies are consistently followed.  Kronick attorneys are available to assist with review and revision of Board policies and regulations and to provide any other assistance related to the implementation of the new obligations and procedures created by the legislative changes. 

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Michelle L. Cannon or William F. Schuetz | 916.321.4500