Bill Text: MS HB889 | 2011 | Regular Session | Introduced
Bill Title: Random drug tests; require of all public school students in Grades 6 through 12.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Failed) 2011-02-01 - Died In Committee [HB889 Detail]
Download: Mississippi-2011-HB889-Introduced.html
MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Education
By: Representatives Scott, Burnett, Gibbs, Harrison, Huddleston (30th), Middleton, Thomas
House Bill 889
AN ACT TO REQUIRE DRUG TESTING OF ALL PUBLIC SCHOOL STUDENTS IN GRADES SIX THROUGH TWELVE; TO DECLARE LEGISLATIVE FINDINGS RELATING TO STUDENT DRUG USAGE AND THE PURPOSES OF THIS ACT; TO DEFINE CERTAIN TERMS USED UNDER THE ACT; TO REQUIRE EACH SIXTH THROUGH TWELFTH GRADE STUDENT TO PRESENT EVIDENCE OF HAVING SUBMITTED TO A DRUG TEST RESULTING IN NEGATIVE FINDINGS NO MORE THAN 30 DAYS BEFORE THE BEGINNING OF THE SCHOOL YEAR OR THE DATE ON WHICH A STUDENT SEEKS ENROLLMENT DURING THE SCHOOL YEAR; TO REQUIRE EACH LOCAL SCHOOL BOARD TO ADOPT A POLICY REQUIRING RANDOM DRUG TESTING FOR ALL STUDENTS IN GRADES SIX THROUGH TWELVE AND TO PRESCRIBE CERTAIN COMPONENTS THAT MUST BE IN THE POLICY, INCLUDING A PROVISION REQUIRING A STUDENT'S PARENT TO PAY THE COST OF THE DRUG TEST; TO PROVIDE FOR THE ACTIONS TO BE TAKEN WHEN A STUDENT'S DRUG TEST IS POSITIVE; TO PROVIDE THAT STUDENT DRUG TESTS WILL BE ADMINISTERED BY THE COUNTY HEALTH DEPARTMENT AND TO PRESCRIBE THE MANNER IN WHICH THE TESTING MUST BE PERFORMED; TO PROVIDE FOR THE DISCLOSURE OF POSITIVE TEST RESULTS AND TO REQUIRE INFORMATION RELATING TO A STUDENT'S DRUG TEST TO BE KEPT CONFIDENTIAL AND SEPARATE FROM THE STUDENT'S CUMULATIVE FOLDER; TO AUTHORIZE A STUDENT TO PRESENT EVIDENCE OF THE PROPER USE OF A PRESCRIPTION MEDICATION AS AN AFFIRMATIVE DEFENSE TO A POSITIVE DRUG TEST; TO AUTHORIZE SCHOOL DISTRICTS TO OFFER IN-SCHOOL COUNSELING OR REFERRAL INFORMATION FOR STUDENTS TESTING POSITIVE FOR DRUGS; TO REQUIRE THE STATE BOARD OF EDUCATION, IN CONSULTATION WITH THE STATE BOARD OF HEALTH, TO ADOPT RULES AND REGULATIONS NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT; TO REQUIRE THE STATE DEPARTMENT OF EDUCATION TO PREPARE A MODEL RANDOM DRUG TESTING POLICY FOR SCHOOL DISTRICTS; TO AMEND SECTION 37-15-9, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE ENROLLMENT IN THE PUBLIC SCHOOLS OF ANY CHILD IN GRADES SIX THROUGH TWELVE UNTIL THE CHILD PRESENTS PROOF OF HAVING A NEGATIVE DRUG TEST WITHIN 30 DAYS OF ENROLLMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) The Legislature finds that:
(a) Many school districts within the state have a problem with students who use drugs and alcohol;
(b) Substance use is a serious threat to student health and safety and is a disruptive influence in the school setting;
(c) Preventing drug and illegal alcohol use by students is a compelling educational and community interest in the State of Mississippi; and
(d) Student participation in a drug testing program will create an atmosphere that deters the use of drugs by students as well as informing parents of their child's substance involvement, allowing for early intervention.
(2) The purposes of this act are to create a safe, drug free environment for students and to protect students by seeking to prevent them from harming themselves and others as a result of the consumption of harmful substances.
SECTION 2. As used in this act, the following words and phrases have the meanings ascribed in this section unless the context clearly requires otherwise:
(a) "Confirmation test" means a second drug test on the same specimen that uses an alternate method of equal or greater sensitivity than that used in a previous drug test, used to substantiate the results of the prior drug test on the specimen.
(b) "Drug" means an illegal drug or a prescription or nonprescription medication.
(c) "Drug test" means a chemical test administered for the purpose of determining the presence or absence of a drug or metabolites of a drug in a person's bodily fluids.
(d) "Illegal drug" means any substance, including alcohol that is consumed by a person under the age of twenty-one (21) years, having psychological and/or physiological effects on a human being and that is not a prescription or nonprescription medication, including controlled dangerous substances and controlled substance analogs or volatile substances that produce the psychological and/or physiological effects of a controlled dangerous substance through deliberate introduction into the body.
(e) "Initial test" means an initial drug test to determine the presence or absence of drugs or their metabolites in specimens.
(f) "Positive test result" means a finding of the presence of drugs or the metabolites of drugs in the specimen tested.
(g) "Prescription" or "nonprescription medication" means a drug prescribed for use by a duly licensed physician, dentist or other medical practitioner licensed to issue prescriptions or a drug that is authorized under federal or state law for general distribution and use without a prescription in the treatment of human diseases, ailments or injuries.
(h) "Random selection" or "random drug testing" means a mechanism for selecting students for drug tests that results in an equal probability that any student from a group or groups of students subject to the selection mechanism will be tested and which does not give the school district discretion to waive the selection of any student selected under the mechanism.
(i) "Specimen" means a tissue or product of the human body chemically capable of revealing the presence of drugs in the human body.
SECTION 3. Beginning with the 2012-2013 school year, before any student in Grade 6 or higher may attend a public school, the student must present evidence of having submitted to a drug test that resulted in a negative screening no more than thirty (30) days before the beginning of the school year. If a student in Grade 6 or higher seeks to transfer from a private or out-of-state school to a public school during the school year, the student must present evidence of having submitted to a drug test that resulted in a negative screening no more than thirty (30) days before seeking enrollment in the public school. A student who fails to comply with the requirements of this section may not be enrolled in a public school until proof of compliance is presented to the principal of the student's school.
SECTION 4. (1) The school board of each school district shall adopt a policy requiring random drug testing of all students enrolled in Grades 6 through 12. A copy of the policy must be provided to each student and the student's parents, guardian or custodian no less than ninety (90) days before the policy's implementation. Each student and the student's parent, guardian or custodian must sign a statement verifying that they have been given notice of the random drug testing policy.
(2) A school district's random drug testing policy must comply with this act and any rules and regulations that the State Board of Education may adopt regarding drug testing policies. A policy must include, but not necessarily be limited to, the following provisions:
(a) A description of the process by which students will be randomly selected for testing;
(b) The location and address of the county health department to which a student selected for testing must report;
(c) Whether or not a confirmation test will be required or permitted if a student's initial test is positive;
(d) A clear description of the various levels of consequences to the student if a confirmation test or later random test yields a positive result;
(e) A statement that the student's parent, guardian or custodian is responsible for the cost of the initial test and any confirmation test that may be conducted;
(f) A description of the help available through the school district and other referral sources for students who have positive test results;
(g) An explanation as to whether or not test results are cumulative throughout a student's tenure in the school district or if test results from previous school years are disregarded in subsequent years;
(h) A description of the consequences to a student who refuses to submit to a random drug test, including whether or not a refusal may be construed as a drug-positive test;
(i) A clear description of who will have access of drug testing results and the manner by which confidentiality will be maintained;
(j) The manner in which parents, guardian or custodian will be informed of their child's positive test result; and
(k) The manner in which a student may challenge positive test results, including a mechanism for students to present evidence of the use of a prescription medication that may have triggered a positive test result.
SECTION 5. (1) Whenever a school official receives notification of a confirmed positive test result, the tested student and the student's parents, guardian or custodian shall be informed in writing of the consequences of the positive test and the options available to them. The information provided to the student and the student's parents, guardian or custodian must include what drug, including alcohol, was discovered. When requested by the parents, guardian or custodian, copies of all analytical results must be made available from the county health department.
(2) Within seventy-two (72) hours of receiving the test results, a student who tests positive may request a re-test of the original specimen, at the student's cost, by an independent testing facility.
(3) A student who receives a positive result on a confirmation test may submit, no later than ten (10) school days after receiving the results, information to the school explaining the test results and reasons why the results do not constitute a violation of the school district's drug testing policy.
(4) All student specimens testing negative on the initial test or on the confirmation test must be reported as negative.
(5) Notwithstanding any other provision of law, a school district shall not report positive drug test results to law enforcement authorities or court officials.
SECTION 6. (1) All testing for drugs under this act must be performed in accordance with the following procedures:
(a) The collection of specimens must be performed at the county health department under such conditions that the individual dignity of the student being testing is preserved to the extent practicable;
(b) Specimens must be collected in a manner reasonably calculated to prevent substitution of specimens and interference with the collection or testing of specimens;
(c) Specimen collection must be documented by chain of custody procedures, including labeling of specimen containers to reasonably preclude the likelihood of erroneous identification of test results and other chain of custody protections;
(d) Specimen handling must be performed in a reasonable manner to preclude specimen contamination or adulteration;
(e) The initial test must be in the form of the urinalysis dipstick; and
(f) The type of any subsequent confirmation test must be selected by the student from a list of approved tests made available to the student by the school district or county health department.
(2) A drug test requested by a school under this act must occur immediately before, during or immediately after the regular school day.
(3) Testing for drugs under this act may be only for the presence of illegal drugs, legal drugs used illegally or alcohol in the specimen.
(4) A confirmation test must use a method of equal or greater reliability than the urinalysis dipstick used in the initial test. If an initial test is negative, there may be no requirement for a confirmation test.
(5) Tests must be conducted by properly trained persons in circumstances that ensure the integrity, validity and accuracy of the test results but are minimally intrusive and provide maximum privacy to the tested student. Specimens confirmed as positive shall be retained for possible retesting or reanalysis.
SECTION 7. (1) A county health department shall disclose only to school authorities test result data regarding the presence or absence of a drug or alcohol or their metabolites in a specimen tested. Positive test results from a student drug testing program may not be used as evidence in a criminal action against the school district or student tested.
(2) A student must be given access to information in the student's personal file relating to positive test result reports and other information acquired in the drug testing process, including conclusions drawn from and actions taken based on the reports and other acquired information.
(3) Information resulting from a drug test conducted in accordance with the provisions of this act must be kept confidential and may not be used for law enforcement purposes; however, the information may be utilized for disciplinary, statistical or research purposes.
(4) Test result reports and other information acquired in the drug testing process must be deemed to be private and confidential information and may not be disclosed by school authorities or the county health department to another public or nonpublic school or to a third party individual, governmental agency or private organization without the written consent of the student and the student's parents, guardian or custodian.
(5) Each school shall maintain drug testing records separate from the students' permanent records and cumulative folders. The school may retain in a student's drug testing records information indicating only the following:
(a) Evidence of the results of a student's drug test presented to the school before the student's enrollment;
(b) The fact of any random drug test to which the student has submitted;
(c) The date of the random drug test;
(d) The identity of the person performing the random drug test; and
(e) Whether the random drug test finding was positive or negative.
SECTION 8. Any student who receives a positive drug test may present through clear and convincing evidence, as an affirmative defense, that the use of a drug was prescribed by a licensed medical practitioner who is familiar with the student's medical history and that the drug was used in accordance with school district policies.
SECTION 9. A school district, in conjunction with a student's parents, guardian or custodian, may offer in-school counseling for any student whose test results are positive or alternatively, may provide referral information for the purpose of obtaining drug or other counseling as appropriate. Referral information must include information on inpatient, outpatient and community-based drug and alcohol treatment programs.
SECTION 10. The State Board of Education, in consultation with the State Board of Health, shall adopt any rules and regulations that may be necessary to carry out the provisions of this act. The State Department of Education shall prepare a model policy for use by school districts that conforms to the requirements prescribed for random drug testing policies under Section 4 of this act.
SECTION 11. Section 37-15-9, Mississippi Code of 1972, is amended as follows:
37-15-9. (1) Except as provided in subsection (2) and subject to the provisions of subsections (3) and (4) of this section, no child shall be enrolled or admitted to any kindergarten that is a part of the free public school system during any school year unless that child will reach his fifth birthday on or before September 1 of the school year, and no child shall be enrolled or admitted to the first grade in any school that is a part of the free public school system during any school year unless that child will reach his sixth birthday on or before September 1 of the school year. No pupil shall be permanently enrolled in a school in the State of Mississippi who formerly was enrolled in another public or private school within the state until the cumulative record of the pupil has been received from the school from which he transferred. If the cumulative record has become lost or destroyed, then it shall be the duty of the superintendent or principal of the school where the pupil last attended school to initiate a new record.
(2) Subject to the provisions of subsections (3) and (4) of this section, any child who transfers from an out-of-state public or private school in which that state's law provides for a first-grade or kindergarten enrollment date after to September 1, shall be allowed to enroll in the public schools of Mississippi, at the same grade level as their prior out-of-state enrollment, if:
(a) The parent, legal guardian or custodian of the child was a legal resident of the state from which the child is transferring;
(b) The out-of-state school from which the child is transferring is duly accredited by that state's appropriate accrediting authority;
(c) The child was legally enrolled in a public or private school for a minimum of four (4) weeks in the previous state; and
(d) The superintendent of schools in the applicable Mississippi school district has determined that the child was making satisfactory educational progress in the previous state.
(3) When any child applies for admission or enrollment in any public school in the state, the parent, guardian or child, in the absence of an accompanying parent or guardian, shall indicate on the school registration form if the enrolling child has been expelled from any public or private school or is currently a party to an expulsion proceeding. If it is determined from the child's cumulative record or application for admission or enrollment that the child has been expelled, the school district may deny the student admission and enrollment until the superintendent of the school, or his designee, has reviewed the child's cumulative record and determined that the child has participated in successful rehabilitative efforts including, but not limited to, progress in an alternative school or similar program. If the child is a party to an expulsion proceeding, the child may be admitted to a public school pending final disposition of the expulsion proceeding. If the expulsion proceeding results in the expulsion of the child, the public school may revoke the admission to school. If the child was expelled or is a party to an expulsion proceeding for an act involving violence, weapons, alcohol, illegal drugs or other activity that may result in expulsion, the school district shall not be required to grant admission or enrollment to the child before one (1) calendar year after the date of the expulsion.
(4) Any child applying for admission or enrollment in grade six (6) or higher in a public school may not be admitted to the school until the child has submitted proof that the child has complied with the drug testing requirements prescribed under Section 3 of this act.
SECTION 12. This act shall take effect and be in force from and after July 1, 2011.
