The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/CS/HB 1557
INTRODUCER: Judiciary Committee; Education & Employment Committee; and Representative
Harding and others
SUBJECT: Parental Rights in Education
DATE: February 25, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Palazesi/Grace Sadberry AP Pre-meeting
I. Summary:
CS/CS/HB 1557 specifies how a parent’s fundamental right to make decisions regarding the care
and upbringing of his or her child must be addressed in the public school setting. The bill
requires that school districts adopt procedures for notifying parents if there is a change in their
student’s services or monitoring related to a student’s mental, emotional, or physical health or
well-being. All procedures adopted under the bill must reinforce the fundamental right of parents
to make decisions regarding the upbringing and control of their children by requiring school
district personnel to encourage students to discuss issues related to his or her well-being with his
or her parent.
The bill prohibits school districts from maintaining procedures that withhold information, or
encourage students to withhold information, related to a student’s mental, emotional, or physical
health or well-being from parents. A school district may only withhold information if a prudent
person would reasonably believe that disclosure would subject the student to abuse,
abandonment, or neglect.
The bill prohibits instruction on sexual orientation or gender identity in kindergarten through
grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students.
At the beginning of each school year, a school district must notify parents of all health care
services offered at their student’s school and provide the parent the opportunity to individually
consent to, or decline, each service. Additionally, schools may not administer a questionnaire or
health screening form to a student in kindergarten through grade 3 without first receiving consent
from the student’s parent.
All school district student support services training must adhere to guidelines, standards, and
frameworks established by the Department of Education (DOE). By June 30, 2023, the DOE
must review and update, as necessary, all relevant guidelines, standards, and frameworks for
compliance with this bill.
REVISED: BILL: CS/CS/HB 1557 Page 2
The bill creates a cause of action for parents that permits them to enforce their rights through
declaratory and injunctive relief. A prevailing parent is entitled to attorney fees and court costs
and may be awarded damages.
The bill does not appear to have a fiscal impact. See Section V. Fiscal Impact Statement.
The bill has an effective date of July 1, 2022.
II. Present Situation:
Constitutional Rights of Parents
It is well settled that the interest of parents in the care, custody, and control of their children is
perhaps the oldest of the recognized fundamental liberty interests protected by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.
1
This fundamental
liberty interest is rooted in the fundamental right of privacy in making important decisions
relating to marriage, family relationships, and child rearing and education.
2
The United States
Supreme Court has explained the fundamental nature of this right is rooted in history and
tradition:
The history and culture of Western civilization reflect a strong tradition of
parental concern for the nurture and upbringing of their children. This
primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition.
3
The Florida Supreme Court has likewise recognized that parents have a fundamental liberty
interest in determining the care and upbringing of their children.
4
These rights may not be
intruded upon absent a compelling state interest.
5
According to the Florida Supreme Court, when
analyzing a statute that infringes on the fundamental right of privacy, the applicable standard of
review requires that the statute survive the highest level of scrutiny:
1
Santosky v. Kramer, 455 U.S. 745, 748 and 753 (1982) (holding the fundamental liberty interest of natural parents in the
care custody, and management of their child is protected by the Fourteenth Amendment, and termination of any parental
rights requires due process proceedings); Troxel v. Granville, 530 U.S. 57, 66 (2000) (holding there is a fundamental right
under the Fourteenth Amendment for parents to oversee the care, custody, and control of their children).
2
Carey v. Population Svcs. Int’l, 431 US 678, 684-685 (1977) (recognizing the right of privacy in personal decisions relating
to marriage, family relationships, child rearing, and education); See Wisconsin v. Yoder, 406, U.S. 205, 232-33 (1972)
(holding a state law requiring that children attend school past eight grade violates the parents’ constitutional right to direct the
religious upbringing of their children); See Parham v. J.R., 442 U.S. 584, 602 (1979) (recognizing the presumption that
parents act in their children’s best interest); Meyer v. Nebraska, 262 U.S. 390, 400-01 (1923) (affirming that the Constitution
protects the preferences of the parent in education over those of the state); Pierce v. Society of Sisters, 268 U.S. 510, 534-35
(1925) (recognizing the right of parents to direct the upbringing of and education of their children).
3
Wisconsin v. Yoder, 406, U.S. 205, 232 (1972).
4
Beagle v. Beagle, 678 So. 2d 1271, 1272 (Fla. 1996) (holding a state law violated a parent’s constitutional right to privacy
by imposing grandparent visitation rights over objection of the parent without evidence of harm to the child or other
compelling state interest).
5
Id. See, e.g., Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So. 2d 633, 637 (Fla. 1980) and Belair v. Drew,
776 So. 2d 1105, 1107 (Fla. 5th DCA 2001). BILL: CS/CS/HB 1557 Page 3
The right of privacy is a fundamental right which we believe demands the
compelling state interest standard. This test shifts the burden of proof to
the state to justify an intrusion on privacy. The burden can be met by
demonstrating that the challenged regulation serves a compelling state
interest and accomplishes its goal through the use of the least intrusive
means.
6
The United States Supreme Court has held that students in schools are ‘persons’ under the
constitution and that they are possessed of fundamental rights which the state must respect.
7
Florida’s constitution provides broad protections to its citizen’s right to privacy
8
and the Florida
Supreme Court has held that such protections extend to minors.
9
However, the rights to privacy
granted to minors do not invalidate a state’s effort to protect minors from the conduct of others
10
nor do they necessarily override the fundamental rights of parents related to child rearing.
11
Parents’ Bill of Rights
Overview
In 2021,
12
the legislature created the Parents’ Bill of Rights which enumerates parental rights
with respect to a minor child for education, health care, and criminal justice procedures.
13
The
bill prohibits the state, its political subdivisions, any other governmental entities and any other
institutions from infringing upon the fundamental right of a parent to direct the upbringing,
education, health care, and mental health of his or her minor child without demonstrating a
compelling state interest for such actions.
14
Additionally, the Legislature found that important information relating to a minor child should
not be withheld, either inadvertently or purposefully, from his or her parent, including
information relating to the minor child’s health, well-being, and education, while the minor child
is in the custody of the school district. Therefore, the Legislature established a consistent
mechanism for parents to be notified of information relating to the health and well-being of their
minor children.
15
Parents’ Rights Related to Education of their Child
The Parents’ Bill of Rights enumerates several rights of a parent, such as:
6
Winfield v. Division of Pari-Mutuel Wagering, Dept. of Bus. Regulation, 477 So. 2d 544, 547 (Fla. 1985).
7
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969).
8
Art. I, s. 23, Fla. Const.
9
B.B. v. State, 659 So. 2d 256, 258 (Fla. 1995).
10
Id. at 259.
11
Frazier ex rel. Frazier v. Winn, 535 F.3d 1279, 1285 (11th Cir. 2008) (holding that a law requiring a parent’s approval for
a student to refuse to stand during the pledge of allegiance survived a facial challenge as the rights of a parent to raise their
children would control in a substantial number of cases). The court did acknowledge that in individual cases, such as those
involving mature high school students, the balance of rights between parents, the school, and the student could favor the
student. Id.
12
Chapter 2021-199, L.O.F.
13
Chapter 1014, F.S.
14
Section 1014.03, F.S.
15
See Section 1014.02(1), F.S. BILL: CS/CS/HB 1557 Page 4
The right to direct the education and care of his or her minor child.
The right to direct the upbringing and the moral or religious training of the minor child.
The right, pursuant to s. 1002.20(13), F.S., to access and review all school records relating to
the minor child.
The right to make health care decisions for his or her minor child, unless otherwise
prohibited by law.
The right to access and review all medical records of the minor child, unless prohibited by
law or if the parent is the subject of an investigation of a crime committed against the minor
child and a law enforcement agency or official requests that the information not be
released.
16
The Parents’ Bill of Rights is not exhaustive but, unless required by law, the rights of a parent of
a minor child in Florida may not be limited or denied.
17
To this end, any employee of the state, or
any of its political subdivisions, or any governmental entity may be subject to disciplinary action
if they encourage or coerce a minor child to withhold information from his or her parent.
18
However, the law specifies that it does not:
Authorize a parent of a minor child in this state to engage in conduct that is unlawful or to
abuse or neglect his or her minor child in violation of general law.
Condone, authorize, approve, or apply to a parental action or decision that would end life.
Prohibit a court of competent jurisdiction, law enforcement officer, or employees of a
government agency that is responsible for child welfare from acting in his or her official
capacity within the reasonable and prudent scope of his or her authority.
Prohibit a court of competent jurisdiction from issuing an order that is otherwise permitted by
law.
19
In addition to the above enumerated rights, the Parents’ Bill of Rights requires Florida’s school
districts to adopt policies designed to promote parental involvement in the public school system.
Such policies must provide for:
A plan, pursuant to s. 1002.23, F.S., for parental participation in schools to improve parent
and teacher cooperation in such areas as homework, school attendance, and discipline.
A procedure, pursuant to s. 1002.20(19)(b), F.S., for a parent to learn about his or her child's
course of study, including the source of any supplemental education materials.
Procedures for a parent to object to instructional materials, pursuant to s. 1006.28(2)(a)2.,
F.S. Such objections may be based on beliefs regarding morality, sex, and religion or the
belief that such materials are harmful.
Procedures, pursuant to s. 1002.20(3)(d), F.S., for a parent to withdraw his or her student
from any portion of the school district's comprehensive health education required under s.
1003.42(2)(n), F.S., that relates to sex education or instruction in acquired immune
deficiency syndrome education or any instruction regarding sexuality if the parent provides a
written objection to his or her child's participation. Such procedures must provide for a parent
16
Section 1014.04(1), F.S.
17
Section 1014.04(4), F.S.
18
Section 1014.04(3), F.S.
19
Section 1014.04(2), F.S. BILL: CS/CS/HB 1557 Page 5
to be notified in advance of such course content so that he or she may withdraw his or her
student from those portions of the course.
Procedures, pursuant to s. 1006.195(1)(a), F.S., for a parent to learn about the nature and
purpose of clubs and activities offered at his or her child's school, including those that are
extracurricular or part of the school curriculum. 20
Parents must be explicitly notified about a number of parental rights and responsibilities set forth
in the education code.
21
A school district may comply with these notice requirements by
providing information to parents electronically or by publishing it to their website.
22
Parental Consent for Healthcare Services in Schools
Parental Consent for Medical Treatment
Parents generally have the right to be informed about, and give consent for, proposed medical
procedures on their children. However, the state also has an obligation to ensure that children
receive reasonable medical treatment that is necessary for the preservation of life.
23
The state's
interest diminishes as the severity of an affliction and the likelihood of death increase:
24
There is a substantial distinction in the State's insistence that human life be
saved where the affliction is curable, as opposed to the State interest
where . . . the issue is not whether, but when, for how long and at what
cost to the individual . . . life may be briefly extended.
A parent may reject medical treatment for a child and the state may not interfere with such
decision if the evidence is not sufficiently compelling to establish the primacy of the state's
interest, or that the child's own welfare would be best served by such treatment.
25
In 2021,
26
the Parents’ Bill of Rights established parental consent requirements for health care
services. Specifically, unless otherwise permitted by law, without written, parental consent:
27
A health care practitioner,
28
or an individual employed by such health care practitioner, may
not provide or solicit or arrange to provide health care services or prescribe medicinal drugs
to a minor.
A provider
29
may not allow a medical procedure to be performed on a minor child in its
facility.
20
Section 1014.05(1), F.S.
21
Section 1014.05(1)(f), F.S. For example, school district must provide notice about the right to exempt their student from
immunizations, the right to inspect school district instructional materials, and the right to opt out of any school district data
collection not required by law. Id.
22
Section 1014.05(2), F.S.
23
Von Eiff v. Azicri, 720 So. 2d 510, 515 (Fla. 1998).
24
M.N. v. S. Baptist Hosp., 648 So. 2d 769, 771 (Fla. 1st DCA 1994).
25
Id.
26
Chapter 2021-199, F.S.
27
Section 1014.06(1)-(2), F.S.
28
Section 456.001, F.S.
29
“Provider” means any activity, service, agency, or facility regulated by the agency and listed in s. 408.802, F.S. BILL: CS/CS/HB 1557 Page 6
It is a first-degree misdemeanor to violate these parental consent requirements, subject to a fine
of up to $1,000 and imprisonment of up to one year,
30
and health care practitioners may also be
subject to disciplinary action
31
for such violations.
32
Medical Treatment without Parental Consent
Physicians, paramedics, emergency medical technicians, or other emergency medical services
personnel are authorized to provide emergency medical care or treatment to a minor without
parental consent when a child has been injured in an accident or is suffering from an acute
illness, disease, or condition and delaying treatment would endanger the health or physical well-
being of the minor.
33
Even in emergency situations, medical treatment can only be provided
without parental consent if:
The child’s condition has rendered him or her unable to reveal the identity of his or her
parents, guardian, or legal custodian, and such information is unknown to any person who
accompanied the child to the hospital.
The parents, guardian, or legal custodian cannot be immediately located by telephone at their
place of residence or business.
34
The hospital must notify the parent or legal guardian as soon as possible after the emergency
medical care or treatment is administered and document in the hospital records the reason
parental consent was not initially obtained. This must include a statement from the attending
physician that immediate emergency medical care or treatment was necessary for the child’s
health or physical well-being.
35
Current law establishes a list of people, by priority, who may consent to the medical care or
treatment of a minor in instances where the treatment provider is unable to contact the parent or
legal guardian and the provider has not been given contrary instructions.
36
Specifically, the
following people may consent, in this order:
37
A health care surrogate or a person with power of attorney to provide medical consent for the
minor;
38
The stepparent;
The grandparent of the minor;
An adult brother or sister of the minor; or
An adult aunt or uncle of the minor.
30
Section 1014.06(5), F.S.
31
Section 456.072(1), F.S., provides grounds for disciplinary action against health care practitioners. Section 408.813, F.S.,
authorizes the Agency for Health Care Administration to impose administrative fines against providers for violations of its
regulations. See e.g. rule 64B9-8.006, F.A.C. (Board of Nursing rule including discipline for violations of s. 1014.06, F.S.).
32
Section 1014.06(5), F.S.
33
Section 743.064, F.S.
34
Section 743.064(2), F.S.
35
Section 743.064(3), F.S.
36
Section 743.0645, F.S.
37
Section 746.0645(2), F.S.
38
A health care surrogate designation under s. 765.2035, F.S., executed after September 30, 2015, or a power of attorney
executed after July 1, 2001, to provide medical consent for a minor includes the power to consent to medically necessary
surgical and general anesthesia services for the minor unless such services are excluded by the individual who executes the
health care surrogate for a minor or power of attorney, s. 743.0645(2)(a), F.S. BILL: CS/CS/HB 1557 Page 7
If a parent or legal guardian cannot be reached while the child is committed to the Department of
Children Families or the Department of Juvenile Justice,
39
then the following individuals may
consent to the medical care or treatment of a minor, unless the parent or legal guardian has
expressly stated otherwise:
40
The caseworker, juvenile probation officer, or person primarily responsible for the case
management of the child.
The administrator of the state-licensed facility
41
or state-contracted or state-operated
delinquency residential treatment facility where the child is committed.
In both of these instances, the treatment provider must document the reasonable attempts made
to contact the parent or legal guardian in the minor’s treatment records, and must notify the
parent or legal guardian as soon as possible after the medical care or treatment is administered.
42
The Parents’ Bill of Rights consent requirements specifically do not apply to health care related
to an abortion.
43
Additionally, the Parents’ Bill of Rights created an exception for parental
consent requirements for a clinical laboratory, unless the services provided are delivered through
a direct encounter with the minor at the clinical laboratory facility.
44
School District Compliance with Parental Consent for Health Care Services
Public schools in Florida offer a wide range of health care services to students ranging from
treatment of minor cuts and scrapes to vision, hearing, scoliosis, and other screenings to the
administration of immunizations and emotional and mental health counseling. To comply with
the requirement for parental consent when providing health care services to minors, school
districts have developed parental consent forms. In some instances, parents are provided the
opportunity to consent individually to services provided at schools.
45
However, some school
district consent forms provide for a blanket consent to all health care services provided through
the school district.
46
39
Specifically, under chs. 39, 984, or 985, F.S.
40
Section 743.0645, F.S.
41
Section 393.067, F.S., licensed facilities for individuals with developmental disabilities; s. 394.875, F.S., licensed mental
health facilities for children and adolescents; s. 409.175, F.S., licensed family foster homes, residential child-caring agencies,
and child-placing agencies.
42
Section 743.0645(2)-(4), F.S.
43
Section 1014.06(3), F.S. Abortions in Florida are exclusively governed by ch. 390, F.S.
44
Section 1014.06(4), F.S.
45
Broward County Public Schools, Parent/Guardian Consent for School Health Services, August 2021, available at
https://www.browardschools.com/cms/lib/FL01803656/Centricity/Domain/20468/PARENT%20GUARDIAN%20CONSEN
T%20FOR%20SCHOOL%20HEALTH%20SERVICES_1.pdf ; Florida Department of Health in Pinellas County, Consent
for School-Based Health Clinic Services, April 2021, available at https://pinellas.floridahealth.gov/programs-and-
services/clinical-and-nutrition-services/school-clinics/_documents/clinic-consent-packet.pdf; Bay District Schools, Parental
Consent for School Health Services 2021-2022, available at
https://www.bay.k12.fl.us/uploads/BDS%20School%20Health%20Consent%20Form%202021-
22%20SY%20ENGLISH.pdf.
46
See Brevard Public Schools, Parental Consent for Healthcare, available at
https://fl02201431.schoolwires.net/site/handlers/filedownload.ashx?moduleinstanceid=10161&dataid=80765&FileName=Par
ental%20Consent%20for%20Healthcare.pdf; School District of Osceola County, Student Health Information, Feb. 2020,
available at https://www.osceolaschools.net/cms/lib/FL50000609/Centricity/Domain/2370/Health%20Form.pdf; Sarasota
County Schools, Parental Consent for Health Services 2021-2022, July 2021, available at BILL: CS/CS/HB 1557 Page 8
Special Magistrate
A special magistrate is a public officer belonging to the civil organization of the state, and
invested with powers and functions which may be either judicial, legislative, or executive.
47
There is one instance in the education code establishing a special magistrate, to resolve
differences relating to specific types of charter schools.
48
In such instance, the Commissioner of
Education is required to appoint a special magistrate who is a member of The Florida Bar in
good standing and who has at least 5 years' experience in administrative law. The special
magistrate must hold hearings to determine facts relating to the dispute and to render a
recommended decision for resolution to the State Board of Education (SBE). The special
magistrate may administer oaths and issue subpoenas on behalf of the parties to the dispute or on
his or her own behalf. Within 15 calendar days after the close of the final hearing, the special
magistrate must transmit a recommended decision to the SBE and to the representatives of both
parties. The SBE must approve or reject the recommended decision at its next regularly
scheduled meeting that is more than 7 calendar days and no more than 30 days after the date the
recommended decision is transmitted.
49
III. Effect of Proposed Changes:
This bill specifies how a parent’s fundamental right to make decisions regarding the care and
upbringing of his or her child must be addressed in the public school setting. The bill requires
that school districts adopt procedures for notifying parents if there is a change in the student’s
services or monitoring related to a student’s mental, emotional, or physical health or well-being.
The procedures must reinforce the fundamental right of parents to make decisions regarding the
upbringing and control of their children by requiring school district personnel to encourage
students to discuss issues related to their well-being with their parent or facilitate a discussion
with the parent. However, the procedures may not prohibit parents from accessing any of their
student's education and health records created, maintained, or used by the school district.
The bill expressly prohibits a school district from adopting any procedures or student support
forms that:
Require district personnel to withhold from a parent information about his or her student’s
mental, emotional, or physical health or well-being; or
Encourage or have the effect of encouraging a student to withhold from a parent such
information.
The bill bars school personnel from discouraging or prohibiting the notification of parents or
parental involvement in critical decisions affecting a student’s mental, emotional, or physical
health or well-being. However, the bill allows such information to be withheld if a reasonably
prudent person would believe that such disclosure would result in abuse, abandonment, or
neglect of the student.
https://www.sarasotacountyschools.net/site/handlers/filedownload.ashx?moduleinstanceid=3465&dataid=85414&FileName=
Parental%20Consent%20for%20Health%20Services%202021-2022.pdf.
47
Black’s Law Dictionary, Magistrate, https://thelawdictionary.org/magistrate/ (last visited Feb. 25, 2022)
48
Section 1002.333(11)(c), F.S.
49
Id. BILL: CS/CS/HB 1557 Page 9
Additionally, the bill prohibits classroom instruction by school personnel and third parties about
sexual orientation or gender identity in kindergarten through grade 3 or in a manner that is not
age-appropriate or developmentally appropriate for students in accordance with state standards.
The bill requires school districts, at the beginning of each school year, to notify parents of each
health care service available to their student through the school district and permit parents to
consent to, or decline, each service individually. However, the bill specifies that consent to a
service does not waive the parent’s right to access his or her student’s educational or health
records or to be notified about changes in services or monitoring. The bill also requires school
districts to obtain parental consent before administering a student well-being questionnaire or
health screening form to a student in kindergarten through grade 3. A copy of the questionnaire
or health screening form must be provided to the parent in advance.
The bill requires each school district to adopt procedures for a parent to notify the principal or
designee of concerns regarding the provisions in the bill, and the process for resolving concerns
within seven days of the complaint.
At a minimum the procedures must require that within 30 days after notification by the parent
that the concern is unresolved, the district must either resolve the concern or provide a reason for
not resolving the concern. If the concern is not resolved, a parent may:
Request the Commissioner of Education to appoint a special magistrate who is a member of
The Florida Bar in good standing and who has at least five years' experience in
administrative law. The special magistrate must render a recommended decision for
resolution to the State Board of Education (SBE) within 30 days after receipt of the request
by the parent. The SBE must approve or reject the recommended decision at its next
regularly scheduled meeting between 7 and 30 days after the recommendation. The costs of
the special magistrate are the responsibility of the school district.
Bring an action against the school district to obtain a declaratory judgment that the school
district procedure or practice violates the provision in the bill and seek injunctive relief. A
court may award damages and must award reasonable attorney fees and court costs to a
parent who receives declaratory or injunctive relief.
The bill requires each school district to adopt policies to notify parents of these complaint
procedures. The bill also specifies that the actions established in the bill do not abridge or alter
rights of action or remedies in equity already existing under the common law or general law.
The bill requires that all student support training provided by school districts to school personnel
adhere to guidelines, standards, and frameworks established by the Department of Education.
The DOE is required to review and update, as necessary, by June 30, 2023, for compliance with
the provisions of this bill, the following:
School counseling frameworks and standards;
Educator practices and professional conduct principles; and
Other student services personnel guidelines, standards, or frameworks.
The bill has an effective date of July 1, 2022. BILL: CS/CS/HB 1557 Page 10
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The bill requires the DOE to review and update, as necessary, existing guidelines,
standards and frameworks. School districts may need to adopt updated training materials
based on the DOE review. The fiscal impact of these changes is indeterminate.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 1001.42 of the Florida Statutes.
BILL: CS/CS/HB 1557 Page 11
The bill creates an unnumbered section of Florida law.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.