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Committee Amendment Adopted

February 17, 2026

 

H. 3974

 

Introduced by Reps. Calhoon, Bernstein, Erickson, Schuessler, Bauer, Guffey and McGinnis

 

S. Printed 2/17/26--S.

Read the first time May 7, 2025

 

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A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING ARTICLE 5 TO CHAPTER 10, TITLE 59 SO AS TO AUTHORIZE EVALUATORS TO EVALUATE PUBLIC SCHOOL STUDENTS FOR HEALTH, BEHAVIORAL HEALTH, OR THERAPEUTIC NEEDS, TO AUTHORIZE PRIVATE PROVIDERS TO PROVIDE RELATED SERVICES AT SCHOOLS DURING THE SCHOOL DAY, TO SPECIFY THESE EVALUATIONS AND SERVICES ONLY MAY OCCUR UPON REQUEST OF THE PARENT OR GUARDIAN OF THE STUDENT, TO PROVIDE SCHOOL DISTRICTS MAY NOT PROHIBIT SUCH EVALUATIONS OR SERVICES IN SCHOOLS DURING THE SCHOOL DAY, TO PROVIDE THE STATE DEPARTMENT OF EDUCATION SHALL ADOPT A RELATED MODEL POLICY, TO PROVIDE REQUIREMENTS FOR THE MODEL POLICY, TO PROVIDE SCHOOL DISTRICTS SHALL ADOPT RELATED POLICIES, AND TO DEFINE NECESSARY TERMS.

    Amend Title To Conform

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 10, Title 59 of the S.C. Code is amended by adding:

 

Article 5

 

Private Providers

 

    Section 59-10-510. For purposes of this article:

    (1) "Private provider" means a provider who:

       (a) renders Applied Behavior Analysis therapy or performs an evaluation or observation pursuant to such therapy, and includes:

           (i) board certified behavior analysts;

           (ii) board certified assistant behavior analysts;

           (iii) board certified behavior analyst-doctoral; and

           (iv) registered behavior technicians under the appropriate supervision of a board certified behavior analyst or board certified assistant behavior analyst;

       (b) provides or seeks to provide services in a South Carolina public school;

       (c) is licensed by this State and in good standing or, if state licensure is not available, is certified by and in good standing with a national certification or accreditation organization; and

       (d) is not an employee of a public school district or the State Department of Education.

    (2) "Medically necessary service" means services that meet the following requirements:

       (a) ordered by a healthcare provider within the scope of the healthcare provider's license for the treatment or remediation of functional impairments associated with a diagnosis of autism spectrum disorder;

       (b) not for experimental or investigational purposes;

       (c) within the generally accepted standards of medical care in the community;

       (d) not solely for the convenience or personal preference of the insured, the insured's family, or the provider; and

       (e) is medically necessary during school hours in the school setting.

    (3) "Third-party payor" includes, but is not limited to, Medicaid, self-funded health plans, and commercial insurance.

    (4) "Undue burden" has the same meaning as Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 793, as amended, and Title II of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. section 12101, et seq., as amended.

    (5) "Fundamental alteration" has the same meaning as Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 793, as amended, and Title II of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. section 12101, et seq., as amended.

 

    Section 59-10-520. Districts must consider on a case-by-case basis a request from a parent or legal guardian of a student for a private provider to provide medically necessary services authorized by an independent third-party payor to a student at a public school during school hours, including the ability of a private provider to observe or evaluate the student and the environment where services will be provided.

    (1) If a parent or legal guardian of a student requests medically necessary services in excess of what the district has determined is appropriate pursuant to its obligations under the IDEA and the child's IEP and is providing to the student, the school must review the medically necessary service pursuant to an ADA analysis, which would allow a private provider to render the service as a reasonable accommodation as long as it does not impose an undue burden on or fundamental alteration to school operations as contemplated by the ADA and Section 504 of the Rehabilitation Act.

    (2) The collaboration of school personnel and private providers is intended to enhance but not supplant or replace the obligations or responsibilities of districts under the IDEA.

    (3) Districts may not apply or use a district's determination about its obligations in a child's IEP pursuant to the IDEA to deny or limit a student's access to medically necessary services from a private provider pursuant to the ADA.

    (4) Districts may utilize existing review processes or create new ones to review a request for medically necessary services pursuant to the ADA. Requests may be reviewed by a student's IEP team or 504 committee or another group convened to review the request; however, the participants must apply the appropriate ADA standards to review a request for medically necessary services.

    (5) If a parent or legal guardian requests a medically necessary service pursuant to the ADA for a student who does not currently have an IEP or 504 plan, the district must initiate the appropriate evaluation to determine if the child is entitled to services under the IDEA or Section 504 in addition to evaluating the ADA request.

    (6) Nothing in this article shall be construed to preclude a school district from utilizing certified educators or other district personnel to provide instructional, behavioral, or therapeutic supports to students as otherwise permitted by law.

 

    Section 59-10-530. (A) The State Board of Education shall develop a model policy setting the parameters for private providers to observe and evaluate a student or to provide medically necessary services during the school day, including during instructional time, in compliance with this chapter.

(B) At a minimum, the model policy must:

    (1) require districts adopt a case-by-case review process for requests made by parents or guardians for a private provider to serve a child at a school during school hours;

    (2) set forth a process for evaluating a request for medically necessary, disability-based services and supports pursuant to the ADA, which is a separate determination not limited to or determined by what is necessary for a Free and Appropriate Public Education (FAPE) under the IDEA or Section 504;

    (3) require private providers to submit documentation of completed background checks to the district prior to entering a school building;

    (4) determine the appropriate amount of professional liability insurance coverage for private providers and require them to maintain professional liability insurance coverage;

    (5) allow for services to be provided during instructional time if:

       (a) the team, committee, or group convened to review the ADA request determines those services appropriate at that time pursuant to Section 59-10-520(1); and

       (b) services can be provided in a manner that does not interfere with the delivery of instruction to other students or otherwise prevent a classroom teacher from effectively managing and implementing classroom policies and procedures pursuant to Section 59-10-520(1);

    (6) require the parent or legal guardian of a student receiving a service from a private provider to execute and submit to the district:

       (a) a written confirmation of the funding source for services provided by the private provider;

       (b) a parent or guardian authorization for the provision of services at school during the school day; and

       (c) a consent to release information form between the private provider and the school district;

    (7) require private providers to complete a written agreement with a school district that, at minimum, outlines:

       (a) the school, teacher, and district's responsibilities;

       (b) the duration and type of services to be provided;

       (c) that the medically necessary services do not interfere with or impede other mandated services without collaboration and agreement between the service providers;

       (d) expectations and requirements related to FERPA and any other applicable state and federal law;

       (e) guidelines for any missed instructional time and assignments;

       (f) expectations and guidelines for providers when interacting with students other than those receiving services with a goal of minimizing such interactions to the greatest extent possible;

       (g) that a private provider must not be listed on a federal, state, or other child abuse or sex offender registries or otherwise be prohibited by state law from working in a school;

       (h) expectations that the private provider must follow school policies and procedures; and

       (i) allocation of liability between or among the parties; and

    (8) provide procedures for a school district to establish sanctions, including termination of the authorization to provide services on any school campus, against a private provider for failure to comply with the policy of the district.

 

    Section 59-10-540. The board shall finalize its model policy by January 6, 2027. Districts must adopt the model policy or develop their own policy that meets the minimum requirements of the model policy and is subject to department approval by July 1, 2027.

 

SECTION 2.  This act takes effect upon approval by the Governor.

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