Ferrara Fiorenza P.C.

New SED Health Exam Guidelines Generate Concern about Care for Sick or Injured Students

The New York State Education Department (SED) recently published its “School Health Examination Guidelines” for school districts to use in developing effective procedures, policies, and follow-up with respect to health examination requirements.  These Guidelines have raised some serious questions among school officials, not with respect to the health examination requirements themselves, but rather about whether school personnel are permitted to provide any health-related assistance to sick or injured students while they are in school custody. 

Specifically, the Guidelines state that Education Law section 910 and Public Health Law section 2540 require parental consent for “health services, treatment and remedial care of students.”  It is further suggested (in a footnote to these Guidelines) that schools may obtain “passive parental consent” to provide care and treatment to students by sending “opt-out letters” to parents prior to the start of the school year.  In other words, the school district would be notifying parents that they can “opt out” of permitting school personnel from providing any health-related assistance to their children regardless of the circumstances.  Taken to its logical conclusion, such a practice could result in circumstances where school officials are required to stand back and offer no assistance to a sick or injured student on school premises, if the student’s parents have opted out. 

This is in direct conflict with a long-standing, legal obligation that school officials act “in loco parentis”, i.e., in the place of the parents, while students are in their custody.  This obligation requires district personnel to act with the same care as a prudent parent would with an ill or injured child.  See Hoose v. Drumm,281 N.Y. 54, 57–58, 22 N.E.2d 233 (1939).

The SED Guidelines appear to be basing the opt-out-notification requirement on two cases that have interpreted Education Law section 910 and Public Health Law section 2540: i.e., Alfonso v. Fernandez, 195 A.D.2d 146 (1993); and D.F. v. Bd. of Educ. of Syossett CSD, 386 F. Supp.2d 119 (E.D.N.Y. 2005), aff’d, 180 F.Appx. 232 (2d Cir. 2006), cert. denied, 549 U.S. 1179 (2007). In Alfonso, the court held that the school district was prohibited from dispensing condoms to unemancipated minor students without the prior consent of their parents or guardians, or without an opt-out provision. The basis of the ruling was that there is no judicial or legislative authority directing or permitting public school educators to dispense condoms to minor students without the knowledge or consent of their parents.  In D.F. v. Bd. of Educ. of Syossett CSD, the court held that school districts should also obtain parental consent before providing psychological testing to minor students.

While it is true that Education Law section 910 allows for parental determination for health services, treatment and remedial care of students, both the Alfonso and D.F. v. Bd. of Educ. of Syossett CSD cases involved highly controversial topics, i.e., condom dispensing and psychological testing of students.  The same cannot be said for providing basic first aid to an injured or ill student.

School officials need to understand that these Guidelines are not law or regulations but rather “best practice” suggestions from SED on this issue.  Moreover, this is an evolving and, as yet, unpredictable area of the law.  Accordingly, until there is a more definitive statement from the State Legislature, the court system and/or SED requiring school districts to notify parents of their right to opt out of permitting any care to their children who are ill or injured, school officials should proceed cautiously. We have advised clients that they are not required at this point to issue this notification.  However, if you choose to send out such a notice, work closely with your school attorney in drafting that notice and implementing any new procedures related to it.

If you have any questions regarding the foregoing or parental opt-outs, in general, please contact our office.