Fears of Sexual Misconduct Claims Do Not Relieve Schools of Statutory Obligation to Conduct Student Health Exams

It is important for school officials to remember Education Law Article 19 and regulations of the Commissioner of Education require health examinations of public-school students:

• When entering the school district for the first time, and in grades Pre-K or K, 1, 3, 5, 7, 9, and 11 and at any grade level determined by school administration, at their discretion to promote the educational interests of the student (Commissioner’s regulation § 136.3[b]);

• To participate in strenuous activity (athletics) [Commissioner’s regulation § 135.4(c)(7)(i)(e) and 136.3(a)(8)];

• Upon student's request for an employment certificate (working papers) (Education Law §3217); and

• When conducting an initial evaluation or reevaluation of a student suspected of having a disability or a student with a disability (Commissioner’s regulation §200.4[b]).

According to Education Law 903, a student’s family may obtain such an examination from a private provider, but if they fail to do so, the obligation falls on the school district.

Performing such an examination at school, given its personal and intimate nature, has created concerns among school officials and medical professionals alike that they are risking allegations of sexual misconduct.

To address these concerns, some districts have adopted procedures which require parents to give written, informed consent before the school-provided examination will be conducted. While this procedure can be helpful, it can also create a legal problem for the district if the student’s parents fail to give consent and fail to obtain a private exam. The NYS Education Department has advised that this parental failure does not relieve the district of its obligation under the Education Law to conduct the health examinations noted above. Moreover, students cannot be kept out of physical education classes due to these failures.

If you have any questions regarding the foregoing, including how a district and its appointed medical officials can protect themselves in these situations, please do not hesitate to call.