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Adoption Date: 9/1/2012
Regulations - Regulations


5692R.1 HUMAN IMMUNODEFICIENCY VIRUS (HIV) RELATED ILLNESSES: STUDENTS

 

Admission and Enrollment

 

Every  effort  shall  be  made  not  to  exclude  Human  Immunodeficiency  Virus  (HIV)  infected students,  or  place  such  students   in  a  restricted  environment.   On  occasion,  where  the  unique circumstances  of the student's  condition,  apart from  the mere existence  of HIV infection  or AIDS virus, warrant programmatic modifications for the benefit of the student, a referral will be made to the Committee  on  Special  Education  (CSE)  for  evaluation  and  recommendation.  The  CSE  will  then determine  whether the student  should  be classified  pursuant to the Commissioner's  Regulations  on students  with  disabilities  and,  if  determined  to  be  "educationally  disabled,"  will  recommend  an appropriate educational placement.

 


 If the parent/guardian disagrees with the CSE recommendation, he/she is entitled to due process under  appeal  procedures  set  forth  in  state  and  federal  law.  If  a  hearing  is  requested  by  the parent/guardian, the student will remain in his/her current placement pending all proceedings unless a court order is obtained.

Confidentiality

 

Definitions (Public Health Law, Section 2780)

 

1)     "Confidential  HIV related  information"  means any information,  obtained from  individuals who provide health or social services or through a written authorization for disclosure of such information, concerning whether an individual has been the subject of an HIV related test, or has HIV infection, HIV related illness or AIDS, or information which identifies or reasonably could identify an individual as having one (1) or more of such conditions.

 

2)      "Capacity  to  consent"  means  an  individual's  ability,  determined  without  regard  to  such individual's age, to understand and appreciate the nature and consequences of a proposed health care service treatment or procedure, and to make an informed decision concerning such service, treatment or procedure. Itis the responsibility of the HIV counselor to determine an individual's capacity for consent to medical care.

 

3)      "Release   of  confidential   HIV   related  information"   means  a  written   authorization   for disclosure of confidential HIV related information which is signed by a student who has been determined as having the capacity to consent who is the subject of an HIV-related test or who has  been  diagnosed  as  having  HIV  infection,  AIDS  or  an  HIV  related  illness  or  a  person authorized by law to consent to health care for that individual. Disclosure must be on a form approved by the New York State Department of Health.Release of Information

 

Under New York State Law, except for certain people, school officials and employees are required by law to maintain strict confidentiality of HIV-related information concerning a student in the District and such information may not be disclosed to anyone unless the protected student, or the parent or guardian if student lacks capacity to consent, completes and signs a written authorization form. The form must be dated and specify to whom disclosure is authorized, the purpose for such disclosure and the time period during which the release is to be effective.

 

The New York State Department of Health has provided an authorization form for the release of medical information including HIV-related information. Medical and HIV-related information may be protected from disclosure or re-disclosure by federal privacy law and state law. Release of medical of HIV-related information may be granted to the School District using the "HIPAA Compliant Authorization for Release of Medical Information and Confidential HIV Related Information" form. This form is available on the New York State Department of Health website: http://www.health.state.ny.us/forms/doh-2557.pdf

 

Testing

 

No HIV related testing will be performed without first receiving the written informed consent of the student who has the capacity to consent or of a person authorized pursuant to law to consent to health care for such student.

 

Penalties

 

Any school official or employee who discloses confidential HIV-related information to unauthorized persons may be subject to a civil penalty up to five thousand dollars ($5000) and a criminal misdemeanor charge.

 

Procedures

 

1)     The procedure set forth shall be followed in any instance where the School District receives confidential HIV-related information concerning a student from the student and/or person in parental relation to the student without benefit of an Authorization Form or court order.

 

a.       The Superintendent or Building Administrator to whom the information has been given shall request a meeting with the person in parental relation and/or the student for the purpose of discussing the student's condition, concerns and, should the situation arise, educational alternatives. Such alternatives  may  include homebound instruction during periods of short-term illness as well as provision of educationally  related support services. At  this  point,  school  or  public  health  personnel  may  be  consulted  provided  that  the appropriate  Authorization  Form  is obtained.  The  person  in  parental  relation  and/or  the student should be apprised of this and asked to sign such release form for personnel whose consultation is needed for delivery of appropriate educational services.

 

b.       If a school officer or employee who has not been made privy to confidential  HIV-related information pursuant to an Authorization  Form or court order reasonably  believes that a student may present a clear and imminent danger to an individual whose life or health may unknowingly  be at significant  risk as a result of contact with the person, he/she  should express these concerns to the Superintendent of Schools who may attempt to obtain an Authorization  Form  from  the  individual  or someone  else  with  the  capacity  to consent. Should this request be refused, the Superintendent  may recommend  to the School Board that  the  District  seek  an  order  for  disclosure  of  confidential  HIV-related  information, pursuant to Public Health Law Section 2785.

 

2)      The  procedures  set  forth  here  shall  be  followed  in  any  instance  where  the  School  District receives  confidential  HIV-related  information  concerning  a student  through the Authorization Form or through a court order.

 

a.      The Superintendent,  or  building  administrator  to whom  the  HIV-related  information  has been released, may request a meeting with the parent, or person in parental relationship, and the student  for the purpose  of discussing  educational  alternatives.  Such alternatives  may include homebound instruction during periods of short-term illness as well as provision of educationally  related support  services.  The Superintendent  or building  administrator  may enlist  the  expertise  of  the  child's  physician,  or  any  school  or  public  health  personnel, provided  that  the  appropriate  release  forms  have  been  obtained.  If a  parent  concurs  in writing to the provision of educational alternatives, no referral to the Committee on Special Education (CSE) will be made.

 

b.     If a school officer or employee who has not been made privy to confidential  HIV-related information  pursuant to an Authorization  Form or court order  reasonably  believes that a student may present a clear and imminent danger to an individual whose life or health may unknowingly  be at significant  risk as a result  of contact  with the  person, he/she  should express  these concerns  to the Superintendent  of Schools.  If the Superintendent  has been given the authority, through the Authorization Form, to inform such person(s) who may be at significant risk, he/she should proceed to do so. If the Superintendent  does not have this authority,   he/she should attempt to  obtain  an  Authorization Form  from the  individual  or someone else with the capacity to consent. Should this request be refused, the Superintendent may recommend to the school board that the district seek an order for disclosure of confidential HIV-related information, pursuant to Public Health Law Section

2785.

 

If a professional staff member of a School District who has been made privy to confidential HIV-related information pursuant to an Authorization Form or court order reasonably believes that a student may present a clear and imminent danger to an individual whose life or health may unknowingly be at significant risk as a result of contact with the person, he/she should make a referral of the student to the CSE, if appropriate. Staff are also expected to encourage students to seek advice from their physician and AIDS counseling centers and to behave responsibly by contacting those persons with whom they have engaged in behavior of significant risk.

 

3)     If a professional staff member of a School District suspects that a student may have a disability, whether or not the staff member has been made privy to confidential HIV-related information, the staff member shall refer such student in writing to the CSE, or to the Building Administrator of the school which the student attends, in accordance with Part 200.4 of the Commissioner's Regulations.

 

4)     If a student has been referred to the CSE and the CSE reasonably believes either (a) that the student may present a clear and imminent danger to an individual whose life or health may unknowingly be at significant risk as a result of contact with the student, or (b) that the student has or is suspected of having a disability and that the condition may be due, in whole or in part, to HIV-related illness, the CSE shall inform the Superintendent, who shall attempt to obtain an Authorization Form from the student or someone else with the capacity to consent. Should this request be refused, the Superintendent may recommend to the school board that the District seek an order for disclosure of confidential HIV-related information, pursuant to Public Health Law Section 2785.

 

When seeking the confidential information through either said Form or court order, the Superintendent shall attempt to have the person or court agree to disclose such information to the CSE, and may attempt to have the person or court agree to disclose such information to the classroom teacher(s) and any other personnel the Superintendent and the school attorney believe are appropriate.

 

5)     If no such consent or court order is obtained, the District shall take no further action in this matter and shall instruct the appropriate officers or employees not to disclose information in regard to the case.

6)     If confidential HIV related information is obtained, it shall be disclosed only to those individuals listed on the form or pursuant to the court order and only for the purposes specified,for the specified time period.

 

7)    At such time as the CSE receives confidential HIV-related information, it shall, on a case-by-case basis, review all of the medical information pertinent to the individual situation and make a determination as to whether the current mode of instruction and classroom setting for the student meets his or her current and ongoing needs or if it is appropriate. In making its determination, the CSE shall consider the following factors:

 

a.       The physical condition of the student and any behavior which might increase the risk of transmission of the virus; and

 

b.      The expected type of interaction with others in the school setting. The CSE may also consult with appropriate public health officials pursuant to article 27-F of the Public Health Law.

 

In all other respects, the CSE shall carry out its responsibilities and make recommendations based upon a written evaluation setting forth the reasons for the recommendations, to the student, parent or guardian of the student and Board of Education as it would with any other student who has or is suspected of having a disability.

 

Because of the provisions in article 27-F of the Public Health Law permitting physicians to disclose confidential HIV-related information under certain circumstances, the school physician will be required to attend all meetings of the CSE in regard to students suspected or diagnosed as having HIV-related illness.

 

The CSE shall also have the authority to invite the appropriate professionals familiar with HIV­ related  illness  to  any  meeting  concerning  the  educational  program for  any  such  student, providing however, that such professional is named on a completed and signed Authorization Form or a court order granted under Public Health Law Section 2785.

 

8)     If the student had previously been evaluated and been recommended for placement by the CSE, and thereafter the student is deemed dangerous to himself or others, a short-term suspension (of five (5) days or less) may be imposed, or other protective procedures may be invoked. However, where parents choose to exercise their due process rights under the appeal procedures set forth in state and federal law, a student must remain m the current placement until appeal procedures are completed, or parental consent or court order for alternative placement is obtained.

If the student had not been evaluated and recommended for placement by the CSE, section 6 (above) shall apply.

 

9)     Pursuant to Public Health Law article 27-F, a physician may, upon the consent of a parent or guardian, disclose confidential HIV-related information to a state, county or local Health Officer for the purpose of reviewing the medical history of a child to determine the fitness of the child to attend school.

 

Additional Matters

 

In the event of the presence of any contagious or communicable disease (such as chicken pox or measles, etc.) in the school population, which may constitute a risk to an infected individual, the Superintendent or school nurse with authorization to obtain the confidential HIV-related information may inform the student, the student's parents or legal guardian about such risk. Any temporary decision or recommendation in such circumstances should be made by the individual's personal physician and the student's parents, in consultation with the Superintendent, school physician and nurse.