Policy Information | |
Series Regulations - Regulations | |
HUMAN IMMUNODEFICIENCY VIRUS (HIV) RELATED ILLNESSES: STUDENTS Policy # 5692R.1 |
|
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.
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.
Regulations - Regulations |