I. STUDENTS WITH HIV-RELATED ILLNESS
Confidentiality
A. Definitions
“HIV-related illness” means any clinical illness that may result from or be associated with HIV infection, including AIDS.
“Protected individual” shall mean a person who is the subject of an HIV-related test or who has been diagnosed as having HIV-related illness.
“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.
B. Confidentiality and Release of Information
School officials and employees shall keep HIV-related information confidential, however obtained. The information shall not be disclosed to any person, unless the protected individual (or a person with capacity to consent) has completed and signed the “Authorization for Release of Confidential HIV-Related Information to the Superintendent of Schools and the Board of Education” (The University of the State of New York Education Department, approved by the New York State Department of Health, 5191-E.1) and the “Authorization for release of Confidential HIV-Related Information” (New York State Department of Health, 5191-E.2), a court order granted under Public Health Law §2785 has been issued, or the person to whom the information has been furnished is authorized to receive such information under Public Health Law (PHL) §2782 without a release form. Persons authorized to receive HIV information without a release include physicians providing care, agencies monitoring such care, and insurance companies for payment purposes. Disclosure to school personnel staff requires a release or court order.
If disclosure occurs pursuant to a signed release or order, the information shall only be released to those listed on such form or order, for the time period specified and only for the purpose stated on the form or order. The law specifically prohibits redisclosure or the use of general authorization to release confidential AIDS related information. Individual separate releases must be executed by the protected individual (or the parent or guardian, where appropriate) specifically granting permission for any further release of such information.
Such form shall be signed by the protected individual or when the protected individual lacks capacity to consent, a person authorized pursuant by law to consent to health care for the individual. Questions in regard to such capacity shall be referred to the school attorney.
C. Testing
No HIV-related testing of any student shall take place without first receiving the written informed consent of the person to be tested on a form approved by the State Health Department. Such consent shall only be given by an individual with capacity to consent as defined above.
D. Penalties
Persons who disclose confidential HIV information to unauthorized parties or who fail to obtain informed consent for the HIV test may be subject to a $5,000 penalty and a criminal misdemeanor charge.
E. Procedures
- The procedure set forth here 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 administrator/supervisor 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 on 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 Board that the district seek an order for disclosure of confidential HIV-related information, pursuant to Public Health Law §2785. - The procedures set forth here shall be followed in any instance where the school district received confidential HIV-related information concerning a student through the Authorization Form or through a court order.
a. The administrator/supervisor 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 duringperiods of short-term illness as well as provision of educationally related support services. The administrator/ supervisor 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.(1). 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 Board that the district seek an order for disclosure of confidential HIV-related information, pursuant to Public Health Law §2785.
b.(2). 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 or significant risk. - 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.
- 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 Super- intendent may recommend to the Board that the district seek an order for disclosure of confidential HIV-related information, pursuant to Public Health Law §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. - 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.
- At such time as the CSE received 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:
1. the physical condition of the student and any behavior which might increase the risk of transmission of the virus; and
2. 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 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. - 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 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 in the original 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. - 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 administrator/supervisor or school nurse with authorization to obtain the confidential HIV/related information shall 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 administrator/ supervisor, school physician and nurse.
II. EMPLOYEES WITH HIV-RELATED ILLNESS
A. If information is received regarding an employee’s HIV status, the Superintendent of Schools may consult with the school attorney on the appropriate course of action to take under all the circumstances, bearing in mind the district’s potential liability for defamation, employment discrimination, breach of the confidentiality requirements of the New York Public Health Law, and other possible causes of action.
B. Confidentiality
Information obtained pursuant to a Health Department release form or court order is confidential and shall not be released to anyone, except to
- persons listed on the said form;
- persons listed on a court order pursuant to Public Health Law §2785; or
- persons authorized to receive such information without a release or court order under Public Health Law §2785.
C. AIDS/HIV Testing
No school official shall require any employee to undergo an HIV Antibody test or other AIDS test. However, these regulations shall not preclude school officials from ordering an employee to undergo an examination under Education Law §913, when other illness is suspected, as long as no involuntary HIV antibody test or other AIDS test is administered as part of such examination.
D. Standards for Avoiding Employment Discrimination
No disciplinary action or other adverse personnel action shall be taken against an employee solely because he/she has AIDS or HIV infection. Action may be taken against an employee only if he/she is disabled and the disability interferes with his/her ability to perform in a reasonable manner the activities involved in the job or occupation as determined through normal evaluation procedures conducted by the employee’s supervisor(s).
The District shall make such reasonable accommodation to enable the employee to perform employment duties as may be required by Federal or State law.
Note: Prior regulation, Administrative Regulations, Students and Employees with HIV- Related Illness, 4190(a)-(e)
April 24, 1990
January 25, 1999