The problem is the interaction of the two laws.
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The existence of the opt-out overrides in loco parentis and the opt-out itself is protected information. The interaction produces a result that probably wasn't intended.
Jarhyn
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I would hazard that the result IS intended, or is at least a happy accident with respect to the law. They are trying the postal strategy of crippling the department of education with a death of a thousand "reasonable" cuts.
Bomb#20
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This other law said who has given consent is protected medical information, but it didn't require consent for medical treatment? What would be the purpose of such a law? What, were parents filling out and sending in forms that said whether they consented to their kids receiving care, even though their kids could get care whether the parents consented or not, just so the forms could go into storage, on the off-chance that at some time in the future a new law might be passed that requires parental consent? That doesn't make any sense.
The only ways this story can be coherent are if the administrators are just confused about what the law is, of if the other law also says parental consent is required, or if there was already some first law that said parental consent was required and then a second law made the consent list secret, and then the "Don't Say Gay" bill was the third law. Regardless of which of those scenarios we postulate, it seems some teachers and/or administrators are frustrated by all the requirements being put on them and are using DSG as a rhetorical stand-in for the whole collection of annoying bureaucratic crud they have to comply with.
laughing dog
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You missed one obvious possible explanation that makes this story coherent - that you don't understand the interplay between the different laws.
Don2 (Don1 Revised)
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Let me review the portion of the law I cited and the response from Loren.
This part of your answer seems valid. To review--the common law concept of in loco parentis would mean that teachers, school staff etc are acting with temporarily implied parental authority in making some minor medical decisions such as applying band-aids, giving out ice packs, etc. However, the new law is a statute and statutes that explicitly say things about X can override previous legal inferences from court case decisions about X in some fashions. In this case, as quoted they require schools to "notify parents of healthcare services and provide parents the opportunity to consent or decline."
Here are two articles discussing new opt-in forms and opt-out forms school districts had to create and the local impacts of these forms:
Gallion, Bailey. "Under Parent's Bill of Rights, parents asked to opt in for Band-Aids at schools." Florida Today. 01 Sep, 2022
Kokal, Katherine. "Citing parental rights law, schools say some kids can't be treated with Band-Aids, ice packs." Palm Beach Post. 31 Aug, 2022
Note one impact is that many parents are not filling out forms which leaves schools open to liability risk.
This seems to be true by definition. Opting in or out of medical/healthcare services is a medical decision and since it is a medical decision, it is protected medical information. A primary law governing protected medical information is HIPAA. That law primarily applies to HIPAA-covered entities. Another law governing protected information in schools is FERPA. There has been confusion in the past as to which laws apply when and elementary schools and high schools have typically not had to deal with HIPAA but instead FERPA. There are exceptions. At a minimum, the opt-in/opt-out checkbox(es) would be considered part of "education records" under FERPA and thus be "protected information" as posted.
A general practice in dealing with these kinds of privacy laws is that staff only examine protected information who need to know it and then only the specific information that they need to know. For HIPAA, this practice is implemented by control over access to PHI, including logging when PHI is examined. It would make sense that there is an analogous practice in schools where a nurse would have the health portion of the education record (such as immunization info) and act as a gatekeeper to that info, providing info on an as-needed basis to others. We wouldn't want just any random teacher looking at everyone's immunization or other health records for no reason or nefarious purposes.
Well, first let me just say that examining interactions and other impact analysis of looking at the law in context of existing laws and situations (like litigious parents or liability risk) is natural and the most reasonable kind of analysis. Examining the law in isolation as Bomb#20 did could be valuable but also is most likely incomplete because it would be taking the law out of its natural context, i.e. that it gets put into context of the world.
That said, I am unsure that I yet have a complete understanding of this specific interaction. Let's see if I can reproduce the logic. Normally, the opt-in/opt-out would be considered a health record but the health info (unless they are medical treatments with pay codes) are part of "education records" under FERPA. If a parent has opted in, they more or less agree with business as usual, and there is consent for medical interventions as specified. Situation is functionally similar to in loco parentis.
On the other hand, if a parent has opted out, how does that impact a teacher in a classroom who might want to apply minor medical intervention (such as a band-aid)? The teacher is prohibited from acting without knowing if the parent has consented to medical intervention by the school. So, naturally, the teacher would contact the nurse who is the gatekeeper to the health-related information in the education record. Is the nurse prohibited from sharing the consent info with the teacher, i.e. the opt-out is medical info and by choosing no, it appears that medical info would not be shared with teachers, and so it is a legal risk. So do they send the child to the nurse instead?
There's a bit of another thing here. If every time the teacher gives band-aids to Amy and Stephanie but not Billie--she sends Billie to the nurse, what are loud, crazy and litigious Billie's parents going to do to the school? They could make a claim the teacher is mocking the parents' decision or making it public. Schools have to consider these kinds of impacts of new laws and ensure they are perceived as treating everyone equally.
So, they might enact a policy that teachers no longer do any kind of medical intervention and only the nurse can do it, most likely in private. Of course, the nurse would still not be able to do some things because the parents opted out.
What do the schools need to do to resolve this--does it require another checkbox on the form that asks if the opt-in/opt-out decision can be shared with teachers?
This part of your answer seems valid. To review--the common law concept of in loco parentis would mean that teachers, school staff etc are acting with temporarily implied parental authority in making some minor medical decisions such as applying band-aids, giving out ice packs, etc. However, the new law is a statute and statutes that explicitly say things about X can override previous legal inferences from court case decisions about X in some fashions. In this case, as quoted they require schools to "notify parents of healthcare services and provide parents the opportunity to consent or decline."
Here are two articles discussing new opt-in forms and opt-out forms school districts had to create and the local impacts of these forms:
Gallion, Bailey. "Under Parent's Bill of Rights, parents asked to opt in for Band-Aids at schools." Florida Today. 01 Sep, 2022
Kokal, Katherine. "Citing parental rights law, schools say some kids can't be treated with Band-Aids, ice packs." Palm Beach Post. 31 Aug, 2022
Note one impact is that many parents are not filling out forms which leaves schools open to liability risk.
This seems to be true by definition. Opting in or out of medical/healthcare services is a medical decision and since it is a medical decision, it is protected medical information. A primary law governing protected medical information is HIPAA. That law primarily applies to HIPAA-covered entities. Another law governing protected information in schools is FERPA. There has been confusion in the past as to which laws apply when and elementary schools and high schools have typically not had to deal with HIPAA but instead FERPA. There are exceptions. At a minimum, the opt-in/opt-out checkbox(es) would be considered part of "education records" under FERPA and thus be "protected information" as posted.
A general practice in dealing with these kinds of privacy laws is that staff only examine protected information who need to know it and then only the specific information that they need to know. For HIPAA, this practice is implemented by control over access to PHI, including logging when PHI is examined. It would make sense that there is an analogous practice in schools where a nurse would have the health portion of the education record (such as immunization info) and act as a gatekeeper to that info, providing info on an as-needed basis to others. We wouldn't want just any random teacher looking at everyone's immunization or other health records for no reason or nefarious purposes.
Well, first let me just say that examining interactions and other impact analysis of looking at the law in context of existing laws and situations (like litigious parents or liability risk) is natural and the most reasonable kind of analysis. Examining the law in isolation as Bomb#20 did could be valuable but also is most likely incomplete because it would be taking the law out of its natural context, i.e. that it gets put into context of the world.
That said, I am unsure that I yet have a complete understanding of this specific interaction. Let's see if I can reproduce the logic. Normally, the opt-in/opt-out would be considered a health record but the health info (unless they are medical treatments with pay codes) are part of "education records" under FERPA. If a parent has opted in, they more or less agree with business as usual, and there is consent for medical interventions as specified. Situation is functionally similar to in loco parentis.
On the other hand, if a parent has opted out, how does that impact a teacher in a classroom who might want to apply minor medical intervention (such as a band-aid)? The teacher is prohibited from acting without knowing if the parent has consented to medical intervention by the school. So, naturally, the teacher would contact the nurse who is the gatekeeper to the health-related information in the education record. Is the nurse prohibited from sharing the consent info with the teacher, i.e. the opt-out is medical info and by choosing no, it appears that medical info would not be shared with teachers, and so it is a legal risk. So do they send the child to the nurse instead?
There's a bit of another thing here. If every time the teacher gives band-aids to Amy and Stephanie but not Billie--she sends Billie to the nurse, what are loud, crazy and litigious Billie's parents going to do to the school? They could make a claim the teacher is mocking the parents' decision or making it public. Schools have to consider these kinds of impacts of new laws and ensure they are perceived as treating everyone equally.
So, they might enact a policy that teachers no longer do any kind of medical intervention and only the nurse can do it, most likely in private. Of course, the nurse would still not be able to do some things because the parents opted out.
What do the schools need to do to resolve this--does it require another checkbox on the form that asks if the opt-in/opt-out decision can be shared with teachers?
I could certainly believe that.
I believe the original situation was the school was considered in loco parentis and reasonable judgment was used in the absence of specific direction. Now, however, medical treatment is only by consent--which effectively means the system overloads and care is often unavailable.
Bomb#20
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Ah, that would be the "God works in mysterious ways." argument.
If you don't tell us which laws are allegedly interplaying to create the problem, you're resorting to an unfalsifiability engine.
laughing dog
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I do understand why you would feel that way, but nope.
Assuming that someone is actually paying attention or is knowledgeble about the topic is common courtesy even when the assumption is erroneous. The laws in questions are identified in this thread and a number of posters clarified this for you.
Bomb#20
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If you're talking about FERPA, Don didn't actually say it prohibits teachers from being told which students they're allowed to give bandaids to. He only said it requires that that sort of information be made available on a need-to-know basis. That interplay isn't sufficient to create the problem. Unless you can point out some provision of FERPA that specifies that teachers don't have need-to-know for that information, it would appear the problem was created not by the interplay of laws but by an idiot administrator who decided teachers don't need to know which children they're allowed to give bandaids to. That's on him or her.
(Contrariwise, if you're claiming a number of posters have told me which law other than FERPA is allegedly interplaying with DSG, I'm not going to reread 570 posts just to make a long-odds bet against the default presumption that you're blowing smoke out your ass. Quote a post or take your "God works in mysterious ways" argument and own it.)
laughing dog
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Maybe. On the otherhand, as others have pointed out, school administrators tend to be risk averse. They tend to err on the side of blowback minimization. Given their position and the amount of crap they get from all sides, it is difficult to fault that mindset. In this particular case, where the governor and legislature have made their intentions clear but to all whose heads are their asses, it would take an extremely brave administrator to go against that tidal wave.
Now, why would I want to emulate you?
Politesse
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What "blowback" would result from providing band-aids to bleeding children?
No, despising administrator nonsense is a non-partisan issue for Americans. This isn't CRT.
The problem is that only the nurse has that information. Thus the teacher has to call the nurse before doing anything. The nurse isn't always available.
laughing dog
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If you don't think there are fucked up parents would make a stink over someone without authorization administering health care to their child, you think wrong.
True, but it misses the point.
Bomb#20
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That isn't a law of nature; and so far nobody's exhibited a provision showing it's even a law of man. It appears to be just a policy of some school district. What's to stop the administrators from directing the nurses to cross-reference the class lists with the parental permission forms at the beginning of each term, and prepare a list for each teacher of which of that teacher's students it's okay to give bandaids to? That way the teachers don't get any so-called "medical information" except for what they need to know, but when kids get cut teachers can check their lists instead of phoning the nurse. The lists only tell the teachers exactly what the nurse would say anyway. If a policy along those lines would violate FERPA, somebody quote the FERPA provision it's a violation of.
Bomb#20
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Couple of observations. First off, your links make it clear that some counties are using opt-in forms and others are using opt-out forms. I read the law and didn't see anything in it requiring opt-in forms. So it looks like the counties that went with opt-out forms are being sensible, and the 57000 unreturned opt-in forms causing so much concern to Palm Beach County school officials are a self-inflicted wound.
And second, your links say:
The parents' response to the forms won't prevent students from receiving emergency care, Campbell clarified. All districts have said they'll call 911 if a student is having a medical emergency. "We're not going to wait for a parent to come up if your child is bleeding out," Campbell said.
and
The district went on to say staff will call 911 if a child is having a medical emergency. Palm Beach County has the same policy.
and
The district went on to say staff will call 911 if a child is having a medical emergency. Palm Beach County has the same policy.
Duh! If the new policies are prompted by "caution", aka, fear of lawsuits, well, failing to call 911 in an emergency is a far surer way to get sued than calling 911 when a parent didn't tell you to in advance.
That's in contrast to Ziprhead's link, which said:
“We’ve been instructed to not even give a bandaid to a child if they have a cut,” explains Angela, who is speaking under a pseudonym to maintain both her anonymity and her job. “Even if their arm is hanging off, we can’t call 911 unless the family has consented to their child being cared for.”
So it appears that either "Angela" had a hysterical overreaction to the new rules, or else her district's administrator did.
zorq
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It still sound like bandages and antiseptic are a no-no. And that is still a problem. Can't wait until a child loses a limb to infection because of this shit.
Jarhyn
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It's basic HIPPA:.
consent is immediate to a medical procedure, therefore knowledge of consent is knowledge of medical information.
HIPPA limits who may access medical information heavily, including how it is stored.
To access medical information protected by HIPPA, you must be a party authorized by either the patient or a legal guardian of the patient, or a medical provider.
The nurse is the only one licensed to access such medical information so everything must go through the nurse.
This is something that anyone can figure out after a visit to a specialist: you are asked to fill out a form authorizing release of medical information to a second party. Likewise you have to fill out a form before someone else in your family can access your records.
The law would otherwise require parents authorizing teachers to access their children's medical records, because the consent gathered under the new law is ala-carte by procedure, and attaches awareness of consent to awareness of medical history.
Playball40
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I would go further and say a nurse isn't always on campus. Many must travel between schools due to staffing shortages. My niece has T1D and was in high school in the early 2000's. My sister ended up having to homeschool due to lack of access to her insulin/glucose meter; neither of which she was allowed to carry with her. She tried a pump early on only to have a teacher 'remove her from class' for having a "beeper" that disrupted class. Oh and don't claim ADA - as diabetes is not covered.