Let me review the portion of the law I cited and the response from Loren.
"requiring school districts to notify parents of healthcare services and provide parents the opportunity to consent or decline such services;"
What does that do to in loco parentis?
The existence of the opt-out overrides in loco parentis
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.
and the opt-out itself is protected information.
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.
The interaction produces a result that probably wasn't intended.
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?