0905emscvesida1

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	EMSC-VESID Committee
FROM:	James A. Kadamus
SUBJECT:	Proposed Amendment to Regulations of the Commissioner Relating to School Health Services
DATE:	July 29, 2005
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

Summary

Issue for Decision

Should the Regents adopt the proposed amendment of sections 136.1, 136.2 and 136.3, which implements and otherwise conforms the Commissioner's Regulations to Chapter 477 of the Laws of 2004?

Reason for Consideration

Required by State statute.

Proposed Handling

The proposed amendment was discussed by the Committee in July.

Procedural History

N/A

Background Information

Chapter 477 of the Laws of 2004 amended and repealed certain sections in Education Law Article 19, regarding the provision of school health services in New York State schools, to extend the period of time in which students may obtain physical examinations and health certificates for schools in order to facilitate and provide flexibility of scheduling for pediatricians and parents, and to update the terminology and standards to be consistent with current medical and health care practice.

Consistent with Chapter 477, the proposed amendment extends from 90 days to 12 months, the period of time in which health certificates may be presented by students to public schools after a health examination; specifies the school grades in which certificates must be presented; adds physician assistant and nurse practitioner to the list of persons who may sign a health certificate; and provides that each student furnish a health certificate within 30 days of the student's entrance into the school or a grade in which a health certificate is required. Pursuant to Education Law section 903(1), as amended by Chapter 477, the proposed amendment also requires, in all school districts, that the physician, physician assistant or nurse practitioner administering the examination for a health certificate conduct, if determined necessary, a one-time test for sickle cell anemia and include the test results in the health certificate. The proposed amendment also requires students to provide proof of immunization against specified diseases; specifies when school districts must conduct screening examinations of students for scoliosis, vision and hearing; and provides for an examination by the director of school health services of students who fail to furnish a health certificate when required. Consistent with the Chapter 477, an accommodation is provided for persons who object to health examinations, health histories, health screenings and immunizations on the basis of a genuine and sincere religious belief. The proposed amendment also adds definitions and otherwise updates terminology to reflect changes made by Chapter 477. Section 901 of the Education Law exempts the New York City, Buffalo and Rochester school districts from these requirements because school health services were being provided by the local city and/or county health departments. Currently, the Legislature has passed a bill (A.8546) to remove the exemption for Buffalo and Rochester, but the bill has not as yet been signed by the Governor.

A Notice of Proposed Rule Making was published in the State Register on July 13, 2005.

Recommendation

VOTED: That sections 136.1, 136.2 and 136.3 of the Regulations of the Commissioner of Education be amended as submitted, effective September 29, 2005.

Timetable for Implementation

The proposed amendment will become effective on September 29, 2005.

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 207, 901, 902, 903, 904, 905, 906, 911, 913 and 914 and Chapter 477 of the Laws of 2004

1. Section 136.1 of the Regulations of the Commissioner of Education is amended, effective September 29, 2005, as follows:

§ 136.1 Definitions.

Definitions as used in this Part:

[ (a) Satisfactory, appropriate, approved, acceptable, adequate, equivalent, essential, sufficient, suitable, means satisfactory, appropriate, approved, acceptable, adequate, equivalent, essential, sufficient, suitable, respectively, in the judgment of the commissioner. ]

[(b)] (a) School personnel means persons employed by school authorities in conducting the schools.

[ (c) Health service personnel means the school physician, school nurse-teacher, dental hygiene teacher and other professional persons employed by the school to render health services. ]

(b) Health professionals means persons duly licensed or otherwise authorized to

practice a health profession pursuant to applicable law, including, but not limited to, physicians, registered professional nurses, nurse practitioners, physicians assistants, optometrists, dentists, dental hygienists, dietitians and nutritionists, and audiologists.

(d) Director of school health services means a qualified physician, or a nurse practitioner to the extent authorized by Article 139 of the Education Law and consistent with the written practice agreement pursuant to Education Law section 6902(3), who is duly licensed pursuant to applicable law, and who is employed by the school district to perform any duties conferred on the school physician or school medical inspector under any provision of law, to perform and coordinate the provision of health services in the public schools, and to provide health appraisals of students attending the public schools in the city or district.

[ (d) Health service means the several procedures (annual medical examinations, dental inspection and/or screening, vision screening and audiometer tests) designed to determine the health status of the child; to inform parents, pupils and teachers of the individual child's health condition; to guide parents, children and teachers in procedures for preventing and correcting defects and diseases; to instruct the school personnel in procedures to take in case of accident or illness; to survey and make necessary recommendations concerning the health and safety aspects of the school plant and the hygiene of instruction. ]

(e) School health services shall mean the several procedures, including, but not limited to, medical examinations, dental inspection and/or screening, scoliosis screening, vision screening and audiometer tests, designed to determine the health status of the student; to inform parents or other persons in parental relation to the student, pupils and teachers of the individual student's health condition subject to federal and state confidentiality laws; to guide parents, students and teachers in procedures for preventing and correcting defects and diseases; to instruct the school personnel in procedures to take in case of accident or illness; to survey and make necessary recommendations concerning the health and safety aspects of school facilities and the provision of health information.

[ (e) ] (f) Treatment means correction of physical defects or other [impairments] health problems in need of attention wherein the [child] student, for the most part, is a passive recipient.

[ (f) Dental inspection means using a mouth mirror and dental explorer under adequate illumination.

(g) Dental screening means examination of the teeth by using a tongue depressor and available illumination.

(h)Scoliosis screening means examination of the uncovered spine including the cervical, thoracic, lumbar and thoraco-lumbar segments by viewing from the front, back and sides under adequate illumination and observing the existing range of motion of the spine in all directions. ]

(g) Commencement of the school year shall mean the first day of the school year in which students are in attendance.

(h) Thirty days or ninety days shall mean, respectively, 30 calendar days or 90 calendar days.

2. Section 136.2 of the Regulations of the Commissioner of Education is amended, effective September 29, 2005, as follows:

§ 136.2 General regulations.

(a) All schools under the jurisdiction of the State Education Department shall provide a program of health [service] services.

(b) [Medical inspection] School health services shall be provided by each school district for all [pupils] students attending the public schools in this State, except in the city school districts of the cities of New York, Buffalo and Rochester, in accordance with law and the regulations. [Medical inspection] School health services shall include the services of a [trained] registered professional nurse, if one is employed, and shall also include such services as may be rendered as provided herein in examining [pupils] students for the existence of disease or [physical defects] disability and in testing the eyes and ears of such [pupils] students.

(c) The trustees or board of education of each school district shall employ, at a compensation to be agreed upon by the parties, a [competent physician as a medical inspector, to make inspections of pupils attending the public schools in the city or district] director of school health services.

(d) It shall be the duty of trustees and [board] boards of education:

(1) to provide approved and adequate personnel and facilities;

(2) to maintain for each [child] student cumulative records covering the essential features of the health [service] services program; and

(3) to make such reports to the department as may be required on forms prescribed by the commissioner.

3. Section 136.3 of the Regulations of the Commissioner of Education is repealed and a new section 136.3 is added, effective September 29, 2005,as follows:

§ 136.3 School health services.

(a) General duties of trustees and boards of education. It shall be the duty of trustees and boards of education:

(1) to provide and maintain a continuous program of school health services in accordance with this section;

(2) to advise, in writing, the parent or guardian of each student in whom any aspect of the total school health program indicates a defect, disability or other condition which may require professional attention with regard to health;

(3) to provide, where the exigencies warrant, relief in situations where the student would otherwise be deprived of the full benefit of education through inability to follow the instruction offered;

(4) to maintain a program of education for the purpose of informing the school personnel, parents, non-school health agencies, welfare agencies and the general public regarding school health conditions, services and factors relating to the health of students;

(5) to provide for guidance to parents, students and teachers in procedures for preventing and correcting defects and diseases and in the general improvement of the health of students;

(6) to furnish instruction to school personnel in procedures to follow in case of accident or illness;

(7) to provide inspections and supervision of the health and safety aspects of the school plant;

(8) to provide health examinations before participation in strenuous physical activity and periodically throughout the season as necessary; and

(9) to provide health examinations necessary for the issuance of employment certificates, vacation work permits, newspaper carrier certificates and street trades badges.

(b) Examination and health history.

(1) Except in the city school districts of the cities of New York, Buffalo and Rochester, it shall be the duty of the trustees and boards of education to require each student enrolled in the public school to have a satisfactory health examination conducted by the student's family physician, physician assistant or nurse practitioner, upon the student's entrance in such school at any grade level and for each student entering pre-kindergarten or kindergarten and in the 2nd, 4th, 7th and 10th grades. Such examination shall be acceptable for purposes of this section if it is administered not more than twelve months prior to the commencement of the school year in which the examination is required.

(2) An examination and health history of any student may be required by local school authorities at any time in their discretion to promote the educational interests of such student.

(3) In all school districts, the physician, physician assistant or nurse practitioner administering such examination shall determine whether a one-time test for sickle cell anemia is necessary or desirable and, if so determined, shall conduct such test and include the results in the health certificate prepared in accordance with subdivision (c) of this section, provided that nothing herein shall be deemed to require that a student be tested more than once during the period the student is eligible to attend a public school.

(1) Health certificates. It shall be the duty of the trustees and boards of education to require that each student, within thirty days after his or her entrance into school or within thirty days after his or her entry into the 2nd, 4th, 7th and 10th grades, submit to the principal or the principal's designee a health certificate that meets the requirements of this paragraph, provided that no health certificate shall be required of a student for which an accommodation for religious beliefs is made pursuant to subdivision (f) of this section.

(i) The health certificate shall:

(a) be signed by a duly licensed physician, physician assistant, or nurse practitioner, who is:

(1) authorized by law to practice in this State, and consistent with any applicable written practice agreement; or

(2) authorized to practice in the jurisdiction in which the examination was given, provided that the commissioner has determined that such jurisdiction has standards of licensure and practice comparable to those of New York;

(b) describe the condition of the student when the examination prescribed in subdivision (b) of this section was made, which examination shall not have been given more than twelve months prior to the commencement of the school year in which the examination is required;

(d) state whether such student is in a fit condition of health to permit his or her attendance at the public schools and, where applicable, whether the student has defective sight or hearing, or any other physical disability which may tend to prevent the student from receiving the full benefit of school work or from receiving the best educational results, or which may require a modification of such work to prevent injury to the student.

(ii) The health certificate shall be filed in the student's cumulative record.

(iii) The principal or the principal's designee shall send a notice to the parents of, or person in parental relationship to, any student who does not present a health certificate, unless he or she has been accommodated on grounds of religious beliefs pursuant to subdivision (f) of this section, that if the required health certificate is not furnished within thirty days from the date of such notice, an examination by health appraisal will be made of such student by the director of school health services pursuant to subdivision (d) of this section.

(2) Immunizations, It shall be the duty of the trustees and boards of education to require that every student entering or attending school provide proof of immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib) and hepatitis B in accordance with the provisions of Public Health Law section 2164.

(d) Examinations by health appraisal.

(1) Each principal or principal's designee shall report to the director of school health services having jurisdiction over such school, the names of all students who are required to and have not furnished health certificates pursuant to subdivision (c) of this section, or who are students with disabilities.

(2) The director of school health services shall cause such students to be separately and carefully examined and tested to ascertain whether any such student has defective sight or hearing, or any other physical disability which may tend to prevent the student from receiving the full benefit of school work or from receiving the best educational results, or which may require a modification of such work to prevent injury to the student.

(4) If it should be ascertained, upon such test or examination, that any students have defective sight or hearing, or other physical disability, including sickle cell anemia, the principal or principal's designee shall notify the student's parents or persons in parental relation as to the existence of such disability. If the parents or persons in parental relation are unable or unwilling to provide the necessary relief and treatment for such students, such fact shall be reported by the principal or principal's designee to the director of school health services, whose duty it shall be to provide relief for such students.

(e) Health screenings.

(1) It shall be the duty of trustees and boards of education to provide:

(i) scoliosis screening at least once each school year for all students in grades 5 through 9. Such screening shall include the examination of the uncovered spine including the cervical, thoracic, lumbar and thoraco-lumbar segments by viewing from the front, back and sides under adequate illumination and observing the existing range of motion of the spine in all directions. Such screening shall be provided by persons with appropriate training, including, but not limited to, the school nurse, the school nurse teacher, the nurse practitioner, the physician assistant, or the school physician. The positive results of any such screening examinations for the presence of scoliosis shall be in writing and the parent of, or person in parental relation to, any student in whom the presence of scoliosis is found shall be advised of such results by the school authorities within ninety days after such finding. The requirements of this subparagraph relating to examination for scoliosis may be waived by the commissioner upon the filing with the commissioner of a resolution, duly adopted by a board of education following a public hearing on such proposed resolution, stating that the school district does not have the capability to comply with this subparagraph relative to the examination for scoliosis and that such compliance would place a financial burden upon the school district. The district shall provide, in addition to the resolution, the date of the public hearing, a report of the findings from the hearing. The resolution shall be filed no later than October 1st of each school year. A waiver of this requirement by the commissioner shall be valid for one school year;

(ii) vision screening to all students who enroll in a school of this state including at a minimum color perception, distance acuity, near vision and hyperopia within six months of admission to the school; in addition, all students shall be screened for distance acuity in grades Kindergarten, 1, 2, 3, 5, 7 and 10 and at any other time deemed necessary; the results of all such vision screening examinations shall be in writing and shall be provided to the pupil's parent or person in parental relation and to any teacher of the pupil within the school while the pupil is enrolled in the school, and shall be kept in a permanent file of the school for at least as long as the minimum retention period for such records, as prescribed by the commissioner pursuant to Article 57-A of the Arts and Cultural Affairs Law;

(iii) hearing screening to all students within six months of admission to the school and in grades Kindergarten, 1, 3, 5, 7 and10, and at any other time deemed necessary; such screening shall include, but not be limited to, pure tone and threshold air conduction screening; the results of any such hearing tests shall be in writing and shall be provided to the pupil's parent or person in parental relation and to any teacher of the pupil within the school while the pupil is enrolled in the school.

(2) The results of all health screenings (dental, hearing, vision and scoliosis) shall be recorded on appropriate forms which shall be kept on file in the school. The trustees or board of education shall ensure that the health professional making the examination shall sign the cumulative health record and make appropriate recommendations;

(f) Accommodation for religious beliefs. Notwithstanding the provisions of this section, no health examinations, health history, examinations for health appraisal, immunizations, screening examinations for sickle cell anemia and/or other health screenings shall be required where a student or the parent or person in parental relation to such student objects thereto on the grounds that such examinations, health history, immunizations and/or screenings conflict with their genuine and sincere religious beliefs. A written and signed statement from the student or the student's parent or person in parental relation that such person holds such beliefs shall be submitted to the principal or the principal's designee and shall be deemed to constitute sufficient proof of such beliefs.

(g) Student health records. The health records of individual students shall be kept confidential in accordance with the federal Family Education Rights and Privacy Act (FERPA) and any other applicable federal and State laws.

(h) Exclusion from school of student with communicable disease. Whenever, upon investigation and evaluation by the director of school health services, the school nurse or other health professionals acting upon direction or referral of such director for care and treatment, a student in the public schools shows symptoms of any communicable or infectious disease reportable under the Public Health Law that imposes a significant risk of infection of others in the school, he or she shall be excluded from the school and sent home immediately, in a safe and proper conveyance. The director of school health services may examine any student returning to school following an absence due to illness or unknown cause, who is without a certificate from a local public health officer, a duly licensed physician, physician assistant or a nurse practitioner, to determine that such student does not pose a threat to the school community,

(i) Health examination of employees and school premises. To protect students and staff from communicable diseases, the director of school health services or other health professionals acting upon direction or referral of such director, may make such evaluations of teachers and any other school employees, school buildings and premises as, in their discretion, they may deem necessary.

(j) Condom Availability. Boards of education or trustees that elect to make condoms available to pupils as part of its program of school health services shall assure that adequate personal health guidance is provided to each pupil receiving condoms in the manner prescribed by section 135.3(c)(2)(ii) of this Title.

EMSC-VESID Committee

Background Information