Request By:
Mr. Stephen D. Davidson
Assistant Superintendent
Crittenden County Schools
Marion, Kentucky 42064
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
In your letter to the Office of the Attorney General you requested an opinion regarding the legal responsibilities for the health care of students by school authorities and local health department officials. You stated the Crittenden County Board of Education has been advised by the Crittenden County Health Department that by policy the local health nurse will provide nursing services to students needing medical attention only at the health center. You stated this action followed several requests by school principals for the health nurse to come to the schools with medical directions for students with suspected medical disabilities. You have specifically asked the following questions.
1. Does a local tax supported health department have the legal right to not allow its health nurse to come to a school, upon request by a school official, to offer medical assistance as noted above? And, is the policy of the Crittenden County Health Department within the intended scope of the School Health Code, SBE 48.011?
2. Is a principal, or any school official, rendered liable (tort), if, as noted in the enclosed letter, he takes it upon himself to take a child whose medical condition is suspect to the health department and/or a doctor? In this regard, is the school official violating the privilege of standing in loco parentis by assuming the right that he can take a child out of school to either the health department or a doctor?
3. Do the health department officials have the legal authority to inspect school buildings and property on a regular basis or at any time other than those instances noted in KRS 212.210(1) and may the department make inspections beyond those cited in that statutory section?
In response to your first question, it is our conviction that it is a reasonable policy of the health department to not permit its health nurse to come to a school to offer medical assistance. A county health department established by fiscal court under KRS 212.040 has certain powers and duties as spelled out in KRS 212.210, 212.230 and 212.240. In KRS 212.230, specifically subsection (1)(c), a county health board may, among other things, "adopt . . . rules and regulations . . . as may be necessary to protect the health of people or to effectuate the purposes of this chapter or any other law relating to public health. " Moreover, one of the statutorily enunciated duties of a county health department is to "formulate, promote, establish and execute policies, plans and programs to safeguard the health of the people of the county and establish, maintain, implement, promote and conduct facilities and services for the purpose of protecting the public health. " KRS 212.240.
Furthermore, we do not see this policy of the Crittenden County Health Department as being outside the scope of the state school board regulations on school health. The old regulations of the State Board of Education, SBE 48.011, are no longer in effect, having been supplanted by administrative regulations adopted pursuant to KRS Chapter 13. The applicable administrative regulation of the State Board of Education is 704 KAR 4:020, copy attached. We find nothing in this regulation which would contemplate that a local health department would have to or be expected to come to a school and provide medical assistance there.
As to your second question, while teachers in our public common schools do stand in loco parentis to pupils in school, it is necessary to understand there are some limits on this concept. A teacher or any other certified school employee does not have the authority of the parent in every respect. The teacher stands in the place of the parent in matters relating to education and conduct within the school and may require adherence to reasonable and legal school rules and regulations. Private matters unrelated to education are not within the scope of the teacher under the concept of in loco parentis. We are not to be misunderstood as saying that a child's health is outside of the scope of concern of a teacher, for all would surely agree that learning is assisted by having a healthy body. Nevertheless, the extent to which a teacher becomes involved in the condition of a child's health calls for a delicate balance between "do" and "don't," a fair amount of common sense, and action characterized by good faith.
The State Board of Education regulation noted above requires all local boards of education to have an approved program of continuous health supervision for all school enrollees. See Section 2. Part of this supervision is to include scheduled tests for tuberculosis, vision, hearing and dental. Also, each school is to keep an accumulative health record on each pupil. A follow-up on defects noted by screening tests, physician's and dentist's recommendations should be made. See Section 3. Further, local school authorities are to report on known or suspected cases of communicable disease immediately to the local health department. Section 3, subsection (2).
In your letter you express concern for the potential legal liability of school personnel who take a child whose medical condition is "suspect" to either the health department or a doctor. Liability rests in large measure on the legal premise that an individual may be held liable for acts of negligence. For actionable negligence the law requires there to have been a duty, a breach of which is the legal cause for injury received. While the likelihood of a case for actionable negligence arising from school personnel taking a child to the health department or a doctor may not be that great, our advice must be that school personnel should act primarily in a referral capacity. For one thing, most school personnel have little or no medical training or expertise. A determination by a teacher, for example, that a child's "medical condition is suspect" is certainly cause enough to warrant referring a child to the school health coordinator in those schools having one or to the local department of health. Such a determination is not, however, in our opinion, a sufficient basis to support the action of a teacher in physically taking a child to a health department or a doctor. Nothing in the "school health" regulation seems to suggest that school personnel will serve in any more than a referral or reporting capacity, even concerning communicable disease. Even Kentucky's "Battered Children Act," KRS 199.335, calls for school personnel and others to only "report" or "cause a report to be made" if it is known or there is reasonable cause to believe a child has been abused or neglected.
Thus, and although the health of the children in our schools must be of primary importance to all school personnel, we do not suggest taking a child out of school to either the health department or a doctor based upon the nonmedical assessment that the medical condition of the child is suspect. A violation of the religious convictions of the child or the parents, the selection of a particular professional, lack of consent to perform services to minors, and liability for payment, are only a few of the problems which could be spawned by such action.
Lastly, it is our opinion that a local health department is not confined by any statute as to the frequency or bases for inspection of a school building and grounds or facilities. The thrust of the statutes concerning health boards and departments noted above appears to authorize policies, procedures and programs for the purpose of protecting the public health. KRS 212.240.