A 16-year-old student at Bennett High School was told by the school nurse to pull her pants down in order to check her pubic hair, according to her mother as part of a press conference of concerned parents. The girl’s mother, Edie Harris, is livid.
Although Harris signed permission for the Tanner Exam—the portion of a physical that assesses degrees of puberty, she says that she was never informed of what that entails. Tanner staging requires the visual inspection of a child’s private parts. She alleges that there was no informed consent. In addition, due to her daughter’s age, a Tanner exam was not necessary.
The Tanner Exam, or Tanner staging, is required for younger students seeking a waiver to participate in high school sports. It is also used in cases of older students seeking a waiver to participate in lower level sports. Tanner staging is part of the physical examination requirement for the New York State Selective/Classification Program. Students not seeking waivers do not need their stage of puberty measured with Tanner exams. Nor is Tanner staging recommended for girls upon the onset of menses or anytime thereafter.
New York education guidelines state, “Girls who have reached menarche do not require visual inspection for Tanner staging.” It goes on to say, “Visual inspection to determine Tanner developmental stage is only required for 7th and 8th graders who are seeking a waiver to be permitted to participate in high school level interscholastic athletics, or high school students seeking a waiver to participate in lower level interscholastic athletics.”
This does not appear to be an isolated incident. Another parent claims her children, ages 11 and 12 at the time (though it has also been reported they were 10 and 11 when the exams occurred), were given a physical exam without consent. The children’s mother, Annette Jordan, contends her children were too young for the Tanner portion of the physical exams. During her son’s physical, he stood naked—but was allowed to keep his socks on. Jordan stated in the press conference that she learned about the invasive exams when her daughter came home from school and had this conversation with her:
“‘The nurse told me to take my shirt off.’
And I said ‘Did you do it?’
She said, ‘Yeah, I took my shirt off but I was scared. She wanted to look in my panties, she wanted to know if I had any hairs down there. And I told her no. I just said no way, you’re not going in my underwear.’”
This second allegation occurred two years earlier. In a radio interview, Jordan also stated that actual touching occurred during the Tanner examination of her son. It appears that in both the Harris and Jordan cases, only the school nurse was present for the exam.
Why do Buffalo Schools insist students strip for physical exams? Here’s what Dr. Steven Lana, medical director with the Buffalo Public Schools had to say about it:
- “That element is part of a normal, complete physical exam.” (Buffalo News)
- “What we’ve done is above and beyond, more than what is required in the state guidelines but what is in keeping with the recommendation of the American Academy of Pediatrics.” (Buffalo News)
- “Regardless of the age of the child or the grade that they’re in, it is the standard of care to perform a complete physical exam on a yearly basis.” (WGRZ)
- “A complete physical is a complete physical exam, we ought not to omit or skip or put aside any part of the body.” (WGRZ)
According to the 2013 Health Examination Guidelines by the New York State Education Department, public school students are required to have a physical examination—not a Tanner exam—at the following times:
- When entering the school district for the first time, and in grades pre-K or K, 2, 4, 7 and 10.
- At any grade level, if the school administration, deems it necessary to promote the “educational interests of the student” (thus, some schools—at their discretion—may require annual examinations as their “standard of care”).
- In order to participate in strenuous physical activity, such as Interscholastic athletics
- In order to obtain an employment certificate
- When conducting an individual evaluation or reevaluation of a student suspected of having a disability or a student with a disability
New York State Education Department Guidelines also recommend that the exams be performed with a second adult in the room with undergarments on. However, it remains unclear given the nature of Tanner exams how staging could be accurately assessed without underclothes removed. Tanner staging itself requires the visual inspection of private parts to assess the amount and coarseness of pubic hair. In boys, it includes assessment of testicular volume, color of scrotum, and length of penis. In girls, it involves inspection of areola width and papilla projections.
Complicating matters is the fact that Kaleida Health operates the clinics in Buffalo Public Schools. The parents expressed concerns in a press release that these unnecessary exam components might be given as part of a screening for medical research studies, though this allegation has been denied.
The parents have not commented at this time on potential privacy violations due to the blurring of lines between HIPAA and FERPA regarding health exams performed in school clinics.
· HIPAA (The Health Insurance Portability and Accountability Act of 1996) is the federal law that protects private medical information from being released by health centers to third parties.
· FERPA (The Family Educational Rights and Privacy Act) is similar to HIPAA, but designed for educational institutions to protect student records from being shared by schools to third parties.
· In recent years, the US Department of Education loosened its FERPA regulations regarding the sharing of student data to third parties.
Generally school health records are considered education records and are not covered by HIPAA. The NY Health Examination Guidelines on page 11 under Confidentiality states:
“Referral and follow-through procedures, record-keeping, and sharing information with the CSE, student personnel services, administrators, classroom teachers, and others involve issues of confidentiality. School administration determination of the “need to know” must be balanced against the individual’s right to privacy. School health records are considered educational records and are covered under the Family Educational Rights and Privacy Act (FERPA).”
Edie Harris and Annette Jordan have both retained legal counsel and legal action is pending.