Federal law says that public school students with diabetes who aren’t able to administer insulin shots for themselves typically may have it administered to them during the school day.
The State Department of Education (Department) in 2007 advised local education agencies that trained school personnel who are not licensed health care providers may—when no nurse is available—administer insulin pursuant to the medical orders of students’ treating physicians. The California Supreme Court recently heard the appeal of the American Nurses Association and other trade organizations representing registered and school nurses (collectively “Nurses”) which challenged the Department’s advice as condoning the unauthorized practice of nursing by authorizing school employees other than nurses to administer insulin to students. The American Diabetes Association (Association) defended the Department’s advice.
Associate Justice Kathryn M. Werdegar of the California Supreme Court, in her opinion, wrote that California law permits trained, unlicensed school personnel to administer prescription medications such as insulin in accordance with the written statements of a student’s treating physician and parents. It also exempts these individuals from laws that prohibit the unauthorized practice of nursing. The result is that each student’s physician, with parental consent, is left the decision of whether insulin can be safely administered by unlicensed school personnel.
Diabetes is a chronic, incurable disease that prevents the human body from properly using food to produce energy. Insulin transports glucose through the bloodstream to the cells. A diabetic’s body doesn’t produce sufficient insulin (Type 1 diabetes), or cannot use insulin properly (Type 2 diabetes). People with Type 1 diabetes and some with Type 2 must take insulin to avoid health problems. State law requires that nurses administer all medications, including insulin, in hospitals and other licensed health care facilities, but outside of these facilities, insulin is usually administered by laypersons according to a physician’s directions. Most often it is administered by the diabetic persons themselves or by friends or family members.
Public school students with diabetes who cannot self-administer insulin are normally entitled to have it administered to them at no cost. This is a result of § 504 of the Rehabilitation Act of 1973, the Americans with Disabilities, and the Individuals with Disabilities Education Act (IDEA). Public schools must offer to students covered by these laws a free and appropriate public education that includes related aids and services, such as medical services, designed to meet their individual educational needs. Under these laws, Justice Werdegar wrote, diabetic students pay for the insulin, supplies and equipment, but not the cost of administering the insulin. A school’s obligations to a particular diabetic student are usually set out in a “Section 504 plan” or an “individualized education program” (IEP).
Approximately 14,000 school-age children have diabetes in California. The goal of diabetes management for children is to avoid significant fluctuations in their blood glucose levels by strictly maintaining those levels within target ranges determined by their physicians, through frequent monitoring and multiple daily insulin injections. Accordingly, diabetic students who depend on insulin injections typically need them during the school day, both at regularly scheduled times and unpredictably to correct for fluctuations in blood glucose. While 5 percent of schools have a full-time school nurse, 69 percent have only a part-time nurse, and 26 percent have no nurse at all. Although some schools allow unlicensed school personnel to administer insulin, others do not. As a result, diabetic students have encountered difficulty in receiving insulin during the school day.
In the 2007 Legal Advisory, the Department set out eight categories of persons authorized to administer insulin to students in the state’s public schools. The first seven categories are specifically authorized in statutory exceptions to the Nursing Practice Act and in regulations concerning the administration of medication adopted by the Board. The seven categories include:
(1) students who are able to self-administer,
(2) nurses and physicians employed by local education agencies,
(3) other school employees who are appropriately licensed health care providers,
(4) licensed nurses working pursuant to contracts with schools,
(5) parents and guardians,
(6) persons designated by parents or guardians who are volunteers but not school employees, and
(7) trained, unlicensed school employees acting in emergencies.
The Department added an eighth category of authorized persons, permitting insulin to be administered by a “voluntary school employee who is unlicensed but who has been adequately trained to administer insulin pursuant to the student’s treating physician’s orders as required by the Section 504 Plan or the IEP.” The validity of the 2007 Legal Advisory’s “category 8” is the issue at dispute here.
The Nurses challenged the 2007 Legal Advisory by filing this action in the superior court. The Association appealed, which stayed the superior court’s decision and left Legal Advisory in effect pending the final outcome of these proceedings. The Court of Appeal affirmed the judgment, and the California Supreme Court granted the Association’s petition for review.
California Education Code § 49423 outlines the basic law: “[A]ny pupil who is required to take, during the regular schoolday, medication prescribed for him or her by a physician and surgeon … may be assisted by the school nurse or other designated school personnel ….“ That same statute ensures that medications are administered only in accordance with medical orders and parental consent. Section 49423 expressly applies “[n]otwithstanding section 49422,” which provides more generally that only licensed health care providers may be “permitted to supervise the health and physical development of pupils.”
Justice Werdegar explained that § 49423 was enacted by the Legislature’s to avoid requiring children “to leave school during the day for necessary medication” or compelling their parents “to pay extra sums for a school visit by the physician.” In light of this legislation, the Board adopted §§ 600 to 611 of title 5 of the California Code of Regulations, which expressly declare that unlicensed school personnel may administer medications.
Section 49423 and its implementing regulations plainly establish, as the Legislature, the Board, and the Department intended, that unlicensed school personnel may administer prescription medications, the justice said. There was no reason, she believed, to think that the Legislature intended to delegate to the Board—a state educational agency governing the public schools—the authority to override statutes in which the State Legislature required specific licensure before a person may perform a health care function. The language in the Board’s regulations that qualifies the authority of unlicensed school personnel to administer medications—“as allowed by law”—is reasonably and appropriately interpreted. It means only that these regulations don’t authorize unlicensed school personnel to administer medications in violation of other applicable laws or regulations.
The medical-orders exception of the statutes allow unlicensed school personnel acting pursuant to § 49423 and its regulations to perform duties as required in carrying out medical orders. Unlicensed school personnel do not hold themselves out to be nurses simply by volunteering to act on behalf of particular students in accordance with the Education Code and its regulations.
Based on this analysis, the decision of the Court of Appeals was reversed, and the case was remanded for further proceedings in accordance with the Supreme Court’s opinion. American Nurses Ass’n v. Torlakson, — P.3d —-, 2013 WL 4046566, 13 Cal. Daily Op. Serv. 8794 (Cal. Aug. 12, 2013).
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