In an attempt to clarify existing law regarding medication administration and to specifically address the health-related needs of students with diabetes and epilepsy, California lawmakers introduced two bills this month, Assembly Bill 1802 (“AB 1802”) and Senate Bill 1051 (“SB 1051”), that would explicitly allow trained school personnel to administer insulin and Diastat, respectively, to students at public schools.
Assembly Bill 1802 – Pupil Health: Diabetes: Insulin Injections
If enacted, AB 1802 would allow trained volunteer school employees, designated by students’ parents, to administer insulin to students with diabetes if a school nurse or other licensed health care professional is not immediately available onsite at the school. AB 1802 would authorize parent-designated school employees to administer insulin only: (1) on a volunteer basis; (2) in accordance with the instructions of the student’s licensed health care provider; and (3) after receiving appropriate training by a licensed nurse, physician, certified diabetes educator, or other health care professional with expertise in diabetes.
AB 1802 prohibits a school district from taking disciplinary or retaliatory action against any school employee who does not volunteer to serve as a parent-designated school employee. Additionally, AB 1802 would absolve parent-designated school employees from liability if they acted in good faith and in substantial compliance with the instructions of the student’s licensed health care professional and pursuant to AB 1802. AB 1802 is sponsored by the American Diabetes Association and may be heard in committee on March 13, 2010.
Senate Bill 1051 – Emergency Medical Assistance: Administration of Diastat
SB 1051 would authorize a school district, in the absence of a credentialed school nurse or other licensed nurse onsite at the school, to provide school employees with voluntary emergency medical training to provide emergency medical assistance to students with epilepsy suffering from seizures in accordance with the instructions of the student’s licensed health care provider and performance standards developed by specified entities. Training would include recognition and treatment of epilepsy, administration of Diastat, basic emergency follow-up procedures, etc. This bill was introduced in response to the State Board of Registered Nursing’s directive that advised school nurses state-wide not to train laypeople to administer Diastat. SB 1051 is endorsed by The Epilepsy Foundations of California and the Orange County Department of Education. It is currently in the Senate Rules Committee awaiting committee assignment.
Status of Prior Medication Administration Legislation and Insulin Administration Litigation
We note that Assembly Bill 1430 (“AB1430”), which the school nurses sponsored and introduced in the State Assembly on February 27, 2009, following the Superior Court ruling in American Nurses Association et al. v. O’Connell et al., did not pass. AB 1430 would have required that any prescription medication to be taken at school be administered by a licensed health care professional. Additionally, Assembly Bill 426, which was introduced on February 23, 2009, did not pass. This bill, as amended, would have required the State Department of Education, in consultation with the State Department of Public Health, the California Diabetes Program, and the State Department of Health Care Services, to make recommendations to the legislature to address specific health-related needs of students, including, but not limited to diabetes, asthma, and obesity-related diseases.
The California Court of Appeal has yet to issue a ruling in the insulin administration lawsuit involving the American Nurses Association, California Department of Education (“CDE”), and American Diabetes Association, American Nurses Association et al. v. O’Connell et al. The parties fully briefed the case in late December of 2009. We anticipate a ruling from the California Court of Appeal in late Spring or Summer of this year. Until a decision is rendered, CDE’s Legal Advisory on Rights of Students with Diabetes in California’s K-12 Public Schools remains in effect.
We will continue to monitor the status of AB 1802, SB 1051, and the current litigation and inform you of any significant developments, as appropriate.
If you have any questions regarding AB 1802, SB 1051, and/or medication administration generally, please do not hesitate to contact one of our five offices.
F3 NewsFlash prepared by Deborah Cesario, Lenore Silverman and Tiffany Santos.
Debbie is a partner in the F3 San Marcos office.
Lenore is a partner in the F3 Oakland office.
Tiffany is an associate in the F3 San Marcos office.
This F3 NewsFlash is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this new law may apply to your specific facts and circumstances. Information on a free NewsFlash subscription can be found at www.fagenfriedman.com.
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