California Supreme Court: Trained, Unlicensed Personnel Can Administer Prescription Medications, Including Insulin

August 2013

The California Supreme Court, in a unanimous decision, has held that state law permits trained, unlicensed school personnel to administer prescription medications, including insulin, in accordance with written statements from individual students’ treating physicians and with parental consent. American Nurses Association v. Torlakson (Aug. 12, 2013, S184583).

According to the Court, “because schools may administer prescription medications only in accordance with physicians’ written statements, state law in effect delegates to each student’s physician the decision whether insulin may safely and appropriately be administered by unlicensed school personnel or instead whether a particular student’s medical needs can be met only by a licensed health care provider.  State law, however, presents no categorical obstacle to the use of unlicensed personnel for this purpose.”  The ruling reverses a 2010 decision by the California Court of Appeal.

This case arose as a result of a 2007 legal advisory issued by the California Department of Education (“CDE”) in the context of a litigation settlement.  The advisory stated that, among other individuals, a “voluntary school employee who is unlicensed but who has been adequately trained” may legally administer insulin to diabetic students under California law.  The American Nurses Association filed a lawsuit alleging that the advisory violated the Nursing Practice Act, the Education Code, and the Administrative Procedures Act (“APA”). 

The trial court interpreted state laws as authorizing the administration of insulin to a student only by a licensed health care professional acting within the scope of practice for which he or she is licensed.  It invalidated the portion of CDE’s advisory that allowed unlicensed school personnel to administer insulin to students, finding that, because the advisory conflicted with state law, it could not be enforced.  The American Diabetes Association and CDE appealed the ruling to the California Court of Appeal.  The Court of Appeal upheld the trial court’s decision and confirmed that the portion of CDE’s advisory that authorized unlicensed school personnel to administer insulin to diabetic students was inconsistent with California law and, as such, invalid.

In reversing the appellate court, the California Supreme Court looked to the language of Education Code section 49423, which provides that “[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 . . . .”  [Emphasis in original.]  Examining the legislative history of the law, the Court stated that the statute and its regulations “plainly establish, as the Legislature, the [State Board of Education] and [CDE] intended, that unlicensed school personnel may administer prescription medications.”

The Court rejected the argument that only those school personnel who are licensed health care providers, such as registered nurses, may administer medications, and that unlicensed personnel may assist but not actually administer medications.  According to the Court, such argument misinterpreted state regulations.  Language in the regulations prohibits unlicensed school personnel to administer such medications in violation of other applicable laws or regulations. For example, only licensed health care providers may administer controlled substances.  And the law requires specific training before unlicensed school personnel may administer certain specially regulated emergency medications to students (epinephrine auto-injectors for anaphylaxis, glucagon for severe hypoglycemia and anti-seizure medication for epilepsy).  However, no such law prohibits unlicensed persons from administering prescription medications generally, or insulin in particular, in carrying out the medical orders of licensed physicians. 

The Court also concluded that the “medical-orders” exception to the Nursing Practice Act permits a layperson to carry out a physician’s medical orders for a patient, even those orders that would otherwise fall within the definition of nursing practice, without thereby violating the rule against unauthorized practice.  It noted that “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 implementing regulations.”

Finally, the Court stated that its holding resolves the dispute independently of the CDE’s 2007 Legal Advisory, based on the relevant provisions of the Education Code.  Therefore, it did not have to determine whether CDE violated the APA in adopting the advisory.  The Court said that its decision “leaves the Department free to revise the Legal Advisory to reflect California law as we have interpreted it, and leaves the parties and the lower courts free to identify and resolve, if necessary, any issues that may remain concerning APA compliance.”

Based on this decision, school districts now may allow trained, unlicensed personnel to administer prescription medication, including insulin to diabetic students, provided parental consent is obtained and the student’s physician concludes that the medication may safely and appropriately be administered by unlicensed school personnel.  Districts should confer with legal counsel regarding making immediate revisions to policies and/or procedures regarding the administration of medicine that do not comply with this ruling. 

This decision will also trigger potential collective bargaining obligations as districts contemplate stipends or hourly compensation to their employees for being a volunteer.   We encourage the Pupil Services Department to work with Human Resources to address all labor-related issues and avoid any potential labor pitfalls.

If you have any questions regarding this ruling or its potential impact, please call one of our six offices.

F3 NewsFlash prepared by Kimberly A. Smith and John W. Norlin.
Kimberly is a partner in the F3 Los Angeles office.
John is Special Counsel in the F3 San Diego office.

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