This blog post was authored by Meredith Karasch
On August 13, 2013, the California Supreme Court issued its long awaited ruling on the issue of whether nurses are the only school personnel who may administer insulin to diabetic students. Looking to the plain meaning of state law, it answered that question in the negative. This issue arose in 2007 after the California Department of Education settled a class-action lawsuit brought by the American Diabetes Association asserting that diabetic students had inadequate access to insulin at school in violation of Section 504 of the Civil Rights Act and the IDEA. The settlement authorized eight categories of people to administer medications. Seven of these categories were not controversial, as they were based on established law allowing licensed healthcare providers, students themselves, parents and guardians, non-employees designated by parents and guardians, and school employees acting in emergencies to administer insulin. It was the eighth category, allowing trained nonmedical school employees to administer insulin shots, that sparked this case. The American Nurses Association (“ANA”) sued the Department of Education to block the settlement. The Superior Court and Court of Appeal both sided with the ANA. The Supreme Court reversed.
At the heart of this case, according to the nurses, is the interpretation of the Nursing Practices Act, contained in the Business and Professions Code. Among other things, the Act prohibits the unauthorized practice of nursing. The Act reserves to licensed nurses’ basic health care duties that require “a substantial amount of scientific knowledge or technical skill, including . . . the administration of medications” (Bus. & Prof. Code, section 2725). If the Act was interpreted the way the ANA wished, only a nurse, the student, or the student’s caregiver would be legally authorized to administer insulin. That position, however, was clearly focused on job preservation, rather than student safety. This is made clear by the fact that the appellant, American Diabetes Association (“ADA”), has been the strongest advocate in favor of permitting trained, nonmedical personnel to administer insulin. Among other things, it powerfully debunked the notion that “substantial scientific knowledge or technical skill” is required to administer insulin. ADA statistics revealed both the high level of self-administration (including by children) and the complete lack of incidents of harm arising from administration by trained, nonmedical personnel. Despite these statistics, the nurses stated at oral argument that the answer is simply to hire more nurses.
Over the nurses’ arguments, the Supreme Court found that there is no law that prohibits unlicensed persons from administering insulin “in carrying out the medical orders of licensed physicians.” Rather, the Education Code “expressly 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.” Similarly, the Act exempts people carrying out a physician’s orders from the prohibition of the unauthorized practice of nursing (Bus. & Prof. Code, section 2727). According to the Supreme Court, “state law in effect leaves to each student’s physician, with parental consent, the question whether insulin may safely and appropriately be administered by unlicensed school personnel, and reflects the practical reality that most insulin administered outside of hospitals and other clinical settings is in fact administered by laypersons.”
This ruling provides needed relief to schools struggling to serve their diabetic students. Additionally, because the ruling relies on interpretation of Education Code section 49423 rather than the narrower 2007 Advisory, it goes a long way to resolving anticipated disputes over the administration of other medications such as epinephrine auto-injectors, glucagon, and antiseizure medication. Section 49423 generally authorizes the administration of medications by any designated school personnel, with the authorization of the parent and physician. In dicta, the Supreme Court makes clear that this authorization applies to other medications, as well as insulin.
To ensure legal compliance districts should:
- Ensure that any Section 504 Plan, safety plan or other document authorizing nonmedical personnel to administer medication to a student is accompanied by a doctor’s order authorizing administration by nonmedical school personnel;
- Comply with any additional statutory requirements that the designated nonmedical personnel have particular training. While no such requirements exist for insulin, other medications are further regulated. (See sections 49414 [epinephrine auto-injectors for anaphylaxis], 49414.5 [glucagon for severe hypoglycemia] and 49414.7 [antiseizure medication for epilepsy].)