Nursing Law Report (Report 2)

In September 2007, the Plaintiffs, the ADA and the California Department of Education settled the lawsuit and agreed to changes that reinforce laws to protect diabetic students. California Department of Education will make available detailed guidance on the rights of students with diabetes and the health care services that they need to be provided while in school. Significantly, the state will ensure that if a student with diabetes needs insulin during the school day or at school-related activities, trained non-medical school employees may administer the insulin in the absence of a school nurse. According to an article in the Press Enterprise, “… the California School Nurses Organization sent a letter advising school nurses to seek guidance from district lawyers before proceeding. Executive Director Nancy Spradling said nurses were concerned about losing their licenses should they train non-medical staff.”

Although the agreement provided new protections for students, the settlement still allowed non-medical school employees to administer insulin to students. ANA CEO Linda J. Stierle, MSN, RN, CNAA, BC, noted that “it is not just a matter of giving an injection, because the registered nurse engages in an evaluation of the student’s health and needs before and after administering insulin. Mistakes can have grave consequences.”

On October 10, 2007 ANA, and its affiliate, ANA/California, filed a lawsuit against the California superintendent and the California Department of Education challenging the inclusion of unlicensed personnel as authorized to administer diabetes. In general, the reauthorized IDEA includes “school nurse services” as a “related service.” (20 USC sec. 1401 (26).) The statutory definition was expanded in the regulations to include school health services. (34 CFR sec. 300.34.) California’s definition of designated instruction and services/related services is located in Education Code§ 56363 and is synonymous with related services in the reauthorized IDEA in 20 USC section 1401 (26). California’s designated instruction services thus do not deviate from the federal related services.

It is the position of the CDE that the Business and Professions Code § 2725(b)(2) and the California Code of Regulations, Title 5, section 604 authorize the following types of persons to administer insulin in California’s public schools pursuant to a Section 504 Plan or an Individual Education Plan (IEP):

1. self administration, with authorization of the student’s licensed health care provide and parent/guardian;
2. school nurse or school physician employed by the LEA;
3. appropriately licensed school employee (i.e., a registered nurse or a licensed vocational nurse) who is supervised by a school physician, school nurse, or other appropriate individual;
4. contracted registered nurse or licensed vocational nurse from a private agency or registry, or by contract with a public health nurse employed by the local county health department;
5. parent/guardian who so elects;
6. parent/guardian designee, if parent(/guardian so elects, who shall be a volunteer who is not an employee of the LEA;
7. and unlicensed voluntary school employee with appropriate training, but only in emergencies as defined by Section 2727(d) of the Business and Professions Code (epidemics or public disasters).

Thus, the Department believes and the American Diabetes association accepts and promotes the utilization of nonnursing personnel to assist with the insulin administration. ANA disagrees with this position.

“We believe there should be a school nurse available to provide insulin and other medication needs for children on every school campus,” said ANA\California Executive Director Tricia Hunter, MN, RN. “Unfortunately this settlement rewards schools that have chosen to lay off the school nurse. This settlement has put the nurses in an untenable situation. We do not agree that unlicensed, non-health care personnel should be giving insulin to children.”

The American Nurses Association has had similar conflicts with the American Diabetes Association on state legislation. As ANA continues to advocate for restricted use of unlicensed personnel, the ADA continues to advocate for the enactment of legislation, regulations or board of nursing policies to allow trained, nonlicensed personnel to assist students with diabetes and other disabling conditions. Other organizations which support ANA legislative and litigation actions include the National Association of School Nurses and the California School Nurses Organization.

In doing so, the ADA continues to set dangerous precedents for the inappropriate use of unlicensed personnel to conduct nursing functions.

American Nurses Association; American Nurses Association California v. Jack Connell, State Superintendent of Public Instruction, State Department of Education, No. 07AS04631, Application of Proposed Intervenor American Diabetes Association for Leave to Intervene; Memorandum of Points and Authorities in Support Thereof (January 22, 2008) (PDF file link here)

References

1. K.C. Settlement and Legal Advisory (Website) or the following PDF
2. ADA Comments on Draft ANA Position Statement: School Nurses: Providing Safe Health Supervision and Care for Children in the School Setting, PDF
3. American Diabetes Association, School Discrimination (Website)
4. The American Nurses Association, ANA/California file lawsuit Against the California Department of Education: Groups Urge School Administrators to Hire More RNs, (PDF)
5. American Nurses Association, Safe Staffing Saves Lives (Website)
6. IOH - State Laws Affecting Diabetes Care in Schools - California, (Website)
7. California Board of Registered Nurses Advisory on Administration of Insulin in Schools by Unlicensed Personnel PDF
8. California School Nurses Organization, Position Statement: Insulin Administration at School (PDF)