Cross-posted from The School Law Blog:
Lay school personnel may administer insulin to students with diabetes under the proper circumstances, California’s highest court ruled on Monday. The court rejected arguments from nursing groups that state rules allowing lay school workers to administer insulin condoned a form of unauthorized practice of nursing.
The unanimous decision by the California Supreme Court has implications for students with special education or treatment plans under federal disabilities laws. The Obama administration filed a friend-of-the-court brief in the case arguing that schools may use lay personnel to administer insulin when complying with a student’s plan.
Ultimately, the California high court held that state law “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.”
Such personnel who carry out doctors’ orders in that way are exempt from state laws prohibiting the unauthorized practice of nursing, the court added.
“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,” the state supreme court said in its Aug. 12 decision in American Nurses Association v. Torlakson. “The nurses’ arguments to the contrary lack merit.”
The decision grew out of a 2005 lawsuit brought by parents against the Fremont Unified School District and the San Ramon Valley Unified School District alleging that the districts were failing to meet their obligations to diabetic students under federal disabilities laws. Underlying the suit was the idea that school nurses were not always available and that school districts were leaving insulin administration up to students and their parents. While many students are able to administer their insulin themselves, others are not.
Under a 2007 settlement, the California Department of Education issued a legal advisory reminding schools they could not avoid compliance with students’ rights under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act of 1973 to have insulin administered at school merely because a licensed school nurse was not available.
The state education department issued a rule adding a category of voluntary school employees to those authorized to administer insulin to students.
Nursing groups sued, and they won two lower-court rulings that the state rule was invalid. The parents, backed by the American Diabetes Association, appealed to the California Supreme Court.
The state high court said it relied not on the 2007 state education department legal guidance, but on language in the state Nursing Practice Act which expressly exempts from a prohibition on the unauthorized practice of nursing “the performance by any person of such duties as required in carrying out medical orders prescribed by a licensed physician.”
“To fall outside the exception by ‘assuming to practice as a nurse,’ one must go further by holding oneself out, explicitly or implicitly, to be a nurse in fact,” the court said. “This conclusion disposes of the issue, because 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.”
The court said its disposition meant it did not need to decide whether students’ rights under federal disabilities laws would preempt a contrary state law or regulation.
A version of this news article first appeared in the On Special Education blog.