Unlicensed School Personnel No Longer Permitted to Administer Insulin to Students

For the last few months, school districts and school attorneys have been anxiously waiting for the ruling of the California Third Appellate Court on whether or not trained school personnel can administer insulin to students with diabetes. The status of the law has been uncertain since 2007 when the California Department of Education (“CDE”) issued a legal advisory listing individuals authorized, in their view, to administer insulin to students. This list included: a “voluntary school employee who is unlicensed but who has been adequately trained to administer insulin pursuant to the student’s treating physician’s orders as required by the Section 504 plan or IEP.” The American Nurses Association and the California counterpart immediately filed suit against the Superintendent of Public Schools and the CDE (collectively, “State”), challenging that portion of the advisory. The nurses associations also launched campaigns against school districts, indicating it was unlawful for them to allow unlicensed personnel to administer the necessary insulin medication. After a hearing on the issue, the Superior Court agreed with the American Nurses Associations, that under current California law, non-licensed personnel could not administer insulin to students with diabetes. Believing such a ruling would be harmful to students and financially difficult for already hurting schools, the State appealed. The school districts, many without licensed school nurses, were left to wonder about the state of the law. In June, the Appellate Court affirmed the Trial Court’s decision.
This crippling ruling comes at a time when schools are faced with cutting budgets, personnel, and necessary educational programs to cope with the current economic crisis, along with a state-wide shortage of school nurses. The State’s position, which would allow properly-trained staff to administer the insulin injections, was supported by the American Diabetes Association, various school districts, school attorneys, students, and parents. Both the Trial Court and the Court of Appeal were careful to note that they were not deciding whether or not California law should permit non-licensed personnel to administer insulin, and even indicated such a law would better serve students; however, it was up to the legislative process to change the law, not the courts. Even the concurring justice reluctantly admitted that he had to concur under the current laws of California, “regardless of whether they were the product of legitimate concern for the safety of diabetic public school students or the result of a labor organization protecting its turf and flexing its political muscle.”
So far, there is no word whether or not the State will appeal to the California Supreme Court. However, with a new school year starting in a few months, school districts must begin to think about how to comply with the current ruling. This ruling does not affect the ability of non-licensed personnel to perform necessary emergency medical assistance.

By Jessica Carriger

American Nurses Association v Jack OConnell, As Superintendent of Public Education

KMTG Education Legal Alert

Board Members Have Rights Too

Ever had a board member that is constantly criticizing school district administration and felt at a loss when other board members ask what you can do to stop it? While you may not be able to stop it, one Board used its own internal political process to respond to the lone critic. A board member's First Amendment rights were called into question at a school district in Washington, when a Board majority voted to strip the Board's vice president of his title as a result of his on-going public criticism of the District's superintendent. The former Board VP sued the school district and his board member colleagues alleging they had violated his First Amendment Rights. The Ninth Circuit held that the Board's action did not prevent the former VP from continuing to "speak out, vote his conscience, and serve his constituents as a member of the Board". The Board member was free to criticize the superintendent, however, the rest of the Board was free to remove him from his vice president status. For more information, check back for a Legal Alert from our office or click on the link below to read the Court's decision.

By Emily E. LaMoe

Ken Blair v. Bethel School District

Emily E. LaMoe Attorney Profile