By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
Background
On January 6, 2009, a California Superior Court judge ruled that licensed nurses (i.e. credentialed school nurses, registered nurses or licensed vocational nurses) must be used to administer insulin to students. In so doing, the judge rejected the California Department of Education’s ("CDE") position that trained classroom staff (non-nurses) can be used to administer insulin. The judge's decision left school districts, SELPAs, and county offices of education throughout California wondering if they were now required to hire more nurses to administer insulin and perhaps other medications like Diastat.
As to Diastat, in response to the Court's 2009 ruling and subsequent appeals which remain unresolved, the California legislature enacted Education Code Section 49414.7, which took effect January 1, 2012. The legislation recognized that approximately one-half of school districts do not have a school nurse and that students with epilepsy who suffered seizures at school were compromised without access to emergency medical assistance. The intent of this legislation was to provide volunteer school employees with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. Education Code Section 49414.7 allows school districts to provide epilepsy anti-seizure medication, diazepam rectal gel, commonly referred to as Diastat, as emergency medical assistance in the absence of a school nurse or other medical personnel, to assist a student with epilepsy who is suffering from a seizure and where the administration has been sanctioned by the student's parents in writing. The decision of a school district to offer training to its staff is voluntary as is the staff member's participation in the training.
Of particular note is the fact that the word "volunteer" appears in the statute 25 times. While the headlines billed the legislation as more permissive in the volunteer selection process, in actuality, it shows the state-wide influence of nurses in legislative matters since a preference for licensed nurses to administer emergency antiseizure medication is evident even in the new law.
While Education Code 49414.7 is extraordinarily specific in establishing that a school district's and district employee's participation is voluntary, Education Code 49414.7 provided little guidance in establishing guidelines for training, supervision, or implementation of the voluntary emergency administration regime. Now in effect are final emergency regulations from May 2012 that fill in the blanks left by the addition of the new Education Code provision. The emergency regulations, found at Title 5 of the California Code of Regulations Sections 620 through 627, provides specific requirements for training and supervision of volunteer nonmedical employees of school districts, county offices of education, and charter schools that elect to participate in a program of providing, in the absence of a credentialed school nurse or other licensed nurse, emergency medical assistance (including Diastat administration) to pupils with epilepsy suffering from seizures.
California Code of Regulations Sections 620 through 627
Some of they key points of the Code and Regulations mandate that an employee cannot be compelled to be trained and administer emergency anti-seizure medication to students. Additionally the volunteer can revoke his or her offer to administer an emergency anti-seizure medication up to three days after the completion of the training. After that time, a volunteer may rescind his or her offer to administer an emergency anti-seizure medication with a two-week notice, or until a new individual health plan or Section 504 plan has been developed for an affected pupil, whichever is less. (Education Code Section 49414.7(g)(3))
Further, the emergency regulations define who is allowed to conduct the training, the nature of the training, how often individuals must be trained, what notice must be given to volunteers, the extent of the supervisor's responsibility, when administration of emergency Diastat should be provided, the extent of the parent's written consent, etc.
Included in the emergency regulations is the definition of a regular school day which covers before and after school programs. It further clarifies that the term "supervision" does not necessarily require the immediate presence of the supervisor at all times. Additionally, Section 623 mandates that school districts document and maintain records on each administration of an emergency anti-seizure medication, the pupil's name, the name of the medication administered, the dose given, the date and time of administration, the length of the seizure, and observation and action taken after the seizure. These are just a small sample of the emergency regulations which will remain in effect until Sept. 25, 2012, at which time the CDE is required to establish permanent guidelines.
Summary & Recommendations
Because of the extensive nature of the newly developed mandates established in California Code of Regulations this blog is in no way intended to provide a comprehensive explanation of the Education Code Section 49414.7 or the newly codified California Code of Regulations Sections 620 through 627. As such, it is important that an LEA which chooses to participate in the voluntary training of nonmedical volunteers consider seeking the advice of the SELPA and/or legal counsel beforehand.
