BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: SB 161
AUTHOR: Huff
AMENDED: March 9, 2011
FISCAL COMM: No HEARING DATE: March 16, 2011
URGENCY: No CONSULTANT: Lynn Lorber
NOTE : This bill has been referred to the Committees on
Education and Health.
A "do pass" motion should include referral to the Committee on
Health.
SUBJECT : Emergency medical assistance: administration of
Diastat.
SUMMARY
This bill authorizes school districts to provide school
employees with voluntary emergency medical training to provide
emergency medical assistance to pupils with epilepsy suffering
from seizures.
BACKGROUND
Current law authorizes non-medical school personnel to
administer medication to a pupil in an emergency , after
receiving specified training:
Emergency epinephrine auto-injectors. A prescription for
an auto-injector for a specific pupil is not required;
the prescription is for the school.
(Education Code § 49414)
In the absence of a credentialed school nurse or other
licensed nurse onsite at the school, glucagon may be
administered to pupils with diabetes suffering from
severe hypoglycemia. (EC § 49414.5)
Current law authorizes non-medical school personnel to assist
or administer medication to a pupil on a routine basis (not an
emergency):
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Pupils may be assisted in the administration of
prescribed medication, or in the self-administration of
prescription auto-injectable epinephrine.
(EC § 49423)
Pupils may be assisted in administration of prescribed
medication, or in the self-administration of prescription
inhaled asthma medication.
(EC § 49423.1)
Pupils may be assisted if the pupil's health care
provider gives a written statement with specific
information, such as the medication the pupil is to take,
the dosage, and the period of time during which the
medication is to be taken, and if the pupil's parent
provides a written statement initiating a request to have
the medication administered to the pupil or to have the
pupil otherwise assisted in the administration of the
medication.
(California Code of Regulations, Title 5, § 600)
The Nursing Practice Act sets forth the scope of practice for
nursing, which specifically includes the administration of
medication, and prohibits any person from engaging in the
practice of nursing without a license. (Business &
Professions Code § 2725 and 2732)
ANALYSIS
This bill authorizes school districts to provide school
employees with voluntary emergency medical training to provide
emergency medical assistance to pupils with epilepsy suffering
from seizures. Specifically, this bill:
1) Authorizes a school district, in the absence of a
credentialed school nurse or other licensed nurse onsite
at the school, to provide school employees with voluntary
emergency medical training to provide emergency medical
assistance to pupils with epilepsy suffering from
seizures.
2) Requires a school employee with voluntary emergency
medical training to provide this emergency medical
assistance in accordance with yet-to-be-
established guidelines, and the performance instructions
of the licensed health care provider of the pupil.
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3) Prohibits a school employee from being required to
provide emergency medical assistance unless that employee
volunteers and has been trained pursuant to this bill.
4) Authorizes a parent of a pupil with epilepsy who has been
prescribed Diastat by a health care provider to request
that one or more school employees be trained to
administer Diastat in the event of a seizure when a nurse
is not available.
5) Requires a school, upon receipt of the parent's request,
to notify the parent that his or her child may qualify
for services or accommodations pursuant to Section 504 of
the federal Rehabilitation Act. The school is also
required to assist the parent with the exploration of
that option (including the development of a seizure
action plan pursuant to the parent's direction) and
encourage the parent to adopt that option if it is
determined that the child is eligible for a Section 504
plan. The school is required to renotify the parent
about options pursuant to Section 504 if no school
employees volunteer to be trained to administer Diastat.
6) Authorizes a school to create an individualized health
plan, seizure action plan or other appropriate health
plan designed to acknowledge and prepare for the child's
health care needs in school if the parent does not choose
to have the pupil assessed for a Section 504 plan.
7) Requires a school that chooses to train school personnel
to distribute an electronic notice to all staff that
states all of the following:
a) The notice is a request for volunteers to
administer Diastat to a pupil experiencing a severe
epileptic seizure, in the absence of a school nurse.
b) Diastat is an FDA-approved, pre-dosed,
rectally administered gel that reduces the severity
of epileptic seizures.
c) A volunteer will receive training from a
licensed health professional regarding the
administration of Diastat.
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d) Any agreement by the employee to administer
Diastat is voluntary and no employee of the school
or district shall directly or indirectly use or
attempt to use his or her authority or influence for
the purpose of intimidating, threatening, coercing,
or attempting to intimidate, threaten, or coerce any
school employee who does not choose to volunteer.
8) Requires a school that chooses to train employees to have
in place a plan which shall include, but not be limited
to:
a) Identification of existing licensed staff
within the district or region who could be trained
in the administration of Diastat and could be
available to respond to an emergency need to
administer Diastat. The school is to consult with
the school district or county office of education to
obtain this information.
b) Identification of pupils who may require the
administration of Diastat.
c) Written authorization from the parent for a
non-medical school employee to administer Diastat.
d) The requirement that the parent notify the
school if the pupil has had Diastat administered
within the prior four hours.
e) Notification to the parent that Diastat has
been administered.
f) A written statement from the pupil's health
care practitioner, which shall include but not be
limited to:
i) The name of the pupil.
ii) The name and purpose of the
medication.
iii) The prescribed dosage.
iv) Detailed seizure symptoms, including
the frequency, type, or length of seizures that
identify when the administration of Diastat
becomes necessary.
v) The method of administration.
vi) The frequency with which the
medication may be administered.
vii) The circumstances under which the
medication may be administered.
viii) Any potential adverse responses by
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the pupil and recommended mitigation actions,
including when to call 911.
ix) A protocol for observing the pupil
after a seizure, including but not limited to,
whether the pupil should rest in the school
office, may return to class, and the length of
time the pupil should be under direct
observation.
9) Requires a school that chooses to allow volunteers to
administer Diastat to compensate a volunteer when the
administration of Diastat and subsequent monitoring of a
pupil requires a volunteer to work beyond his or her
normally scheduled hours.
10) Encourages the Epilepsy Foundation of America to develop
guidelines for the training and supervision of school
employees. These guidelines may be developed in
cooperation with the State Department of Education, the
California School Nurses Organization, the California
Medical Association, and the American Academy of
Pediatrics.
11) Requires training to include, but not be limited to, all
of the following:
a) Recognition and treatment of different types
of seizures.
b) Administration of Diastat.
c) Basic emergency follow-up procedures
including, but not limited to,
calling 911 and contacting the pupil's parent.
d) Techniques and procedures to ensure pupil
privacy.
12) Requires training to be conducted by one or more of the
following:
a) A physician and surgeon.
b) A physician and surgeon's assistant.
c) A credentialed school nurse.
d) A registered nurse.
e) A certificated public health nurse.
13) Deems training in accordance with the manufacturer's
instruction, the pupil's health care provider's
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instructions, and guidelines as adequate training.
14) Requires a school employee to notify the credentialed
school nurse assigned to the school district if he or she
administers Diastat to a pupil. The school employee is
required to notify the superintendent of the school
district if a credentialed school nurse is not assigned
to the school district.
15) Requires the school to retain all records related to the
administration of Diastat by school personnel.
16) Requires all materials necessary to administer Diastat to
be provided by the pupil's parent.
17) Defines "Diastat" as diazepam rectal gel, marketed as
Diastat AcuDial, approved by the federal Food and Drug
Administration for patients with epilepsy for the
management of seizures.
18) States legislative findings and declarations, among other
things, that if all of the following specific
circumstances are met, then the safety and welfare of a
pupil may be compromised, necessitating the authorization
of non-medical school staff, who have volunteered and
been trained, to administer Diastat to a pupil:
a) A pupil's health care provider state that
Diastat must be administered within a timeframe that
a licensed medical person or a paramedic cannot
reasonably be expected to respond and be available.
b) Failure to administer Diastat in a timely
manner can reasonably be expected to result in death
or permanent physical injury to the pupil.
c) Diastat and the procedure for its
administration has been found to be safe from
harmful side effects by competent personnel.
19) Sunsets the provisions of this bill on January 1, 2017.
STAFF COMMENTS
1) Purpose of the bill . According to the author, "some
children with epilepsy are susceptible to prolonged
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seizures and require access to a life-saving emergency
medication. Diastat Acudial, a pre-dosed preparation of
diazepam gel, is the standard out-of-hospital treatment
for prolonged seizures. Diastat is a FDA-approved
emergency medication and is a safe and effective
treatment, specifically designed to be administered by
people without medical training. Some schools are
telling parents they must be available to come to the
school to administer Diastat (the drug must be
administered in about 5 minutes) or are calling 911 in an
emergency. Either of these solutions results in delays
in treatment that places the child in danger of serious
injury, or worse."
2) Lawsuit specific to the administration of insulin . The
December 2008 ruling in American Nurses Assoc. v. Jack
O'Connell by the Sacramento Superior Court overturned a
portion of the settlement of K.C. v. Jack O'Connell (the
settlement allowed non-medical school personnel to
administer insulin to pupils). This decision was
appealed; the 3rd Court of Appeal ruled in June 2010 that
the Superior Court ruling correctly determined the
portion of CDE's legal advisory is inconsistent with
California law and is therefore, invalid. An appeal of
this latest ruling was filed with the California Supreme
Court in July 2010. Until the appeal is resolved, the
Superior Court ruling is stayed, which means that the CDE
may continue to advise districts that non-medical school
personnel are authorized to administer insulin (based on
the K.C. settlement) while the Nursing Practices Act
continues to prohibit the same (nothing in statute
specifically allows anyone other than licensed nurses to
administer insulin).
3) 504 plans . Section 504 of the federal Rehabilitation Act
of 1973 requires school districts to provide a free
appropriate public education to each qualified pupil,
regardless of the nature or severity of the disability,
which includes reasonable accommodations required for the
management of chronic medical conditions. A "504 plan"
differs from an individualized education program (IEP) in
that an IEP provides for specialized instruction while a
504 plan provides for accommodation due to a physical or
mental impairment that does not require specialized
instruction.
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Currently, a pupil with a prescription for Diastat could have
a 504 plan that requires a licensed health practitioner
be on site to administer Diastat if necessary. If this
bill were to become law, a 504 plan that calls for a
non-medical school employee to administer Diastat would
supersede the Nursing Practices Act (see Comment # 2).
4) Liability . Concern has been raised over the possibility
that school employees who volunteer to administer Diastat
could be held liable if any errors are made and/or the
pupil incurs any injuries. Prior legislation relative to
the administration of Diastat (see Comment # 11) stated
that school employees who volunteer, are trained in the
administration of Diastat, and who act in good faith are
immune from civil liability. This bill does not contain
those provisions.
Government Code Section 995 requires public entities to
provide a legal defense for employees (upon request of
the employee) in civil actions when the action is brought
in the employee's official or individual capacity on
account of an act or omission in the scope of their
employment. Government Code Section 995.2 authorizes a
public entity to refuse to provide for the defense of a
civil action if the act or omission was not within the
scope of employment. Government Code Section 995.8
states that a public entity is not required to provide
for the defense of a criminal action, but may do so if
the criminal action is brought on account of an act or
omission in the scope of employment and the public entity
determines that such defense would be in the best
interests of the public entity and that the employee
acted, or failed to act, in good faith without actual
malice and in the apparent interests of the public
entity.
5) Diastat . Questions have arisen regarding the safety of
Diastat and the availability of other medication that may
be appropriate for pupils with epilepsy. This, and other
medically-related issues such as whether CPR should be
specifically included in the training, may be better
addressed in the Senate Health Committee.
6) How many schools have a nurse ? California's
nurse-to-pupil ratio is approximately 1:2,200. According
to the California Basic Educational Data System (CBEDS),
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about one-half of school districts do not have a school
nurse. In those areas, the county office of education
should provide a nurse but it is possible that no nursing
coverage exists for some school districts.
7) School staff currently administering medication . No data
is maintained as to the number of school districts that
choose to allow staff to receive training to administer,
or assist with the administration of, medication to
pupils.
8) Clarifying amendments . As currently drafted, this bill
appears to require a school to inform a parent about the
possibility of eligibility for a 504 plan only once the
parent requests that information. It is the author's
intent to require a school to provide this information to
a parent once the parent requests the school to have an
employee receive training in the administration of
Diastat. Staff recommends an amendment to clarify this.
This bill was recently amended to include "a physician and
surgeon's assistant" to those who may provide training to
school employees. It is staff's understanding that there
is no such position as a surgeon's assistant; therefore,
staff recommends an amendment to instead reference "a
physician's assistant."
9) Related legislation . SB 65 (Strickland) authorizes any
pupil who has been diagnosed with cystic fibrosis and is
required to take, during the regular schoolday,
medication prescribed for him or her by a physician or
surgeon, to be assisted by the school nurse or other
designated school personnel or may carry and
self-administer prescription pancreatic enzymes if the
school district receives specified written statements.
SB 65 is pending in this Committee.
10) Prior legislation .
SB 1051 (Huff, 2010) was very similar to
this bill. That bill passed this Committee on a 5-1
vote, on April 14, 2010. SB 1051 was subsequently
held on the Senate Appropriations Committee's
suspense file.
AB 1802 (Hall, 2010) would have authorized a
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parent of a pupil with diabetes to designate a
school employee to administer insulin to the pupil
under specified conditions. AB 1802 failed passage
in the Assembly Business and Professions Committee.
AB 1430 (Swanson, 2009) would have
provided that only a licensed health care
professional may administer medication to pupils,
but did specifically allow non-medical school
personnel to administer epinephrine via
auto-injector and insulin in cases of an emergency.
AB 1430 was never heard.
AB 426 (Hall, 2009) would have
required the Department of Education, in
consultation with specified entities, to recommend
to the Legislature ways to address specific
health-related needs of pupils on school campuses,
including but not limited to, diabetes, asthma and
obesity-related diseases. AB 426 was never heard.
SUPPORT
California Association of School Business Officials
Epilepsy California
Epilepsy Foundation
Health Officers Association of California
Humboldt County Office of Education
Orange County Department of Education
Riverside County School superintendents' Association
Riverside Unified School District
Saddleback Valley Unified School District
Special Education Local Plan Area Administrators
Numerous individuals
OPPOSITION
American Federation of State, County and Municipal Employees
American Nurses Association-California
California Federation of Teachers
California Nurses Association
California Labor Federation
California School Employees Association
California Teachers Association
Laborers' International Union of North America
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Service Employees International Union-Nurses Alliance of
California
United Nurses Association of California/Union of Health Care
Professionals