BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 161| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 161 Author: Huff (R) Amended: 5/31/11 Vote: 21 SENATE EDUCATION COMMITTEE : 6-1, 3/16/11 AYES: Lowenthal, Runner, Blakeslee, Huff, Liu, Vargas NOES: Hancock NO VOTE RECORDED: Alquist, Price, Simitian, Vacancy SENATE HEALTH COMMITTEE : 7-0, 4/6/11 AYES: Hernandez, Strickland, Anderson, Blakeslee, De León, Rubio, Wolk NO VOTE RECORDED: Alquist, DeSaulnier SENATE APPROPRIATIONS COMMITTEE : 8-0, 5/26/11 AYES: Kehoe, Walters, Alquist, Lieu, Pavley, Price, Runner, Steinberg NO VOTE RECORDED: Emmerson SUBJECT : Emergency medical assistance: administration of epilepsy medication SOURCE : Author DIGEST : This bill authorizes school districts to provide non-medical school personnel with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. CONTINUED SB 161 Page 2 ANALYSIS : Existing Federal Law The Americans with Disabilities Act of 1990 prohibits discrimination on the basis of disability by employers, public accommodations, state and local governments, public and private transportation, and in telecommunications. The Individuals with Disabilities Education Act (IDEA) governs Individualized Educational Programs (IEPs) and the special education process. IDEA guarantees children with disabilities a "free appropriate public education" in the least restrictive environment. Section 504 of the Rehabilitation Act of 1973 (Section 504) provides federal financial assistance to state and local education agencies to guarantee special education and related services to eligible children with disabilities. Requires school districts to provide a free appropriate public education to each qualified person with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the person's disability, which includes reasonable accommodations required for the management of chronic medical conditions. Existing State Law 1.Requires the governing board of any school district to give diligent care to the health and physical development of students, which may include employing properly certified persons. 2.Provides that each student who is required to take prescribed medication by a physician, may be assisted by the school nurse or other designated school personnel if the school district receives a written statement from the physician detailing the method, amount, and time schedules by which the medication is to be taken, and a written statement from the parent or guardian of the student, indicating the desire that the school district assist the pupil in the matters set forth in the CONTINUED SB 161 Page 3 physician's statement. 3.Provides that no school district, officer of any school district, school principal, physician, or hospital treating a student shall be held liable for the reasonable treatment of a child without the consent of a parent or guardian, when the child is ill or injured during regular school hours, requires reasonable medical treatment, and the parent or guardian cannot be reached, unless the parent or guardian has previously filed with the school district a written objections to any medical treatment other than first aid. 4.Authorizes non-medical school personnel to administer the following medication to a student in an emergency, after receiving specified training: A. Emergency epinephrine auto-injectors. A prescription or an auto-injector for a specific student is not required; the prescription is for the school. B. Glucagon may be administered to students with diabetes suffering from severe hypoglycemia in the absence of a credentialed school nurse or other licensed nurse onsite at the school. 5.Authorizes non-medical school personnel to assist or administer medication to a student on a routine, non-emergency basis the following: A. Assisting in the administration of prescribed medication, or in the self-administration of prescription auto-injectable epinephrine. B. Assisting in administration of prescribed medication or in the self-administration of prescription inhaled asthma medication. C. Assisting if the 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 parent provides a written CONTINUED SB 161 Page 4 statement initiating a request to have the medication administered or otherwise assisted in the administration of the medication. 6.Sets forth the scope of practice for nursing through the Nursing Practice Act, which includes the administration of medication, and prohibits any person from engaging in the practice of nursing without a license. This bill: 1. Makes various legislative findings and declarations, including the declaration that the safety and welfare of a pupil with epilepsy is compromised without immediate access to an emergency antiseizure medication. 2. Authorizes a school district to provide school employees with voluntary medical training to provide emergency medical assistance training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. 3. Requires a school employee with voluntary emergency medical training to provide this emergency medical assistance using a training plan approved on the California Department of Education's (CDEs) Internet Web site. 4. Prohibits a school employee, who does not volunteer or who has not been trained, from being required to provide emergency medical assistance. 5. Authorizes a parent or guardian of a pupil with epilepsy who has been prescribed an emergency antiseizure medication to request the school have one or more of its employees receive training in the administration of an emergency antiseizure medication. 6. Requires, upon receipt of the parent's or guardian's request, the school to notify the parent or guardian that his or her child may qualify for services or accommodations, pursuant to Section 504. Requires the school to assist in the exploration of that option, and CONTINUED SB 161 Page 5 encourage the parent or guardian to adopt that option if it is determined that the child is eligible for a Section 504 plan. 7. Authorizes a school to ask the parent or guardian to sign a notice verifying they were given information about Section 504 and they understand it is their right to request a Section 504 plan at any time. 8. 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 chooses to not have the pupil assessed for a Section 504 plan. The plan may include the involvement of trained volunteer school employees or a licensed vocational nurse. 9. If a school elects to train employees, the school shall ensure the following: A. A volunteer receives training from a licensed health care professional regarding the administration of an emergency antiseizure medication. A staff member who has completed training shall, if he or she has not administered an emergency antiseizure medication within the prior two years and thee is a pupil enrolled in the school who may need the administration of an antiseizure medication, attend a new training program to retain the ability to administer an emergency antiseizure medication. B. Any agreement by an employee to administer an emergency antiseizure medication is voluntary; and an employee of the school or school district shall not directly or indirectly use or attempt to use his or her authority to influence for the purpose of intimidating, threatening, coercing, or attempting to intimidate, threaten, or coerce any staff member who does not choose to volunteer, including, but not limited to, direct contact with the employee. C. Any employee who volunteers may rescind his or CONTINUED SB 161 Page 6 her offer to administer an emergency antiseizure 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 antiseizure 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. D. The school di strict shall distribute an electronic notice to all staff that states the following information in bold print: (1) A description of the volunteer request, stating that the request is for volunteers to administer an emergency antiseizure medication to a pupil experiencing a severe epileptic seizure, in the absence of a school nurse, and that this emergency antiseizure medication is a FDA-approved, predosed, rectally administered gel that reduces the severity of epileptic seizures. (2) A description of the training that the volunteer will receive. (3) A description of the voluntary nature of the volunteer program. (4) The volunteer rescission timelines. 10. Provides that the electronic notice shall be the only means by which a school district solicits volunteers. 11. Provides that an employee who volunteers shall not be required to administer an emergency antiseizure medication until completion of the training program adopted by the school and documentation of completion is recorded in his or her personnel file. 12. Provides that if a school elects to participate, the school shall ensure that each volunteer will be provided defense and indemnification by the school. This information will be reduced to writing, provided CONTINUED SB 161 Page 7 to the volunteer, and retained in the volunteer's personnel file. 13. Requires a school to re-notify the pupil's parent or guardian of the Section 504 options if there are no volunteers. 14. Requires a school that elects to train school employees to have in place a school plan that includes, but not be limited to, all of the following: A. Identification of existing licensed staff within the district or region who could be trained in the administration of an emergency antiseizure medication and could be available to respond to an emergency need to administer an emergency antiseizure medication. B. Identification of pupils who may require the administration of an emergency antiseizure medication. C. Written authorization from the parent or guardian for a non-medical school employee to administer an emergency antiseizure medication. D. A requirement that the parent or guardian notify the school if the pupil has had an emergency antiseizure medication administered within the past four hours on a school day. E. Notification to the parent or guardian that an emergency antiseizure medication has been administered. F. A written statement from the pupil's health care practitioner that shall include all of the following: (1) The pupil's name. (2) The name and purpose of the medication. (3) The prescribed dosage. (4) Detailed seizure symptoms, including frequency, type, or length of seizures that CONTINUED SB 161 Page 8 identify when the administration of an emergency antiseizure medication becomes necessary. (5) The method of administration. (6) The frequency with which the medication may be administered. (7) The circumstances under which the medication may be administered. (8) Any potential adverse responses by the pupil and recommended actions, including when to call emergency services. (9) A protocol for observing the pupil after a seizure. (10) Following the seizure, the pupil's parent or guardian and the school nurse shall be contacted to continue the observation plan. 15. Requires a school the elects to allow volunteers to administer an emergency antiseizure medication to compensate a volunteer when the administration of an emergency antiseizure medication and subsequent monitoring of a pupil requires the person to work beyond his or her normally scheduled hours. 16. Requires the Department of Public Health, in consultation with the CDE, to develop guidelines for the training and supervision of school employees in providing emergency medical assistance to pupils with epilepsy suffering from seizures. The guidelines maybe developed in cooperation interested organizations. Upon development of the guidelines, the CDE shall approve the guidelines for distribution and shall make those guidelines available upon request. 17. Allows the CDE to include, on its Internet Web site, a clearinghouse for best practices in training nonmedical personnel to administer an emergency antiseizure medication to pupils. 18. Requires the training to include the following: A. Recognition and treatment of different types of seizures. B. Administration of an emergency antiseizure medication. CONTINUED SB 161 Page 9 C. Basic emergency follow-up procedures including, calling 911 and contacting the pupil's parent or guardian. D. Techniques and procedures to ensure pupil privacy. 20. Provides that any written materials used in the training shall be retained by the school. 21. Requires training to be conducted by one or more of the following: A. A physician and surgeon. B. A physician assistant. C. A credentialed school nurse. D. A registered nurse. E. A certificated public health nurse. 22. Deems training provided in accordance with the manufacturer's instructions, the pupil's health care provider's instructions and guidelines as adequate training. 23. Requires a school employee to notify the credentialed school nurse assigned to the school district if an emergency antiseizure medication is administered. If a credentialed school nurse is not assigned to the school district, the school employee shall notify the superintendent of the school district, or his or her designee. 24. Requires a school to retain all records relating to the administration of an emergency antiseizure medication. 25. Requires the pupil's parent or guardian to provide all materials necessary to administer an emergency antiseizure medication. 26 An "emergency antiseizure medication" means diazepam rectal and emergency medications approved by the federal Food and Drug Administration for patients with epilepsy for the management of seizures by persons without medical credentials. CONTINUED SB 161 Page 10 27. Sunsets the provisions of this bill on January 1, 2017. ( FOR A DETAILED BACKGROUND AND DISCUSSION, PLEASE REFER TO THE SENATE HEALTH COMMITTEE ANALYSIS) Related/Prior Legislation SB 65 (Strickland), 2011-12 Session, authorizes any pupil who has been diagnosed with cystic fibrosis and is required to take, during the regular school day, 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. (In Senate Education Committee) SB 1051 (Huff), 2009-10 Session, was very similar to this bill. (Held on Senate Appropriations Committee's Suspense File) AB 1802 (Hall), 2009-10 Session, would have authorized a parent or guardian of a pupil with diabetes to designate one or more school employees as parent-designated school employees for the purpose of administering insulin to the pupil as necessary during the regular school day when a credentialed school nurse or other health care professional is not immediately available onsite at the school. (Failed passage in Assembly Business, Professions, and Consumer Protection Committee) SB 1200 (Leno), 2009-10 Session, would have required the Department of Managed Health Care and the Insurance Commissioner to develop regulations to ensure timeliness of care for school age children who must receive medically necessary services during school hours. (Failed passage in Assembly Appropriations Committee) AB 2454 (Torlakson), 2009-10 Session, would have required the governing board of a school district to employ at least one school nurse, registered nurse, or licensed vocational nurse for every 750 pupils on and after July 1, 2020. The CONTINUED SB 161 Page 11 bill would have required registered nurses and vocational nurses to provide health care services to pupils under the supervision of a school nurse. (Failed passage in Assembly Appropriations Committee) AB 1430 (Swanson), 2009-10 Session, would have required, with certain exceptions, that any medication that is administered to a pupil who is required to take, during the regular school day, medication prescribed for him or her by a physician or surgeon be administered by a health care professional operating within the scope of his or her practice. (Failed passage in the Assembly Business, Professions, and Consumer Protection Committee) AB 426 (Hall), 2009-10 Session, would have required the CDE, 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. (Died in Assembly Education Committee) AB 942 (Leno), Chapter 444, Statutes of 2003, authorizes each school district to provide voluntary emergency medical training to school personnel, as defined, to administer emergency medical assistance to pupils with diabetes suffering from severe hypoglycemia, if certain performance standards for training and supervision are developed by the American Diabetes Association in cooperation with several other entities for approval and distribution by the Department of Health Services,' Diabetes Control Program, in the absence of a credentialed school nurse or other licensed nurse. Passed the Senate with a vote of 38-0 on September 3, 2003. AB 559 (Wiggins), Chapter 458, Statues of 2001, authorized a school district or county office of education to provide emergency epinephrine auto-injectors to trained personnel, and authorized the trained personnel to utilize those epinephrine auto-injectors to provide emergency medical aid to persons suffering from an anaphylactic reaction. Passed the Senate with a vote of 40-0 on August 27, 2001. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No CONTINUED SB 161 Page 12 According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund CDE consultation/ Potentially significant costs to participate General approval CDE Web site -- Minor and absorbable -- General information SUPPORT : (Verified 6/1/11) Association of Regional Center Agencies California Association of Joint Powers Authorities (if amended) California Association of School Business Officials California Association of Suburban School Districts California County Superintendents Educational Services Association California School Boards Association Children's Specialty Care Coalition Democrats for Education Reform Developmental Disabilities Area Board 10 Disability Rights California Epilepsy Foundation, California Health Officers Association of California Humboldt County Office of Education Kern County Superintendent of Schools Los Angeles County Office of Education Los Angeles Unified School district Orange County Department of Education Riverside County School Superintendents' Association Riverside Unified School District Saddleback Valley Unified School District San Bernardino County District Advocates for Better Schools Small School Districts' Association OPPOSITION : (Verified 6/1/11) CONTINUED SB 161 Page 13 American Nurses Association-California, California Labor Federation The California Federation of Teachers California Association for Nurse Practitioners California Nurses Association California School Employees Association California School Nurses Organization California School Employees Association California Teachers Association Laborers International Union of North America, Local 777 Service Employees International Union-Nurses Alliance of California United Nurses Associations of CA-Union of Health Care Professionals United Teachers Los Angeles ARGUMENTS IN SUPPORT : Supporters write that Diastat is a safe and effective drug and allowing trained school personnel to administer Diastat could save an epileptic child from very serious injury. The Health Officers Association of California (HOAC) writes that without SB 161, school personnel would have to wait for the child's parent or an ambulance to arrive in order for the drug to be administered. Epilepsy California writes a student suffering from prolonged seizures that is prescribed and yet denied access to Diastat risks permanent brain damage or death. After five minutes, seizures are life threatening. The California Association of Suburban School Districts writes that Diastat is the first and only FDA-approved, acute layperson-administered medication and is the best option for providing a safe educational environment for students. Disability Rights of California (DRC) contends SB 161 is an important step to providing children with epilepsy with a free appropriate education. DRC writes access to medication is important for children with disabilities who need it to be able to receive an education in the least restrictive environment with their peers. Riverside Unified School District writes SB 161 is a critical component of the overall medical and welfare care the district provides to special needs students. CONTINUED SB 161 Page 14 The Riverside County School Superintendents' Association writes that it is the unfortunate fiscal reality that we will not have nurses in our schools and we must adapt to that fiscal reality in a manner that provides the most health protection to the students. Supporters state that it has been common practice for over 10 years for trained non-medical personnel to have the authority to administer doctor-prescribed Diastat to a student suffering a severe and possibly life threatening seizure. Supporters further contend that this bill is patterned after two existing laws which allow non-medical school personnel to administer drugs, Epinephrine and Glucagon. Supporters argue these medications must also be given in a specified and extremely short amount of time from the onset of the episode. Supporters argue Diastat, like Epinephrine and Glucagon, is a life-saving measure. If Diastat is administered incorrectly, the medication is not life-threating, but a significant delay in receiving treatment can be. ARGUMENTS IN OPPOSITION : A coalition of union groups including, the California Teachers Association, California School Employees Association, American Nurses Association-California, California Nurses Association, California Labor Federation, Service Employees International Union - Nurses Alliance of California, and the California Federation of Teachers are opposed to this bill writing that Diastat is a dangerous medication that must be administered rectally to control seizures. The coalition writes that because a seizure is unpredictable, providing for any level of privacy is nearly impossible. The coalition further argues that school employees face legal liability if something goes wrong as school districts generally do not cover punitive damages. Opponents also argue that this bill does not require 911 to be called and in medical emergencies, a 911 call must be required. The coalition supports having licensed, appropriately trained health care personnel provide the high quality care that is required to assure that not only children with disabilities but all school children have access to a free, fair and appropriate education. CONTINUED SB 161 Page 15 The United Nurses Association of California-Union of Health Care Professionals writes in opposition to SB 161, arguing the bill will "deskill the role of school nurses" at a risk to children. Opponents further argue that if an employee is named in a lawsuit, they will have to go to court to defend themselves and there are no protections against punitive damages or criminal prosecution. The California School Employees Association (CSEA) argues that training will be inadequate if provided at all, as the bill does not provide funding for any training. CSEA writes that if a Registered Nurse is not available to perform this duty, Licensed Vocational Nurses (LVNs) can and should be used as they are appropriately licensed and have the skills and ability to help epileptic students. CPM:cm 6/1/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED