BILL ANALYSIS Ó
SB 161
Page 1
Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
SB 161 (Huff) - As Amended: May 31, 2011
SENATE VOTE : 32-4
SUBJECT : Schools: emergency medical assistance: administration
of epilepsy medication.
SUMMARY : Allows school districts to train school employees who
volunteer to administer anti-seizure medication to students with
epilepsy. Specifically, this bill :
1)Provides that, in the absence of a credentialed school nurse
or other licensed nurse onsite at the school, a school
district may provide school employees with voluntary emergency
medical training to provide emergency medical assistance to
students with epilepsy suffering from seizures.
2)Requires a school employee with the training specified above
to provide emergency medical assistance using a training plan
approved on the California Department of Education's (CDE)
internet website, as specified, and performance instructions
set forth by the student's licensed health care provider. A
school employee who does not volunteer or who has not been
trained pursuant to this bill's provisions shall not be
required to provide emergency medical assistance pursuant to
this bill.
3)Allows the parent or guardian of a student with epilepsy, who
has been prescribed an emergency anti-seizure medication by
his or her health care provider, to request that a school have
one or more of its employees receive training pursuant to this
bill in the administration of an emergency anti-seizure
medication in the event that the student suffers a seizure
when a nurse is not available. Upon such a request, the
school must:
a) Notify the parent or guardian that his or her child may
qualify for services or accommodations under a Section 504
plan, pursuant to Section 504 of the federal Rehabilitation
Act of 1973 (Section 504);
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b) Assist the parent or guardian with the exploration of
that option; and,
c) Encourage the parent or guardian to adopt that option if
it is determined that the child is eligible.
4)Allows a school to ask the parent or guardian to sign a notice
verifying that the parent or guardian was given information
about Section 504, and that the parent or guardian understands
that it is his or her right to request a Section 504 plan at
any time.
5)Allows 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 or guardian does not choose to have
the student assessed for a Section 504 plan. The plan may
include the involvement of trained volunteer school employees
or a licensed vocational nurse.
6)Requires a school that elects to train employees pursuant to
this bill to ensure that:
a) A volunteer receives training from a licensed health
care professional regarding the administration of an
emergency anti-seizure medication. A staff member who has
completed training shall, if he or she has not administered
an emergency anti-seizure medication within the prior two
years and there is a student enrolled in the school who may
need the administration of an anti-seizure medication,
attend a new training program to retain the ability to
administer an emergency anti-seizure medication;
b) Any agreement by an employee to administer an emergency
anti-seizure 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 or
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; and,
c) Any employee who volunteers pursuant to this section may
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rescind 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 student, whichever is less.
7)Requires a school that elects to train employees pursuant to
this bill to solicit volunteers exclusively via an electronic
notice to all staff that states the following information in
bold print:
a) A description of the volunteer request, stating that the
request is for volunteers to administer an emergency
anti-seizure medication to a student experiencing a severe
epileptic seizure, in the absence of a school nurse, and
that this emergency anti-seizure medication is a Food and
Drug Administration (FDA)-approved, pre-dosed, rectally
administered gel that reduces the severity of epileptic
seizures;
b) A description of the training that the volunteer will
receive, as specified;
c) A description of the voluntary nature of the volunteer
program, as specified; and,
d) The volunteer rescission timelines, as specified.
8)Specifies that an employee who volunteers pursuant to this
bill shall not be required to administer an emergency
anti-seizure medication until completion of the training
program adopted by the school and documentation of completion
is recorded in his or her personnel file.
9)Requires a school that elects to participate pursuant to this
bill to ensure that each volunteer will be provided defense
and indemnification by the school, in accordance with current
law governing claims and actions against public employees.
This information shall be reduced to writing, provided to the
volunteer, and retained in the volunteer's personnel file.
10)Requires a school, if there are no volunteers, to re-notify a
student's parent or guardian of the option to be assessed for
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services and accommodations guaranteed under Section 504.
11)Requires a school that elects to participate pursuant to this
bill to have a school plan in place that includes 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 anti-seizure medication and
could be available to respond to an emergency need to
administer an emergency anti-seizure medication. The school
shall consult with the school district or county office of
education to obtain this information;
b) Identification of students who may require the
administration of an emergency anti-seizure medication;
c) Written authorization from the parent or guardian for a
nonmedical school employee to administer an emergency
anti-seizure medication;
d) The requirement that the parent or guardian notify the
school if the student has had an emergency anti-seizure
medication administered within the past four hours on a
school day;
e) Notification of the parent or guardian that an emergency
anti-seizure medication has been administered; and,
f) A written statement from the student's health care
practitioner that includes specified information, including
(among other things) dosage, seizure symptoms, when to
administer medication, adverse reactions, a protocol for
observing the student after a seizure, and a requirement
that the student's parent and guardian and the school nurse
must be contacted following a seizure to continue the
observation protocol.
12)Requires a school that elects to allow volunteers to
administer an emergency anti-seizure medication to compensate
a volunteer when the administration of an emergency
anti-seizure medication and subsequent monitoring of a student
requires a volunteer to work beyond his or her normally
scheduled hours.
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13)Requires the State Department of Public Health (DPH), in
consultation with CDE, to develop guidelines for the training
and supervision of school employees in providing emergency
medical assistance to students with epilepsy suffering from
seizures. The guidelines may be developed in cooperation with
interested organizations. Upon development of the guidelines,
CDE shall approve the guidelines for distribution and make
those guidelines available upon request.
14)Requires CDE to include on its internet web site a
clearinghouse for best practices in training non-medical
personnel to administer an emergency anti-seizure medication
to students. Training established pursuant to this
requirement shall include, but not be limited to:
a) Recognition and treatment of different types of
seizures;
b) Administration of an emergency anti-seizure medication;
c) Basic emergency follow-up procedures, including, but not
limited to, calling the emergency 911 telephone number and
contacting the student's parent or guardian; and,
d) Techniques and procedures to ensure student privacy.
15)Requires any written materials used in the training specified
in 14), above, to be retained by the school.
16)Requires training established pursuant to 14), above, 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; or,
e) A certificated public health nurse.
17)Provides that training provided in accordance with the
manufacturer's instructions, the student's health care
provider's instructions, and guidelines established pursuant
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to this bill shall be deemed adequate training for purposes of
this bill.
18)Requires a school employee to notify the credentialed school
nurse assigned to the school district if he or she administers
an emergency anti-seizure medication pursuant to this bill.
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.
19)Requires a school to retain all records relating to the
administration of an emergency anti-seizure medication while a
student is under the supervision of school staff.
20)Requires the student's parent or guardian to provide all
materials necessary to administer an emergency anti-seizure
medication, including the statement from the student's health
practitioner, as specified. A school shall not be responsible
for providing any of the necessary materials.
21)Provides the following definitions:
a) An "emergency anti-seizure medication" means diazepam
rectal gel and emergency medications approved by the FDA
for patients with epilepsy for the management of seizures
by persons without the medical credentials listed in 16),
above; and,
b) "Emergency medical assistance" means the administration
of an emergency anti-seizure medication to a student
suffering from an epileptic seizure.
22)Specifies findings and declarations.
23)Sunsets January 1, 2017.
EXISTING LAW
1)Pursuant to the Americans with Disabilities Act (ADA) of 1990,
prohibits discrimination on the basis of disability by
employers, public accommodations, state and local governments,
public and private transportation, and in telecommunications.
2)Pursuant to the Individuals with Disabilities Education Act
(IDEA), governs Individualized Educational Programs (IEPs) and
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the special education process. IDEA guarantees children with
disabilities a free appropriate public education (FAPE) in the
least restrictive environment (LRE).
3)Pursuant to Section 504, provides federal financial assistance
to state and local education agencies to guarantee special
education and related services to eligible children with
disabilities.
4)Requires school districts to provide FAPE 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.
5)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.
6)Provides that each student who is required to take medication
prescribed 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 student in the matters set forth in the
physician's statement.
7)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 objection
to any medical treatment other than first aid.
8)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
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for 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.
9)Authorizes non-medical school personnel to assist or
administer medication to a student on a routine, non-emergency
basis as follows:
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 student 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 statement initiating a request to
have the medication administered or otherwise assisted in
the administration of the medication.
10)Establishes the scope of practice for nursing through the
Nursing Practice Act (NPA), which includes the administration
of medication, and prohibits any person from engaging in the
practice of nursing without a license.
11)Licenses and regulates the practice of nursing by the Board
of Registered Nursing (BRN).
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author's office, "Some
children with epilepsy are susceptible to prolonged seizures and
require access to a lifesaving emergency medication?For over ten
years it was common in California schools to have Registered
Nurses, or where unavailable, trained non-medical personnel
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(teachers, aides, office staff) to administer doctor prescribed
Diastat in an emergency situation to a student when suffering a
severe, possibly life threatening, seizure. In October 2009,
however, a nursing education consultant to the BRN advised that
there is no provision in the NPA for unlicensed school personnel
to administer Diastat. The consultant then concluded that
absent an authorizing statute, school nurses cannot train or
supervise unlicensed personnel to administer Diastat.
"As a consequence of the letter, nurses are refusing to train
school personnel, and schools are reluctant to have staff, even
those already trained, administer Diastat. Some schools are
telling parents they must be available to come to the school to
administer Diastat (the drug must be administered in about five
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."
Background . Epilepsy is a chronic neurological condition in
which the individual is susceptible to seizures, which can range
from a brief disruption of senses, muscle spasms, or odd
sensations to periods of unconsciousness and convulsions. There
is no known cure for epilepsy.
Epilepsy is a complex condition and there are many types of
seizures associated with epilepsy. The type of seizure a person
has depends on a variety of factors, such as the part of the
brain affected and the underlying cause of the seizure. The
type of medicine individuals with epilepsy take depends on the
type of seizures.
Nearly three million people in the U.S. have some form of
epilepsy, with about 200,000 new cases of seizure disorders and
epilepsy diagnosed each year. According to the Epilepsy
Foundation, as many as 325,000 school-age children ages five
through 14 have epilepsy. Epilepsy affects more than 90,000
children in California.
Diastat, a trademark administration system of diazepam, was
first approved for use in the United States by the FDA in 1997
as a treatment for breakthrough seizures in adults and children
two years old and older. It is the only FDA-approved, at-home
medication for the treatment of acute repetitive seizures, or
"cluster" seizures. Diastat was specifically developed to be
administered by people without medical training and is
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considered the fastest, safest and most effective way to treat
epileptic seizures. Dosages are determined on an individual
basis, depending upon the condition to be treated, the severity
of symptoms, the body weight of the patient, and any comorbidity
conditions the patient may have.
Diastat is intended to be kept handy so that a caregiver can
attempt to stop seizures by administering the drug relatively
quickly. Diastat is a gel formulation of diazepam (valium) that
is administered rectally. The delivery system includes a
plastic applicator with a flexible, molded tip and is provided
in fixed unit-doses of five, 10, 15 and 20 mg. A pharmacist
dials the syringe to the physician's prescribed dosage before it
is dispensed to the patient.
Most seizure patients, no matter how well-managed through
maintenance medication, will likely experience breakthrough
seizures throughout their lifetime. As many as 35% of patients
on anti-seizure medications may not be adequately controlled.
Between 50,000 and 200,000 generalized convulsive status
epileptic seizures occur every year in the United States, with
an overall mortality rate of 20%. Status seizures lasting more
than one hour have a mortality rate of 32%, compared with 2.7%
for seizures of shorter duration.
There are numerous children with special medical needs in
California's classrooms. California's nurse-to-student ratio is
approximately 1:2,200. According to the California Basic
Educational Data System (CBEDS), about one-half of school
districts do not have a school nurse.
Two federal anti-discrimination statutes, Section 504 and Title
II of the ADA, establish rights for eligible students in
California's public schools. They serve to protect students
from discrimination based upon their disability. In general, a
student will be determined to have a disability under Section
504 if he/she has a mental or physical impairment that
substantially limits one or more major life activities, such as
eating, breathing, caring for oneself, performing manual tasks,
hearing, speaking, walking, and learning.
Section 504 requires school districts to provide FAPE to each
qualified student, regardless of the nature or severity of the
disability. An appropriate education may consist of education
in regular classes, education in regular classes with the use of
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related aids and services, or special education and related
services in separate classrooms for all or portions of the
school day.
A 504 plan differs from an individualized education program
(IEP). 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.
The NPA specifies that medication administration is a nursing
function that cannot be performed by unlicensed personnel unless
expressly authorized by statute. Current law authorizes
non-medical school personnel to administer emergency epinephrine
auto-injectors in an emergency after receiving specified
training (Education Code, Section 49414). Current law also
allows Glucagon to 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 (Education Code, Section 49414.5).
The BRN issued a legal opinion in March 2010 on the
administration of Diastat to students by unlicensed school
personnel, stating, "The NPA does not permit unlicensed school
personnel to administer Diastat to a student undergoing an
epileptic seizure. Diastat is a medication and its
administration constitutes the practice of nursing. A school
district's use of unlicensed school personnel to administer
Diastat to fulfill its duty to provide medical services to
students undergoing seizure is not exempt from the NPA.
"The NPA does not permit a nurse to train unlicensed school
personnel knowing that the purpose for the training is to enable
the trainees to administer Diastat to a student, and the
unlicensed person actually administers Diastat in violation of
the NPA. Such conduct may subject the nurse to discipline for
aiding and abetting the unlicensed practice of nursing.
"The NPA does not permit a nurse to establish and supervise a
program where unlicensed school personnel administer Diastat to
students during the school day. Such conduct may subject the
nurse to discipline for being a departure from the standards of
competent performance established in (the California Code of
Regulations) in that he or she would be delegating a health care
task to a person who is not legally able to perform that task."
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Support . Epilepsy California states, "(We have) received
numerous complaints from parents, teachers, school nurses and
medical providers regarding children being denied access to
Diastat in the school setting. A student suffering from
prolonged seizures that is prescribed and yet denied access to
this emergency rescue medication risks permanent brain damage or
death. Unfortunately, simply calling 911 is not an appropriate
response as there is no guarantee that an ambulance will arrive
to the school within the critical first five minutes of the
onset of the seizure. After five minutes, seizures are life
threatening.
"The FDA approved Diastat with the intended purpose of
non-medical personnel (such as parents and teachers) to be able
to safely administer the medicine. After all, seizures are
unpredictable and can happen anywhere. This medicine is
portable and able to be administered in virtually every setting.
Knowledgeable and informed medical professionals testify to the
efficacy and safety of this medication, even when administered
by non-medical personnel. There is no basis to the argument
that Diastat is unsafe. However, prolonged seizures are
deadly."
Opposition . The California Teachers Association writes, "Our
members representing educators, school nurses, and classified
employees all believe that protecting the rights, safety and
health of students and all school personnel is paramount and SB
161 misses the mark on several levels including not identifying
the source of funding involved in the 'emergency medical
training;' failure to recognize there are multiple types of
epileptic seizures, does not address maintaining the privacy and
dignity of the student experiencing a seizure, the liability
issues if the medication is not administered properly, and the
time necessary to stay with the student suffering the seizure to
observe them for side effects.
"The administration of Diastat must be conducted in a safe and
private manner by trained medical personnel who understand the
numerous issues associated with administering medications. We
believe the implementation of SB 161 would lead to, rather than
prevent, dangerous outcomes for students."
Related legislation . SB 65 (Strickland) authorizes any student
who has been diagnosed with cystic fibrosis and is required to
take, during the regular school day, medication prescribed for
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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 Senate Education Committee.
Previous legislation .
SB 1051 (Huff) of 2010 authorizes a school district, until
January 1, 2016, to provide non-licensed school employees with
voluntary training for the provision of emergency medical
assistance to a pupil suffering from an epileptic seizure, in
the absence of licensed personnel. This bill was held in Senate
Appropriations.
AB 1802 (Hall) of 2010 permits a parent or guardian to designate
a school employee to administer insulin during school, as
specified. This bill was held in Assembly Business,
Professions, and Consumer Protection Committee.
SB 1200 (Leno) of 2010 requires 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. This
bill was held in Assembly Appropriations Committee.
AB 2454 (Torlakson) of 2010 requires the governing board of a
school district to employ at least one school nurse, registered
nurse, or licensed vocational nurse for every 750 students, and
requires registered nurses and licensed vocational nurses to
provide health care services to students under the supervision
of a school nurse. This bill was held in Assembly
Appropriations Committee.
AB 1430 (Swanson) of 2009 requires any necessary medication to
be administered to a student by a licensed health care
professional operating within the scope of his or her practice.
This bill was held in Assembly Business and Professions
Committee.
AB 426 (Hall) of 2009 requires the CDE, in consultation with
specified entities, to recommend to the Legislature ways to
address specific health-related needs of students on school
campuses. This bill was held in Assembly Education Committee.
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AB 942 (Leno), Chapter 684, Statutes of 2003, authorizes each
school district to provide voluntary emergency medical training
to school personnel to administer emergency medical assistance
to students with diabetes suffering from severe hypoglycemia, as
specified.
AB 559 (Wiggins), Chapter 458, Statutes of 2001, authorizes a
school district or county office of education to provide
emergency epinephrine auto-injectors to trained personnel, and
authorizes the trained personnel to utilize those epinephrine
auto-injectors to provide emergency medical aid to persons
suffering from an anaphylactic reaction.
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Department of Education (sponsor)
American Academy of Pediatrics, California District
California Association of Physician Groups
California Association of School Business Officials
California Association of Suburban School Districts
California County Superintendents Educational Services
Association
California Medical Association
California School Boards Association
Children's Specialty Care Coalition
Democrats for Education Reform
Developmental Disabilities Area Board 10
Disability Rights California
Epilepsy California
Epilepsy Foundation
Health Officers Association of California
Humboldt County Office of Education
Kern County Superintendent of Schools
Los Angeles County Board of Supervisors
Los Angeles County Office of Education
Los Angeles Unified School District
Orange Unified School District
Riverside County School Superintendents' Association
Riverside Unified School District
Saddleback Valley Unified School District
San Bernardino County District Advocates for Better Schools
San Francisco Unified School District
Small School Districts' Association
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Torrance Unified School District
Numerous individuals
Opposition
American Federation of State, County and Municipal Employees
American Nurses Association-California
California Association for Nurse Practitioners
California Federation of Teachers
California Labor Federation
California Nurses Association
California School Employees Association, AFL-CIO
California School Nurses Organization
California Teachers Association
Laborers International Union of North America, Local 777
SEIU California
Service Employees International Union-Nurses Alliance of
California
United Nurses Association of CA-Union of Health Care
Professionals
United Teachers Los Angeles
Numerous individuals
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301