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); SB 161 Page 2 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 SB 161 Page 3 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 SB 161 Page 4 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. SB 161 Page 5 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 SB 161 Page 6 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 SB 161 Page 7 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 SB 161 Page 8 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 SB 161 Page 9 (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 SB 161 Page 10 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 SB 161 Page 11 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." SB 161 Page 12 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 SB 161 Page 13 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. SB 161 Page 14 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 SB 161 Page 15 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