BILL ANALYSIS Ó
SB 161
Page 1
Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
SB 161 (Huff) - As Amended: May 31, 2011
ÝNote: This bill was double referred from the Assembly Business,
Professions and Consumer Protections Committee and was heard as
it relates to issues under its jurisdiction.]
SENATE VOTE : 32-4
SUBJECT : Schools: emergency medical assistance: administration
of epilepsy medication.
SUMMARY : Authorizes school districts to train non-medical
school employees who volunteer, to administer emergency
antiseizure medication to students with epilepsy. Specifically,
this bill :
1)Specifies that it is the intent of the Legislature that,
whenever possible, an emergency antiseizure medication should
be administered by a school nurse or licensed vocational nurse
who has been trained in its administration; and, 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)
website, as specified, and performance instructions set forth
by the student's licensed health care provider; and, specifies
that a school employee who does not volunteer or who has not
been trained shall not be required to provide emergency
medical assistance.
3)Allows the parent or guardian of a student with epilepsy, who
has been prescribed an emergency antiseizure 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 antiseizure
medication in the event that the student suffers a seizure
SB 161
Page 2
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;
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)Authorizes 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)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 or guardian does not choose to have
the student assessed for a Section 504 plan; and, specifies
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 to ensure
that:
a) A volunteer receives training from a licensed health
care professional regarding the administration of an
emergency antiseizure medication. Specifies that 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 there is a student 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 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
rescind his or her offer to administer an emergency
SB 161
Page 3
antiseizure medication up to three days after the
completion of the training; and, specifies that 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
student, whichever is less.
d) Volunteers are solicited exclusively via an electronic
notice to all staff that states the following information
in bold print:
i) A description of the volunteer request, stating that
the request is for volunteers to administer an emergency
antiseizure medication to a student experiencing a severe
epileptic seizure, in the absence of a school nurse, and
that this emergency antiseizure medication is a Food and
Drug Administration (FDA)-approved, pre-dosed, rectally
administered gel that reduces the severity of epileptic
seizures;
ii) A description of the training that the volunteer
will receive, as specified;
iii) A description of the voluntary nature of the
volunteer program, as specified; and,
iv) The volunteer rescission timelines, as specified.
7)Specifies that an employee who volunteers pursuant to this
bill 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.
8)Requires a school that elects to participate 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. Specifies this
information shall be reduced to writing, provided to the
volunteer, and retained in the volunteer's personnel file.
9)Requires a school, if there are no volunteers, to re-notify a
student's parent or guardian of the option to be assessed for
services and accommodations guaranteed under Section 504.
10)Requires a school that elects to participate 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
SB 161
Page 4
administration of an emergency antiseizure medication and
could be available to respond to an emergency need to
administer an emergency antiseizure medication. Specifies
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 antiseizure medication;
c) Written authorization from the parent or guardian for a
nonmedical school employee to administer an emergency
antiseizure medication;
d) The requirement that the parent or guardian notify the
school if the student has had an emergency antiseizure
medication administered within the past four hours on a
school day;
e) Notification of the parent or guardian that an emergency
antiseizure 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.
11)Requires a school that 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 student requires a
volunteer to work beyond his or her normally scheduled hours.
12)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; specifies the guidelines may be developed in
cooperation with interested organizations; and, requires, upon
development of the guidelines, CDE to approve the guidelines
for distribution and make those guidelines available upon
request.
13)Requires CDE to include on its Web site a clearinghouse for
best practices in training non-medical personnel to administer
an emergency antiseizure medication to students. Specifies
that training shall include, but not be limited to:
SB 161
Page 5
a) Recognition and treatment of different types of
seizures;
b) Administration of an emergency antiseizure 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.
14)Requires the school to retain any written materials used in
the training; and, 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; or,
e) A certificated public health nurse.
15)Specifies that training provided in accordance with the
manufacturer's instructions, the student's health care
provider's instructions, and guidelines established pursuant
to this bill shall be deemed adequate training.
16)Requires a school employee to notify the credentialed school
nurse assigned to the school district if he or she administers
an emergency antiseizure medication; specifies that 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; and, requires
a school to retain all records relating to the administration
of an emergency antiseizure medication while a student is
under the supervision of school staff.
17)Requires the student's parent or guardian to provide all
materials necessary to administer an emergency antiseizure
medication, including the statement from the student's health
practitioner, as specified; and, prohibits a school from being
responsible for providing any of the necessary materials.
18)Provides the following definitions:
a) An "emergency antiseizure medication" means diazepam
rectal gel (Diastat) and emergency medications approved by
the FDA for patients with epilepsy for the management of
seizures by persons without the medical credentials; and,
b) "Emergency medical assistance" means the administration
of an emergency antiseizure medication to a student
SB 161
Page 6
suffering from an epileptic seizure.
19)Makes Legislative findings and declarations related to the
importance of having immediate access to emergency antiseizure
medication for students who suffer from epilepsy, as
specified.
20)Sunsets the provisions of the bill on January 1, 2017.
EXISTING LAW :
1)Authorizes non-medical school personnel to administer
medication to a pupil in an emergency , after receiving
specified training:
a) Emergency epinephrine auto-injectors. (Education Code
49414)
b) In the absence of a credentialed school nurse or other
licensed nurse onsite at the school, emergency glucagon may
be administered to pupils with diabetes suffering from
severe hypoglycemia. (Education Code 49414.5)
2)Authorizes non-medical school personnel to assist or
administer medication to a pupil on a routine basis, not an
emergency :
a) Pupils may be assisted in the administration of
prescribed medication, or in the self-administration of
prescription auto-injectable epinephrine. (Education Code
49423)
b) Pupils may be assisted in administration of prescribed
medication, or in the self-administration of prescription
inhaled asthma medication. (Education Code 49423.1)
c) 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,
Section 600)
3)Specifies in the Nursing Practice Act the scope of practice
for nursing, which specifically includes the administration of
medication, and prohibits any person from engaging in the
SB 161
Page 7
practice of nursing without a license. (Business &
Professions Code 2725 and 2732)
FISCAL EFFECT : According to the Senate Appropriations
Committee, potentially significant one-time costs for the
California Department of Public Health (DPH) guidelines. Likely
minor one-time costs for the California Department of Education
(CDE) consultation with the DPH on the guidelines. Minor and
absorbable costs for information to be provided on CDE's
website.
COMMENTS : This bill was double referred from the Assembly
Business & Professions Committee and was heard as it relates to
issues under its jurisdiction.
This bill authorizes non-medical school employees to administer
emergency epilepsy medication (Diastat). Existing law is silent
with regard to the administration of epilepsy medication,
however, recent legal events regarding the administration of
insulin present similar issues and concerns.
Lawsuit regarding 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).
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
SB 161
Page 8
instruction. 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 be
authorized and would supersede the Nursing Practices Act.
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. In addition to liability based on making an error
during the administration of Diastat, concerns have also been
raised regarding whether employees who volunteer to administer
Diastat could also be held liable for failure to act in an
emergency.
This bill specifies that a school that authorizes non-medical
school employees to administer Diastat shall ensure that the
employee will be provided defense and indemnification by the
school. 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. The
committee should consider whether the bill as drafted
sufficiently protects employees.
Nurse to Student Ratios : There has been a long standing
shortage of school nurses in California. Many of California
students do not have regular access to a school nurse.
California's current nurse-to-student ratio is approximately
1:2,200. According to CDE, 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. The National
Association of School Nurses that recommends guidelines of 1:750
SB 161
Page 9
for students in general population; 1:225 in the student
population that may require daily professional school nursing
services or intervention; and, 1:125 in student population with
complex health care needs. The National Association of School
Nurses recommends that school districts should provide a
full-time professionally prepared Registered Nurse (RN) all day,
every day in each building. Also recommended is additional
school nurse staff to accommodate other student health needs
including, but not limited to, special education evaluations,
nursing services included in IEPs, nursing services for students
with 504 Plans, and schools with large populations and large
numbers of students with mental or social concerns.
While the state's current fiscal crisis plays a role in the
number of school nurses available to students, the number of
nurses seeking a credential to become a school nurse is also a
factor. On average, 247 School Nurse credentials were granted
annually between 2002 and 2009. As seen in the table below,
however, the number decreased 35% between 2002 and 2004 (272 to
176, respectively) and then increased 83% between 2004 and 2008
to 322. Despite the increase over the past four years, the
numbers declined between 2008 and 2009 by 28%.
Number of Preliminary & Clear Credentials Issued for School
Nurses
-----------------------------------------------------------------------------------------------------------
| | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | 2009 |
| | | | | | | | | |
|-----------+-----------+-----------+-----------+-----------+-----------+-----------+-----------+-----------|
|Totals | 272 | 222 | 176 | 220 | 247 | 284 | 322 |231 |
-----------------------------------------------------------------------------------------------------------
Source: Commission on Teacher Credentialing (CTC)
Credentialed School Nursing Requirements . Under current law a
school nurse is required to have a Bachelor of Science (BS) in
nursing, be a RN, and hold a school nurse credential. A
preliminary credential is issued for five years and an
individual qualifies for a clear credential after successfully
completely two years of service as a school nurse and by
completing a commission approved school nurse program.
According to the author, school nursing certificates require an
additional 15-30 units of education above a BS. New
requirements from the CTC make the school nursing credential
standards based, thereby allowing schools the ability to offer
SB 161
Page 10
the credential in a variety of units.
Employee Coercion . Concerns have been raised that school
employees will feel pressured to volunteer by their supervisors.
This bill specifies that the district may only solicit
volunteers through an electronic communication and cannot
approach employees directly. The committee should consider
whether this provision will sufficiently protect employees from
coercion.
Who will do the training ? Concerns have been raised about who
will provide training to volunteers. According the California
Nurses Association, nurses are prohibited from providing
training to non-medical personnel. If nurses provide such
training, they could be in jeopardy of losing their license.
The committee should consider whether it is appropriate for
nurses to provide such training, or whether another medical
professional might be more appropriate. The committee should
also note that under existing Education Code, nurses currently
provide training to nonmedical personnel to administer glucagon
and epinephrine auto-injectors.
Committee Amendments : Staff recommends the following amendments
to clarify and strengthen the author's intent:
1)Clarify that school districts are authorized, not required to
participate in this program to allow non-medical personnel to
administer Diastat; and, clarify that if a district chooses to
participate in this program, the district shall provide
training to non-medical personnel that is aligned to the DPH
and CDE adopted training policy.
2)Specify that before a school district chooses to participate
in this program and seek a nonmedical employee volunteer, a
school district is first authorized to hire a RN, a licensed
vocational nurse (LVN), or a physician's assistant (PA), who
would be under the supervision of a RN (at either the district
level or county office level) to administer Diastat. If a RN,
LVN, PA or certificated school nurse is not available, the
parent is then required to seek a volunteer that may be
familiar to the child, such as a parent volunteer, a friend or
sibling at the schoolsite. If a parent volunteer, a friend or
sibling is not available, the parents may then request that
the district choose to participate in this program. If the
district chooses to participate in the program, the district
may solicit nonmedical employee volunteers at that time, as
prescribed in the bill.
SB 161
Page 11
3)Specify that a school administrator (someone other than the
employee administering Diastat) is responsible for making the
required follow up phone calls, such as contacting the
student's parents, the school nurse and/or the superintendent,
and a required call to 911 emergency services.
4)Clarify that a school administrator may only communicate once
to school employees via electronic means.
5)Clarify that employee volunteers shall be provided defense and
indemnification by the school district for both civil and
criminal liability.
6)Clarify that references in the bill to a 504 Plan should also
include a reference to the federal Individuals with
Disabilities Education Act (IDEA) and IEP's.
7)Clarify intent language to align it to the requirements in the
bill regarding training.
8)Specify that if an employee must work beyond their normally
scheduled hours, the school district shall compensate that
employee according to existing wage and overtime requirements.
9)Require CDE to develop guidelines for training and supervision
of employees in providing emergency medical assistance to
pupils, in consultation with DPH.
Arguments in Support : Supporters argue that those who are
willing and able should be allowed to administer Diastat as a
potentially life-saving treatment. In a trial of pediatric
patients with prolonged seizures, diazepam rectal gel
effectively stopped 85% of seizures within 5 minutes of
administration. Nothing in the bill requires any staff member
to perform this function. Nothing in the bill requires parents
to make the request for such services. Nothing in the bill
suggests emergency medical aid should not concurrently be
summoned. Existing laws and new protections in this bill
prevent employees from being coerced into performing volunteer
tasks and we are not asking anyone who would feel uncomfortable
to step forward.
Arguments in Opposition : Opponents argue that the law requires
that insulin be administered by competent health professionals,
such as RNs, LVNs and others for whom administering insulin to
children in school is within their existing scope of practice.
We believe you have the responsibility to ensure the safety of
our children and not to seek to weaken safety measures or
advocate for a lesser standard of care than what is both needed
and deserved. Therefore it is imperative that schools, at the
SB 161
Page 12
very minimum, maintain existing legal standards. We strongly
support 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.
Previous Legislation : SB 1051 (Huff) from 2010, which was held
on the Senate Appropriations Committee's suspense file, was
substantially similar to this bill.
AB 1802 (Hall) from 2010, which failed passage in the Assembly
Business and Professions Committee, would have authorized a
parent of a pupil with diabetes to designate a school employee
to administer insulin to the pupil under specified conditions.
AB 2454 (Torlakson) from 2010, which was held in the Assembly
Appropriations Committee, would have required commencing July 1,
2020, school districts to employ one nurse for every 750 pupils
enrolled in the district; and, authorizes school districts to
bill a pupil's health insurer for the cost of health care
services provided to pupils.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of School Business Officials
California Association of Suburban School Districts
California School Boards Association
Children's Specialty Care Coalition
Democrats for Education Reform
Developmental Disabilities Area Board 10
Disability Rights California
Epilepsy California
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 County Department of Education
Orange County Department of Education
Orange Unified School District Legislative Coalition
Riverside County School Superintendents' Association
Riverside Unified School District
SB 161
Page 13
Saddleback Valley Unified School District
San Bernardino County District Advocates for Better Schools
San Francisco Unified School District
Small School Districts' Association
Torrance Unified School District
Several Individuals
Opposition
American Nurses Association - California
California Federation of Teachers
California Labor Federation
California Nurses Association
California School Employees Association
California Teachers Association
LIUNA Local 777
Service Employees International Union - Nurses Alliance of
California
United Nurses Association of California - Union of Health Care
Professionals
United Teachers Los Angeles
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087