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