BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  SB 161
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          Date of Hearing:   July 6, 2011

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Julia Brownley, Chair
                      SB 161 (Huff) - As Amended:  May 31, 2011
          
          ›Note: 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 








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            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 








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               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 








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               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:








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             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 








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               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 








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            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 








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          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 








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          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 








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          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.








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          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 








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          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








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          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