BILL ANALYSIS Ó
SB 161
Page 1
CORRECTED : 08/30/2011
SENATE THIRD READING
SB 161 (Huff)
As Amended August 26, 2011
Majority vote
SENATE VOTE :32-4
BUSINESS & PROFESSIONS 7-1 EDUCATION
6-3
-----------------------------------------------------------------
|Ayes:|Bill Berryhill, Allen, |Ayes:|Brownley, Norby, |
| |Butler, Hagman, Hill, Ma, | |Buchanan, Butler, Beth |
| |Smyth | |Gaines, Wagner |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Hayashi |Nays:|Ammiano, Carter, Eng |
| | | | |
-----------------------------------------------------------------
APPROPRIATIONS 11-2
-----------------------------------------------------------------
|Ayes:|Fuentes, Harkey, Charles | | |
| |Calderon, Davis, | | |
| |Donnelly, Gatto, Hill, | | |
| |Mitchell, Nielsen, Norby, | | |
| |Wagner | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Bradford, Solorio | | |
| | | | |
-----------------------------------------------------------------
SUMMARY : Allows school districts, county offices of education
(COE), or charter schools to participate in a program to train
nonmedical school employees who volunteer to administer
emergency 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 or charter
school, a school district, COE or charter school may elect to
participate in a program to allow nonmedical employees to
SB 161
Page 2
volunteer to provide medical assistance to students with
epilepsy suffering from seizures, upon request by a parent or
guardian. If the school district, COE or charter school
elects to participate in such a program, the school, COE or
charter school shall provide school employees who volunteer
with voluntary emergency medical training that is consistent
with training guidelines established by this bill.
2)Requires a school employee with the training specified above
to provide emergency medical assistance using guidelines
approved on the California Department of Education's (CDE)
Internet Web site, 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 or charter school must:
a) Notify the parent or guardian that his or her child may
qualify for services or accommodations under a Section 504
plan or an individualized education program (IEP), pursuant
to Section 504 of the federal Rehabilitation Act of 1973
(Section 504) and the federal Individuals with Disabilities
Education Act (IDEA);
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 or charter school to ask the parent or
guardian to sign a notice verifying that the parent or
guardian was given information about Section 504 and IDEA, and
that the parent or guardian understands that it is his or her
SB 161
Page 3
right to request a Section 504 plan or an IEP at any time.
5)Allows a school or charter 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
or an IEP. The plan may include the involvement of trained
volunteer school employees or a licensed vocational nurse.
6)Requires a school district, COE or charter school that trains
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 charter school or an employee of the school
district or COE or charter school administrator 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
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 or charter school that trains employees
SB 161
Page 4
pursuant to this bill to solicit volunteers exclusively via an
electronic notice no more than twice per school year per child
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 district, COE or charter school
and documentation of completion is recorded in his or her
personnel file.
9)Requires a school district, COE or charter school that elects
to participate pursuant to this bill to ensure that each
employee who volunteers will be provided defense and
indemnification by the school district, COE or charter school
for any and all civil liability, in accordance with, but not
limited to, 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 or charter 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 and IDEA.
SB 161
Page 5
11)Requires a school district, COE or charter school that elects
to participate pursuant to this bill to have a school
district, COE or charter 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
district or charter school shall consult with the COE 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 or charter 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 by the school or
charter school administrator or, if the administrator is
not available, by another school staff member 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 or guardian and the school nurse
must be contacted by the school or charter school
administrator or, if the administrator is not available, by
another school staff member following a seizure to continue
the observation protocol.
12)Requires a school district, COE or charter school that elects
to allow volunteers to administer an emergency anti-seizure
SB 161
Page 6
medication to compensate a volunteer, in accordance with that
employee volunteer's pay scale pursuant to current law
governing overtime pay for classified employees, 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.
13)Requires CDE, in consultation with the State Department of
Public Health (DPH), to develop guidelines for the training
and supervision of school and charter school employees in
providing emergency medical assistance to students with
epilepsy suffering from seizures and to post this information
on CDE's Internet Web site by July 1, 2012, as specified.
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, as specified. Training must include specified
components and must be conducted by a physician and surgeon, a
physician assistant, a credentialed school nurse, a registered
nurse, and/or, a certificated public health nurse.
15)Requires notification to the credentialed school nurse
assigned to the school district, COE or charter school if an
employee at the school site administers an emergency
anti-seizure medication pursuant to this bill. If a
credentialed school nurse is not assigned, notification must
be provided to the superintendent of the school district, the
county superintendent of schools, or the charter school
administrator, as specified.
16)Requires a school or charter 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.
17)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 or charter school shall
not be responsible for providing any of the necessary
materials.
18)Provides the following definitions:
SB 161
Page 7
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 14)
above; and,
b) "Emergency medical assistance" means the administration
of an emergency anti-seizure medication to a student
suffering from an epileptic seizure.
19)Sunsets January 1, 2017.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)General Fund/Proposition 98 (GF/98) cost pressure, of
approximately $10 million, to school districts, county offices
of education (COEs), and charter schools to implement this
measure.
This cost is associated with conducting training, developing
an individualized health plan and school district plan, and
record keeping. These are not state reimbursable mandated
costs because the provisions of this bill are not required by
school districts, COEs, or charter schools. A parent/guardian
may request nonmedical personnel administer the antiseizure
medication, as specified.
2)One-time GF administrative costs, likely between $150,000 and
$250,000, to the CDE to develop guidelines and establish a
best practices clearinghouse, as specified in this measure.
COMMENTS : More than 90,000 children in California have
epilepsy, a common symptom of which is seizures. Diastat is a
trademark administration system of diazepam (valium) and is the
only FDA-approved, at-home medication for the treatment of acute
repetitive seizures, or "cluster" seizures. Diastat, a
rectally-administered gel, was specifically developed to be
administered by people without medical training and is
considered the fastest, safest and most effective way to treat
epileptic seizures.
Many seizure patients, despite maintenance medication,
experience breakthrough seizures. Up to 35% of patients on
SB 161
Page 8
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.
Two federal anti-discrimination statutes, Section 504 and Title
II of the ADA, establish rights for eligible students with
disabilities in California's public schools. 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. Section
504 requires school districts to provide a free appropriate
public education to each qualified student, regardless of the
nature or severity of the disability.
A 504 plan differs from an 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 Nursing Practice Act (NPA) specifies that medication
administration is a nursing function that cannot be performed by
unlicensed (non-medical) personnel unless expressly authorized
by statute. However, 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 Board of Registered Nursing 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.
SB 161
Page 9
"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."
California's nurse-to-student ratio is approximately 1:2,200.
According to the California Basic Educational Data System, about
one-half of school districts do not have a school nurse.
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301
FN: 0002281