BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 161
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           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                 
           
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          |Ayes:|Bill Berryhill, Allen,    |Ayes:|Brownley, Norby,          |
          |     |Butler, Hagman, Hill, Ma, |     |Buchanan, Butler, Beth    |
          |     |Smyth                     |     |Gaines, Wagner            |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Hayashi                   |Nays:|Ammiano, Carter, Eng      |
          |     |                          |     |                          |
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           APPROPRIATIONS                    11-2                          
           
           ----------------------------------------------------------------- 
          |Ayes:|Fuentes, Harkey, Charles  |     |                          |
          |     |Calderon, Davis,          |     |                          |
          |     |Donnelly, Gatto, Hill,    |     |                          |
          |     |Mitchell, Nielsen, Norby, |     |                          |
          |     |Wagner                    |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Bradford, Solorio         |     |                          |
          |     |                          |     |                          |
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           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 








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            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 








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            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 








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            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.









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          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 








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            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:








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             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 








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          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.









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          "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



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