BILL ANALYSIS
AB 1802
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
AB 1802 (Hall) - As Amended: March 17, 2010
SUBJECT : Pupil health: diabetes: insulin injections.
SUMMARY : Permits a parent or guardian to designate a school
employee (PDSE) to administer insulin during school, as
specified. Specifically, this bill :
1)States that, regardless of the Nursing Practice Act or any
other provision of law, a parent or guardian of a pupil with
diabetes who attends that school may designate one or more
school employees for the purpose of administering insulin to
the pupil as necessary during the regular schoolday, when a
credentialed school nurse or other licensed health care
professional is not immediately available onsite at the
school.
2)Permits a PDSE to administer insulin only:
a) On a volunteer basis;
b) In accordance with the written orders set forth by the
licensed health care provider of the pupil; and,
c) After receiving appropriate training, as specified.
3)Requires the parent or guardian to file a written statement,
valid for a maximum of one year, including:
a) The names of the PDSEs; and,
b) A statement that those employees have volunteered to
serve as PDSEs and have submitted the letter of intent, as
specified, and acknowledging the immunity from criminal and
civil liability, as specified.
4)Requires the school district to keep a copy of this statement
and a written statement from the physician detailing the name
of the medication, method, amount, and time schedules by which
the medication is to be taken and a written statement from the
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parent, foster parent, or guardian of the pupil indicating the
desire that the school district assist the pupil in the
treatment set forth in the physician's statement.
5)Permits a school employee to serve as a PDSE only if he or she
has been trained in administering insulin by a licensed nurse,
physician, certified diabetes educator, or other health care
professional with expertise in diabetes. A health care
professional employed by the school district who provides
training pursuant to this subdivision shall not be responsible
for the supervision of the PDSE in administering medication to
the pupil.
6)Permits a school district to distribute to all staff members a
written or electronic notice upon receipt of a written request
from the parent or guardian intending to designate school
employees to administer insulin to a pupil, that contains all
of the following information:
a) A statement that the parent or guardian of a child with
diabetes wants to allow PDSEs to administer insulin to the
pupil;
b) A statement that a PDSE will only administer insulin on
a volunteer basis and that the school district will take no
action against any staff member who does not volunteer for
designation;
c) A statement that training will be provided to all PDSEs,
as specified;
d) A statement that PDSEs are protected from liability, as
specified; and,
e) Contact information for those who want to volunteer as a
PDSE.
7)Requires each PDSE to submit a voluntary letter of intent
stating the employee's willingness to serve as a PDSE.
8)Prohibits a school employee from being required or coerced in
any manner to serve as a PDSE. The school district shall take
no disciplinary or retaliatory action against any school
employee whether the employee volunteers to serve as a PDSE or
not.
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9)Requires the parent or guardian of the pupil to provide to the
district all materials necessary to administer insulin.
10)Permits, notwithstanding any other provision of law, a
licensed nurse, physician, certified diabetes instructor, or
other health care professional with expertise in diabetes to
provide training to PDSEs in the administration of insulin.
11)States that this bill is not intended to alter or diminish
the rights of pupils to receive medication at school or to
restrict the persons who may be designated by the school
district to administer that medication under any other
provision of law. Nothing in this bill alters or diminishes
the rights of eligible pupils or the obligations of school
districts under federal law, including the Individuals with
Disabilities Education Act (IDEA) and Americans with
Disabilities Act (ADA). The failure of a parent to designate
a PDSE does not alter the school district's obligation to
administer insulin under those laws.
12)Protects from liability a PDSE who, acting in good faith and
in substantial compliance with the orders of the pupil's
licensed health care professional, administers insulin in his
or her individual or official capacity.
EXISTING LAW :
1)Provides that each pupil who is required to take, during the
regular schoolday, medication prescribed for him or her by a
physician, may be assisted by the school nurse or other
designated school personnel if the school district receives a
written statement from the physician detailing the method,
amount, and time schedules by which the medication is to be
taken and a written statement from the parent or guardian of
the pupil indicating the desire that the school district
assist the pupil in the matters set forth in the physician's
statement.
2)Authorizes, in the absence of a credentialed school nurse or
other licensed nurse, a school district to provide voluntary
emergency medical training to school personnel, as defined, to
administer emergency medical assistance to pupils with
diabetes suffering from severe hypoglycemia, subject to
specified conditions.
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FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author's office, "AB
1802 would clarify existing law by allowing, but not requiring,
a parent or guardian-designated teacher, administrator or school
employee to administer insulin to a diabetic student while on a
school campus. To safely accomplish this goal, the measure
would require parents or guardians to ensure that a volunteer is
properly trained to administer insulin and would provide
important legal protections to volunteers consistent with
existing law.
"AB 1802 will provide needed clarity in the law so that parents
orguardians, health care providers, teachers, administrators and
school employees can work as partners in helping children with
diabetes remain healthy and successful in school."
Background . Two federal anti-discrimination statutes, Section
504 of the Rehabilitation Act of 1973 (Section 504) and ADA,
establish rights for eligible students with diabetes in
California's public schools. Together, they serve to protect
such students from discrimination based upon their disability
including the right to receive a free appropriate public
education (FAPE).
IDEA is the primary federal program that authorizes state and
local aid for special education and related services for
children with disabilities. California's anti-discrimination
statutes prohibit discrimination on the basis of disability
under any program or activity funded directly by the State. It
affords broader coverage than Section 504 because it requires a
"limitation" rather than a "substantial limitation" of a major
life activity.
The primary purpose of the IDEA is "to ensure that all children
with disabilities have available to them a FAPE that emphasizes
special education and related services designed to meet their
unique needs and prepare them for further education, employment,
and independent living." California law sets the same standard
for educating individuals with exceptional needs as the
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reauthorized IDEA.
It is the position of the California Department of Education
(CDE) that the Business and Professions Code and the California
Code of Regulations authorize the following types of persons to
administer insulin in California's public schools pursuant to a
Section 504 Plan or an individual education plan (IEP):
1)Self administration, with authorization of the student's
licensed health care provider and parent/guardian;
2) School nurse or school physician employed by the local
education agency (LEA);
3)Appropriately licensed school employee (i.e., a registered
nurse or a licensed vocational nurse) who is supervised by a
school physician, school nurse, or other appropriate
individual;
4)Contracted registered nurse or licensed vocational nurse from
a private agency or registry, or by contract with a public
health nurse employed by the local county health department;
5)Parent or guardian who so elects;
6)Parent or guardian designee, if parent or guardian so elects,
who shall be a volunteer and who is not an employee of the
local education agency (LEA); and,
7)Unlicensed voluntary school employee with appropriate
training, but only in epidemics or public disasters.
The difficult issue in this area is reconciling state and
federal requirements. The first set of personnel who are
authorized to administer insulin pursuant to a Section 504 Plan
or an IEP are those persons who are expressly so authorized
under California law. The question is what should occur when no
expressly authorized school personnel are available.
In CDE's view, the list cannot be taken as exhaustive because
LEAs must also meet federal requirements, and California does
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not choose to appropriately staff its schools with school
nurses. Thus, CDE's legal advisory asserts that there is a
conflict between federal and state law and, to resolve the
conflict, adds an implicit 8th category of individuals
authorized to administer insulin to eligible students under
specified conditions: "Voluntary school employees who are
unlicensed but who have been adequately trained to administer
insulin pursuant to the student's treating physician's orders as
required by the Section 504 Plan or the IEP."
As a result, some LEAs are training unlicensed school employees
to administer insulin during the school day to a student whose
Section 504 Plan or IEP so requires, in clear violation of state
scope of practice laws.
The California Board of Registered Nursing (BRN) disagrees with
CDE's position that federal law permits the administration of
insulin by unlicensed personnel as specified in category 8.
Administration of medications, including insulin, is a nursing
function that may not be performed by an unlicensed person
unless expressly authorized by statute.
An LEA may not have a blanket policy or general practice that
insulin or glucagon administration, or other diabetes-related
health care services, will only be provided by district
personnel at one school in the district or will always require
removal from the classroom in order to receive diabetes related
health care services. In addition, a school or district may not
require the parent or guardian to waive any rights or agree to
any particular school placement or related services as a
condition of administering medications or assisting a student at
school.
The United States Department of Health and Human Services
(USHHS) suggests a standard ratio of one nurse for 750 students.
California has a ratio of one nurse to 2,700 students. Nearly
half of all school districts have no school nurse at all. To
ensure access to medication despite nursing shortages, some
schools districts have implemented a model known as "School
Board Policy 5141.21," based on the Education Code, allowing
unlicensed individuals to administer insulin.
Opposition to this bill contends that insulin is a dangerous
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medication that must only be administered by licensed medical
personnel. They contend that if insulin is administered
incorrectly, a child's blood sugar level can drop dangerously
low and cause the child to go into a diabetic coma, possibly
resulting in death.
On December 26, 2008, the Sacramento County Superior Court held
that trained unlicensed school personnel may not administer
insulin in the absence of a licensed nurse.
?state statutes do not conflict with, or impede
implementation of the federal requirements for the
administration of insulin by qualified personnel.
Rather, the statutes identify licensed health care
professionals and certain unlicensed persons who are
qualified to administer insulin, ruling out any basis
for federal preemption. To the extent that nursing
shortages and fiscal constraints result in a lack of
qualified personnel to administer insulin to students
in accordance with their IEPs and Section 504 plans,
the Legislature rather than the court must resolve the
matter on the basis of policy choices exclusively
within the Legislature's purview. The court must
enforce the legislative policy choices in the existing
statutes delineating the personnel authorized to
administer insulin and may not rewrite the statutes to
include other school personnel, even if those other
personnel have been adequately trained to administer
insulin and even though evidence presented in this
proceeding indicates that unlicensed persons with
adequate training may safely administer insulin.
The case is now on appeal. A California Court of Appeal has
stayed the trial court's ruling until the appeal is resolved.
Arguments in support . The bill's sponsor, American Diabetes
Association, writes, "Approximately 15,000 California children
have diabetes, many of whom attend public schools.? There are
approximately 2,700 students per one school nurse in California
and 48% of California school districts report they do not have a
single school nurse. Even if a school has a nurse, he or she
likely covers multiple schools and cannot provide adequate
coverage for students with diabetes during the school day,
during before and after school activities, and on field trips.
As a result, schools struggling to meet the needs of their
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students with diabetes often tell parents they must make a
choice between coming to school daily to administer insulin,
which may mean financial hardship if a parent must quit a job,
and lessening their child's diabetes management regimen so he or
she does not require insulin during the school day, a choice
which may cause hyperglycemia which is tied to impaired
cognitive ability, academic performance, and increased risk for
development of diabetes complications.
"Approximately half of U.S. states have recognized that
unlicensed personnel, properly trained, can assist students with
diabetes with insulin administration and other diabetes care
tasks. Too many of our states children with diabetes are losing
out on valuable instruction time and are facing increased risk
for both short and long-term complications of diabetes due to
the current environment in our public schools."
Arguments in opposition . The California Teachers' Association
writes, "Insulin is a dangerous medication that must only be
administered by licensed medical personnel. If you give too
much insulin to a child, the child's blood sugar level can drop
dangerously low and cause the child to go into a diabetic coma.
If insulin is administered incorrectly, it can also result in
the child's death. For these reasons, unlicensed school
employees should not be administering insulin. They are not
medical experts that are appropriately trained and licensed to
administer insulin and to carefully evaluate the child, nor do
they want to be put in a situation where a child could be
injured by something they did.
"The Legislature has already cut $18 billion from education in
the last two budget cycles, and thousands of school staff has
been laid off. Employees are being asked to do more, with less.
Unlicensed staffs are being asked to perform insulin injections
without being relieved of other duties?. We cannot risk further
erosion of our public education system. Our children are
already bearing the brunt of far too many cutbacks. We urge
legislators to avoid placing children in harm's way under
pressure of political expediency. Schools must be properly
staffed so that each child will receive a quality education and
adequate health care."
REGISTERED SUPPORT / OPPOSITION :
Support
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American Diabetes Association (sponsor)
California Academy of Family Physicians
California Academy of Physician Assistants
California Chronic Care Coalition
California Medical Association
California School Boards Association
California State Sheriffs' Association
Carson City Council
Children's Diabetes Foundation of the North Bay, Inc.
Diabetes Coalition of California
Disability Rights California
Disability Rights Education and Defense Fund
Golden State Diabetes Educator Network
Novo Nordisk, Inc.
The San Gabriel Valley Education Coalition
Small School Districts' Association
Yuba-Sutter Children's Type 1 Diabetes Support Group
Numerous individuals
Opposition
American Federation of State, County and Municipal Employees,
AFL-CIO
American Nurses Association California
California Federation of Teachers
California Labor Federation
California Nurses Association
California School Employees Association
California School Nurses Organization
California State PTA
California Teachers Association
Consumer Attorneys of California
Laborers' International Union of North America, 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 : Sarah Weaver / B.,P. & C.P. / (916)
319-3301