BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
Gloria Romero, Chair
2009-2010 Regular Session
BILL NO: SB 1051
AUTHOR: Huff
AMENDED: As Proposed to be Amended
FISCAL COMM: Yes HEARING DATE: April 14, 2010
URGENCY: No CONSULTANT:Lynn Lorber
NOTE : This bill was heard by this Committee on March 24,
2010 but no vote was taken. The author has since offered
amendments that have not been incorporated into this bill.
This analysis reflects the author's amendments, which are in
italics in the Analysis section.
NOTE : This bill has been referred to the Committees on
Education and Health.
A "do pass" motion should include referral to the Committee
on Health.
SUBJECT : Emergency Medical Assistance: administration of
diastat.
KEY POLICY ISSUES
Should non-medical school employees who receive voluntary
emergency medical training, administer prescribed medication
to a pupil suffering an epileptic seizure?
Should the Education Code be amended to supersede the Nursing
Practices Act to allow people other than licensed nurses to
administer medication?
Does the health and safety of pupils experiencing a medical
emergency outweigh the need to have a licensed nurse
administer medication?
SUMMARY
This bill authorizes school districts to provide school
employees with voluntary emergency medical training to
provide emergency medical assistance to pupils with epilepsy
suffering from seizures.
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BACKGROUND
Current law authorizes non-medical school personnel to
administer medication to a pupil in an emergency , after
receiving specified training:
Emergency epinephrine auto-injectors. A prescription
for an auto-injector for a specific pupil is not
required; the prescription is for the school.
(Education Code 49414)
In the absence of a credentialed school nurse or other
licensed nurse onsite at the school, glucagon may be
administered to pupils with diabetes suffering from
severe hypoglycemia. The pupil must have a prescription
for insulin. (EC 49414.5)
Current law authorizes non-medical school personnel to assist
or administer medication to a pupil on a routine basis (not
an emergency):
Pupils may be assisted in the administration of
prescribed medication, or in the self-administration of
prescription auto-injectable epinephrine.
(EC 49423)
Pupils may be assisted in administration of prescribed
medication, or in the self-administration of
prescription inhaled asthma medication.
(EC 49423.1)
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, 600)
The Nursing Practice Act sets forth the scope of practice for
nursing, which specifically includes the administration of
medication, and prohibits any person from engaging in the
practice of nursing without a license. (Business &
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Professions Code 2725 and 2732)
The 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). The current decision negates CDE regulations that
allow a trained but unlicensed non-medical school employee to
administer insulin, thereby reinstating the existing
California Nursing Practice Act as the presiding statute.
The practical effect is that pupils will have to
self-administer, a parent or parent-designee (not school
personnel) may administer, or a licensed nurse or physician
may administer insulin to pupils. However, the American
Nurses Assoc. decision has been appealed and a stay was
granted, 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) while the
Nursing Practices Act continues to prohibit the same (nothing
in statute specifically allows anyone other than licensed
nurses to administer insulin).
ANALYSIS
This bill authorizes school districts to provide school
employees with voluntary emergency medical training to
provide emergency medical assistance to pupils with epilepsy
suffering from seizures. Specifically, this bill:
1) Authorizes a school district, in the absence of a
credentialed school nurse or other licensed nurse onsite
at the school, to provide school employees with
voluntary emergency medical training to provide
emergency medical assistance to pupils with epilepsy
suffering from seizures.
2) Requires a school employee with voluntary emergency
medical training to provide this emergency medical
assistance in accordance with yet-to-be-
established standards, and the performance instructions
of the licensed health care provider of the pupil.
3) Prohibits a school employee from being required to
provide emergency medical assistance unless that
employee volunteers and has been trained pursuant to
this bill.
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4) Authorizes a parent of a pupil with epilepsy who has
been prescribed diastat by a health care provider to
request that one or more school employees be trained to
administer diastat in the event of a seizure when a
nurse is not available.
5) Requires a school that chooses to train school personnel
to distribute an electronic notice to all staff
regarding the request by a parent that school staff be
trained to administer diastat. This bill requires the
notice to state:
a) The request is that volunteers administer
diastat, in the absence of a school nurse, to a
pupil experiencing a severe epileptic seizure.
b) Diastat is pre-dosed, rectally administered
gel that reduces the severity of epileptic seizures
and is approved by the Food and Drug
Administration.
c) A volunteer will receive training from a
licensed health professional regarding the
administration of diastat.
d) Any agreement by the employee to administer
diastat is voluntary and no employee of the school
or district shall directly or indirectly use of
attempt to use their authority or influence to, or
attempt to, intimidate, threaten, or coerce any
school employee who does not choose to volunteer.
e) A volunteer is protected from civil and
criminal liability.
6) Requires a school that chooses to train employees to
administer diastat to have in place a plan which shall
include, but not be limited to:
a) Written authorization from the parent for
non-medical school staff to administer diastat.
b) The requirement that the parent notify the
school anytime diastat has been administered to the
pupil within the prior four hours.
c) Notification to the parent any time school
staff administers diastat.
d) A written statement from the pupil's health
care practitioner, which shall include but not be
limited to:
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i) The name of the pupil.
ii) The name and purpose of the
medication.
iii) The dosage prescribed for the pupil.
iv) The length of time the seizure can
continue before diastat must be administered.
v) The route of administration.
vi) The frequency that the medication
may be administered.
vii) The circumstances under which the
medication may be administered.
viii) Any potential adverse response the
pupil may experience, and recommended
mitigation including when to call 911.
ix) Protocol for observing the pupil
after the administration of diastat, including
but not limited to, whether the pupil should
rest in the school office, may return to
class, and the length of time the pupil needs
direct observation.
7) Encourages the Epilepsy Foundation of America to develop
performance standards for the training and supervision
of school employees. This bill authorizes the standards
to be developed in cooperation with the State Department
of Education, the California School Nurses Organization,
the California Medical Association, and the American
Academy of Pediatrics.
8) Requires the Department of Public Health, upon
development of the standards, to approve the standards
for distribution and make those standards available upon
request.
9) Requires training to include, but not be limited to, all
of the following:
a) Recognition and treatment of different types
of seizures.
b) Administration of diastat.
c) Basic emergency follow-up procedures
including, but not limited to,
calling 911 and contacting the pupil's parent.
d) Techniques and procedures to assure the
privacy of the pupil receiving diastat.
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10) Deems training by one or more of the following in
accordance with the performance standards as adequate
training:
a) A physician and surgeon.
b) Credentialed school nurse, registered nurse,
or certificated public
health nurse.
c) A representative from an epilepsy volunteer
agency.
11) Requires a school employee to notify the credentialed
school nurse assigned to the school district if he or
she administers diastat to a pupil. This bill requires
the school employee to notify the superintendent of the
school district if a credentialed school nurse is not
assigned to the school district.
12) Requires the school to retain all records related to the
administration of diastat by school personnel.
13) Requires all materials necessary to administer the
diastat to be provided by the pupil's parent or
guardian.
14) Defines "diastat" as diazepam rectal gel, marketed as
Diastat AcuDial, approved by the federal Food and Drug
Administration for patients with epilepsy for the
management of seizures.
15) Declares that a school employee who is trained to
administer and who, acting in good faith, administers
diastat is immune from criminal or civil
liability for perceived or real physical or emotional
injuries resulting from his or her acts or omissions in
administering the diastat.
16) Declares that a volunteer school employee who has
received training and who acts in good faith while
administering diastat is immune from criminal or civil
liability for charges of sexual molestation.
17) States legislative intent, among other things, that
children suffering from seizures due to epilepsy have
the right to appropriate programs and services that are
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designed to meet their unique needs. This bill further
states legislative intent that nurses be authorized to
train and supervise school employees to administer
diastat to children with epilepsy in the public schools.
18) Sunsets the provisions of this bill after five years.
STAFF COMMENTS
1) Need for the bill : According to the author, "some
children with epilepsy are susceptible to prolonged
seizures and require access to a life-saving emergency
medication. Diastat AcuDial, a pre-dosed preparation of
diazepam gel, is the standard out-of-hospital treatment
for prolonged seizures. Diastat is a FDA-approved
emergency medication and is a safe and effective
treatment, specifically designed to be administered by
people without medical training. Some schools are
telling parents they must be available to come to the
school to administer Diastat (the drug must be
administered in about 5 minutes) or are calling 911 in
an emergency. Either of these solutions results in
delays in treatment that places the child in danger of
serious injury, or worse."
2) Workgroup meeting . Subsequent to the March 24 hearing
of this bill, staff convened a working group of
stakeholders to discuss a possible compromise on the
provisions of this bill. No compromise could be reached
by this group. The author's amendments listed in this
analysis do not reflect any agreement amongst the
various stakeholders.
3) Major policy questions . This bill raises a number of
issues for the committee's consideration:
a) Is it appropriate for non-medical school
personnel to administer medication? Will the
training standards to be developed by the Epilepsy
Foundation be sufficient to ensure the safety of
pupils in all situations? Is diastat too dangerous
to be administered by school employees? Will
school employees know what kind of seizure the
pupil is experiencing, and when it is appropriate
to administer diastat?
b) Particularly in this era of budget and staff
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reductions, will school employees feel pressured
into volunteering to be trained and to administer
diastat in order to keep their jobs?
c) If this bill is not enacted, what happens to
children experiencing a medical emergency? About
one-half of school districts do not have a nurse.
Currently, many schools call the parents of the
pupil and/or 911. In those situations, pupils must
wait to receive their prescribed medication.
Pursuant to this bill, diastat could be
administered within minutes of the onset of the
seizure.
d) While this bill declares that employees who
have been trained and act in good faith are immune
from criminal or civil liability, it is unclear
whether schools and employees would really be
immune from lawsuits.
e) Does a medical emergency at a school without a
nurse outweigh the need to have a licensed nurse
administer diastat?
4) How many schools have a nurse ? California's
nurse-to-pupil ratio is approximately 1:2,200.
According to the California Basic Educational Data
System (CBEDS), 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.
5) School staff currently administering medication . No
data is maintained as to the number of school districts
that choose to allow staff to receive training to
administer, or assist with the administration of,
medication to pupils.
6) Who trains school staff ? School districts that choose
to allow staff to receive training decide who will
provide this training. Current law relative to
epinephrine states that training may be provided by the
school nurse or other qualified person designated by the
school district physician, the medical director of the
local health department, or the local emergency medical
services director. Current law relative to insulin
states that training may be provided by a physician,
credentialed school nurse, registered nurse, or
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certificated public health nurse.
7) Diastat . Diastat is a prescribed emergency medication
that is administered rectally. Issues that may be
better addressed in the Senate Health Committee include
whether diastat is too dangerous for school employees to
administer, the possibility that training needs to
include CPR, how to tell the difference between cluster
and ordinary seizures, awareness of any recent
administration of diastat to the pupil, and how long the
pupil should be observed after administration of
diastat.
8) Related and prior legislation:
AB 1802 (Hall, 2010) authorizes a parent of a
pupil with diabetes to
designate a school employee to administer insulin
to the pupil under specified conditions. AB 1802
is awaiting action in the Assembly Business and
Professions Committee.
AB 426 (Hall, 2009) would have required the
Department of
Education, in consultation with specified entities,
to recommend to the Legislature ways to address
specific health-related needs of pupils on school
campuses, including but not limited to, diabetes,
asthma and obesity-related diseases. AB 426 was
never heard.
AB 1430 (Swanson, 2009) would have provided
that only a
credentialed school nurse may administer medication
to pupils, but did specifically allow non-medical
school personnel to administer epinephrine via
auto-injector and insulin in cases of an emergency.
AB 1430 was never heard.
1) Policy arguments :
According to the proponents, diastat is a safe
product to use with
predetermined dosing, requiring no medical
intervention, and its use can help prevent more
serious and life-threatening events from occurring.
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There have been multiple situations in California
where pupils who are prescribed diastat have been
denied access to school or school-related
activities, or have incurred unnecessary medical
risks because educators and child care service
providers refuse to make the medications readily
available onsite.
According to the opponents, diastat is a
serious medication that has to
be administered in a very difficult way. Injecting
a child who is in the middle of a seizure is a
challenging thing to do, even for licensed medical
professionals. School employees will face coercion
and retaliation; when classified employees are
asked to perform a duty by their employer, they do
not consider it voluntary.
SUPPORT (registered for the March 22 version of this bill)
Association of California Neurologists
California Association of Joint Powers Authorities
California Association of School Business Officials
California Association of Suburban School Districts
California Medical Association
California NeuroAlliance
Cedars-Sinai Medical Center, Epilepsy Monitoring Unit
Disability Rights Education and Defense Fund
Epilepsy California
Epilepsy Foundation
Five Star Education Coalition
Greater Anaheim Special Education Local Plan Area
Health Officers Association of California
Humboldt County Office of Education
Kern County Superintendent of Schools
Los Angeles County Office of Education
Lowell Joint School District
Newport-Mesa Unified School District
Orange County Department of Education
Riverside County Schools Advocacy Association
Riverside Unified School District
Small School Districts' Association
Sonoma County Office of Education
White Memorial Pediatric Medical Group
University of California, Los Angeles, Seizure Disorder
Center and Neurological Services Clinic
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University of Southern California, Keck School of Medicine,
Comprehensive Epilepsy Program
Numerous individuals
OPPOSITION (registered for the March 22 version of this
bill)
American Nurses Association of 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
Fall River Joint Unified School District, school nurse
Garvey Education Association
Laborers' International Union of North America, Local 777
Lake Elsinore Unified School District, Health Services
Modesto City Schools, Sonoma Elementary School staff
Oakdale Joint Unified School District, Office of Health
Services
Rialto Unified School District, Health Services
Service Employees International Union-Nurses Alliance of
California
Sweetwater Union High School District, Student Health
Services
Twin Rivers Unified School District, school nurse
United Nurses Association of CA-Union of Health Care
Professionals
Numerous individuals