Approximately one in 400 school-age children nationwide has diabetes, including about 14,000 in California. Diabetic students who depend on insulin injections typically need them during the school day, both at regularly scheduled times and unpredictably to correct for fluctuations in blood glucose. Public school students with diabetes who cannot self-administer insulin are normally entitled under federal law to have it administered to them during the school day. California has about 2,800 school nurses, averaging one for every 2,200 of the state's approximately 6 million public school students. While five percent of schools have a full-time school nurse, 69 percent have only a part-time nurse, and 26 percent have no nurse at all.
Although some schools allow unlicensed school personnel to administer insulin, others do not. Some of those that do not appear to have taken the position in reliance on advisory statements by the State Department of Education (Department), that the Nursing Practice Act permits only licensed health care providers to administer insulin in schools. Moreover, some nurses have refused to train unlicensed school personnel to administer insulin out of concern for possible disciplinary action by the Board of Registered Nursing. As a result, diabetic students have encountered difficulty in receiving insulin during the school day.
Diabetic students and the American Diabetes Association (Association) filed a class action in federal court alleging the state's schools failed to ensure diabetic students receive legally required health care services. The students alleged that schools had refused to prepare plans for diabetic students, refused to include provisions for diabetes care, refused to permit unlicensed school personnel to administer insulin when no nurse was available, and improperly required that parents or parental designees come to school to administer insulin. Because of these asserted violations of federal law, the students further alleged, some parents were required to forego employment and some students had to adopt insulin regimens that entailed less frequent injections, less effective control of blood glucose levels, and greater risks to their health. Pursuant to an agreement settling that litigation, the Department in 2007 advised local education agencies that voluntary school employees who are not licensed health care providers but who have been adequately trained to administer insulin may, when no nurse is available, administer insulin pursuant to the medical orders of students' treating physicians.
The American Nurses Association and other trade organizations representing registered and school nurses (collectively Nurses) sued the Superintendent of Public Instruction and the Department for declaratory, injunctive, and writ relief arguing that the Department's advice as condoning the unauthorized practice of nursing. The Association defended the Department's advice as intervener. The Sacramento County Superior Court granted the Nurses' petition. The Association and Department appealed, and the Court of Appeals affirmed.
The Supreme Court of California reversed and remanded. The Court held that the Nursing Practice Act did not prohibit school personnel other than licensed health care providers to administer medication, and prior advisory statements which recommended that school personnel other than licensed health care providers not administer medications by injection generally or insulin in particular were not entitled to judicial deference.
The court noted that California law expressly permits trained, unlicensed school personnel to administer prescription medications such as insulin in accordance with the written statements of a student's treating physician and parents and expressly exempts persons who thus carry out physicians' medical orders from laws prohibiting the unauthorized practice of nursing. Through these provisions, state law in effect leaves to each student's physician, with parental consent, the question whether insulin may safely and appropriately be administered by unlicensed school personnel, and reflects the practical reality that most insulin administered outside of hospitals and other clinical settings is in fact administered by laypersons.
The Nursing Practice Act's medical-orders exception permits a layperson to carry out a physician's medical orders for a patient, even orders that would otherwise fall within the definition of nursing practice, without thereby violating the rule against unauthorized practice. The court held that the Nursing Practice Act's medical-orders exception allowed persons to carry out medical orders prescribed by a licensed physician provided, such person shall not in any way assume to practice as a professional, registered, graduate, or trained nurse. The court reasoned that unlicensed school personnel did not hold themselves out to be nurses simply by volunteering to act on behalf of particular students in accordance with the Education Code and its implementing regulations.
The court held that Department advisory statements prior to the class action settlement, which recommended that school personnel other than licensed health care providers not administer medications to students by injection generally or insulin in particular, were not entitled to judicial deference to the extent they might be thought to preclude unlicensed school personnel from administering insulin. Those statements made no serious effort to reconcile recommendations with the applicable statutes and binding regulations, and ignored the Nurse Practice Act's medical-orders exception. An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts. Unlike quasi-legislative regulations adopted by an agency to which the Legislature has confided the power to make law, and which, if authorized by the enabling legislation, bind courts as firmly as statutes themselves, the binding power of an agency's interpretation of a statute or regulation is contextual. Its power to persuade is both circumstantial and dependent on the presence or absence of factors that support the merit of the interpretation. Therefore, the court held the California Nursing Practice Act did not prohibit school personnel other than licensed health care providers to administer medication.
See: American Nurses Ass'n v. Torlakson, 2013 WL 4046566, 13 Cal. Daily Op. Serv. 8794 (Cal., August 12, 2013) (not designated for publication).
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication