Ruling: Non-Nurses May Administer Insulin to California Schoolchildren

The California Supreme Court recently ruled in American Nurses Association v Torlakson that state law expressly permits trained non-nurses to administer prescription medication, including insulin, to schoolchildren, so long as they follow physicians’ written instructions.  The ruling overturned decisions issued by lower courts, who agreed with the American Nurses Association and other nursing trade organizations (collectively “Nurses”) that such actions would constitute the unauthorized practice of nursing.  The Supreme Court’s ruling was lauded by the American Diabetes Association and disability rights advocates as ending discrimination against diabetic children. 

Diabetes in Schoolchildren

People suffering from type 1 diabetes, in which the body does not produce a sufficient amount of insulin, and some people with type 2 diabetes, in which the body does not properly use insulin, require insulin shots to regulate their blood sugar.  Schoolchildren typically need insulin injections at regularly scheduled times during the school day and may also need them at unscheduled times to correct blood glucose fluctuations.  Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. sec. 794), Title II of the Americans with Disabilities Act (ADA) (42 U.S.C. sec. 12131, et seq.), and the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C. sec. 1400, et seq.) require that public schools administer insulin to diabetic students who cannot do it themselves.  Students pay only for insulin, supplies, and equipment.

Administration of Insulin in California Schools

There are about 2,800 public school nurses in California, amounting to about one per 2,200 students.  Five percent of schools have full-time nurses, 69 percent have part-time nurses, and 26 percent do not employ any nurses.  Some schools in California have not permitted unlicensed school personnel to administer insulin, believing that only licensed health care providers, like nurses, are permitted to administer insulin. 

Parents of four diabetic public schoolchildren filed a federal class action lawsuit in 2005 against two California school districts alleging, among other things, that the districts had violated federal law by refusing to permit unlicensed personnel to administer insulin when nurses were not available, which resulted in parents having to forego employment to administer insulin to their children during the day and students having to modify their insulin regimens based on scheduling issues rather than medical needs.  The parties to the lawsuit entered into a settlement in 2007 in which the State Department of Education agreed to issue a legal advisory regarding diabetic students’ rights.  The advisory noted, in pertinent part, that local education agencies cannot engage in practices or policies that violate federal law, including the IDEA or the Rehabilitation Act.  It then authorized unlicensed, adequately trained, voluntary school employees to administer insulin to students pursuant to a treating physician’s order.

The American Nurses Association and other trade organizations filed suit against the California State Superintendent of Public Instruction and various educational entities, alleging that state law only permits nurses and other licensed health care providers to administer insulin.  The American Diabetes Association then filed a complaint in intervention.  The trial and appellate courts agreed with the nurses, declaring the portion of the advisory invalid regarding the administration of insulin.  The American Diabetes Association appealed. 

California Supreme Court Decision

The California Supreme Court was adamant and unanimous in its opinion that California law permits unlicensed school personnel to administer insulin.  It pointed to Education Code section 49423, which states than any student required to take prescription medication during the day “may be assisted by the school nurse or other designated school personnel,” (italics added) “[n]othwithstanding section 49422,” which permits only licensed health care providers to supervise students’ health and physical development.  In response to some schools’ continued failure to allow unlicensed personnel to dispense medications, the State Board of Education adopted regulations specifying that “Other designated school personnel may administer medication to pupils . . . as allowed by law” (Cal. Code Regs., tit. 5, sec. 604(b)).  The regulations included in the definition of designated personnel anyone who “has consented to administer the medication” (Cal Code Regs, tit. 5, sec. 601). 

The court rejected the Nurses’ argument that “as allowed by law” prevented those who are not licensed health care providers from administering medication.  Instead, it found that “allowed by law” meant that unlicensed personnel must be adequately trained in accordance with the law.  Furthermore, unlike other duties that nurses perform, the administration of insulin does not “require a substantial amount of scientific knowledge or technical skill.”  In fact, insulin administration outside a clinical setting is typically conducted by family members, friends, and, in some cases, the children themselves.  The Nurses alleged that the administration of insulin by unlicensed personnel violated the Nursing Practice Act (NPA), which regulates the practice of nursing in California.  The court determined that the medical orders exception to the NPA, which allows other people to perform duties “required in the physical care of a patient and/or carrying 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.”

Reactions to the Ruling

The American Nurses Association and supporters, including other nursing groups and California teachers’ unions, contend that passing this decision will lower the standard of care provided to schoolchildren and will encourage school districts to forego the expense of hiring nurses, instead encouraging already-employed personnel to administer medications.  Teachers likely worry about the added responsibility and liability they could face if required to administer injections.  Advocates for diabetic children, however, cite this as a victory that will allow the children better access to the care they require. Supporters include the American Academy of Pediatrics Section on Endocrinology and other pediatric and endocrinology groups.  Laura Mecoy, a mother of two diabetic California teens, believes that the decision was one of common sense.  She noted that she was forced to leave work during the day or employ a nanny to administer insulin injections to her son when he was too young to administer them, himself.  Once he was able to do it, however, “the school allowed an 8-year-old to do what it wouldn’t allow an adult health aide to do.” 

The American Nurses Association is considering an appeal to the U.S. Supreme Court.