Overturning rulings in two lower courts, the California Supreme Court said Monday that trained, unlicensed school personnel may administer prescription medication such as insulin with permission from a student's physician and parents.
The state Education Code, which "expressly" allows the practice, "reflects the practical reality that most insulin administered outside of hospitals and other clinical settings is in fact administered by laypersons," a unanimous high court stated in the 26-page opinion.
Arguments by nursing groups that state law prohibits school faculty and staff from giving the shots "lack merit," the court declared.
"State law delegates to each student's physician the decision whether insulin may safely and appropriately be administered by unlicensed school personnel," the court said. "State law, however, presents no categorical obstacle to the use of unlicensed personnel."
The American Nurses Association and other trade organizations representing registered and school nurses had challenged a California State Board of Education policy that allows non-medical personnel to administer insulin shots, contending it condoned the unauthorized practice of nursing.
In making their argument, they relied on the state Business and Professions Code, which defines nursing to include "the administration of medications," and prohibits the unauthorized practice of nursing.
That argument prevailed in Sacramento Superior Court and the 3rd District Court of Appeal. But, the Supreme Court justices pointed out, the Business and Professions Code exempts from the prohibition persons carrying out orders of a licensed physician.
The opinion was authored by Justice Kathryn M. Werdegar, who was joined by six other justices and a specially appointed appellate justice.
In an unusual twist, Chief Justice Tani Cantil-Sakauye was replaced by William R. McGuiness, presiding justice of the 1st District Court of Appeal, because, as a member of the District Court of Appeal, she wrote the opinion that was overturned Monday.
"The nurses argued that the Nursing Practice Act (part of the Business and Professions Code) somehow trumps the Education Code," said San Francisco attorney Dennis Maio, who argued for the American Diabetes Association before the Supreme Court.
"But it is the Education Code that governs who can administer a drug to a child at school.
"The bottom line of the law is that nobody can do that, not even a nurse, without a physician's written order and written consent by a parent. And those can be conferred on a duly trained, volunteer school employee."
Maio said he was "gratified with this decision, which ends the discrimination in our schools against children with diabetes once and for all."
While Monday's decision marks the end of the road for the dispute in court, nurses "have the option of going to the Legislature for a change in the law," he noted.
Attempts to contact Maureen Cones, lead attorney on the case for the American Nurses Association, were unsuccessful Monday.
Karen A. Daley, president of the association, said in a prepared statement that the decision "lowers (the) level of care for children who are entitled to receive health care services at school and puts them at risk for medication errors that could have severe health consequences."
She also warned it "sets a disturbing precedent for California and the nation.
In essence, the reversal of the lower court decisions permits a state agency other than the Board of Nursing to control the scope of nursing practice," she said.
The 8-year-old legal battle has played out against the backdrop of a long-standing shortage of nurses in California schools. Their numbers have dwindled as districts have grappled with budget cuts and shifting priorities.
California has about 2,800 school nurses, averaging one for every 2,200 of the state's 6 million public school children. While 5 percent of California schools have a full-time nurse, 69 percent have a part-time nurse, and 26 percent have no nurse at all.
Approximately 1 in 400 school-age children nationwide has diabetes, including about 14,000 in California. The need for insulin can arise anytime and anywhere – in the classroom, on field trips, at sports events, or during other school-sponsored activities.
Laura Mecoy, a mother of two diabetic teenagers, a board member of the Juvenile Diabetes Research Foundation, and a former Sacramento Bee reporter, was ecstatic Monday. Like many parents, she recalled having to regularly travel from her workplace to school to administer shots for her children.
"The court has delivered a wonderful back-to-school present to our children who are living with diabetes," Mecoy said. "For far too long, this nonsensical rule has stood in the way of timely and effective care for our children."
While the case has been on appeal, enforcement of the nurses' interpretation of the law was stayed, and in accordance with a state Board of Education advisory letter, trained school personnel have been allowed to give the shots in the absence of a nurse.
But, in many Sacramento-area districts, insulin shots continue to be given only by licensed nurses, and it's not clear that will change.
"It's new and hot off the press and we'll have to work through it," Bonita Mallory, student health coordinator in the Twin Rivers Unified School District, said of Monday's ruling.
In many local districts, nurses armed with individual health plans make the rounds of campuses each day giving insulin shots to students at appointed times. Many high school and middle school students give the injections to themselves, if they are deemed capable
Sometimes getting to all the students is difficult, said school health care leaders.
"We struggle at times, occasionally, and I even go out to cover," Mallory said. "But that doesn't happen very often. For the most part we manage. If there are issues like that we can contact the parent."
Both Mallory and Pam Whipple, coordinator of health services for Sacramento City Unified School District, said they hoped their districts' policies on insulin shots would remain unchanged, with only nurses allowed to give them.
"My concern is that the people we are asking (to volunteer) are multi-tasking," Whipple said. "They are juggling a lot of things. Generally, people who aren't nurses don't want to do it. Nurses, this is what we do. We are used to it."
California Superintendent of Public Instruction Tom Torlakson, who was a defendant in the nurses' suit, said ideally there would be enough money to fund nurses to care for all students.
"But," he said, "the fact remains that not every student has access to a school nurse and, for some of them, that has been a very real obstacle to attending school and learning with their peers. I hope this decision removes that obstacle."
Call The Bee's Denny Walsh, (916) 321-1189.