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American Nurses Association v. Torlakson

Supreme Court of California

August 12, 2013

AMERICAN NURSES ASSOCIATION et al., Plaintiffs and Respondents,
v.
TOM TORLAKSON, as Superintendent, etc., et al., Defendants and Appellants; AMERICAN DIABETES ASSOCIATION, Intervener and Appellant.

Sacramento County Ct.App. 3 C061150, Super. Ct. No. 07AS04631, Lloyd Connelly, Judge

Remcho, Johansen & Purcell, Robin B. Johansen and Kari Krogseng for Defendants and Appellants.

Reed Smith, James M. Wood, Paul D. Fogel, Dennis Peter Maio; Disability Rights Education and Defense Fund, Inc., Arlene Mayerson and Larisa Cummings for Intervener and Appellant.

Remcho, Johansen & Purcell, Robin B. Johansen and Kari Krogseng for State Superintendent of Public Instruction Tom Torlakson and California Department of Education as Amici Curiae on behalf of Intervener and Appellant.

Jason D. Russell, Allen L. Lanstra, George C. Fatheree and Allison B. Holcombe for Los Angeles Unified School District, Children’s Rights Clinic, Disability Rights Advocates, Disability Rights California, Disability Rights Legal Center, Disability Rights Texas and The Legal Aid Society-Employment Law Center as Amici Curiae on behalf of Intervener and Appellant.

Fagen Friedman & Fulfrost, Lenore A. Silverman, Kimberly A. Smith and Melissa L. Phung for California School Boards Association as Amicus Curiae on behalf of Intervener and Appellant.

Claire Ramsey; Morrison & Foerster, Miriam A. Vogel, Benjamin J. Fox, Sheila L. Sadovnik and Lindsay M. Andrews for Child Care Law Center as Amicus Curiae on behalf of Intervener and Appellant.

Cooley, Lori R. Mason, Maureen P. Alger, Brandon J. Kimura and Jon F. Cieslak for American Association of Diabetes Educators, the American Academy of Pediatrics Section on Endocrinology, California District of the American Academy of Pediatrics, The Endocrine Society and the Pediatric Endocrine Society as Amici Curiae on behalf of Intervener and Appellant.

U.S. Department of Education, Charles P. Rose, General Counsel; Thomas E. Perez, Assistant Attorney General (United States), Samuel R. Bagenstos, Principal Deputy Assistant Attorney General, Gregory B. Friel and April J. Anderson for United States as Amicus Curiae on behalf of Intervener and Appellant.

Pamela Allen, Brendan White; Alice L. Bodley, Jocelyn Winston, Maureen E. Cones; Pillsbury Winthrop Shaw Pittman, John S. Poulos, Carrie L. Bonnington and Kevin M. Fong for Plaintiffs and Respondents.

Cummins & White and Melanie L. Balestra for National Association of School Nurses, American Occupational Therapy Association, Inc., Arkansas School Nurses Association, Association of periOperative Registered Nurses, Association of School Nurses of Connecticut, California Association for Nurse Practitioners, California School Health Centers Association, California Teachers Association, Coalition of Labor Union Women, Colorado Association of School Nurses, Delaware School Nurses Association, Emergency Nurses Association, Florida Association of School Nurses, Georgia Association of School Nurses, Illinois Association of School Nurses, Illinois Nurses Association, Indiana Association of School Nurses, Iowa School Nurses Organization, Kentucky School Nurses Association, Maine Association of School Nurses, Maryland Association of School Health Nurses, Massachusetts School Nurse Association, Michigan Association of School Nurses, National Association of Pediatric Nurse Practitioners, National Association of State School Nurse Consultants, National Board for Certification of School Nurses, Nebraska School Nurse Association, Nevada State Association of School Nurses, New Hampshire School Nurse Association, New Jersey State School Nurses Association, New Mexico School Nurses Association, New York State Association of School Nurses, Ohio Association of School Nurses, Pennsylvania Association of School Nurses and Practitioners, Rhode Island Certified School Nurse Teachers, Rhode Island Institute for Nursing, Rhode Island State Nurses Association, School Nurse Organization of Arizona, School Nurse Organization of Idaho, School Nurse Organization of Minnesota, School Social Work Association of America, South Carolina Association of School Nurses, Tennessee Association of School Nurses, Utah School Nurse Association, Vermont State School Nurses Association, Virginia Association of School Nurses, West Virginia Association of School Nurses, Wisconsin Association of School Nurses and Wyoming School Nurses Association as Amici Curiae on behalf of Plaintiffs and Respondents.

Lisa C. Demidovich for United Nurses Associations of California/Union of Health Care Professionals NUHHCE, AFSCME, AFL-CIO as Amicus Curiae on behalf of Plaintiffs and Respondents.

Laura P. Juran; David J. Strom; Michael R. Clancy, Arnie R. Braafladt; Altshuler Berzon and Jeffrey B. Demain for California Teachers Association, American Federation of Teachers, California Federation of Teachers and California School Employees Association as Amici Curiae on behalf of Plaintiffs and Respondents.

Cummins & White, Karen L. Taillon; Vedder Price and Thomas G. Abram for National Council of State Boards of Nursing, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion): Dennis Peter Maio, Reed Smith

Maureen E. Cones, American Nurses Association 

WERDEGAR, J.

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. This case presents a dispute over whom state law permits to administer that insulin. The dispute arises against the background of a long-standing shortage of school nurses and a class action in federal court alleging the state’s schools have failed to ensure diabetic students actually receive legally required health care services. Pursuant to an agreement settling that litigation, the State Department of Education (Department) in 2007 advised local education agencies that trained school personnel who are not licensed health care providers may, when no nurse is available, administer insulin pursuant to the medical orders of students’ treating physicians. (State Dept. of Ed., Legal Advisory on Rights of Students with Diabetes in California’s K-12 Public Schools (2007) pt. IV.C < http://www.cde.ca.gov/ls/he/hn/legaladvisory.asp > [as of Aug. 12, 2013] (2007 Legal Advisory).) In the case now before us, the American Nurses Association and other trade organizations representing registered and school nurses (collectively Nurses) challenge the Department’s advice as condoning the unauthorized practice of nursing. The American Diabetes Association (Association), which is a party to the federal settlement agreement, defends the Department’s advice as intervener.

In fact, 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 (Ed. Code, §§ 49423, 49423.6; Cal. Code Regs., tit. 5, §§ 600, 604, subd. (b)) and expressly exempts persons who thus carry out physicians’ medical orders from laws prohibiting the unauthorized practice of nursing (Bus. & Prof. Code, § 2727, subd. (e)). 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 Nurses’ arguments to the contrary lack merit.

I. Background

The question whether California law permits unlicensed school personnel to administer medications is, like all questions of law, subject to de novo review. (See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) We thus draw freely from the undisputed evidence in setting out the facts of the case before us.

Diabetes is a chronic, incurable disease that prevents the human body from properly using food to produce energy. Insulin, a hormone produced in the pancreas, transports glucose (a sugar derived from food) through the bloodstream to the cells. In a person with diabetes, the body either does not produce insulin, or enough insulin (type 1 diabetes), or cannot use insulin properly (type 2 diabetes). All persons with type 1 diabetes and some with type 2 must take insulin to avoid serious short- and long-term health problems. (See generally U.S. Dept. of Health & Human Services, Helping the Student with Diabetes Succeed: A Guide for School Personnel (2010) p. 1 < http://www.ndep.nih.gov/media/youth_ schoolguide.pdf > [as of Aug. 12, 2013] (DHHS Guide).) State law requires that nurses administer all medications, including insulin, in hospitals and other licensed health care facilities. (Bus. & Prof. Code, § 2725.3.) Outside of such facilities, however, insulin is normally administered by laypersons according to a physician’s directions, most often by the diabetic persons themselves or by friends or family members.

Public school students with diabetes who cannot self-administer insulin are normally entitled to have it administered to them at no cost. This is a result of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. &sect; 794) (Section 504), title II of the Americans with Disabilities Act (42 U.S.C. &sect; 12131 et seq.), and the Individuals with Disabilities Education Act (20 U.S.C. &sect; 1400 et seq.) (IDEA). (See 28 C.F.R. &sect; 35.104 (2013); 34 C.F.R. &sect; 300.8(c)(9)(i) (2013) [defining diabetes as a disability].) Public schools must offer to students covered by these laws a free and appropriate public education that includes related aids and services, such as medical services, designed to meet their individual educational needs. (See 20 U.S.C. &sect; 1400(d)(1)(a), 34 C.F.R. &sect; 104.33(a), (b)(1) (2012).) Under these laws, diabetic students pay for insulin, supplies and equipment but not the cost of administering insulin. (See 34 C.F.R. 104.33(c)(1) [&ldquo;the provision of a free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian&rdquo;]; Cedar ...


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