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California Department of Education and American Diabetes Association
Announce Agreement on In-School Care for Such Students

OAKLAND — State Superintendent of Public Instruction Jack O’Connell joined representatives of the American Diabetes Association (ADA) today to announce a landmark agreement that ensures California students who are classified as disabled because of diabetes will be safe at school and enjoy the same legally required educational opportunities as their peers. The agreement clarifies the rights of eligible students with diabetes in every school district throughout the state. 

"Through this cooperative agreement with the ADA, the California Department of Education is committed to ensuring that all children with diabetes in California schools have access to legally required care during the school day," O’Connell said. "A lack of resources, uncertainty about how services are best delivered, and lack of clarity about state and federal requirements have in some instances caused hardship to parents of children with diabetes. No parent should have to put a job at risk in order to administer legally required diabetes treatment to their child during the school day."

The announcement brings to an end litigation filed by four families and the ADA in federal district court in San Francisco alleging that some California school districts were not providing insulin administration and other services to students with diabetes-related disabilities who were legally entitled to them while at school.

Under the agreement, each local educational agency (LEA) will manage the delivery of this care in the best possible way for those students whose Individualized Education Programs or 504 Plans require administration of insulin and related services during the school day. The California Department of Education (CDE) will issue a Legal Advisory to all California school districts providing guidance on health care services for students with diabetes and outlining the rights of these students under federal anti-discrimination and special education statutes—Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act (IDEA). The Advisory explicitly states that school districts have an obligation to provide insulin administration and related services to eligible students who need the assistance.

 According to the CDE, state law permits seven categories of individuals to administer insulin to students at school, including school nurses or other health care professionals, a self-administering student, and family members and friends (a complete list may be found in the Legal Advisory). The agreement provides that when school nurses or other school health care professionals are not available, a school employee who is unlicensed and who has been adequately trained may administer insulin pursuant to the student’s treating physician’s orders.

"While provision of these services by licensed professionals is preferable," O’Connell said, "given the lack of nurses in many California schools, it may not always be possible for a licensed professional to meet those needs. This agreement spells out a school district’s obligation to train other qualified personnel to provide the services and support that students with diabetes are legally entitled to receive in order to attend and succeed in a public school setting."

The lawsuit was filed as a class action in October 2005 against the CDE and two Bay Area school districts (San Ramon Valley Unified and Fremont Unified) under federal disability civil rights and special education laws. Each district has entered into a separate agreement with the plaintiffs that details the care that it will provide to its students with diabetes.

"This settlement is a tremendous breakthrough for students with diabetes in California and nationwide," said Larisa Cummings, an attorney with the Disability Rights Education and Defense Fund (DREDF), a public interest law and policy center that, along with the law firm Reed Smith LLP, represented the children and the ADA in this matter. "The CDE is setting the standard in California for ensuring that children with diabetes receive the assistance and services they need."

The Legal Advisory will remind districts that policies limiting the type or location of diabetes care to be provided to students, without considering the individual needs of each student, violate the law. For example, policies that ban blood glucose testing in the classroom or that automatically place students needing assistance with diabetes care in a particular school are not permitted.

 A copy of the Legal Advisory can be found on the California Department of Education Web site at Diabetes Management in Schools - Health Services & School Nursing and at the DREDF Web site at http://www.dredf.org/advocacy/CDE Legal Advisory on Rights of Students with Diabetes.pdf (Outside Source, 62KB; 13pp.; 08-Aug-2007).

The San Ramon Valley Unified School District recently adopted an approach that involves training school employees to administer insulin and perform other diabetes care tasks — adopting procedures and forms that plaintiffs hope will serve as models for districts around the state and nation. 

DREDF attorneys included Arlene Mayerson and Larisa Cummings. The pro bono team of attorneys from the Oakland and San Francisco offices of Reed Smith included James Wood, Kenneth J. Philpot, Michael F. McCabe, Julia Butler, Roxanne Garibay, James Heffner, Tita Bell, Kendra Jue, and Kristen Soetebier. The Reed Smith team donated more than $1.8 million worth of pro bono legal services to the case. 

"This agreement changes the landscape for children with diabetes and helps ensure that they receive the assistance they need from school personnel so they can take part in all educational programs," said Mr. Wood. "It is truly amazing the level of change that can be effected when the legal expertise of a national disability rights organization like DREDF, the medical and policy expertise of the ADA, and the pro bono resources and power of an international law firm are applied to a critical public policy issue."

Parents of children with diabetes throughout California hailed today’s announcement as an important step forward. 

"This favorable outcome is a tremendous victory – not just for students who have diabetes and their families, but for schools themselves. Clarifying responsibilities is a major step toward facilitating better communication between schools and parents and very simply providing kids both with what they need and are entitled to have," said Laura (Lahle) Wolfe, parent of Elizabeth Ehrlich of Upland, California. Elizabeth’s parents removed her from the Upland Unified School District because they believed the district was not providing her with adequate diabetes care services.

"This is a significant achievement in the national effort toward improving the health of children with diabetes who must have the ability to control their blood glucose levels during the many hours spent at school and in school-related activities," said Ann Albright, Ph.D., R.D., and President, Health Care & Education of the ADA. Dr. Albright, who has great expertise on this issue from her experience as the former Chief of the California Diabetes Prevention and Control Program, added, "The support of school nurses and other trained adults in school settings is essential to these children’s day-to-day health and their longer-term survival. We hope other states will look to this model agreement with the CDE in improving their efforts in diabetes care."

About the American Diabetes Association (ADA)

The American Diabetes Association is the nation’s leading voluntary health organization supporting diabetes research, information and advocacy. The Association’s advocacy efforts include helping to combat discrimination against people with diabetes; advocating for the increase of federal diabetes research and programs; and improved access to, and quality of, healthcare for people with diabetes. Founded in 1940, the Association’s mission is to prevent and cure diabetes and to improve the lives of all people affected by diabetes. In 2004, the ADA launched its "Safe at School" campaign, a multi-faceted effort to ensure that all students with diabetes are medically safe at school and have the same access to educational opportunities as their peers. The Campaign is supported by the medical and scientific expertise of the ADA and the energy and commitment of its top volunteer leaders and grassroots advocates.

About Disability Rights Education and Defense Fund, Inc. (DREDF)

Founded in 1979 by people with disabilities and parents of children with disabilities, the Disability Rights Education and Defense Fund, Inc. (DREDF) is a national law and policy center dedicated to protecting and advancing the civil rights of people with disabilities through legislation, litigation, advocacy, technical assistance, and education and training of attorneys, advocates, persons with disabilities, and parents of children with disabilities. DREDF is a Parent Training and Information Center under IDEA as well as a Community Parent Resource Center for Foster Children with Disabilities.

About Reed Smith LLP

Reed Smith is one of the 15 largest law firms in the world, with more than 1,500 lawyers in 21 offices throughout the United States, Europe and the Middle East. Founded in 1877, the firm represents leading international businesses from Fortune 100 corporations to mid-market and emerging enterprises. Its attorneys provide litigation services in multi-jurisdictional matters and other high stake disputes, deliver regulatory counsel, and execute the full range of strategic domestic and cross-border transactions. Reed Smith is a preeminent advisor to industries including financial services, life sciences, health care, advertising and media, shipping, international trade and commodities, real estate, manufacturing, and education.For more information, visit http://www.reedsmith.com (Outside Source).

For more information, contact:
Hilary McLean, California Department of Education, 916-319-0818
Jamie Moss, newsPRos for Reed Smith LLP, 201-493-1027
Julia Epstein, Disability Rights Education & Defense Fund, 510-644-2555 ext. 241
Zach Goldberg, American Diabetes Association, 703-549-1500 ext. 2622

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Attachment

Q&A on Diabetes Case Settlement
K.C. et al. v. Jack O’Connell, et al.

Background

There has been a significant increase in diabetes among school children, exacerbated by the epidemic of obesity. The Centers for Disease Control (CDC) estimates that 30 percent of children born in 2000 will develop diabetes sometime in their lifetime.

Diabetes is managed on an individual basis, according to a physician’s recommendations. When a disabled student needs related medical services as a result of diabetes, his or her Individualized Education Program (IEP) or Section 504 Plan may require the administration of insulin during the school day or at school-related activities. Students in upper elementary grades and above often manage their diabetes themselves, monitoring blood sugar levels and injecting insulin as necessary. Where a student is unable to self-manage diabetes, school nurses or other school personnel help children monitor and manage their diabetes.

Across California’s more than 1,000 school districts, there have been differing interpretations of a school district’s responsibility in the area of assisting a student with diabetes who is entitled to services pursuant to an IEP or Section 504 plan, including the administration of insulin. Advocates for children with diabetes sued the California Department of Education (CDE) claiming this to be a widespread problem that was not being sufficiently addressed by the state, allegedly resulting in students not being provided with treatment at school, missing out on educational opportunities such as field trips in order to get required services, or parents being required to miss work in order to administer insulin to their child during the school day. There was some evidence of inconsistent practices at the district and school level.  The CDE and plaintiffs entered into mediation to settle this issue and jointly agreed to the terms of the recent settlement agreement.

1. What does this settlement agreement do?

It spells out the legal responsibilities of a local education agency in cases when a student is identified, by an IEP or a 504 team, for special education and/or related services as a result of diabetes, and when that student requires administration of insulin during the school day. CDE will send a Legal Advisory to all school districts reminding them of the legal rights of students with disabilities involving diabetes.

The advisory makes clear that school districts have an obligation to provide insulin administration and related services to eligible students who are not able to self-administer. It spells out who may administer insulin at a school, and it requires that the local education agency must provide training in diabetes management to a volunteer, non-licensed staff member in cases when a school nurse or other licensed professional is not available.

The settlement makes clear that a district must meet the individual education needs of each child who has a disability involving diabetes and may not operate on the basis of a blanket policy regarding the administration of health services, such as across-the-board limitations on the types of services the district will provide. Therefore, the settlement makes clear, as does the Legal Advisory, that districts must ensure that eligible students are administered insulin during the school day as required by the student’s IEP or Section 504 plan.

1. Which students are affected by the settlement?

A student with diabetes who is disabled under Section 504 of the Rehabilitation Act of 1973 and/or the DEA and whose IEP or Section 504 Plan requires medical services related to the disability of diabetes.

Under the settlement, local education agencies must affirmatively seek to find and evaluate all students eligible for such services under federal law.

1. What if a student requires insulin administration and no school nurse is available?

Financial burden or other difficulty to a local education agency is not a valid defense for not providing school health services required under a child’s IEP or Section 504 Plan. The district must either contract for such nursing services or train voluntary school personnel to provide such services.

1. Who may administer insulin to students with diabetes under section 504 and the IDEA?

Under Business and Professions Code Sec. 2725(b):

1. The student, with authorization of the student’s licensed health care provider and parent/guardian. A school nurse or school physician employed by the LEA.
2. An appropriately licensed school employee such as registered nurse or licensed vocational nurse, supervised by a school physician.
3. A contracted registered nurse or licensed vocational nurse from a private agency or registry, or by contract with a public health nurse through the county health department.
4. A parent/guardian who chooses to administer the insulin.
5. A designee of the parent guardian who volunteers to administer the insulin and who is not a school employee.
6. An unlicensed voluntary school employee with appropriate training, in emergencies.

In addition, according to federal law and the agreement, a local education agency may train a voluntary school district employee to administer insulin to a student with diabetes if his or her IEP or Section 504 Plan so requires.

1. May a local education agency require a parent or other relative to come to school to administer insulin?

No. A district must provide the services needed by the child during the course of the regular school day and during school-sponsored activities, pursuant to one of the eight legally recognized approaches set forth in the Legal Advisory.

1. How will CDE ensure that students with diabetes get the special educational services they need?

CDE will notify school districts of these legal responsibilities and monitor districts for compliance, according to the terms of the settlement agreement.