Questions & Answers on K.C. Settlement Agreement

Revised Questions and Answers 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 (LEA) 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 has sent 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 volunteer staff members who are not licensed health care professionals 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.

2. 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 Individuals with Disabilities Education Act (IDEA) 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.

3. 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. If no school nurse is available, the district must use reasonable efforts to contract with a registered nurse or licensed vocational nurse from a private agency or registry, or to contract with a public health nurse through the county health department (see Question 4 below).  If an LEA has determined that a nurse is not available, then it must train a voluntary school employee to provide such services.

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

   According to the Legal Advisory, only the following seven categories of persons are expressly authorized under state law to administer insulin in schools:
   

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

   
   If an LEA has made reasonable efforts to identify someone from categories 2-4 but individuals from these categories are not available, then the LEA may recognize and implement category 8 below in order to meet its federal obligations under the IDEA or Section 504:

   8. An LEA may train a voluntary school district employee to administer insulin to a student with diabetes during school and school-related activities if his or her IEP or Section 504 Plan so requires and if no person expressly authorized by categories 1-7 is available.

   
   As explained in Question 5, an LEA is required to provide services, and it may not pressure students to self-administer or parents to administer insulin or find a designee to do so under categories 1, 5 and 6.  However, an LEA must thoroughly explore and evaluate categories 2-4 prior to determining that expressly authorized persons are not available and that it must resort to category 8 pursuant to requirements in an IEP plan or Section 504 Plan. This evaluation must not delay the timely provision of services documented in IEPs or Section 504 Plans.
   
   An LEA should consult with its own counsel about whether it has made sufficiently reasonable efforts to satisfy categories 2-4. What is reasonable will depend on many factors in each particular circumstance, such as the size of the school/district, urban/rural geography, availability of contract registries/nurses in the area, etc.
   
   It always is preferable for a nurse to be available to administer insulin. Thus, LEAs should endeavor to have a nurse who can administer insulin when needed in accordance with the treating physician’s orders and should make every effort to hire a nurse to provide these related health care services.

5. 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.

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

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

7. Has the effect of the Legal Advisory been stayed pending the outcome of litigation filed by the American Nurses Association?

   No.  At its meeting on November 30, 2007, the Board of Registered Nursing (BRN) adopted a statement in which it disagreed with the Legal Advisory's recognition of category 8. The BRN states that the administration of insulin by unlicensed personnel violates the state Nursing Practice Act and recognizes that a lawsuit challenging the Legal Advisory has been filed by the American Nurses Association (ANA) and its California affiliate. No injunctive relief has been ordered by the trial court.
   
   CDE believes that the Legal Advisory sets forth well-established legal principles under federal law: namely, the IDEA and Section 504. Thus, CDE urges districts to follow those principles closely with respect to all eligible students with disabilities involving diabetes whose IEPs or Section 504 plans require the administration of insulin during the school day or at school-related activities. It seems readily apparent that any district not implementing an IEP or Section 504 plan would risk litigation under those statutory schemes — the very reason that the CDE issued the Legal Advisory reminding districts of those federal obligations in the context of the disability of diabetes. In addition, as noted above, the trial court has not issued any injunctive relief against the CDE in this regard.
   
   Furthermore, ANA's lawsuit and BRN's statement cover only one aspect of the settlement and the Legal Advisory. The rest of the Advisory (which, for example, reminds districts that children with diabetes must receive timely administration of insulin and cannot be sent to a different school because they have diabetes) has not been challenged.

8. Are nurses required to train or supervise volunteers whom the LEA trains to administer insulin pursuant to category 8?

   The Legal Advisory does not place any obligation/requirement on nurses to train or to supervise volunteers, and does not otherwise specify who would be responsible for providing such training since this is a matter for the locally-elected school board to decide, taking into account the relevant bargaining agreement(s) and legal principles. The American Diabetes Association (one of the plaintiffs in the K.C. litigation) has information about training available, Diabetes Care Tasks At School: What Key Personnel Need To Know . In addition, the California School Boards Association recently discussed the Legal Advisory and the issue of training in a Policy Brief (PDF).