We’re often asked by school principals and school nurses about providing children with medication in school, and the common theme is that everyone is searching for clear and definite answers to questions that have been circulating for years. The reason that clear answers can be so hard to find is that administering medication in school implicates laws that govern education, nursing, healthcare, special education, privacy, parental rights, prescription drugs, illicit drugs, criminal law, disabilities, and the federal and state constitutions. With so many laws in play, it isn’t surprising that confusion, ambiguity, and conflict occurs.
We can all agree that schools must have a mechanism for students who need medication during school hours to receive that medication. To do otherwise would likely be discriminatory and could deny a child a free and appropriate public education. On the other hand, schools have to protect and guard against students making mistakes in administering their own medication in school, not to mention the possibility of drug misuse or abuse. In addition, schools have an obligation to provide a safe learning environment for all students.
A common approach to meeting the various obligations is for a school to prohibit students from keeping or administering their own medications under most circumstances, and having the on-site nurse store and administer the medication in school in order to keep records, track doctor’s orders, and perform any other tasks that relate to the administration. This solution works most of the time — however, there are occasions where even the best plans go awry. There is no question that a nurse can administer medication in school and will likely do a great job, but what happens when a nurse is not available?
Most often, problems arise when a school does not have a full-time nurse or does not have a nurse at all. A school may not have a nurse on a field trip or in all of the remote and varied locations where students may be found. In addition, there are times when a school nurse is attending to one medical event and cannot be in two places at once. When this occurs, we’re asked whether a principal or teacher could administer medication and, if so, whether a principal or teacher must do so.
This exact issue came up in a California case involving children with diabetes that require insulin injections during the school day. In California, there are about 14,000 school-aged children who have diabetes and require insulin injections during school hours. However, there is only one nurse for every 2,200 students in California public schools — 5% of California’s schools have a nurse on staff full-time, 69% have a part-time nurse, and 26% have no nurse at all. As a result, at their present staffing levels, it is clearly not possible for a nurse to be involved with each child’s insulin administration across the entire state throughout each and every day.
The California Superintendent of Public Education, the U.S. Department of Education, school districts, administrators, and others say that California law allows unlicensed personnel to administer insulin if they’ve received training. Parents (who sometimes have to go to their child’s school to administer medication because there is no nurse available), the American Diabetes Association, the Disability Rights Education and Defense Fund, the California branch of the American Academy of Pediatrics, and other groups say that insulin is safe and simple enough to administer that a layperson can manage it. In fact, these parties argue that outside of the school environment, the child or family member is typically taught to take their own blood sugar reading and administer their own insulin. As a result, they argue that insulin administration is not a situation that requires the expertise and training possessed by a school nurse. In one California school, an eight year old child was permitted to administer his/her own insulin but was not allowed to be assisted by an unlicensed staff person.
From a nurse’s perspective, the California Nurses Association, the American Nurses Association, the California Teachers Association, and others say if a student is being given medicine by a third party (anyone who is not a family member), the third party is a “professional care-giver” that needs a license. Outside of a school, a third party would likely require a license if their job was to administer medication. Moreover, they argue that school children do better when their medication is administered by a nurse, and that inevitably, nursing knowledge and judgement comes into play.
While that case was presented to the California Supreme Court, we’ve had school administrators and nurses ask us about similar situations here in New Hampshire. Inhalers, allergy medications, EpiPens, cold medications, medicine for attention deficit disorder, aspirin, routine medications, and even ice packs are subjects of discussion. We’ve even seen stories from across the country about sunscreen and chapstick being regarded as over the counter drugs that students cannot possess and use on their own.
The California Supreme Court decided that unlicensed school personnel are allowed to administer prescription drugs and medication in school, including insulin injections, as long as they received proper training and met certain statutory requirements. Specifically, the unlicensed school personnel needs to be acting under a physician’s order and have parental permission. The case found support in a California law that states “any pupil who is required to take, during the regular school day, medication prescribed for him or her by a physician … may be assisted by the school nurse or other designated school personnel.”
New Hampshire has not reached the same level of flexibility in its medication administration rules and laws, but California is often seen as a forerunner in policy development and this Supreme Court case may pave the way for changes in our state.
Today, there are a handful of important guidelines for medication administration in New Hampshire schools. First, NH statutes state that inhalers and EpiPens can be possessed and self-administered by students as long as certain statutory requirements are met. Second, other prescription drugs can be administered in schools either by a nurse or any person to whom the nurse delegates the task — including unlicensed persons. “Delegation” is a specific and regulated practice by nurses, allowed under their licensure statute, and is something that is left to the sole discretion of the nurse. And lastly, if a nurse has been involved in developing a medication administration plan for a student and has verified and documented the appropriate facts and criteria, an unlicensed person may “assist” a student with medication, even if a nurse has not specifically delegated that task. “Assist,” in this example, means that an unlicensed person makes the medicine available, watches the student take (or not take) the medication, and documents the observation. If a student cannot take his or her own medicine, an unlicensed person cannot “assist” them further.
Non-prescription medications can be administered to students in New Hampshire as long as the child’s parent has provided written permission. Whether a nurse or layperson must administer medication or must assist assist in the process is a question that depends on specific facts and circumstances. Bianco Professional Association would be glad to assist in analyzing those situations if they arise.
To learn more about medications in schools, see NH Administrative Rule ED 311.02 and read the New Hampshire Department of Education’s written advisory regarding medication during the school day. You may also contact the attorneys at Bianco Professional Association by calling 603-225-7170, toll-free at 800-262-8112, or by sending a message using our contact form.
