ELA Update: Settlement of litigation dealing with rights of students with diabetes
Published: August 10, 2007
The California Department of Education and plaintiffs in a class action lawsuit have reached a settlement in litigation that establishes new rules for delivering care to diabetic students who need insulin during the school day. The settlement, announced by CDE on Aug. 8, impacts school districts and county offices of education statewide.
Background
The class action lawsuit was filed by the American Diabetes Association and the Disability Rights Education and Defense Fund in 2005 on behalf of parents of students in two Bay Area school districts. The suit alleges that districts violated state and federal law when they refused to provide trained personnel to help monitor children's glucose levels and assist with administering insulin.
As part of the settlement agreement, the CDE has issued a legal advisory providing guidance to districts outlining the rights of diabetic students and has agreed to monitor district compliance through the existing Quality Assurance Process (special education compliance monitoring) and Uniform Complaint Procedures.
Key settlement provisions
The legal advisory summarizes the CDE's interpretation of state and 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.
- Students affected: The settlement affects students who have been identified as "disabled" under Section 504 or the IDEA. In general, a student will be identified as "disabled under Section 504 if he/she has a mental or physical impairment that substantially limits one or more life activities." A 504 plan will then need to be developed which identifies any necessary health care services (as determined by the student's physician) and, if learning is affected, necessary academic modifications.
In some circumstances, a student with disabilities may be identified as disabled under IDEA because of the effect of the diabetes or other disability or impairment on the student's educational performance. Students with diabetes who qualify for services under IDEA must have in individualized education program, or IEP, that identifies the types of "related services," such as school health services, that are necessary for the child to be provided a free appropriate public education.
Each student's 504 plan or IEP must be based on the student's unique, identified needs.
- Persons who may administer the insulin: Given the unfortunate shortage of school nurses statewide, a big issue for districts has been the question of which staff can administer insulin when a school nurse is not otherwise available. According to the CDE's legal advisory, appropriately licensed employees, contracted registered nurses, the student, parent/guardian or other individual designated by the parent/guardian may administer insulin during the school day. When such persons are not otherwise available, then federal law authorizes the district to train voluntary, unlicensed school employees (i.e., one who does not have a medical license) to administer insulin in accordance with the student's IEP or 504 plan. Districts must ensure that such unlicensed personnel are appropriately trained and supervised.
Neither the law nor the settlement specifies what type of training is appropriate for unlicensed personnel. The CDE's advisory notes that the standards specified by the American Diabetes Association in the publication, “Diabetes Care Tasks at School: What Key Personnel Need to Know: Insulin Administration” might be an appropriate minimum standard. The CDE also recommends that districts maintain documentation of training, ongoing supervision, and verification of competency. Because the law is unclear regarding appropriate training, districts should consult with legal counsel and the district's risk manager in order to ensure that appropriate protections are in place.
The CDE's advisory emphasizes that districts cannot have a blanket policy requiring parents to sign a waiver of liability before services are provided or stating that services will not be provided due to the lack of licensed personnel or the financial burden of providing the services. In addition, a district may not have a blanket policy that diabetes-related health care will only be provided by district personnel at one school in the district or that students will always be required to leave the classroom in order to receive the services.
Next Steps
CSBA is in the process of analyzing the settlement and its impact on districts. This fall, the Governance and Policy Services department will issue a policy advisory outlining the policy considerations for governance teams, as well as revised sample policies and administrative regulations. These documents will be available to districts that subscribe to one of CSBA's policy services.
As more children are diagnosed with diabetes, districts are focusing on prevention efforts and ways to promote healthier school environments. On Oct. 1-2, CSBA, the California Department of Education and California Department of Public Health will host the 2007 School Wellness Conference, which will highlight best practices and resources, statewide success stories and model program workshops, healthy nutrition environments and quality physical education programs, sample district policies that promote health on school campuses, and strategies to help schools succeed in implementing and evaluating their local school wellness policies. More information on this conference can be found on CSBA's web site at http://www.csba.org/apps/swc/
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