Jessica M. Karmasek Aug. 15, 2013, 3:00pm

SAN FRANCISCO (Legal Newsline) -- The California Supreme Court ruled against the state's nurses union Monday, saying school employees, when no nurse is available, can administer insulin shots to students with diabetes.

At issue in the case American Nurses Association v. Torlakson is whom state law permits to administer insulin.

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.

"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," the high court explained.

"Pursuant to an agreement settling that litigation, the state Department of Education 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."

The American Nurses Association and the California Nurses Association challenged the department's advice, arguing that it was condoning the unauthorized practice of nursing.

The American Diabetes Association, which is a party to the federal settlement agreement, defended the department's advice as intervener.

"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, and expressly exempts persons who thus carry out physicians' medical orders from laws prohibiting the unauthorized practice of nursing," Justice Kathryn Werdegar wrote for the court.

"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."

The ANA, in a statement issued late Monday, said it was "extremely disappointed" in the court's ruling, calling insulin a "dangerous drug."

"From the start, ANA and ANA\California have fought to ensure that children with diabetes and other conditions that require health care services receive the level of care in school promised to them by law. This decision lowers this level of care for children who are entitled to receive health care services at school and puts them at risk for medication errors that could have severe health consequences," ANA President Karen Daley said.

"This decision also sets a disturbing precedent for California and the nation. In essence, the reversal of the lower court decisions permits a state agency other than the Board of Nursing to control the scope of nursing practice.

"Moreover, the California Supreme Court has essentially decided that state health care licensing laws meant to protect patients can be ignored to the detriment of vulnerable populations."

The union said it will "assess its options" and is considering filing an appeal to the U.S. Supreme Court.

Meanwhile, the ADA said it was "extremely pleased" with the court's decision.

"Today's decision made it clear that state law is not an obstacle to children with diabetes receiving the proper care and the insulin they need to be healthy and medically safe at school," Karen Talmadge, chair of the ADA's board, said in a statement Monday.

"The California Supreme Court agreed with the Association's position that state law allows school personnel, who are not nurses, to volunteer and be trained to help children with the insulin they need to survive and thrive at school."

Talmadge said the ruling affirms that every child with diabetes has the right to access the life-saving insulin needed to stay healthy and safe.

"School staff can volunteer to be trained to provide diabetes care when a school nurse is unavailable. This means parents of children with diabetes can feel confident of their children's well-being when they send them to school every day," she said.

Talmadge said the court's decision in no way lessens the "vital role" school nurses play in maintaining the overall health of students.

From Legal Newsline: Reach Jessica Karmasek by email at

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