In This Issue

New Support for Ensuring Access to Insulin for California Students with Diabetes

Dear Friends,

The American Diabetes Association, represented by Disability Rights Education and Defense Fund and Reed Smith LLP, has received welcome amici support in a case before the Supreme Court of California, American Nurses Association, et al. v. O'Connell, Case No. S184583. This support comes after over five years of litigation filed to protect the civil rights of California students with diabetes in California's K-12 public schools.

DREDF applauds the organizations, detailed below, that filed amicus curiae on behalf of the American Diabetes Association.

It is especially exciting that the US Department of Justice (DOJ) took the noteworthy step of weighing in on a matter that involves state law, something that the DOJ does very rarely.

Amicus Briefs from Many Fronts
On May 11 and 12, 2011, the United States Department of Justice, the California Department of Education, a group of disability rights organizations, a coalition of medical organizations involved in the treatment of diabetes, the Child Care Law Center, and the California School Boards Association filed briefs.

• The United States Department of Justice (DOJ) filed a brief expressing its belief that the federal ADA and Section 504 preempt state law, and that state law presents obstacles to compliance with the IDEA and a free appropriate public education ("FAPE"). DOJ noted that the evidence established that, because there are so few nurses available, "some students who require insulin have been deprived of their right to a FAPE."

• The California Department of Education filed a brief expressing the agency's belief that state law does in fact authorize non-medical school personnel to administer insulin when a nurse is not available and that, in light of the state's chronic nursing shortage and budget crises, this is the best approach to assure students' safety.

• Cooley LLP of Palo Alto, CA filed a brief for medical groups (American Academy of Pediatrics Section on Endocrinology; California District of the American Academy of Pediatrics; American Association of Diabetes Educators; Endocrine Society; and Pediatric Endocrine Society). This brief clarifies the overwhelming agreement among medical experts who care for people with diabetes that insulin administration by non-medical personnel is safe in a variety of different settings, including schools, and that this practice is necessary to ensure that students with diabetes get the insulin they need at school.

• Skadden Arps Slate Meagher & Flom in Los Angeles, CA filed a brief for disability groups (Disability Rights Legal Center; Disability Rights California; Disability Rights Advocates; Disability Rights Texas; Children's Rights Clinic, Los Angeles Unified School District; and the Legal Aid Society-Employment Law Center). This brief stresses the disastrous impact that the appellate court ruling, if upheld, would have on students with diabetes and other conditions requiring other medications, and the need for medication administration by non-medical school personnel to protect the fundamental rights to education guaranteed by the California State Constitution.

• The Child Care Law Center filed a brief, prepared by Morrison & Foerster in Los Angeles, CA, describing the negative impact of the appellate ruling on access to childcare, including pre-kindergarten and afterschool programs, for children with diabetes and other conditions requiring medication administration.

• The California School Boards Association filed a brief stressing that adherence to the lower court's decision would be a practical and fiscal impossibility, given the shortage of nurses, costs of employing sufficient numbers of nurses statewide, and California's current budget crisis.

Background of the Lawsuit
In 2005, DREDF and Reed Smith LLP, representing the American Diabetes Association and families of children with diabetes, filed a lawsuit in federal court seeking to protect the civil rights of California students with diabetes. The case sought to ensure that students who need diabetes care, including insulin administration, receive it in a timely and appropriate manner in accordance with doctor's orders.

In 2007, a legal settlement clarified the rights of California students in K-12 public schools and represented a landmark victory for children with diabetes and their families because the settlement allowed unlicensed school personnel to volunteer to be trained to administer insulin at school and during school-related activities.

In 2008, several nursing organizations challenged this part of the settlement, alleging that only a nurse can administer insulin to students with diabetes.

In 2010, the California Court of Appeals found that state law permits only nurses to administer insulin and other medications–which would have the effect of preventing non-medical school personnel from volunteering to assist California students who cannot self-administer medication. The appellate court ruling endangers the health and safety of children who need medication, because there are not enough nurses available in California to administer medications such as insulin. Diabetes experts agree that permitting trained non-medical school personnel to administer insulin when a nurse is not available is safe and in the best interests of these students.

The Supreme Court of California is now reviewing this decision.

Issues in the Case
At issue is whether teachers and other non-medical school personnel may volunteer to administer medications, including insulin, to children in California's public schools. The decision in this case will affect whether trained non-medical personnel may administer insulin and other vital medications in a variety of settings, including childcare centers, afterschool programs, and group homes for people with disabilities.

© 2011

Combined Federal Campaign #11944

Resources

• United States Department of Justice (DOJ) Brief
• Medical Groups Brief
• Disability Advocates Brief
• Child Care Law Center Brief
• CA School Board Assn Brief
• Los Angeles Times column about children with diabetes

Support DREDF when you shop.

Changing the Present

iGive

CONTACT DREDF:
info@dredf.org
www.dredf.org
3075 Adeline Street, Suite 210
Berkeley, CA 94703
510.644.2555 v
510-841-8645 fax/tty

Government Affairs Office:
1660 L Street, NW, Suite 700
Washington DC 20036
202-725-5523