Beware the Medication Dilemma

Since 2000, the Illinois State Board of Education (“ISBE") has published guidelines for medication administration in schools.  A .pdf version of the policy is available in detail here . Much of the policy is as expected: medications, whether over-the-counter or prescription, can only be dispensed by the duly qualified school nurse.  Medications must be properly labelled.  Controlled substances must be kept in a locked cabinet that is “securely affixed to the wall."  In addition, “Nurses have the right and the responsibility to decline to administer a medication if they feel it jeopardizes student safety."  In such an event, the parent or guardian, doctor and administrator must be notified.

The dilemma arises regarding the administration of medication. According to the Illinois School Code, 105 ILCS 5/10-22.21b and reflected in these guidelines, provides that “[u]nder no circumstances shall teachers or other non-administrative school employees, except school nurses and non certified registered professional nurses, be required to administer medication to students."  The obvious logic is that medications should be given by trained medical personnel.  The legal policy is to limit potential liability for school personnel.  This law makes good sense for children who receive medication on a daily basis with no risk of an acute episode arising.  However, for many children who require medication in school, there is the potential for acute reactions or episodes that require immediate action.

For instance, consider a child with physical challenges who also has seizures.  He takes his medication before and after school, but if he has a break-through seizure, then he requires an immediate dose of Valium to stop the seizure before brain damage occurs.  Paramedics and the nurse can and would presumably be called, but given the size of many high schools, getting from one end to the other can take 10-15 minutes.  The aide or the teacher is the one who is the first responder and may make the difference between serious harm or death and proper treatment.  Under the law the school staff can take a hands-off attitude and wait.  They are not required to wait, but they are also not required to act.  The same situation could arise with a child with severe asthma, heart issues or nut allergies, for instance. Parents need to be aware of these legal risks that compound the medical risks to the child in school, and what is the written policy of a particular school.  Ask to see the actual policy when starting a new school.

The legal issue as I see it is the potential conflict between this provision of the School Code and section 504.  Section 504 is about reasonable access to school. Should this access be at the risk of death to the child?  This is not very reasonable at all.  Hiring a nurse for the child full time would be too costly and overdone, since the situation may never come up, or it may come up only with great infrequency.  What is the middle solution to this situation?  Develop a health care plan that staff and parents can agree as to how the situation is to be handled.  Teachers and aides should be solicited, trained and rehearsed in addressing the acute medical emergency for the child.  Once this commitment is made, it can not be discretionary.  When staff signs on to the health plan they should be expressly obliging themselves to act in an emergency, and parents should be able to rely on this commitment.  Furthermore, the legislature should create a “good faith" immunity for staff that act under these circumstances.  The other way to go would be to challenge this provision in court as being inconsistent with the Federal law.  While negotiation is always the preferable route, failing that, parents and their attorney must protect the child in school, even if that requires litigation.

Comments

[Kim]

I don't really have a comment so much as a question. I am currently fighting with my local school district concerning my daughter who has epilepsy and her medication. She is supposed to get medication every day (2 pills) at 1pm, the school is refusing to give it because the nurse is shared between 3 schools and leaves my daughter's school at 11:30. The administrator is not willing to take responsibility. I have talked to several people in the district and they all tell me my only options are either: Change her medications times, arrange for someone to come to the school and give it, or send her to a different school in the district that has a full time nurse. The school with the full time nurse is where all the "medically fragile" students attend.
As her mother, I choose not to send her there for several reasons, first of all it is the WORST school in the district and secondly, I feel that it is discrimination to make her go there. She is currently on 5 and in Kindergarten, but at some point she will wonder why all her friends from the neighboorhood go to one school and she has to go to another, ect..

I was just hoping to get some guidance on this issue. Any advice would be wonderful!

Thanks