(SAN FRANCISCO, August 12, 2013)—Today, the California Supreme Court issued a long-awaited decision in American Nurses Assn. et al. v. Tom Torlakson as Superintendent of Public Instruction et al. (American Diabetes Assn., Intervener), No. S184583.

In a victory for the American Diabetes Association (ADA) and the civil rights of children in California’s public schools who live with diabetes, the court’s unanimous decision, authored by Associate Justice Kathryn M. Werdegar, will allow trained non-medical school personnel to administer insulin to any of California’s approximately 14,000 school-age children with diabetes who need insulin.

“We are gratified with this decision, which ends the discrimination in our schools against children with diabetes, once and for all,” said Reed Smith appellate counsel Dennis Peter Maio, who argued on behalf of the ADA.

The court heard oral arguments on May 29, 2013, during which Maio argued that Education Code § 49423 authorizes non-medical school personnel to administer insulin to students with diabetes and that the Nursing Practice Act, Bus. & Prof. Code § 2700 et seq., does not prohibit them from doing so. The ADA’s briefing also argued that the federal Individuals with Disabilities Education Act (IDEA), § 504 of the Rehabilitation Act of 1973 (§ 504), and other federal disability rights statutes would preempt state law if it were interpreted to prohibit the administration of insulin because state law would stand as an unlawful obstacle to a student’s exercise of his or her federal right to a free appropriate public education.

The court agreed with the ADA on the basis of its arguments under the Education and Business and Professions Codes, thus rendering it unnecessary for the Court to reach the ADA’s federal preemption arguments. The Court summarized its holding as follows:

… 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 (Ed. Code, §§ 49423, 49423.6; Cal. Code Regs., tit. 5, §§ 600, 604, subd. (b)) and expressly exempts persons who thus carry out physicians’ medical orders from laws prohibiting the unauthorized practice of nursing (Bus. & Prof. Code, § 2727, subd. (e)). 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 litigation began in 2005, when Reed Smith joined with the Disability Rights Education and Defense Fund (DREDF) to sue the California Department of Education (CDE) in federal court on behalf of the ADA. At the time, CDE adhered to a narrow interpretation of state law that allowed only school nurses to administer insulin in school. This policy placed children who need regular doses of insulin at risk. Indeed, as the Supreme Court recognized in its opinion, “only five percent of schools have a full-time school nurse, 69 percent have only a part-time nurse, and 26 percent have no nurse at all.”

In 2007, Reed Smith’s federal suit resulted in a landmark settlement with CDE, which issued a Legal Advisory affirming that students with diabetes were eligible for the administration of insulin and other services under either the IDEA or § 504 and related state law.

However, the American Nurses Association (ANA) led several other nursing organizations in launching their own lawsuit against the CDE. On December 26, 2008, the Superior Court concluded that the CDE’s Legal Advisory was invalid under state law insofar as it stated that trained non-medical school personnel may administer insulin in the absence of a school nurse. Reed Smith appealed this decision on February 9, 2009, but the Sacramento-based California Court of Appeal affirmed it on May 24, 2010.

Reed Smith then filed a petition for review with the Supreme Court of California, which announced on September 29, 2010, that it would review the case.

Before oral argument, numerous groups filed amicus briefs with the Supreme Court on behalf of the ADA, including the CDE, the Child Care Law Center, the American Academy of Pediatrics Section on Endocrinology, the American Association of Diabetes Educators, the California District of the American Academy of Pediatrics, the Endocrine Society and the Pediatric Endocrine Society. Additionally, the U.S. Department of Justice weighed in on the ADA’s side.

“While the Department of Justice rarely interjects itself in a case before a state supreme court, it did so in this case because of its strong interest in the enforcement of the rights of persons with diabetes, and children in particular,” explained Maio.

This decision is expected to have a major impact on 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.

Over the past eight years, two lawsuits and four court appearances, Reed Smith lawyers and paralegals have devoted more than 10,175 hours, pro bono, to securing the civil rights of California public school children who live with diabetes.

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