Legal and ethical Issues in school nursing

1. Legal and ethical Issues in school nursing Elizabeth Hall-Lipsy, JD, MPH Assistant Professor The University of Arizona College of Pharmacy

2. objectives • Discuss ethical and legal approaches to issues arising in school nursing • Describe current Arizona state laws and regulations regarding medication use in K-12 schools • Identify issues in current case law addressing school nurse liability and responsibilities

3. INTERACT WITH me  • Please interrupt and ask questions- judges interrupt lawyers all the time! (so do students…) • Text EHALLLIPSY to 37607 to join our session • Outline of approach today: • Laws vs. ethics • How do lawsuits work? • Elements of liability • Case discussions/issue spotting • Arizona school law updates

4. Common themes • Ethical and legal challenges • But what kind of ethical or legal challenges.

5. Why address ethics? • Face ethical issues, questions, problems: • Personally • Professionally • Individual patient/student care issues • Interprofessional and colleague issues • Profession-wide issues • Need a framework and principles to help us make sound judgements, better decisions, the best choices • Not the right decision, or choice, but the best one • Can we teach ethics?

6. Ethics aren’t laws • And LAWS aren’t ethics. • There’s a difference between what you can do and what you should do. • The law gives you specific permission to act or not act • You have to decide when to act, how to act, and how to recover and move on from your decision • School nurses straddle education and health • TWO OF THE THORNIEST ETHICAL TOPICS!

7. Ethical Theories

8. 4 Key Ethical Principles • non-malfeasance • beneficence • autonomy • justice

9. Non – malfeasance • To do no harm

10. Beneficence • To do good • More than just avoiding doing harm. • Requires action- The actions we take should be intended to ‘benefit’ people – health, welfare, comfort, well-being, improve a person’s potential, improve quality of life • ‘Benefit’ should be defined by the person themselves. It’s not what we think that is important. • Act on behalf of ‘vulnerable’ people to protect their rights • Prevent harm • Create a safe and supportive environment • Help people in crises

11. Autonomy • Respect a person’s right to make their own decisions • Empower people to be able to make their own choices • ‘Informed Consent’ is an important outcome of this principle • Support people in their individual choices • Health care setting issues: • Is the patient competent to make decisions? • Specific vs. general competence • Is the patient free of coercion in making his or her decision? • Is this the patient’s free will or “real” choice?

12. Justice • Fairness • Equity/equality- are these the same? • Major categories of justice: • Procedural • Substantive • Distributive

13. Procedural Justice • Due Process- substantive and procedural systems • Substantive • When you get your turn, you get the same treatment as everyone else- the outcome was just • Employment- who gets fired first when the company must cut back? • Procedural • Was the method/process used to make a decision fair • In the health care system, who gets seen first? • How are hiring and firing decisions made • Are there systems in place for appealing decisions

14. Distributive Justice Distributive Justice – sharing the scarce resources in society in a fair and just manner (e.g. health services, professional time) • How should we share our healthcare resources? • How do health care providers allocate time to patients? • Deciding how to do this raises some difficult questions Should patients get….. • an equal share ? • just enough to meet their needs ? • what they deserve ? • what they can pay for ?

15. 4 Ethical rules • Veracity – truth telling, informed consent, respect for autonomy • Privacy – a person’s right to remain private, to not disclose information • Confidentiality – only sharing private information on a ‘need to know basis’ • Fidelity – loyalty, maintaining the duty to care for all no matter who they are or what they may have done

16. Ethical activity • First, complete the survey by yourself. • Then groups of four, complete as a team

17. Framework • 1. Identify the ethical questions raised by the situation. • 2. Gather the medical, social, and all other clinically relevant facts of the case. • 3. Identify all of the values that play a role and decide which values are in conflict. • 4. Propose possible solutions to resolve the conflict. That is, answer the question, "What could you do?" • 5. Choose the better solutions for this particular case, justify them, and respond to possible criticisms. That is, answer the question, "What should you do, and why?"

18. Demystifying lawsuits • Lawsuits filed against public entities are usually civil lawsuits • Parties to the suit are: Plaintiff and Defendant • There is a verdict- but a defendant is not “guilty” • He, she, or they are found to be at fault

19. Elements of negligence • Duty • Breach • Causation • Harm

20. Duty • Did plaintiff and defendant enter into a professional relationship • Was this person your student, patient? (other relationship) Do you owe him or her a duty? • Schools take over the responsibility for caring for people who often aren’t able to care for themselves (sliding scale, continuum)

21. Breach • Standard of care: • Negligence arises when a professional fails to comply with the applicable standard of care. • Arizona jury instruction: • A health care [professional] must exercise that degree of care skill and learning that would be expected under similar circumstances of a reasonably prudent health care [professional] within this state. • Revised Arizona Jury Instruction (Civil) 5TH Medical Negligence 1; http://www.azbar.org/media/58808/med_negligence_2013.pdf

22. Causation • Fault • Arizona jury instruction: • Before you can find [Defendant] at fault, you must find that [Defendant was a cause of injury to [Plaintiff]. Negligence causes an injury if it helps produce the injury and if the injury would not have happened without the negligence. • But for the negligence, would [Plaintiff] have been harmed? (LEGAL CAUSE) • Where in the chain of events did the harm occur? (PROXIMATE CAUSE)

23. Harm, Damages, Injury • Was plaintiff injured, harmed? • Damages: • The nature, extent, and duration of the injury. • The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury. • Reasonable expenses of necessary medical care, treatment , and services rendered, and reasonably probable to be incurred in the future. • Lost earnings to date, and any decrease in earning power or capacity in the future. • Loss of love, care, affection, companionship, and other pleasures of the [marital] [parent – child]relationship. • Loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury

24. Comparative Fault • Some jurisdictions call this: contributory negligence • Arizona- pure comparative fault state: • All parties to an action are apportioned damages according to their degree of fault (percentage). • A plaintiff’s award is diminished in proportion to the claimant’s relative degree of fault, but the claimant’s fault generally will not act as a bar to recovery.

25. Lifecycle of a lawsuit An injury occurs... • How does a lawsuit start? • What steps are involved? • How long does it take? • When is it over?

26. Statute of Limitations • Statute of limitations is two years. A.R.S § 12-542 • Clock starts ticking from the day the injury is manifest. DeBoer v. Brown, 138 Ariz. 168, 673 P.2d 912 (1983). The discovery rule. • Clock stops if a claimant is: under eighteen years of age, mentally incompetent, or imprisoned. A.R.S. § 12-502 • Wrongful death claims accrue at the date of death. A.R.S.§ 12-542; Rogers v. Smith Kline & French Laboratories, 5 Ariz. App. 553, 429 P.2d 4 (1967) • Statute of limitations is 1 year for suits brought against public employees or public entities (public schools)

27. Special requirements for filing suit against public schools or public employees • Must file claim with the person (or persons) authorized to accept service for the entity within 180 days after cause of action accrues. • Claim must contain sufficient facts to permit the school or employee to understand the basis for liability • Includes a specific amount demanded for settlement • Facts the support that amount • When does a claim accrue? • When person (or family of person) realizes they’ve been damaged and knows or reasonably should know the cause, source, act, event, instrumentality, or condition that caused or contributed to the damage

28. Complaint • Lawyer meets with injured individual and gathers facts and information • Files the COMPLAINT and SUMMONS • Definition: This is the first document filed by the Plaintiff to start the lawsuit. It is a brief statement of the Plaintiff's claims against the Defendant. See, • Service of Complaint: • Once the Complaint is filed the Plaintiff must serve the Summons and Complaint upon the Defendant. This gives the Defendant notice that a lawsuit has been filed and informs the Defendant what must be done to respond to the lawsuit. • Time Period: Within 120 days of filing of the Complaint • Arizona requires an “affidavit of merit.” Which means anyone suing for medical malpractice must file a statement from a qualified health professional outside the case, asserting that it deserves to be heard in court. • The affidavit must usually be filed within 60 days of filing a lawsuit.

29. Answer • Defendant files the ANSWER • Includes defenses like comparative fault and identifies other potential parties. • Must be filed within 20 days; 30 day if out of state

30. Discovery and Disclosure • Discovery is a process where both parties identify the facts of the case and disclose the position and theories they hold on the case. • Each party is entitled to any information that is “reasonable calculated to lead to the discovery of admissible evidence.” • Very broad • Encompasses information that will likely not be used at trial. • Disclosure statements • Identifies expert witnesses and their opinions to be used at trial • Both plaintiff and defendant will obtain experts • Depositions

31. Motions and settlement • Motions for summary judgment • Settlement conference • Mediation • Usually it takes about 2 years for a case to be ready to go to trial.

32. Trial • Very rare • Very expensive

33. LAW & ORDER SPECIAL School Nursing UNIT In the hypothetical school nursing justice system, the patients are treated by two separate, but equally important groups: the prescribers who order the drugs and nurses who must decide when to administer the drugs. These are their stories…..

34. IN THE NEWS…

35. Recommendations • Maintain adequate personal professional liability insurance with appropriate coverage limits • Monitor the applicable scope of practice regulations and policies • District policies • Comply with HIPAA, FERPA and other privacy laws- ensure staff and employees who are assisting you are in compliance • DOCUMENT- everything, every time, as close to concurrently as possible • Document your decision making process after you’ve made a decision where you’ve considered other alternatives • Professional practice is a team sport- work with colleagues, consult, build supportive, mentoring relationships

36. Helpful Resources • National Association of School Nurses Policy Statement • http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNPositionStatementsFullView/tabid/462/ArticleId/86/Medication-Administration-in-the-School-Setting-Amended-January-2012 • National Association of State Boards of Education State School Health Policy Database • http://www.nasbe.org/healthy_schools/hs/bytopics.php?topicid=4110 • American Academy of Pediatrics, Health Mental Health and Safety Guidelines for Schools Sec. 4-19 Administering Medications in Schools • http://www.nationalguidelines.org/guideline.cfm?guideNum=4-19 • American Academy of Pediatrics Position Statement • http://pediatrics.aappublications.org/content/124/4/1244.full

37. Arizona State Laws • ARS § 15-344 Administration of Prescription, patent, or proprietary meds • School district/governing body shall establish policies and procedures; requires parent authorization • ARS § 15-341 (35)(a) and (b). • Anaphylaxis • Asthma/breathing disorders • ARS § 15-157 • Anaphylaxis emergency administration • ARS § 15-344.01 • Diabetes management

38. OVER-THE-COUNTER MEDS • Administer vs. dispense ARS 32-1901 • “Administer” means the direct application of a controlled substance, prescription-only drug, dangerous drug or narcotic drug, whether by injection, inhalation, ingestion or any other means, to the body of a patient or research subject by a practitioner or by the practitioner's authorized agent or the patient or research subject at the direction of the practitioner. • “Dispense” means to deliver to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare for that delivery.

39. OVER-THE-COUNTER MEDS • Policies?  Within the school’s or school district’s policy • AZ statutory law is silent on the issue • Each district writes its policy • American Academy of Pediatrics Position: • Risk vs. benefit • Physician Order vs. Parent Recommended • Symptomatic improvement vs. liability • Relative therapeutic value of OTC medication • Protocols- standing order for 1 time verbal parental permission • Limits on the frequency a medication may be given without a physician’s note or prescription

40. 15-344: Administration of prescription medications by employees; civil immunity; definition A. The school district governing board and the charter school governing body shall establish policies and procedures governing the administration of a prescription medication or a patent or proprietary medication to students by employees. In the case of a minor student, such administration shall only occur on the written request or authorization of a parent or legal guardian. B. A school district, a charter school or employees of a school district and a charter school are immune from civil liability for the consequences of the good faith adoption and implementation of policies and procedures pursuant to this section. C. For the purposes of this section, "administration of a prescription medication or a patent or proprietary medication" means the giving of a single dose of medication or the giving of a treatment package in its original container.

41. ARS § 15-341 (A)(34) ANAPHYLAXIS Prescribe and enforce policies and procedures: (a) Allowing pupils who have been diagnosed with anaphylaxis by a health care provider licensed … to carry and self-administer emergency medications, including epinephrine auto-injectors, while at school and at school-sponsored activities. The pupil's name on the prescription label on the medication container or on the medication device and annual written documentation from the pupil's parent or guardian to the school that authorizes possession and self-administration is sufficient proof that the pupil is entitled to the possession and self-administration of the medication. The policies shall require a pupil who uses auto-injectable epinephrine while at school and at school-sponsored activities to notify the nurse or the designated school staff person of the use of the medication as soon as practicable. A school district and its employees are immune from civil liability with respect to all decisions made and actions taken that are based on good faith implementation of the requirements of this subdivision, except in cases of wanton or willful neglect. (b) For the emergency administration of epinephrine auto-injector by a trained employee of a school district pursuant to section 15-157.

42. ARS § 15-157: EMERGENCY ADMINISTRATION OF EPINEPHRINE BY TRAINED PERSONNEL; IMMUNITY Pursuant to a standing order issued by the chief medical officer of the department of health services, the chief medical officer of a county health department, a doctor of medicine licensed …or a doctor of osteopathy …, an employee of a school district or charter school who is trained in the administration of auto-injectable epinephrine may administer or assist in the administration of epinephrine auto-injectors to a pupil or an adult whom the employee believes in good faith to be exhibiting symptoms of anaphylactic shock while at school or at school-sponsored activities.

43. ARS § 15-157: FUNDING • Starting in 2014-2015, if sufficient money is appropriated each school district and charter schools shall stock two juvenile doses and two adult doses of epinephrine auto-injectors at each school • Each fiscal year the department of education shall include in its budget request for assistance to schools a separate line item for a continuous, nonlapsing appropriation to fund the requirements of this section. • If sufficient monies are not appropriated by the legislature during any fiscal year to provide for the purchase of two juvenile doses and two adult doses of epinephrine auto-injectors at each public school in this state, a school district or charter school may stock two juvenile doses and two adult doses of epinephrine auto-injectors at each school • Many schools making use of EpiPen4Schools program • https://www.epipen4schools.com/

44. ARS § 15-157: CIVIL IMMUNITY The chief medical officer of the department of health services, the chief medical officer of a county health department, a doctor of medicine licensed pursuant to title 32, chapter 13 or a doctor of osteopathy licensed pursuant to title 32, chapter 17, a school district, a charter school and employees of a school district or charter school are immune from civil liability with respect to all decisions made and actions taken that are based on good faith implementation of the requirements of this section, except in cases of wanton or willful neglect.

45. ARS § 15-341 (A)(35) ASTHMA Prescribe and enforce policies and procedures: Allow the possession and self-administration of prescription medication for breathing disorders in handheld inhaler devices by pupils who have been prescribed that medication by a health care professional licensed …. The pupil's name on the prescription label on the medication container or on the handheld inhaler device and annual written documentation from the pupil's parent or guardian to the school that authorizes possession and self-administration shall be sufficient proof that the pupil is entitled to the possession and self-administration of the medication. A school district and its employees are immune from civil liability with respect to all decisions made and actions taken that are based on a good faith implementation of the requirements of this paragraph.

46. Stock inhalers • Pima County Schools • Enroll form http://www.lungresearch.arizona.edu/stockinhaler • If school doesn’t have medical director, medical order for stock albuterol comes from Director and Chief Medical Officer Dr. Garcia • Any individual who presents with distress may be administered by trained school staff member • School and staff are indemnified from liability with good faith use of stock inhaler

47. ASTHMA STOCK INHALER • Resources: • https://static1.squarespace.com/static/5938502303596ee372aeccfd/t/59dd6fd06f4ca380969933e7/1507684308930/Toolkit+for+the+Emergency+Administration+of+Albuterol.pdf

48. 15-344.01 (A). Diabetes management; policies and procedures; civil immunity A. The school district governing board and the charter school governing body may adopt policies and procedures for pupils who have been diagnosed with diabetes by a health professional who is licensed … or a nurse practitioner who is licensed … to manage their diabetes in the classroom, on school grounds and at school sponsored activities as authorized by their primary health professional who is licensed pursuant … or a nurse practitioner who is licensed …. If a school district or charter school follows the policies and procedures adopted pursuant to this section, the employees of the school district or charter school and members of the school district governing board or charter school governing body are immune from civil liability with respect to the actions taken to adopt policies and procedures pursuant to this section and all decisions made and actions taken that are based on good faith compliance with policies and procedures adopted pursuant to this section.

49. 15-344.01 (B): Diabetes management; policies and procedures; civil immunity B. If a school district governing board or charter school governing body adopts policies and procedures pursuant to subsection A, the policies and procedures shall include the following components: 1. The parent or guardian shall annually submit a diabetes medical management plan to the pupil's school that authorizes the pupil to carry appropriate medications and monitoring equipment and that acknowledges that the pupil is capable of self-administration of those medications and equipment. The diabetes medical management plan provided by the parent or guardian shall be signed by a health professional who is licensed pursuant … or by a nurse practitioner who is licensed … and shall state that the pupil is capable of self-monitoring blood glucose and shall list the medications, monitoring equipment and nutritional needs that are medically appropriate for the pupil to self-administer and that have been prescribed or authorized for that pupil.

50. 15-344.01 (B): Diabetes management; policies and procedures; civil immunity 2. A requirement that the pupil be able to practice proper safety precautions for the handling and disposal of the equipment and medications that the pupil is authorized to use pursuant to this subsection. The pupil's diabetes medical management plan shall specify a method to dispose of equipment and medications in a manner agreed on by the parent or guardian and the school. 3. Procedures that enable a school district or charter school to withdraw a pupil's authorization to monitor blood glucose and self-administer diabetes medication pursuant to this subsection if the pupil does not practice proper safety precautions as provided in paragraph 2 of this subsection. 4. A requirement that any medication administration services specified in the child's diabetes medical management plan shall be provided.