School Health Assistant Legal Overview

1. School Health AssistantLegal Overview • Janie Lee Hall, School Health Advocate, NW Region, Office of School & Adolescent Health, NMDOH • Reference: Legal Issues in School Health Services, Nadine Schwab & Mary Gelfman

2. Legal Overview Objectives • Identify key federal & state laws related to school health • Describe criminal/civil liability and potential legal risks in school health

3. Sources of Law • State & federal constitutions • State & federal legislation • Administrative regulations • Case law (aka: common law)

4. Criminal Law • Addresses violations of criminal statutes • Cases brought by government authority • Standard for guilt is “beyond a reasonable doubt”

5. Civil Law • Cases brought by governmental authority or an individual seeking compensation for harm • Tort actions address wrongful acts committed by individuals against other individuals

6. Civil Law (cont.) • Negligence is the “failure to act as an ordinary prudent person would act in similar circumstances” • Malpractice is negligence by a professional, failure to meet the “standard of care”

7. Civil Law (cont.) • Standards of care are based on: • Licensure laws & regulations • Professional standards of practice • Policies/procedures/job descriptions • Current practice in the community

8. Civil Law (cont.) • To prove liability, plaintiff must find: • Duty to provide care • Breach of that duty • Proximate cause • Damages (harm) • Standard for liability is a “preponderance of evidence”

9. Federal Education Laws • IDEA: Individuals with Disabilities Education Act (1990) • Entitles students with disabilities a “free & appropriate education” in the “least restrictive environment”

10. Federal Education Laws (cont.) • FERPA: Federal Educational Rights and Privacy Act • Requires educational agencies to hold all educational records confidential, • Only available to parents, students over 18 years, and those who have a “legitimate educational interest”

11. Federal Civil Rights Laws • Rehabilitation Act/Section 504 (1973) • Assures access to buildings, programs, and services • Prohibits discrimination on the basis of handicap

12. Federal Health Laws • HIPAA: Health Insurance Portability & Accountability Act (1996) • Assures privacy protections of “individually identifiable health information” for “covered entities” • Exchange of information about medications, treatment orders, and immunizations with the student’s medical provider is allowable.

13. Federal Health Laws (cont.) • OSHA: Occupational Health & Safety Administration • Obligates employers to create and maintain a safe working environment for employees

14. New Mexico Laws & Regulations • Public Education • Licensure & Competencies • Screening & Student Assistance • Documentation/Record Retention • Public Health Act • Public Health Authority • Confidential Services for Minors • Children’s Code • Child Abuse & Neglect

15. NM Laws & Regs (cont.) • Nursing Practice Act • Standards of nursing practice • Misdemeanor to: • practice professional or licensed practical nursing unless duly licensed to do so • imply that he/she is a registered nurse of licensed practical nurse unless duly licensed to do so • Proof of a single act may result in imprisonment for up to one year, a fine of up to $1,000, or both

16. US Supreme Court Cases • Brown v. Board of Education (1954) • Ruled that separate schools for black children were not equal educational opportunity • Mills v. DC Board of Education (1972) & North v. DC Board of Education (1979) • Established that children with disabilities were entitled to appropriate educational opportunities

17. US Supreme Court Cases (cont.) • Hudson School District v. Rowley (1982) • Set forth judicial standards for the appropriateness of a special education program for an individual student • Cedar Rapids Community School District v. Garret F (1999) • Ruled that nursing services required for a ventilator dependent student under IDEA, and rejected “cost-balancing” tests of many earlier court decisions.

18. Lower Court Rulings • Mitts, Carol v. Hillsboro Union High (1990) • Case brought by school health aide who was assigned by the principal to perform clean intermittent catheterization for a student. • Principal was found to be “practicing nursing without a license”—not so much because he assigned the task of CIC, but that he assumed the functions of health assessment, diagnosis & planning.

19. Lower Court Rulings (cont.) • Macomb Federation of Teachers v. Macomb Intermediate Schools (1991) • Court issued a permanent injunction against the district’s plan to delegate certain nursing procedures, reinforcing that the decision to delegate must be made by the professional nurse, and that the delegator must meet the supervisory standard (available for direct communication).

20. Negligence Cases • Mogabab v Orleans Parish Schools (1970) • 16 y.o. student became ill during football practice at 5:20 pm • Mother notified at 6:45 pm, and it was she who called for medical assistance • Student arrived at the hospital at 7:30 pm, and died at 2:30 am • Parents sued coaches, PE supervisor, principal, superintendent & school board

21. Negligence Cases (cont.) • How do you think the court ruled? • Was there a duty to provide care? • Was there a breach of duty? • Were there damages? • Was there proximate cause? • Who (if anyone) do you think was held liable?

22. Negligence Cases (cont.) • Mogabab v. Orleans Parish Outcome • Despite vigorous dispute about causation, the court found that the student “more likely than not” would have survived if he had received prompt medical attention • Judgement was entered against the coaches only

23. Negligence Cases (cont.) • Nance v. Mathews (1993) • Case in which a school health assistant failed to carry out urinary catheterization, as delegated by the school nurse, on a student with spina bifida, resulting in physical injuries and mental trauma • Parents sued the health assistant, nurse, principal, and special education director

24. Negligence Cases (cont.) • How do you think the court ruled? • Was there a duty to provide care? • Was there a breach of duty? • Were there damages? • Was there proximate cause? • Who (if anyone) do you think was held liable?

25. Negligence Cases (cont.) • Nance v. Mathews Outcome • Health assistant was found liable • Case against the principal, school nurse, and special education director was dismissed, because delegation was within the scope of the supervisor’s responsibility, and “no one could have predicted that the aide would neglect to carry out the catheterization on that day”

26. Negligence Cases (cont.) • Declout v. Orleans Parish Schools (1998) • 18 y.o. student died of an asthma attack at school, after school officials delayed calling 911 as the student requested, while trying to contact the mother to see if she would pay for an ambulance • Parents sued the principal, guidance counselor, and school board.

27. Negligence Cases (cont.) • How do you think the court ruled? • Was there a duty to provide care? • Was there a breach of duty? • Were there damages? • Was there proximate cause? • Who (if anyone) do you think was held liable?

28. Negligence Cases (cont.) • Declout v. Orleans Parish Outcome • Principal found negligent for “shirking his duty to protect the child from harm” • Guidance counselor was found negligent for “abandoning common sense and placing rigid rules before a dying child’s request” • School board was fount negligent for “failing to provide adequate training for it’s employees and failing to have a clear policy on medical emergencies”

29. Remember... • Keep the best interest of student in mind • Make sure accurate job descriptions, policies and procedures are in place • Keep accurate records---document what you do (including communication) • Maintain a positive working relationship with the student, family and school nurse.