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LEGAL ISSUES FOR SCHOOL NURSES: An Interview with Nadine Schwab, RN, MPH, NCSN, FNASN SHA: To what types of liability are school nurses subject?
NCS: School nurses are subject to civil, administrative, and criminal liability.. Most civil cases against school nurses are related to questions of negligence and are settled out of court, making it difficult to find written details. The finding of liability in a civil case does not require proof of intent to do harm, but rather, failure to meet the standard of care of another reasonable school nurse in the same situation. Of cases decided in court, frequent causes of liability include failures to (1) perform an adequate assessment, (2)intervene effectively in emergencies, (especially anaphylaxis and asthma), and (3) document evidence of appropriate nursing care. Additional causes of liability include failures to keep clinically up-to-date, follow district policy, delegate safely, and communicate with parents. School nurses can be subject to administrative liability if referred to their state's board of nursing for investigation of possible failure to meet state practice standards. A finding of liability can result in discipline, including temporary or permanent loss of one's license to practice. Involvement in a special education due process hearings on behalf of school districts may be considered a type of administrative liability.. While it is the district, not the nurse, that is liable for a hearing officer's finding that it did not carry out its legal responsibilities to a student, the nurse's actions or recommendations to the school team may contribute to the finding of school district liability. The same concept applies to investigations by the Office for Civil Rights, U.S. Department of Education. Finally, school nurses can be subject to criminal investigation for actions that are prohibited by law, such as theft of controlled drugs or practicing medicine without a license. If charges are brought and a nurse is found guilty, he or she is generally sentenced by the court and may be required to pay a fine or serve a jail sentence, or both. SHA: Parents may have different expectations of what school nurses can and should do. How can nurses minimize conflicts with parents? NCS: The keys to minimizing conflicts with parents are focusing on students' needs and family priorities, collaboration, and communication. When one is sued for negligence, usually a series of things have gone wrong, particularly communications. Developing a sound working relationship with parents, beginning with their priorities and preferences, is key. Building trust requires deliberate actions to promote joint planning and problem solving, open discussion of recommendations and concerns, and parental notification of changes in student health status and district procedures. It is critical to communicate disagreement without conveying "disapproval" of a parent's position, and to document all communications. Explaining (in lay terms) the scientific basis of specific recommendations, including potential benefits to student learning, and addressing both pros and cons of differing positions advances understanding and collaborative approaches. SHA: Medications at school raise legal concerns: what practices and products should be allowed, who can dispense them, and who decides about giving medications - the physician, RN, parent or principal?
NCS: In general, the answers vary according to the state laws where the school nurse practices. It is critical to know and understand the relevance of various state laws and regulations that apply to medication administration in schools, including the nurse, pharmacy, and medical practice acts, regulations related to controlled drugs, applicable education laws, and declaratory rulings or guidelines of state agencies and boards. It is also important to use legally correct terms. For example, physicians and advanced practice nurses can prescribe, dispense and administer medications, pharmacists can dispense medications, and nurses can administer (but not dispense) them. Because nurses cannot dispense medications, packaging for administration on field trips is a challenging issue. Medication administration at school should primarily be considered a support service provided when a student requires it in order to access an appropriate education. Therefore, in most instances, this support or "related" service should be incorporated into a student's Section 504 accommodation plan or individualized education program (IEP). An exception might be when a drug is medically necessary for an acute problem(e.g., an antibiotic required during school hours for infection). Medication administration and related issues are generally governed by state law and regulations . As a practical matter, when parents ask school staff to administer medication to their children, the situation is not legally the same as when parents administer medications themselves. Even in states where school nurses do not have the legal responsibility to direct medication administration, they have an ethical responsibility to students (their clients) to speak out against unsafe practices and to try to establish standards for safe medication administration in their school district. School district policy and procedures that support safe medication administration practices are essential. For example, in the DeBord case (1997), the court found for the school district in a dispute regarding the school nurse's refusal to administer a dose of Ritalin that would have exceeded the total daily dosage recommended in the Physician's Desk Reference. Critical to the court's finding was the school district's policy supporting the nurse's review of all medication orders prior to administration to insure compliance with safety standards. Because the policy applied to all students, the court did not find discrimination on the basis of the student's disability, as alleged. In addition, the district had tried to accommodate the medication order by suggesting alternate accommodations (e.g., allowing a parent to administer the dose or dismissing the student early). SHA: Should students be allowed to carry emergency asthma inhalers or staff trained to use Epi-pens?
NCS: Whether students can self administer asthma inhalers, and whether or not teachers can administer epinephrine to students, are matters of state law. From a practice perspective, students with chronic conditions need to learn self-care skills, including self-administration of medication, in order to develop into competent adults. Immediate access to medication may also be critical for disease management and lifesaving purposes. Self-administration includes keeping the medication on one's person. School nurses should support policies that promote safe self-administration of medication, including epinephrine (Epi-Pens) for students at high risk of anaphylaxis. If students are unable to self-administer epinephrine, it should be immediately available for rapid administration by properly trained staff. SHA: What about non-prescription or herbal products parents ask schools to give?
NCS: Even if state law allows school nurses or other staff to give non-prescription, over-the-counter medications (OTCs) without a doctor's order, e.g., acetaminophen for fever or headache, the school nurse has a duty to students to use medication only when it is indicated from a medical perspective and to assure safety. Our book suggests that, in most instances, using OTC medications is not in the best interests of students, nor in keeping with best pediatric practice standards. Teaching students other strategies for managing common health complaints is fundamental to quality practice. The in-school administration of herbal and naturopathic substances is also a complex issue, addressed differently by individual states. Regardless, health professionals should not administer to minors substances for which there are no established safety parameters. As with other medication issues, school districts need written policies that support current standards and safe practices. School nurses and medical advisors must communicate the relationship of these standards and practices to student health and learning. SHA: Sometimes a nurse or principal feels threatened or so fearful of liability that he or she is paralyzed into inaction. How do you analyze options in light of"theoretical" liability?
NCS: One can be liable for damages caused by one's failure to act (when one should have acted), as well as by taking an action (when one shouldn't have acted). Therefore, inaction is not protection against liability. To minimize liability, analyze the situation, determine what standards of care apply, obtain consultation and all other relevant information, and then determine the best course of action (or inaction). One of the most important "standards of care" against which a school nurse can be measured in a court case, in addition to the nurse practice act and job description, is the Standards of Professional School Nursing Practice (National Association of School Nurses, 1998). These standards help guide school nurses to make decisions that are in the best interests of students. It is always safer, in terms of preventing liability, to make decisions that are focused on the needs of students, rather than on one's own interests, such as job security or colleague acceptance. SHA: Many RNs have multiple schools with others (LVN, aide, clerk, secretary, volunteer) assigned to see students. Who is liable for errors? Even with training and spot-checks, how can an RN protect students and his/her license?
NCS: School nurses responsible for multiple schools or large student populations need job descriptions that reflect their responsibilities more as consultants than direct care providers. One's job description is often used as a "standard of care" against which a nurse's action or inaction is measured in a civil suit. It might reflect responsibilities related to advising the district on health and safety issues, drafting policies and procedures regarding school health services, consulting to school personnel, participating on the special education team, and so forth. It should not reflect responsibility for day-to-day direct care services to all students. The nurse's administrative and legal responsibilities related to other personnel who provide direct services should also be clear in the job description - and achievable. School nurses can be liable for errors made in advising the district, consulting to other staff, setting priorities for their own practice, making professional judgments, and directing others, as well as for staying long-term in a situation that remains unsafe for students. School nurses are generally not liable for errors made by others, unless they contribute to those errors by deliberate actions (or inactions), such as unsafe delegation under pressure from an administrator, or inadequate training or supervision of someone to whom they delegate a nursing activity. One strategy is to advocate for a school health advisory council or "healthy school" team that includes other school personnel, parents and community health professionals. Such a group can advise district leaders on high priority health issues, including staffing needs and options, and support recommendations for improvements during budget deliberations. Collaboration with others not only supports improved services for students, it also builds legal protection. REFERENCES DeBord, Allen, et al. v. The Board of Education of the Ferguson Florissant School District, et. al., Case No. 4:96-CV634 (CEJ) (E.D. Mo. 1996); 126 F.3d. 1002., 26 IDELR 1133 (8th Cir. 1997).
Schwab, N.C. & Gelfman, M.H.B., Eds. (January 2001). Legal Issues in School Health Services: A Resource for School Nurses, Administrators and Attorneys. North Branch, MN: Sunrise River Press. Read about Legal Issues in School Health Services
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