Court Overturns California Department of Education Advisory that Trained Non-medical Personnel Can Administer Insulin to Children with Diabetes

     In August of 2007 the American Diabetes Association (ADA) and the California Department of Education (CDE) entered into an agreement that ensured that students with diabetes had access to insulin in school by allowing trained non-medical personnel to administer insulin. The agreement was made to settle a lawsuit alleging that students with diabetes in California were not receiving adequate health services due to a shortage of school nurses and schools not allowing trained non-medical staff to provide those services. As a result of the agreement, the CDE issued a Legal Advisory on the Rights of Students with Diabetes in California”s K-12 Public Schools. The American Nurses Association and several other nursing associations sued arguing that under California state law only a nurse can administer insulin. Last Friday, November 15, a superior court judge agreed and ruled that in California only licensed nurses can administer insulin.

     This court decision is not about whether students with diabetes are entitled to have insulin administered at school, if needed. Under Section 504 and the Americans with Disabilities Act, students with diabetes, as persons with disabilities, are entitled to those services to ensure they have equal access to educational services (please see my post Opening the School Door to Section 504 ). This court decision is about who, under California law, can administer the insulin. For now, the California courts have said California law requires that only licensed nurses can administer insulin. But federal and California state law still require that educationally needed diabetes care services, including insulin, must be provided to students.

     Unfortunately, in California, there are nearly 14,000 school children with diabetes and only 2,800 school nurses spread across 9,800 California schools. So, limiting administering insulin to only licensed nurses will make it difficult to meet the needs of students with diabetes. But, legally, those needs must still be met. Thus, the American Diabetes Association issued a press release stating that this decision was not in the best interests of children with diabetes and it will continue to work until children with diabetes in California and throughout our country are safe at school.

6th Circuit Lets Parent File Retaliation Suit for Superintendent Reporting Her to Child Welfare

     In Jenkins v. Rock Hill Local School District and Evans  513 F.3d 580 (6th Cir. 2008) the 6th Circuit Court of Appeals has supported a parent’s right to sue for retaliation when the school superintendent reported her to Child Welfare after  a newspaper published her letter to the editor criticizing her daughter’s in-school care for diabetes.

     In March of 2000 Shara Jenkins enrolled her daughter in first grade at Rock Hill Elementary School. Rock Hill Elementary is a school in Ironton, Ohio. That same month the daughter was diagnosed with diabetes and Ms. Jenkins arranged with the school nurse to assist her  daughter with her diabetes treatment. Things were fine until the following school year when Ms. Jenkins again arranged for the school nurse to assist her daughter. Apparently, there was confusion regarding whether the nurse would administer an insulin shot and whether she was appropriately authorized by Ms. Jenkins and the daughter’s doctor. As a result, the elementary school did not administer the insulin shots. Hoping to resolve the problem, the mother contacted the school superintendent, Lloyd Evans. According to Ms. Jenkins, Superintendent Evans told her the school was not responsible for the daughter’s medical care and suggested she enroll the daughter in a different school. Ms. Jenkins said that Evans called her the next day and told her the daughter could not come back to school. Her daughter then missed a week of school until the superintendent allowed her to return. 

     Ms. Jenkins contacted the U.S. Department of Education’s Office for Civil Rights and she wrote a letter to the local newspaper discussing her struggles with the school district. Her letter was published on December 13, 2001 and on December 17 she filed a complaint with the Office for Civil Rights. (For a general discussion of Section 504  please see my posting Opening the Scool Door to Section 504). Two days later, on December 19, 2001, a call was placed from the Rock Hill Elementary School’s principal’s office to Childrens Services providing information about Ms. Jenkins and her daughter. As a result, Childrens Services filed a court complaint against Ms. Jenkins. The charges, however, were later dropped as unsubstantiated. In January 2002 the daughter’s doctor recommended she be home schooled. Based on that recommendation. the daughter stopped attending school and, at first, the school provided her a tutor. Unfortunately, for reasons unknown to the mother, that individual stopped the tutoring. Ms. Jenkins asked Superintendent Evans to find another tutor, but he said he couldn’t find anyone. As result, the daughter did not receive an education for the last three months of the school year. 

     Ms. Jenkins later sued the school district and Superintendant Evans for retaliation for reporting her to Childrens Services after she exercised her right to free speech by writing her letter to the editor. (Please see my posting Protection from Retaliation). The district court dismissed the case, determining that the letter to the editor needed to address a matter of public concern to qualify as constitutionally protected free speech. Overturning the district court, the 6th Circuit said that the right to criticize public officials “is clealy protected by the First Amendment” and the letter to the editor qualified as “free speech.” The court noted that a jury could conclude that the superintendent’s alleged decisions to exclude the girl from school, report her mother to child protective services, and refuse to provide home based tutoring services were all intended to prevent the parent from exercising her free speech rights. Thus, establishing a claim for retaliation against the mother for exercising her free speech rights.

Comment

   This lawsuit was filed under Section 1983 for retaliation against the parent for exercising her Constitutional right to free speech. While the parent didn’t do so, she also had a valid retaliation claim under the ADA and Section 504. Clearly, her daughter with diabetes is a person with a disability. The school district was required to administer her insulin injections so that she would have equal access to the school program. Moreover, under 504/ADA, Superintendent Evans was wrong if he said the school was not responsible for this care and told the mother she should send her daughter to a different school. He also violated 504/ADA when he didn’t followup to provide the tutor. And, finally, there is a claim that the superintendent violated federal disability law when he reported the mother to child welfare for advocating for her daughter and filing a complaint with the Office for Civil Rights.The court decision does not discuss the outcome of that complaint. I think the free speech issue in this case is interesting and it might be useful for parents to know that if school district staff report the family, or threaten to report the family, to child welfare for advocating for their children’s rights, that might be considered illegal retaliation.

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