Transcript Legal Overview Objectives - Children`s Healthcare of Atlanta

School Nurse
Legal Overview
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Krista Lowe, RN, BSN, M.Ed., Georgia School Nurse
Specialist, Georgia Department of Education
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Reference: Legal Issues in School Health Services,
Nadine Schwab & Mary Gelfman
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Legal Overview Objectives
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History of School Nursing
Review history of school health
programs in Georgia
Identify key federal & state laws related
to school health
Describe criminal/civil liability and
potential legal risks in school health
Confidentiality-Discuss the difference in
HIPPA and FERPA
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History of School Nursing
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Practice of school nursing began in the
United States in 1902
Initial role of the School Nurse was to
reduce absenteeism. The primary need
involved intervening with students and
families regarding health care needs
related to communicable diseases.
Public Health Nurses were key playershome visits, prevention efforts, direct
care.
School Nurse
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The role has expanded from it’s original focus
but the essence of school nursing remains
the same.
Healthy children are more successful
learners.
School nursing is a specialized practice of
public health nursing, protects and promotes
student health, facilitates normal
development, and advances academic
success. NASN 2016
National Association of School
Nurses: Who is the School Nurse?
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Health Services Provider
Health Educator
Mental Health Assessor
Nutrition Advocate
Physical Activity Promoter
Promoter of a Safe Environment
Staff Health Educator
7 Roles of the School Nurse
Provides:
1. direct health care to students and
staff
2. leadership for the provision of
health services, supervises health
staff
3. health screenings and referrals for
health conditions
School Nurse Roles
Promotes:
4. a healthy and safe environment for
school children
5. health and wellness
(through prevention, early intervention,
cooperation and collaboration with
school and community resources)
School Nurse Roles
Serves:
6. in a leadership role for health policies
and programs
7. as a liaison between school personnel,
family, community and health care
providers
 Examples: Referrals to community resourcesLocal lions club- glasses for students
Dental outreach- Give kids a smile program
SCHOOL LAW IN GEORGIA
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1988- Restrictions on Contraceptives
2000- School Health Nurses in SchoolTobacco Funds
2002- Self-Administration of Asthma Meds
2008- Automated External Defibrillators in
Schools
2009- Epipen Self-Administration
2011- Schools Can Administer Epipen if
Student Unable or Without Prescription in
Emergency
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2012- Diabetes Medical Management
Plans
2013- Schools can Obtain Prescription
and Stock Epipens
2015- Schools Can Obtain Prescription
and Stock Levalbuterol Sulfate; Can
Administer to Student if Unable or
Without Prescription in Emergency
What’s Next? Medical Marijuana and
Naloxone/ Narcan?
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In order to be compliant with
Georgia law the patient who
possesses low THC oil must…
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Be registered with the Department of
Public Health as set forth in OCGA 31-2A18;
Have in his or her possession a Low THC
Oil Registry card issued by the DPH;
The Low THC Oil must be in a
“pharmaceutical container” that has been
labeled by the manufacturer to display the
amount of THC that the oil contains.
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What is the School’s Role?
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What if the student has a prescription?
How is this different than any other Section 504
issue? Even though we know these students
have a medical condition there are federal
laws/ statues that mandate that no drugs are
allowed on school property.
Per DOE until or unless Georgia passes a
law that states the medical marijuana is
allow on school grounds, the possession of
medical marijuana on school property is
prohibited in Georgia.
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Georgia Overdose Prevention/
NARCAN
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http://www.georgiaoverd
oseprevention.org/
Offering education,
speakers on request,
and free naloxone kits
Don’t Run Call 911
Criminal Law (LET’S REVIEW)
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Addresses violations of criminal statutes
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Cases brought by government authority
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Standard for guilt is “beyond a
reasonable doubt”
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Civil Law
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Cases brought by governmental
authority or an individual seeking
compensation for harm
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Tort actions address wrongful acts
committed by individuals against other
individuals
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Civil Law (cont.)
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Negligence is the “failure to act as an
ordinary prudent person would act in
similar circumstances”
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Malpractice is negligence by a
professional, failure to meet the
“standard of care”
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Civil Law (cont.)
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Standards of care are based on:
– Licensure laws & regulations
– Professional standards of practice
– Policies/procedures/job descriptions
– Current practice in the community
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Civil Law (cont.)
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To prove liability, plaintiff must find:
– Duty to provide care
– Breach of that duty
– Proximate cause
– Damages (harm)
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Standard for liability is a
“preponderance of evidence”
This preponderance is based on the more convincing
evidence and its probable truth or accuracy, and not on
the amount of evidence.
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Federal Education Laws
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IDEA: Individuals with Disabilities
Education Act (1990)
– Entitles students with disabilities a
“free & appropriate education” in the
“least restrictive environment”
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Federal Education Laws (cont.)
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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”
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Federal Civil Rights Laws
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Rehabilitation Act/Section 504 (1973)
– Assures access to buildings,
programs, and services
– Prohibits discrimination on the basis
of handicap
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Federal Health Laws
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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.
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Federal Health Laws (cont.)
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OSHA: Occupational Health & Safety
Administration
– Obligates employers to create and
maintain a safe working
environment for employees
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Georgia Laws & Regulations
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Public Education
– Licensure & Competencies
– FERPA
– Documentation/Record Retention
Public Health
– Immunizations
– Form 3300
Children’s Code
– Child Abuse & Neglect- Mandated
Reporting
– Mandated suicide Training for all school
staff
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Laws & Regs (cont.)
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Nursing Practice Act
– Standards of nursing practice
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Unlawful 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
and/or a fine
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US Supreme Court Cases
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Brown v. Board of Education (1954)
– Ruled that separate schools for black children were
not equal for educational opportunity
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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
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US Supreme Court Cases (cont.)
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Hudson School District v. Rowley (1982)
– Set forth judicial standards for the
appropriateness of a special education
program for an individual student
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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
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Lower Court Rulings
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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
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Lower Court Rulings (cont.)
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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).
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Negligence Cases
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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
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Negligence Cases (cont.)
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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?
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Negligence Cases (cont.)
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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
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Negligence Cases (cont.)
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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
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Negligence Cases (cont.)
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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?
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Negligence Cases (cont.)
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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”
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Negligence Cases (cont.)
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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.
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Negligence Cases (cont.)
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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?
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Negligence Cases (cont.)
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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”
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Remember...
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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.
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Family Educational Rights and Privacy Act
(FERPA)
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Statute: 20 U.S.C. § 1232g
Regulations: 34 CFR Part 99
Family Policy Compliance Office
(FPCO) in U.S. Department of
Education administers FERPA.
https://www.youtube.com/watch?v=n
hlDkS8hvMU&sns=em
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What is FERPA?
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Gives parents the right to
access and seek to amend their
children’s education records
Protects personally identifiable
information (PII) from education
records from unauthorized
disclosure
Requires written consent before
sharing PII – unless an
exception applies
Applies to educational agencies
and institutions that receive
federal education funds
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To which educational agencies and institutions
does FERPA apply?
Elementary
Secondary
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Postsecondary
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Education Records and PII
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“Education records” are records that are directly
related to a student; and maintained by an
educational agency or institution or by a party
acting for the agency or institution.
“Personally Identifiable Information (PII)” includes
such information as student’s name, student’s
parents or family, social security number, student
number, date and place of birth, and other
information that, alone or in combination, is linked
or linkable to a specific student that would allow a
reasonable person in the school community , who
does not have personal knowledge of the relevant
circumstances, to identify the student with
reasonable certainty.
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Education records do not
include such records as –
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Sole possession records used as a
personal memory aid
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Law enforcement unit records
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Treatment records
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Peer-graded papers before they are
collected and recorded by teacher
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What rights do parents and eligible
students have?
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Right to inspect and review education
records;
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Right to request amendment of
education records;
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Right to consent to disclosures, with
certain exceptions; and
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Right to file a complaint with U.S.
Department of Education.
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Transfer of Rights Under FERPA
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When a student
turns 18 years old, or
enters a
postsecondary
institution at any
age, the rights under
FERPA transfer from
the parents to the
student (“eligible
student”).
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Prior Written Consent Requirement
Except for specific exceptions, a
parent or eligible student shall
provide a signed and dated written
consent before a school may
disclose education records. The
consent must:
– specify records that may be disclosed;
– state purpose of disclosure; and
– identify party or class of parties to whom
disclosure may be made.
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Health or Safety
Emergencies Exception
What conditions apply to
disclosure of information
in health or safety
emergencies?
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Disclosure is necessary to protect the
health or safety of the student or
others.
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There is an articulable and significant
threat to the health or safety of a
student or other individuals.
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Appropriate parties typically means
local, State, or federal law enforcement,
trained medical personnel, public
health officials, and parents.
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Must be related to an actual,
impending, or imminent emergency.
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Health or Safety Emergency
Exception, cont.
 Must be articulable and significant threat.
 School must make determination on case-by-case basis.
 Department will not substitute its judgment if there is a
rational basis for decision to disclose under health or
safety emergency exception.
 Limited to period of time of the emergency.
 Must record pertinent information when it discloses PII.
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Health or Safety Emergency Exception,
cont.
 If the school determines that a health or safety
emergency exists, may it disclose without consent
personally identifiable information on students to the
media?
 No. FERPA only permits disclosures of personally
identifiable information from students’ education
records under the health or safety emergency
provision to “appropriate parties” (such as public
health officials) whose knowledge of the information
is necessary to protect the health or safety of
students or other individuals in the school
community. While the media may have a role in
alerting the community of an outbreak, they are not
“appropriate parties” under FERPA’s health or safety
emergency provision because they generally do not
have a role in protecting individual students or other
individuals at the school.
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Health Insurance Portability and
Accountability Act (HIPAA) Privacy Rule
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Establishes standards and imposes requirements
to protect the privacy of individually identifiable
health information.
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Records that are subject to FERPA are not
subject to the HIPAA Privacy Rule (see page
82483, Federal Register, Vol. 65, No. 250,
December 28, 2000)
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Other HIPAA rules may apply.
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HIPAA and K-12 Schools
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In most cases, the HIPAA Privacy Rule
does not apply to an elementary or
secondary school because the school
either:
– (1) is not a HIPAA covered entity or
– (2) is a HIPAA covered entity but maintains
health information only on students in records
that are by definition “education records”
under FERPA and, therefore, is not subject to
the HIPAA Privacy Rule
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FERPA and Health Records
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At the elementary or secondary school level,
students’ immunization and other health records
that are maintained by a school district or
individual school, including a school-operated
health clinic, that receives funds under any
program administered by the U.S. Department of
Education are “education records” subject to
FERPA, including health and medical records
maintained by a school nurse who is employed
by or under contract with a school or school
district.
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FERPA and School-Located Vaccination
Programs
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School Nurse Records –
– Vaccination records that are directly related to a student
and maintained by a school nurse who is employed by the
school are considered “education records.”
– Vaccination records that are directly related to a student
and maintained by a school nurse that is under contract to
the school are considered “education records.”
– Vaccination information from education records may not
be shared with outside parties without parental consent,
unless an exception applies.
Health Department Records –
– Vaccination records that a health department creates and
maintains as a result of a vaccine campaign are not
subject to FERPA and may or may not be subject to
HIPAA.
– Any copies of vaccination records maintained by the
school become “education records” subject to FERPA at
the school.
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FERPA and School-Located Vaccination
Programs –Consent
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Signed and dated consent is generally needed for a
school to share vaccination records to public health
authorities (e.g., for entry into an immunization registry)
or to the child’s health care provider (e.g., for inclusion in
the child’s health care record).
Schools, in collaboration with their health departments
and local health providers, must carefully consider how
to obtain consent from parents for potential information
sharing.
Obtaining consent to share vaccination information on
certain populations can be challenging, such as
– Children in foster care
– Children not in the physical custody of a parent or
guardian
Vaccination information may be shared, without consent,
to other school officials whom the school has
determined to have legitimate educational interest
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FERPA and School-Located Vaccination
Programs - Scenario
If public health department officials provide vaccines
at the school site to students, are any records
generated by the vaccine campaign subject to
FERPA or to the HIPAA Privacy Rule?
 If health officials, such as individuals from the
local health department, come on campus and
oversee the vaccine administration, any records
that the health officials create and maintain would
not be subject to FERPA. However, any records
or recorded information (or copies of records)
provided by health officials to school officials that
directly relate to a student and are maintained by
the school would be “education records” subject
to FERPA.
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FERPA and School-Located Vaccination
Programs - Scenario
If a school nurse (employed by the school)
participates in the administration of vaccines along
with other individuals from the health department,
are the vaccination records covered by FERPA or
the HIPAA Privacy Rule?
 Any records that the school nurse maintains that
are directly related to a student are considered
“education records” subject to FERPA. Any
records that the health department creates and
maintains as a result of the vaccine campaign are
not subject to FERPA and may or may not be
subject to the HIPAA Privacy Rule.
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FERPA and School-Located Vaccination
Programs - Scenario
If a student is vaccinated by a personal physician and
brings the vaccination record to the school, does that
become part of the student’s education records and, if
so, can that record be shared with the health
department to allow the student to be counted as
“vaccinated”?
 If the parent (or the physician) provides the
information to the school, and it is maintained by the
school, it is an “education record” under FERPA. As
such, it can only be shared with the health
department either with consent or under one of the
exceptions to the general consent requirement in
FERPA, such as under the health or safety
emergency exception.
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Guidance Documents & Other Resource Materials
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FERPA & H1N1 (re: disclsoures to local and state health departments)
http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferpa-h1n1.pdf
Addressing Emergencies on Campus
http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf
Joint FERPA-HIPAA Guidance
http://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf
FERPA & Disclosures Related to Emergencies & Disasters
http://www2.ed.gov/policy/gen/guid/fpco/pdf/ferpa-disaster-guidance.pdf
Balancing Student Privacy & School Safety
http://www2.ed.gov/policy/gen/guid/fpco/brochures/elsec.html
Unofficial updated version of FERPA regulations showing changes
http://www2.ed.gov/policy/gen/guid/fpco/pdf/2012-final-regs.pdf
www.ed.gov
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QUESTIONS?
COMMENTS?
Krista Lowe, RN, BSN, MEd.
School Nurse Specialist
Georgia Department of Education
1752 Twin Towers East
205 Jesse Hill Jr. Drive, SE
Atlanta, Georgia 30334
404-657-8331 office
404-947-0616 cell
770-344-4415 fax
[email protected]
“Educating Georgia’s Future”
3/30/2017
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How did we do?
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http://gadoe.org/surveys/CTAEFP5Q7ND
3/30/2017
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