Risk Management for School Nurses October 21, 2015

1. Service + Solutions = Success Emma O. Gillespie Partner, Seattle Risk Management for School NursesOctober 21, 2015 Sponsored by:

2. Nursing in the Media: • 1998 Minnesota case • Student came to the health office complaining of difficulty in breathing. • No assessment of the student’s condition • Did not document her observations. • Provided another student’s asthma medication, sent her back to class. Failing to Recognize the Need for Emergency Care

3. Nursing in the Media: • 2001 Spokane student with known peanut allergies went on a field trip • Two nurses, teacher, epi-pen • School’s sack lunch: PB&J, bag of nuts, peanut butter cookie • Student avoided the sandwich and mixed nuts, but not the cookie • Started having a reaction • Student put on bus to wait for an hour until the class was done • Condition deteriorated , so they returned to the school. • School bus was going to take him home, but he passed out • Taken to the hospital in a car • Administered epinephrine on the way to the hospital. Failure to Prevent and Failure to Recognize the Need for Emergency Care

4. Nursing in the Media: • Florida 2012 • Michael Rudi had an inhaler (sealed, with his name on it) and known condition - asthma • The principal seized the inhaler as contraband because student didn’t have a medical release form • Student had an asthma attack • Parent sued for damages Failing to Take Reasonable Care

5. Nursing in the Media: • 2002 – Fifth grade student in California had severe asthma • School’s policy required medications to be kept in the school office. • But: there was an exception to this policy that would have allowed him to carry his inhaler and nobody told his parents • Student showed up at the school nurse with a severe asthma attack. The school secretary brought the medication, used it as trained, but the student died. Failing to Follow School Policy/Inform Parents of All Care Options

6. Nursing in the Media: • 1987: Oregon school nurse disciplined for wrongful delegation • Principal delegated intermittent catheterization of a student with spina bifida to a school health assistant. • Assistant sued for an injunction • Courts asked Oregon Board of Nursing for a formal opinion on the delegation issue. • Board found that: • school principal was practicing nursing without a license, and • health assistant was unlawfully practicing nursing by following the assignment. • School nurse disciplined for failing to: (1) follow a standard of care; and (2) to conduct a nursing assessment on the appropriateness of delegation Wrongful Delegation

7. Nursing in the Media: • Student told AP a student gave him a white pill; AP searched student’s pockets and found a blue pill • AP had administrative assistant and school nurse search student’s bra and underpants • Nothing found; exposed pelvis and breasts • Pills were over-the-counter naproxen and prescription-strength ibuprofen (which violated the school policy) • Search unreasonably violated student’s right to privacy because: • (1) no indication of danger to students from the power of the drugs or the quantity; • (2) no reason to suppose that the student was carrying drugs in her underwear • School and school nurse granted immunity because it was not clearly obvious this was prohibited by the Fourth Amendment • But – now we know Unreasonable Searches Safford Unif. Sch. Dist. v. Redding, 557 U.S. 364 (2009).

8. Nursing in the Media: • 6 year old student complained to school nurse of genital itching and discomfort • Teacher called parent • Student complained again the next day • Nurse did not know student’s medical history. • Nurse took student into bathroom with the secretary, asked student to remove her pants and underwear for a visual inspection. • Nurse reprimanded for failing to send the student home (per school policy when they can’t reach a parent) • Parents sued for unreasonable search • Court: action departed from nursing standards - no emergency situation Unreasonable Searches Hearringv. Sliwowski, 872 F.Supp.2d 647 (6thCir.2013)

9. Nursing in the Media: • 2007, District of Columbia • A child with cerebral palsy was in physical distress • The school administration gave the student an “urgent health note” to take home • The student took the school bus home. • She died en route Failure to Follow Health and Medical Standards

10. Nursing in the Media: • 2014 in Washington • Parent wanted the school to call her instead of the hospital. • Student went into anaphylactic shock. • Mom came over, tried to put child in the car, and the kid stopped breathing. • When in doubt, call 911 Failure to Follow Health and Medical Standards

11. Nursing in the Media: • In 1998, a Missouri nurse refused to administer a high-dose prescription for Ritalin • Dose exceeded recommended daily dosage listed in the Physician’s Desk Reference. • Parents sued school under ADA and Rehabilitation Act Sec. 504 for discrimination based on a disability. • Disability discrimination? • No. • Policy was neutral and applied to all students. Questioning Doctor’s Orders

12. Nursing in the Media: • Who needs to know? • When it’s necessary to protect the health and safety of a student, share it. • Coach or physical education teacher needs to know about possible injuries or doctors’ notes • Special education teachers may need to know about health conditions • Teachers and lunch aids should know about allergies • The history teacher probably doesn’t need to know about a sprained arm. • Failing to Share Information

13. Nursing in the Media: • In 2007, a nurse was charged with a crime for failure to report child abuse • The child died. Her parents were charged with murder. • RCW 26.44.030: professional school personnel must report an incident if he or she has reasonable cause to believe that a child has suffered abuse or neglect. • Good faith report shields you from liability Failure to Make a Mandatory Report of Abuse

14. How to Avoid Making Headlines • Stay up to date on continuing medical education and standards of care • Establish working relationships with students and families • Stay up to date on state and federal laws. • Document your compliance

15. Legal PrinciplesWhat is “negligence”? • Negligence is the failure to exercise ordinary care. • It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances OR • the failure to do some act that a reasonably careful person would have done under the same or similar circumstances Source: Washington Pattern Jury Instruction 10.01

16. Legal PrinciplesElements of Negligence • A duty is owed • The duty owed was breached • There is a proximate cause between the breach of the duty and the injury • The injury or damage has occurred

17. Legal PrinciplesSources of “Duty” • State and federal laws • District policies • “Standard of care” – established by relevant nursing standards or guidelines from professional organizations or agencies • Nursing standards • Scope

18. Best Practices • DOCUMENT • Conversations with parents • Observations of students • Conversations with health providers • Actions that you’ve taken • Training that you’ve provided • Get a witness in appropriate circumstances. • Make sure those who need to know, know • Evaluate whether staff is providing health services • Make sure that those people who need to be trained have training

19. Balancing Interests and Priorities • Protect the student • Know the standards of care • Follow the standards of care • Don’t provide nursing care that is outside the scope of your license • Follow district procedures • Delegate tasks and procedures appropriately; when in doubt, don’t delegate • Review RCW 28A.210 • Maintain student confidentiality

20. Balancing Interests and Priorities • Communicate with Families • Advocacy • Parents generally have a right to know • Know when they don’t! • Sometimes parents have the right to prevent medical treatment • Do it in writing or note the phone call! Document!

21. Balancing Interests and Priorities • Document the Communications • Document and retain parent contacts • Don’t forget to log attempts to contact parents! • Be mindful of what you document

22. Student Privacy: Federal Law • Federal Educational Rights and Privacy Act (FERPA) protects the privacy of students’ “education records.” 34 CFR § 99.3 • Who May Access FERPA-Protected Education Records? • Parents and students • “School officials with a legitimate educational interest” • Most other disclosures prohibited unless you have parental consent to release the records. • Check the District’s Annual Notification

23. Student Privacy: Federal Law • In case of emergencies, FERPA has a Health or Safety Emergency Exception to the consent requirement. • 34 CFR §§ 99.31(a)(10) and 99.36 • This applies when there is an actual, impending, or imminent emergency, such as an “articulable and significant” threat. • Disclosure is permitted to appropriate parties.

24. Student Privacy: Federal Law • Medical treatment records are usually covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) • Schools are not entities covered by HIPAA. 45 CFR § 164.500(a).

26. Student Privacy: Federal Law • HIPAA specifically excludes student treatment records and education records protected by FERPA from its definition of protected health information (PHI). 45 C.F.R. § 160.103. • FERPA excludes “treatment records” from the definition of student educational records as long as they are not shared with anyone other than those involved in providing the treatment. • Very limited exception

27. Student Privacy: Federal Law • What does it mean? • Student records that relate to medical treatment are not really subject to HIPAA’s privacy provisions. • They are always subject to FERPA • Student medical records held by the school are treated no differently under FERPA than any other student records.

28. Student Privacy: Information Sharing between schools and health care providers • Joint guidance from US DOE and US Department of Health and Human Services, HIPAA doesn’t prevent information-sharing by a health care provider with school nurses • State law: school nurse is a "health care provider“ entitled to health care information • With the exception of STIs and mental health services! OKAY!

29. Student Privacy: Information Sharing between schools and health care providers • FERPA requires any school that wishes to disclose any personally identifiable information from education records to an outside party health care provider to comply with FERPA and obtain parental consent. See 34 CFR § 99.30.

30. Student Privacy: State Law • Duty to protect health care information applies across the board, no matter who holds the information. RCW 70.02.005(4) • Special protections for treatment of sexually transmitted disease or infection. RCW 70.24.110.

31. School Nurse’s Duty to Preserve Privacy • All records that relate to a student must be protected under FERPA. • What about gossip? • What happens when someone else discusses another student? • What if you can “figure out” what’s wrong by looking? • What do we do about transgender students?

32. School Nurse’s Duty to Preserve Privacy • Maintain confidentiality • Secure Records • Don’t be the source of a violation of privacy rights

33. School Nurse’s Duty to Report • Disclosures of certain kinds are required: • Abuse: sexual, physical • Neglect • Public health emergency – duty to report to local health authority • When it’s necessary to protect the health of a student • When school policy requires it.

34. School Nurse’s Duty to Report • Mandatory Reporting: RCW 26.44.030 • Call the police or child protective services • When you have “reasonable cause to believe” that a child has suffered abuse or neglect • Immunity applies!

35. School Nurse’s Duty to Report • Special privacy and reporting concerns for sexually active students • RCW 70.24.105 forbids the disclosure of the identity of anyone who has been tested or treated and protects the release of test results unless required by law (which, in turn, may require disclosure) • Abortion and birth control – decision to release information rests solely with the student • Call CPS?

36. School Nurse’s Duty to Report • Mental Health Concerns • Know your district policy and follow it • Know your scope of practice; operate within it • Be careful of who you share information with • Be mindful of who you may be required to share information with

37. School Nurse’s Duty to Report • Infectious diseases • Mandatory reporting to health authorities • OSPI published an excellent Infectious Disease Control Guide for School Staff last year. • http://www.k12.wa.us/HealthServices/pubdocs/InfectiousDiseaseControlGuide.pdf

38. Disclosures Necessary to Protect the Health of a Student • Asthma • Diabetes • Epilepsy • Allergies • Injuries • Concussions (not quite like this)

39. Exclusion from School • Life-threatening health conditions without a medication or treatment order and nursing plan. RCW 28A.210.320. • Immunizations (or the failure to provide proof of immunization or a certificate of exemption). WAC 392-380-050

40. Exclusion from School Exclusion from school requires prior written notice

41. In case of emergencies: Treat the student first. Call emergency services if necessary. Notify district administrators. Notify parents.

42. Conclusion • Know: • The nursing standards • The scope of your practice • The law, the procedures, and district policies.

43. Conclusion • Know • Follow • the nursing standards, • the law, the district policies and procedures • Don’t go beyond your scope of practice

44. Conclusion • Know • Follow • Document • visits • treatment and outcomes • compliance • communication – attempted and made • But be mindful of what you write down – parents have rights to access the information

45. Conclusion • Know • Follow • Document • Communicate: • Communicate the needs of the student with people who need to know • Protect the information that they don’t have a right to access

46. Thank you for your valuable service to our students and our school communities!