by Meganne Trela (Summer 2019)

While the Illinois State Board of Education’s (ISBE) June 2018 guidance on the administration of medication was withdrawn and is still pending another update, the Illinois legislature passed a law allowing students to use topical sunscreen without a prescription, and the National School Boards Association (NSBA) issued guidance for school districts on drugs and substance abuse. The national guidelines address everything from the administration of medication to marijuana to student discipline and student privacy.

On the state level, the passage of Public Act 100-1176 allows students to possess and use a topical sunscreen product while on school property or at a school sponsored event without a prescription or physician’s note. Prior to this legislation, sunscreen was considered “medication” and technically required a physician’s note or prescription if it was going to be used by students on campus or at school-sponsored events. The legislation took effect on January 11, 2019. In addition to allowing students to use and possess sunscreen, the law allows school district personnel to assist students in applying sunscreen with parent permission. The Act further provides that liability for the application of a topical sunscreen product does not attach to school personnel except in cases of willful and wanton misconduct.

On the national side, the NSBA guidance issued on January 30, 2019, provides some insight into the challenges school personnel face daily with respect to the administration of medication, although it largely refers to state laws and guidance.

The guidance includes a chart and outline regarding how individual states are addressing student use of medical marijuana at school as well as state laws regarding medical and recreational use of marijuana. We will be addressing marijuana use by students at our upcoming School Law Conference at the Hilton Lisle on September 24, 2019.

With respect to the administration of medication other than medical marijuana, the NSBA guidance provides that trained and supervised unlicensed assistive personnel (UAP) may assist     in the administration of medication under the guidance of a licensed registered nurse and when they have the required knowledge, skills, training, and composure to deliver specific health services. The national guidance suggests that the UAP should be an “ancillary health office staff member” and operate under the supervision of the school nurse — with the school nurse auditing the medication records and conducting refresher classes throughout the year. However, the guidance also suggests that the administration of medications designated by law as a “nursing function” — such as those   that are given intravenously or subcutaneously, or those that need to be specifically measured or when the dosage is based on the symptoms of the student — may not be delegated.

In Illinois, the Nurse Practice Act (225 ILCS 65/50-75) now allows a registered professional nurse to delegate specific nursing interventions for individuals in specific situations to unlicensed personnel based on a comprehensive nursing assessment. The comprehensive assessment includes the stability of the patient, potential for harm, complexity of the nursing intervention, the predictability of outcomes, and the competency of the individuals to whom the nursing intervention is delegated. The nursing intervention cannot be re-delegated. The Nurse Practice Act limits the delegation of the administration of medication to unlicensed personnel to oral or subcutaneous dosage and topical/transdermal applications. Notably, the discretion to delegate is left to the registered professional nurse and cannot be mandated by the school district. Further a school district cannot discipline or take other adverse action against a registered professional nurse for refusing to delegate the administration of medication.

Because the school nurse cannot be in multiple places at once, school districts are often looking for staff who can administer medications on field trips or other outside events. In some cases, volunteers or parents with nursing qualifications may “volunteer” to serve in their nursing capacity on school events and trips. These “volunteer” nurses are different from the typical school volunteer as they are providing professional services. The NSBA guidance suggests that school districts which utilize a volunteer nurse for school events and trips should check with legal counsel and liability insurance carriers to determine the parameters of the service and what protections may apply to the volunteer nurse and school district should an issue occur. Similarly, the school district should maintain compliance with any obligations under student or health privacy laws when a “volunteer” nurse is being utilized in those situations.

The NSBA guidance also addresses the use of emergency medications, including what happens when a school district does not have any unexpired emergency medications on hand due to a medication shortage during the course of an emergency. The NSBA guidance referred to a Food and Drug Administration (“FDA”) guidance document that recommended that school districts keep life-saving emergency medication, such as epinephrine autoinjectors, until replacement medications are available and even if they have technically expired if the expired medication can be used under state law. Even with the FDA recommendation, school districts should be mindful of replacing medication, especially undesignated medications that school districts have in the event of an emergency, before the expiration date.

While awaiting revised guidance on the administration of medication from the ISBE, it is important to re-visit any school plans for the administration of medication and make sure there are clear plans for students who need certain medications throughout the school day. School districts should discuss with their school nurses what happens in the event that they are unable to administer medications to students, whether any administration of medication duties can be delegated, and which unlicensed school personnel are willing and able to administer medication in the school setting. If you have questions about the administration of medication contact an attorney at Ottosen Britz.