Journal of Nursing Law, Volume 14, Number 1, 2011

Asthma and Allergy Medication Self-Administration by Children in School: Liability Issues for the Nurse
Heidi Putman-Casdorph, PhD, RN, AE-C Laurie A. Badzek, RN, MS, JD, LLM, DPNAP
Until recently, most school children have not been permitted to carry medications on their own for asthma and allergy emergencies. The purpose of this article is to discuss the overall legislation in the United States regarding the carrying and self-administration of asthma and allergy medications by school children, and the history behind the development of such laws. Federal and state statutes setting parameters for medication administration in the school setting and protecting the rights of children with asthma to carry emergency asthma and allergy medications are reviewed. Several court cases related to incidents surrounding the carrying of emergency asthma medications by school children are discussed. The law has given the school nurse an important role concerning student self-administration of asthma and allergy medications in the school setting. Keywords: asthma; allergy; emergency medications; school children; school nurse

hillip H. was an 11-year-old, 5th-grade student at Hanford Elementary School in California. Phillip had long-standing documented severe asthma. Phillip was excused from his classroom to use the restroom. A few minutes later, he appeared in the school office with symptoms of a severe asthma attack. His asthma rescue medications were kept in the school office. There was a significant distance between the restroom and the school office, so he had to walk this distance to the office during an asthma attack to obtain his rescue medications. The school secretary had Phillips asthma medication and was trained in the use of the medication because school policy prohibited Phillip to carry it on his own at school. The secretary attempted to assist Phillip. However, before she could administer the rescue medication to reverse the asthma attack, Phillip collapsed and went into respiratory arrest. Emergency medical personnel were immediately called to the school; however, Phillip died later that day in the hospital. Phillips mother, Linda Gonzalez, filed a wrongful death lawsuit against the school district, Gonzalez v. Hanford (2002), citing negligence and wrongful death. Part of the case was based
32 Copyright 2011 Springer Publishing Company
DOI: 10.1891/1073-7472.14.1.32

on the fact that Phillip was not permitted to carry his asthma medications on his own, thus the delay in receiving his medication during a severe attack was a factor that contributed to his death. A jury in the Kings County California Superior Court unanimously awarded Gonzales $9 million in damages. This case emphasizes the need for nurses who care for children with asthma to be knowledgeable about current school policies and state law related to the carrying and selfadministration of asthma and allergy medications by children in the school setting.

PURPOSE
The purpose of this article is to discuss the overall status of legislation in the United States regarding the carrying and self-administration of asthma and allergy medications by school children, and the history behind the development of such laws. In addition, several court cases related to the carrying of asthma medications in schools by children, as well as implications for the nurse caring for children with asthma and allergies in the school setting, will be discussed subsequently.

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SAFETY ISSUES WITH MEDICATIONS IN SCHOOL

Asthma attacks and anaphylactic episodes can occur abruptly, and immediate treatment with appropriate emergency medications is critical to avoid injury or sudden death in some cases. When an asthma attack strikes, depending on the severity of the attack, the child requires a short-acting bronchodilator (albuterol) immediately. In an anaphylactic reaction (allergic reaction), epinephrine must be administered immediately, usually in the form of an EpiPen.1 The only way immediate administration of the medications is likely to happen is if the child can carry the asthma inhaler or EpiPen and self-administer the medication at the beginning of the attack. If the emergency medication for these conditions is at the other end of the school building (in the school nurses office or in the school secretarys office), there is the potential for a life-threatening delay in the administration of the medications. The following sections discuss federal statutes that pertain to the rights of children with disabilities and/ or chronic health conditions in the school setting. State law is also discussed in subsequent sections.

allow students with disabilities to be able to gain equal access to the education provided at the school. Therefore, any schools denying students direct access to their allergy and asthma medications are technically in violation of federal law because respiratory disorders and conditions are considered physical impairments, and allowing the child to carry an asthma inhaler is considered a reasonable accommodation (Magruder, 2001).

Title III of the Americans With Disabilities Act (Title III of ADA)
Title III of the Americans with Disabilities Act (ADA) extends public accommodations for people with disabilities in the private sector and for state and local entities that do not receive federal funding (Jones & Wheeler, 2004). These include private schools, businesses, colleges, and universities. Generally, if a student qualifies under the IDEA, title III will not be used because IDEA is more specific; therefore, IDEA will be the statute that is followed. However, for those children who do not qualify as disabled under IDEA, title III of the ADA will extend to cover nondiscrimination for students with disabilities in private schools (Magruder, 2001).

Individuals With Disabilities Education Act

The Individuals with Disabilities Education Act (IDEA) partly funds states so they can develop special education programs for children with disabilities. These funds assist school districts in developing free and appropriate public education that is made available to students with disability. Under this act, a child with asthma may fall into the other health impairment classification, which would compel the school district to meet the childs unique needs that might include allowing the child to carry an asthma inhaler (Jones & Wheeler, 2004; Magruder, 2001).

Zero Tolerance Policies for Drugs in School and the Impact on Children With Asthma
The phrase zero tolerance was conceived in the 1980s by the Reagan administration during the War on Drugs initiative. The zero tolerance policy became a federal law in 1989, and is known as the Drug Free School and Campuses Act of 1989. This law bans the unlawful use, possession, or distribution of drugs and alcohol by students and employees on school grounds and college campuses. To maintain federal funding, most educational institutions have enacted very strict, letter of the law policies enforcing the zero tolerance law (Seipp, 2002). At times, the enforcement of this law has been extreme such as suspending students for carrying cough drops or other over-the-counter medications. These unbendable policies have caused some difficulty in the past for children with asthma because the carrying of any medication by a child on his or her own (including asthma and allergy emergency medications) was prohibited. However, most states currently have enacted laws protecting the rights of children with asthma, under specified stipulations, to be able to carry asthma and allergy medications in school. Much debate and lobbying has occurred nationally in the past 10 years to bring forth state laws protecting the right of children with asthma and allergies to carry lifesaving emergency medications in school. Each school nurse needs to be aware of their respective states

Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 stops discrimination based on disability. This federal law covers youth with disabilities who attend federally funded educational programs, including public schools. Section 504 defines an individual with disability as one who has a physical or mental impairment, which substantially limits one or more major life activity and has a record of such impairment or is regarded as having such an impairment. An impairment, such as a respiratory condition, may be defined as a physical impairment (Jones & Wheeler, 2004). The language of Section 504 clearly requires that schools make reasonable arrangements to

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laws governing the carrying of asthma and allergy medications by students in school. School districts also need to adjust medication administration policies to come in line with the current state law.

Current State Legislative Progress Regarding Carrying of Asthma and Allergy Medications by Children
As of the writing of this article, 44 states currently have laws in place, which protect, to differing degrees, the right of school students to carry and administer both emergency asthma and allergy medications. South Dakota remains the only state with no legislation making provisions for children to carry their asthma and allergy medications in school. Table 1 lists the states that do not currently have laws governing the self-administration of emergency allergy medication by students. Although state laws do give authority to children to carry and self-administer asthma and allergy medications, specific stipulations are set forth, which must be satisfied prior to a child being permitted to carry and administer the medication. The state law regarding asthma medication administration in the state of West Virginia, the home state of the authors, will be used as an example. Title 126, Legislative Rule of West Virginia Board of Education was enacted on July 1, 2004 and established standards for the administration of all medications in all 55 of the West Virginia public school systems. The legislation specifies that the following conditions must be met prior to a child being permitted to carry and administer asthma medication:
7.5 Self-administration of asthma medication shall be permitted in accordance with W. Va. Code 18-5-22b

after the following conditions are met: 7.5.1 A written authorization is received from the parent or guardian for self-administration of asthma medication, 7.5.2 A written statement is received from a licensed provider, which contains the student name, purpose, appropriate usage, dosage, time or times at which, or the special circumstances under which the medication is to be administered, 7.5.3 The student has demonstrated the ability and understanding to self-administer asthma medication by passing an assessment by the school nurse evaluating the students technique of self-administration and level of understanding of the appropriate use of the asthma medication, 7.5.4 The parent/guardian has acknowledged in writing that they have read and understand a notice provided by the county board of education stating that the school, county board of education, and its employees and agents are exempt from any liability, except for willful and wanton conduct, as a result of any injury arising from the self-administration of asthma medication.

Clearly, the school nurse has a significant responsibility under the law to make the judgment as to whether or not a child is competent to carry and administer his or her own asthma medication, and the school district is responsible for the documentation of this competence.

Court Cases Related to the Carrying of Asthma Medications by Children in School

In addition to Gonzalez v. Hanford (2002) discussed earlier, three other court cases are helpful in understanding disability determinations for (a) children who suffer from asthma, (b) asthma medication administration, (c) school liability, (d) public accommodation, and (e) negligence. The first case, Garcia v. Northside Independent School District (2006), involves a 14-year-old student with mild asthma who, while running outside following a routine warm-up during gym class, experienced breathing problems. The instructor accompanied the child back to the gym; however, the child collapsed before reaching the building and, following unsuccessful resuscitation, died. In this particular case, the child was not precluded in any way from carrying an inhaler, and no evidence was presented that the child should have been placed in a modified physical education class. In the Garcia case, the court discussed, at length, disability and mitigating measures. The Texas court found that although the inhaler was not available at the specific time of the boys death, evidence showed that the boys inhaler was available during the time of the alleged discrimination, and that the school did not prevent the boy from carrying or using his inhaler. In addition, the court found no evidence that a disability existed, and there was no evidence

TABLE 1. Current Status of State Legislation Regarding the Carrying of Asthma and Allergy Medications in School by Studentsa Anaphylaxis (allergy) (ex-EpiPen)
No No No No No No Yes

State
Mississippi New York Pennsylvania Rhode Island South Dakota Wisconsin Nonspecifically listed states

Asthma (ex-rescue inhaler)

Yes Yes Yes Yes No Yes Yes

Note. Yes 5 legislation in place. a information obtained from the Allergy and Asthma Network and Mothers of Asthmatics (www.aanma.org).

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to indicate that the school refused reasonable accommodations. In an Ohio case, Spencer v. Lakeview School District (2006), parents of a deceased child appealed a verdict in favor of the school district in a wrongful death action where a 14-year-old student who had requested permission to return to the locker room to retrieve his prescription inhaler was found 15 minutes later lying on the locker room, unconscious and not breathing, with his inhaler in his hand. Although the Spencer trial court made clear that the parents treatment and care of their son was not the standard of care, the testimony went to the heart of foreseeability and, consequently, was the relevant factor in the determination of negligence or lack of negligence on the part of the school district. A third case, Alvarez v. Fountainhead, Inc. (1999), granted, in part, a preliminary injunction to parents who contended that a no medication policy in a private school was a discrimination violation of title III of the ADA. In Alvarez, the parties agreed that the child who suffered from asthma was disabled and was entitled to protections of the ADA. The California trial courts decision to grant a preliminary injunction allowing the child to enroll in school with an inhaler and to require the school to train staff on how to recognize and treat asthma attacks, including administration of the inhalers, was affirmed. The request of the parents to rescind the policy of no medications in every form at all of the defendant schools was determined to be too broad and was not granted. Of further note in Alvarez is an agreement stipulated by the parties in court that the parents execute a release and waiver of any liability arising from staff members administering asthma treatment to the child, so long as the school and its staff exercised reasonable care in their actions. Based on the results of these and other court cases, along with nationwide lobbying for change in asthma medication law administration as it pertains to school children, the American Association of School Administrators (AASA) has released suggestions for school asthma policies and procedures that outlines what school system leaders can do to be certain that asthma and issues surrounding children with asthma is part of a coordinated school health program. Six main focus areas were suggested and include (a) establishing management and support systems for asthma friendly schools, (b) providing appropriate school health and mental health services for children with asthma, (c) providing asthma education and awareness programs for students and school staff, (d) providing a safe and

healthy school environment to reduce asthma triggers, (e) providing opportunities for safe and enjoyable physical activity, and (f) coordinating school, family, and community efforts to better manage asthma symptoms and reduce school absences among students with asthma. In addition, every student with asthma should have an asthma action plan on file with the school nurse, which will serve as a guide for asthma care (AASA, 2006).

IMPLICATIONS FOR NURSING PRACTICE

The school nurse has been given an important role concerning student self-administration of asthma and allergy medications in the school setting. These responsibilities include assessing for student factors, parent guardian factors, and school factors as discussed in the National Asthma Education and Prevention Programs (NAEPP) guide for factors to consider when allowing children to carry asthma medications (NAEPP, 2005). Student factors for the nurse to consider include age, maturity, developmental level, student knowledge of proper medication use, and correct technique in administering the medication. Parent and guardian factors for consideration include parent or guardian desire for the student to carry and self-administer medications, awareness of the schools medication policies and parent responsibilities, and commitment to work collaboratively with the school team. School factors that the nurse needs to be aware of include availability of trained staff to monitor students who self-administer medications, school size, ability to reduce students triggers at school, and cooperation with the primary care providers recommendation for children to carry and self-administer medications (NAEPP). Nurses must also be aware of the law in their respective state regarding the self-administration of asthma and allergy medications in the school setting. Each state has different specific stipulations in the law, which governs the school nurses role and responsibilities regarding the assessment and monitoring of children with asthma and allergies, and the childs ability and competence to carry and self-administer asthma and allergy medications. The laws, both state and federal, allow the school nurse to provide specific and quality nursing care for children with asthma and allergies, and protect the health and well-being of these children with chronic illness. The law defines nurses role and responsibility in caring for school children with asthma in addition to protecting the rights, health,

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and welfare of these children. These clearly defined parameters in the law will help to improve quality of care and outcomes for school children with asthma, as well as hopefully prevent future tragic situations resulting in serious injury or death.

NOTE
1. EpiPen is a registered trademark of Dey, L. P.

Magruder, L. (2001). Asthma inhalers in the classroom or not? Journal of Law and Education, 30, 171179. National Asthma Education and Prevention Program. (2005). Guidance for health care providers who prescribe emergency medicines. Retrieved from http://www.nhlbi.nih.gov Seipp, C. (2002). Asthma attack: When zero tolerance collides with childrens health. Reason Magazine. Retrieved, from http://www.reason.com/news/ Spencer v. Lakeview School District, 3429, LEXIS 3370 (Ohio Ct. 11th App. 2006). Biographical Data. Heidi Putman-Casdorph, PhD, RN, AE-C, is an Associate Professor of Nursing at West Virginia University School of Nursing. She is certified as an asthma educator by the National Asthma Educator Certification Board and has researched and published in the area of asthma and allergy. She received her doctoral degree in nursing from Widener University. Laurie Badzek, RN, MS, JD, LLM, DPNAP, is a nurse attorney who is a Professor and Director of the Appalachian Quality of Life Institute at the West Virginia University School of Nursing where she teaches nursing, leadership, ethics, law, and health policy. She is an active researcher, investigating ethical, legal, and genomic health care issues. She is also the Director of the American Nurses Association (ANA) Center for Ethics and Human Rights. Correspondence regarding this article should be directed to Heidi Putman-Casdorph, PhD, RN, AE-C, West Virginia University, School of Nursing, Morgantown, WV. E-mail: hputman@hsc.wvu.edu

REFERENCES
Allergy and Asthma Network, Mothers of Asthmatics. (2009). Medications at school. Retrieved October 27, 2009, from http://www.aanma.org/advocacy/meds-at-school/ Alvarez v. Fountainhead, Inc., 55 F. Supp. 2d 1048 (N. D. Cal. 1999). American Association of School Administrators. (2006). School asthma management policies and procedures. Retrieved November 12, 2009, from http://www.education.com/ reference/article/Ref_Asthma_Management/ Garcia v. Northside Independent School District, 3429, LEXIS 3370 (Ohio Ct. 11th App. 2006). Gonzalez v. Hanford Elementary School District, F033659 & F034555, LEXIS 1341 (Cal App. 2002). Jones, S. E., & Wheeler, L. (2004). Asthma inhalers in schools: Rights of students with asthma to a free appropriate education. American Journal of Public Health, 94(7), 11021108. Legislative Rule, Board of Education, Title 126, Series 27, W.Va., Medication Administration 2422.8, 126-27-112627-12 (2004).

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