American Nurses Ass'n v. Torlakson , 57 Cal. 4th 570 ( 2013 )

Filed 8/12/13
IN THE SUPREME COURT OF CALIFORNIA
AMERICAN NURSES ASSOCIATION )
et al., )
)
Plaintiffs and Respondents, )
) S184583
v. )
) Ct.App. 3 C061150
TOM TORLAKSON, as Superintendent, )
etc., et al., ) Sacramento County
) Super. Ct. No. 07AS04631
Defendants and Appellants; )
)
)
AMERICAN DIABETES ASSOCIATION, )
)
Intervener and Appellant. )
____________________________________)
Public school students with diabetes who cannot self-administer insulin are
normally entitled under federal law to have it administered to them during the
school day. This case presents a dispute over whom state law permits to
administer that insulin. The dispute arises against the background of a long-
standing shortage of school nurses and a class action in federal court alleging the
state‟s schools have failed to ensure diabetic students actually receive legally
required health care services. Pursuant to an agreement settling that litigation, the
State Department of Education (Department) in 2007 advised local education
agencies that trained school personnel who are not licensed health care providers
may, when no nurse is available, administer insulin pursuant to the medical orders
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of students‟ treating physicians. (State Dept. of Ed., Legal Advisory on Rights of
Students with Diabetes in California‟s K-12 Public Schools (2007) pt. IV.C
< http://www.cde.ca.gov/ls/he/hn/legaladvisory.asp > [as of Aug. 12, 2013] (2007
Legal Advisory).) In the case now before us, the American Nurses Association
and other trade organizations representing registered and school nurses
(collectively Nurses) challenge the Department‟s advice as condoning the
unauthorized practice of nursing. The American Diabetes Association
(Association), which is a party to the federal settlement agreement, defends the
Department‟s advice as intervener.
In fact, California law expressly permits trained, unlicensed school personnel
to administer prescription medications such as insulin in accordance with the
written statements of a student‟s treating physician and parents (Ed. Code,
§§ 49423, 49423.6; Cal. Code Regs., tit. 5, §§ 600, 604, subd. (b)) and expressly
exempts persons who thus carry out physicians‟ medical orders from laws
prohibiting the unauthorized practice of nursing (Bus. & Prof. Code, § 2727, subd.
(e)). Through these provisions, state law in effect leaves to each student‟s
physician, with parental consent, the question whether insulin may safely and
appropriately be administered by unlicensed school personnel, and reflects the
practical reality that most insulin administered outside of hospitals and other
clinical settings is in fact administered by laypersons. The Nurses‟ arguments to
the contrary lack merit.
I. BACKGROUND
The question whether California law permits unlicensed school personnel to
administer medications is, like all questions of law, subject to de novo review.
(See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal. 4th 717, 724.) We thus
draw freely from the undisputed evidence in setting out the facts of the case before
us.
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Diabetes is a chronic, incurable disease that prevents the human body from
properly using food to produce energy. Insulin, a hormone produced in the
pancreas, transports glucose (a sugar derived from food) through the bloodstream
to the cells. In a person with diabetes, the body either does not produce insulin, or
enough insulin (type 1 diabetes), or cannot use insulin properly (type 2 diabetes).
All persons with type 1 diabetes and some with type 2 must take insulin to avoid
serious short- and long-term health problems. (See generally U.S. Dept. of Health
& Human Services, Helping the Student with Diabetes Succeed: A Guide for
School Personnel (2010) p. 1 < http://www.ndep.nih.gov/media/youth_
schoolguide.pdf > [as of Aug. 12, 2013] (DHHS Guide).) State law requires that
nurses administer all medications, including insulin, in hospitals and other licensed
health care facilities. (Bus. & Prof. Code, § 2725.3.) Outside of such facilities,
however, insulin is normally administered by laypersons according to a
physician‟s directions, most often by the diabetic persons themselves or by friends
or family members.
Public school students with diabetes who cannot self-administer insulin are
normally entitled to have it administered to them at no cost. This is a result of
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (Section 504), title
II of the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.), and the
Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) (IDEA).
(See 28 C.F.R. § 35.104 (2013); 34 C.F.R. § 300.8(c)(9)(i) (2013) [defining
diabetes as a disability].) Public schools must offer to students covered by these
laws a free and appropriate public education that includes related aids and
services, such as medical services, designed to meet their individual educational
needs. (See 20 U.S.C. § 1400(d)(1)(a), 34 C.F.R. § 104.33(a), (b)(1) (2012) .)
Under these laws, diabetic students pay for insulin, supplies and equipment but not
the cost of administering insulin. (See 34 C.F.R. 104.33(c)(1) [“the provision of a
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free education is the provision of educational and related services without cost to
the handicapped person or to his or her parents or guardian”]; Cedar Rapids
Community School Dist. v. Garret F. (1999) 526 U.S. 66, 79 [school district must
pay for required services].) A school‟s obligations to a particular diabetic student
are normally set out in a “Section 504 plan” or an “individualized education
program” (IEP).
Approximately one in 400 school-age children nationwide has diabetes,
including about 14,000 in California. The goal of diabetes management for
children is to avoid both hyperglycemia (high blood glucose) and hypoglycemia
(low blood glucose) by tightly maintaining blood glucose levels within target
ranges determined by their physicians, through frequent monitoring and multiple
daily insulin injections. (DHHS Guide, p. 15.) Accordingly, diabetic students
who depend on insulin injections typically need them during the schoolday, both
at regularly scheduled times and unpredictably to correct for fluctuations in blood
glucose. The need for insulin can arise anytime and anywhere — in the
classroom, on field trips or during school-sponsored activities. To serve this and
other student health needs, California has about 2,800 school nurses, averaging
one for every 2,200 of the state‟s approximately 6 million public school students.
While 5 percent of schools have a full-time school nurse, 69 percent have only a
part-time nurse, and 26 percent have no nurse at all. Although some schools allow
unlicensed school personnel to administer insulin, others do not. Some of those
that do not appear to have taken the position, possibly in reliance on 2005 and
2006 advisory statements by the Department (see post, at p. 21 et seq.), that the
Nursing Practice Act (Bus. & Prof. Code, § 2700 et seq.) permits only licensed
health care providers to administer insulin in schools. Moreover, some nurses
have refused to train unlicensed school personnel to administer insulin out of
concern for possible disciplinary action by the Board of Registered Nursing. As a
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result, diabetic students have encountered difficulty in receiving insulin during the
schoolday.
In October 2005, the parents of four diabetic students in California public
schools, together with the Association, filed a class action in federal court alleging
that schools in the Fremont Unified School District and the San Ramon Valley
Unified School District had failed to meet their obligations to diabetic students
under federal law. (K.C. et al. v. O’Connell (N.D.Cal., C-05-4077MMC).) The
defendants included the Department, the State Superintendent of Public Instruction
(Superintendent), the members of the State Board of Education (Board), and
officials of the two named school districts. Plaintiffs alleged the districts‟ schools
had refused to prepare Section 504 plans for diabetic students, refused to include
provisions for diabetes care in students‟ IEPs, refused to permit unlicensed school
personnel to administer insulin when no nurse was available, and improperly
required that parents or parental designees come to school to administer insulin.
Because of these asserted violations of federal law, plaintiffs further alleged, some
parents were required to forego employment and some students had to adopt
insulin regimens that entailed less frequent injections, less effective control of
blood glucose levels, and greater risks to their health.
In July 2007, the plaintiffs in the federal litigation entered into a settlement
agreement with the Department, the Superintendent and the Board. The
agreement required the Department, among other things, to fulfill its legal
obligations to monitor local education agencies‟ compliance with Section 504 and
the IDEA and to resolve complaints of noncompliance. In addition, and more
importantly for present purposes, the Department agreed to issue the 2007 Legal
Advisory (see ante, p. 2) summarizing the rights of diabetic students under federal
and state law. The Department issued that document in August 2007, and the
federal court dismissed the action.
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In the 2007 Legal Advisory, as relevant here, the Department articulates eight
categories of persons authorized to administer insulin to students in the state‟s
public schools. The Department describes the first seven categories as specifically
authorized in statutory exceptions to the Nursing Practice Act (Bus. & Prof. Code,
§§ 2725, subd. (b)(2), 2727, subd. (d)) and in a regulation concerning the
administration of medication adopted by the Board (Cal. Code Regs., tit. 5, § 604).
Briefly, those seven categories include: (1) students who are able to self-
administer, (2) nurses and physicians employed by local education agencies,
(3) other school employees who are appropriately licensed health care providers,
(4) licensed nurses working pursuant to contracts with schools, (5) parents and
guardians, (6) persons designated by parents or guardians who are volunteers but
not school employees, and (7) trained, unlicensed school employees acting in
emergencies. (2007 Legal Advisory, pt. IV.A.)
The 2007 Legal Advisory also recognizes that some students cannot self-
administer insulin, that licensed health care providers are not always available
when needed, and that federal law does not permit schools to impose the cost of
administering insulin on parents. On that basis, the Department concludes as
follows: “When federal and state laws are reconciled, it is clear that it is unlawful
for [a local education agency] to have a general practice or policy that asserts it
need not comply with the IDEA or Section 504 rights of a student to have insulin
administered at school simply because a licensed professional is unavailable. In
such situations, federal rights take precedence over strict adherence to state law so
that the educational and health needs of the student protected by the Section 504
Plan or IEP are met.” (2007 Legal Advisory, par. IV.C.) So concluding, the
Department adds an eighth category of authorized persons, permitting insulin to be
administered by a “voluntary school employee who is unlicensed but who has
been adequately trained to administer insulin pursuant to the student‟s treating
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physician‟s orders as required by the Section 504 Plan or the IEP.” (2007 Legal
Advisory, Checklist.) The validity of the 2007 Legal Advisory‟s “category 8” is
the crux of the present dispute.
Two months after the Department issued the 2007 Legal Advisory, the
Nurses challenged that document by filing the present action in the superior court
seeking declaratory relief and a writ of mandate. The Association responded with
a complaint in intervention asking the court to dismiss the Nurses‟ action.
Ultimately the court entered judgment for the Nurses. Accepting their argument
that state law does not authorize unlicensed school personnel to administer insulin,
the court declared the 2007 Legal Advisory invalid to that extent and directed the
issuance of a writ of mandate ordering the Superintendent and the Department not
to enforce it. The court also declared the same portion of the 2007 Legal Advisory
invalid as a regulation adopted in violation of the Administrative Procedure Act
(Gov. Code, § 11340 et seq.) (APA). Finally, the court rejected the Association‟s
argument that state law, if interpreted as forbidding unlicensed personnel to
administer insulin, is preempted by Section 504 and the IDEA.
The Association appealed. The appeal automatically stayed the superior
court‟s decision, leaving the 2007 Legal Advisory provisionally in effect pending
the final outcome of these proceedings. (Code Civ. Proc., § 916, subd. (a).) The
Court of Appeal affirmed the judgment and writ of mandate without reaching the
APA issue. We granted the Association‟s petition for review. The Superintendent
and District, who did not petition for review, support the Association‟s position as
amici curiae.
II. DISCUSSION
The main question before us is whether California law permits unlicensed
school personnel to administer insulin. Our affirmative answer to that question
leaves no need to decide whether federal law would preempt a contrary rule of
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state law or whether the Department violated the APA in promulgating the 2007
Legal Advisory.
A. California Law.
To determine whether unlicensed school personnel may administer
prescription medications such as insulin, we first consult the body of law that
expressly purports to answer the question: Education Code section 49423 and its
implementing regulations. (All further undesignated citations to statutes are to this
code.) The statute declares the basic law: “[A]ny pupil who is required to take,
during the regular schoolday, medication prescribed for him or her by a physician
and surgeon . . . may be assisted by the school nurse or other designated school
personnel . . . .” (§ 49423, subd. (a), italics added.) The same statute ensures that
medications are administered only in accordance with medical orders and parental
consent: “In order for a pupil to be assisted by a school nurse or other designated
school personnel pursuant to subdivision (a), the school district shall obtain both a
written statement from the physician . . . detailing the name of the medication,
method, amount, and time schedules by which the medication is to be taken and a
written statement from the parent, foster parent or guardian of the pupil indicating
the desire that the school district assist the pupil in the matters set forth in the
statement of the physician . . . .” (Id., subd. (b), italics added.) Section 49423
expressly applies “[n]otwithstanding section 49422,” which provides more
generally that only licensed health care providers may be “permitted to supervise
the health and physical development of pupils” (§ 49422, subd. (a)).
In adopting section 49423, the Legislature repealed and reenacted former
section 11753.1. (Stats. 1968, ch. 681, § 1, p. 1378, repealed and reenacted as
§ 49423 by Stats. 1976, ch. 1010, § 2, p. 3615.) The Legislature‟s reason for
authorizing school personnel to administer medications, according to the original
statute‟s legislative history, was to avoid requiring children “to leave school
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during the day for necessary medication” or compelling their parents “to pay extra
sums for a school visit by the physician.” (Assem. Ed. Com., Analysis of Assem.
Bill No. 1066 (1968 Reg. Sess.) p. 1.)
Section 49423, like its statutory predecessor, did not require implementing
regulations and was thus self-executing. In the ensuing decades, however, some
schools refused to administer prescribed medication to students. Noting this, the
Superintendent in a 1997 letter to school superintendents reminded local school
administrators that federal law permitted students to receive medication during the
schoolday, and that medication could properly be administered by unlicensed
“personnel who have been appropriately trained by a credentialed school nurse,
public health nurse, or physician.” (Superintendent Eastin, letter to
superintendents of schools (Sept. 5, 1997) p. 2.) Three years later, the same
problem came to the attention of the Legislature. A Senate floor analysis,
recognizing that “federal case law requires districts to accept responsibility to
administer necessary medications,” reported complaints that “some districts „have
required parents to sign illegitimate blanket waivers that sign away their children‟s
right to medical treatment at school as a condition of enrollment or attendance. In
these instances, parents have been forced to take time off work to go to school and
deliver the medications.‟ ” (Sen. Rules Com., Analysis of Sen. Bill No. 1549
(1999-2000 Reg. Sess.) Aug. 14, 2000, p. 3.) To provide additional clarity, the
Legislature directed the Department to develop and recommend, and the Board to
adopt, regulations “regarding the administration of medication in the public
schools pursuant to section 49423.” (§ 49423.6, subd. (a), added by Stats. 2000,
ch. 281, § 2, p. 2477.)
Obeying the Legislature‟s command, the Board in 2003 adopted sections 600
to 611 of title 5 of the California Code of Regulations. (All further references to
title 5 are to that code.) These regulations expressly declare that unlicensed school
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personnel may administer medications. Section 604 provides: “(a) A school nurse
may administer medication to a pupil or otherwise assist a pupil in the
administration of medication as allowed by law and in keeping with applicable
standards of professional practice. [¶] (b) Other designated school personnel may
administer medication to pupils or otherwise assist pupils in the administration of
medication as allowed by law and, if they are licensed health care professionals, in
keeping with applicable standards of professional practice for their license.” (Tit.
5, § 604, subd. (b), italics added.) Section 601 defines the “ „[o]ther designated
school personnel‟ ” who are thus authorized to act as “includ[ing] any individual
employed by the local education agency who: [¶] (1) Has consented to administer
the medication to the pupil or otherwise assist the pupil in the administration of the
medication; and [¶] (2) May legally administer the medication to the pupil or
otherwise assist the pupil in the administration of the medication.” (Id., § 601,
subd. (e), italics added.) Other sections of title 5 provide for such related matters
as medication logs and records, the contents of the physicians‟ and parents‟
required written statements, and the delivery, storage and disposal of medications.
(Id., §§ 601-609.)
Thus, section 49423 and its implementing regulations plainly establish, as the
Legislature, the Board and the Department intended, that unlicensed school
personnel may administer prescription medications. The Nurses do not contend
the Board‟s regulations are invalid, but they do offer a variety of arguments for
interpreting them other than according to their plain meaning. None is persuasive.
1. “[A]s allowed by law.”
In permitting school personnel other than licensed health care providers to
administer medication, sections 601 and 604 of title 5 qualify that permission with
language deferring to other laws governing the subject. Specifically, section 604
provides that “[o]ther designated school personnel may administer medication to
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pupils . . . as allowed by law.” (Id., subd. (a), italics added.) Similarly, section
601 limits such “ „[o]ther designated school personnel‟ ” to those who “[m]ay
legally administer the medication to the pupil . . . .” (Id., subd. (e)(2), italics
added.) The Nurses contend the italicized language means that only those school
personnel who are licensed health care providers, such as registered nurses, may
administer medications, and that unlicensed personnel may assist but not actually
administer medications. By way of illustration, the Nurses assert that unlicensed
school personnel “are permitted to open a bottle of cough syrup and pour the
prescribed dose but cannot pour it down the student‟s throat,” or they may monitor
a diabetic student‟s glucose levels and determine the correct dosage of insulin but
may not administer the drug by giving the injection or pushing the button on an
insulin pump.
The Nurses have misinterpreted the regulations. Before explaining that
conclusion, however, and in order to clarify the scope of our holding, we note that
one significant premise of the Nurses‟ argument is correct: There is no reason to
believe the Legislature intended to delegate to the Board, a state educational
agency charged with governing the public schools (see §§ 33000, 33031), any
authority to override statutes in which the Legislature has required specific
licensure before a person may perform a health care function. We assume the
Board shares this understanding. In section 610 of title 5, the Board explains that
“[n]othing in this article may be interpreted as . . . affecting in any way: [¶]
(a) The statutes, regulations, or standards of practice governing any health care
professional licensed by the State of California in the carrying out of activities
authorized by the license . . . .” Viewed in this light, the language in the Board‟s
regulations that qualifies the authority of unlicensed school personnel to
administer medications — “as allowed by law” (tit. 5, § 604, subd. (a); see also
id., § 601, subd. (e)(2)) — is reasonably and appropriately interpreted as reflecting
11
the Board‟s deference to laws articulating policy choices that lie beyond the scope
of its delegated authority over the state‟s public schools.
This does not mean, however, that only licensed health care professionals
may administer prescription medications in public schools. It means, rather, only
that the Board‟s regulations do not authorize unlicensed school personnel to
administer such medications in violation of other applicable laws or regulations.
To illustrate, only licensed health care providers may administer controlled
substances. (See Health & Saf. Code, § 11154, subd. (a).) Also, the Legislature
has mandated specific training before unlicensed school personnel may administer
three specially regulated emergency medications to students. (See §§ 49414
[epinephrine auto-injectors for anaphylaxis], 49414.5 [glucagon for severe
hypoglycemia] and 49414.7 [antiseizure medication for epilepsy].) A school
employee without the licensure or training required by statute for such
medications would not be “allowed by law” (tit. 5, § 604, subd. (a)) to administer
them and, thus, not permitted to do so solely by force of the Board‟s regulations.
Compliance with those other laws would also be necessary.
In contrast, no such law prohibits unlicensed persons from administering
prescription medications generally, or insulin in particular, in carrying out the
medical orders of licensed physicians. The Nurses attempt to find such a rule in
the Nursing Practice Act (Bus. & Prof. Code, § 2700 et seq.) (NPA), which
defines the practice of nursing to include a list of patient care functions including
“the administration of medications” (id., § 2725, subd. (b)(2)), and prohibits the
unauthorized practice of nursing (id., § 2732). In opposition, the Association
contends the listed functions fall within the definition of nursing practice only
under circumstances where they “require a substantial amount of scientific
knowledge or technical skill.” (id., § 2725, subd. (b) [“The practice of nursing
within the meaning of this chapter means those functions, including basic health
12
care, that help people cope with difficulties in daily living that are associated with
their actual or potential health or illness problems or the treatment thereof, and
that require a substantial amount of scientific knowledge or technical skill,
including all of the following: . . .” (italics added).].) The routine administration
of insulin outside of hospitals and clinical settings, the Association observes, does
not require substantial scientific knowledge or technical skill and is, in fact,
typically accomplished by the patients themselves, including some children, or by
friends and family members.
We need not speak to the definition of nursing practice in order to resolve
this case. However broadly the NPA may define the practice of nursing, and
whatever the NPA may correlatively prohibit as unauthorized practice, the NPA
expressly exempts from that prohibition “[t]he performance by any person of such
duties as required in . . . carrying out medical orders prescribed by a licensed
physician . . . .” (Bus. & Prof. Code, § 2727, subd. (e).) This medical-orders
exception, as we shall explain, is broad enough to cover unlicensed school
personnel who act as volunteers for specific students, at their parents‟ request, to
carry out physicians‟ medical orders in accordance with section 49423 and its
implementing regulations.
2. The Medical-orders Exception.
The medical-orders exception provides in full as follows: “This chapter [the
NPA] does not prohibit: [¶] . . . [¶] (e) The performance by any person of such
duties as required in the physical care of a patient and/or carrying out medical
orders prescribed by a licensed physician; provided, such person shall not in any
way assume to practice as a professional, registered, graduate or trained nurse.”
(Bus. & Prof. Code, § 2727, subd. (e), italics added.) The meaning of the first
clause and its application to this case are clear: Unlicensed school personnel
acting pursuant to section 49423 and its implementing regulations “perform[] . . .
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duties as required . . . in carrying out medical orders . . . .” (Bus. & Prof. Code,
§ 2727, subd. (e).) What the italicized proviso means is less clear, especially in its
use of the word “assume.” On this point the legislative history is uninformative,
reflecting only that section 2727 was added as part of the original NPA (Stats.
1939, ch. 807, § 2, p. 2349), and that the medical-orders exception was added on
the Assembly floor for unrecorded reasons (Assem. J. (1939) p. 515).
The Nurses argue a person “assume[s] to practice as a . . . registered . . .
nurse” (Bus. & Prof. Code, § 2727, subd. (e)) simply by performing any health
care function that falls within the NPA‟s definition of nursing practice (id., § 2725,
subd. (b)). But this cannot be what the proviso means, as it would vitiate the
medical-orders exception. A person who carries out a physician‟s medical orders
with respect to a patient does not need an exception from the laws prohibiting
unauthorized practice unless his or her conduct would otherwise violate those
laws. To adopt the Nurses‟ interpretation would thus render the exemption
entirely meaningless — a result we would hesitate to accept “unless absolutely
necessary.” (E.g., People v. Arias (2008) 45 Cal. 4th 169, 180.) But we need not
accept it. The statute‟s language, broader statutory context and interpretive history
all point to a different meaning: To “assume to practice as a professional,
registered, graduate or trained nurse” (Bus. & Prof. Code, § 2727, subd. (e)),
means to hold oneself out, explicitly or implicitly, as being a nurse in fact.
We begin with the language. To “assume” to do a thing has two possible
meanings in the present context. It might mean to “undertake” to do a thing, or
“[t]o take [a thing] upon oneself” — in effect simply to do it. (Oxford Eng. Dict.
Online (2013) definition II.4.a; see Webster‟s 3d New Internat. Dict. (2002)
p. 133, definition 2.) Alternatively, to “assume” might mean “[t]o put forth claims
or pretensions,” to do a thing “in appearance only, . . . to pretend, simulate, feign.”
(Oxford Eng. Dict. Online, supra, definition III.8, 9; see Webster‟s 3d New
14
Internat. Dict., supra, at p. 133, definition 4.) Building upon the former definition
(“undertake”), the Nurses contend a person “assumes to practice as a . . . nurse”
(Bus. & Prof. Code, § 2727, subd. (e)) by undertaking to perform — in other
words, simply by performing — any of the patient care functions listed in the
NPA‟s definition of nursing (id., § 2725, subd. (b)(2)). This interpretation, as
noted, cannot be correct as it would leave the medical-orders exception without
meaning.
In contrast, the medical-orders exception does have meaning if one
“assume[s] to practice as a . . . nurse” (Bus. & Prof. Code, § 2727, subd. (e)) by
holding oneself out, explicitly or implicitly, as being a nurse in fact. The broader
statutory context supports this interpretation. The list of statuses an unlicensed
person who carries out medical orders may not “assume” — “professional,
registered, graduate or trained nurse” (ibid.) —indicates that one may not evade
the rule against falsely posing as a registered nurse by substituting a vaguer term
such as “professional,” “graduate” or “trained.” A penal provision enacted by the
same Legislature in the same bill as the medical-orders exception similarly
declared it “unlawful for any person or persons not licensed as provided in this
chapter to impersonate in any manner or pretend to be a professional nurse, or to
use the title „registered nurse,‟ the letters „R.N.,‟ or the words „graduate nurse,‟
„trained nurse,‟ or any other name, word or symbol in connection with or
following his [or her] name so as to lead another or others to believe that he [or
she] is a professional nurse.” (Id., former § 2796, added by Stats. 1939, ch. 807,
§ 2, p. 2356; see Bus. & Prof. Code, § 2796 [current version, adding “nurse
anesthetist” to the list of titles one may not falsely assume].) The order in which
the bill‟s provisions were drafted suggests the Assembly looked to the penal
provision, and even borrowed some of its terms, in drafting the floor amendment
that added the medical-orders exception. (Compare Assem. Bill No. 620 (1939
15
Reg. Sess.) § 2, p. 11, as introduced Jan. 13, 1939 [adding Bus. & Prof. Code,
§ 2796], with Assem. J. (1939) p. 515 [floor amend. of Mar. 13, 1939, adding Bus.
& Prof. Code, § 2727, subd. (e)].)
The broader statutory context provides additional evidence supporting our
conclusion. The same section of the NPA that contains the medical-orders
exception (Bus. & Prof. Code, § 2727, subd. (e)) also creates a narrower exception
covering “[i]ncidental care of the sick by domestic servants or by persons
primarily employed as housekeepers as long as they do not practice nursing within
the meaning of this chapter.” (Id., subd. (b), italics added.) Read in the context of
the whole statute, the italicized language expresses the thought that domestic
servants and housekeepers caring for sick persons may not perform nursing
functions, without regard to how they hold themselves out. The Nurses would
interpret the medical-orders exception similarly, yet the same Legislature, in the
same act and section, chose the different words — “assume to practice as a . . .
nurse” — (ibid., italics added) to qualify the exception for unlicensed persons who
merely carry out medical orders. The inescapable inference is that the Legislature,
by using different words to define the two exceptions, intended them to have
different meanings.
The single prior interpretation of the medical-orders exception is consistent
with our conclusion. The Attorney General has described that exception, and the
NPA‟s related penal provisions, as “show[ing] a legislative intent to prohibit any
person from holding out to the public that [he or] she is specially trained or
registered in the nursing profession unless said person is licensed by the state of
California in this field.” (Registered Nurse, 32 Ops.Cal.Atty.Gen. 159, 160
(1958), referring to Bus. & Prof. Code, §§ 2727, subd. (e) [medical-orders
exception; unlicensed person carrying out medical orders may not assume to
practice as a nurse], 2795 [unlawful to use any title, sign, card or device to indicate
16
nursing licensure], and 2796 [unlawful to use the titles “registered,” “graduate” or
“trained nurse,” or the letters “R.N.”].) Thus, the Attorney General concluded, an
unlicensed person employed by a physician as a “doctor‟s nurse” was forbidden to
use titles confusingly similar to “registered nurse,” such as “ „Registered Doctor‟s
Nurse‟ or the abbreviation „R.D.N.‟ or any title, or wear or display any pin that
would indicate that said person is duly licensed as a registered nurse under the
laws of the state of California.” (Registered Nurse, supra, at p. 159; cf. Kolnick v.
Board of Medical Quality Assurance (1980) 101 Cal. App. 3d 80, 84 [declining to
construe the exception].)
For all of these reasons, we conclude the medical-orders exception does
permit a layperson to carry out a physician‟s medical orders for a patient, even
orders that would otherwise fall within the definition of nursing practice, without
thereby violating the rule against unauthorized practice. To fall outside the
exception by “assum[ing] to practice as a . . . nurse” (Bus. & Prof. Code, § 2727,
subd. (e)), one must go further by holding oneself out, explicitly or implicitly, to
be a nurse in fact. This conclusion disposes of the issue, because unlicensed
school personnel do not hold themselves out to be nurses simply by volunteering
to act on behalf of particular students in accordance with the Education Code and
its implementing regulations.
We thus proceed to consider the Nurses‟ remaining objections to the
conclusion that such personnel may administer medications.
3. Medication-specific Statutes.
In statutes enacted between 2001 and 2011, the Legislature imposed
additional training and administrative requirements before unlicensed school
personnel may administer three specific emergency medications: epinephrine
auto-injectors to treat anaphylaxis (§ 49414, added by Stats. 2001, ch. 458, § 2,
p. 4023), glucagon for severe hypoglycemia (§ 49414.5, added by Stats. 2003, ch.
17
684, § 1, as subsequently amended), and antiseizure medication for epilepsy
(§ 49414.7, added by Stats. 2011, ch. 560, § 2). Each of these statutes, while
expressing the Legislature‟s preference that registered nurses administer the
subject medications whenever possible, expressly permits trained, unlicensed
school personnel to do so when no nurse is available. (See §§ 49414, subd. (f)(1),
49414.5, subd. (a), 49414.7, subds. (a), (b).)
The Nurses contend these statutes would not have been necessary if the
NPA‟s medical-orders exception already, by its own force, permitted unlicensed
school personnel to administer medications. “[T]he Legislature,” the Nurses
observe, “does not engage in idle acts.” (Citing California Teachers Assn. v.
Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 634.) The
maxim is valid, but its application is flawed. Having generally authorized
unlicensed school personnel to administer medications (§ 49423) and directed the
Board to adopt implementing regulations (§ 49423.6), the Legislature nevertheless
retained the power to impose additional restrictions on drugs deemed to justify
special precautions. Nothing in section 49423 or 49423.6 conditioned the
effectiveness of those statutes on further legislation, and nothing in the later-
enacted, drug-specific statutes repeals the general authority granted in the earlier,
more general provisions. So understood, none of the relevant statutes represents
an idle act. In contrast, to accept the Nurses‟ argument would entail the
implausible conclusion that the Legislature had intended section 49423 and its
1968 statutory predecessor (former § 11753.1; see ante, at p. 8) to lie dormant and
ineffective until the Legislature enacted the first drug-specific statute 33 years
later. (§ 49414 [concerning epinephrine auto-injectors].) History is to the
contrary. As we have seen, the 1968 Legislature intended the original statute to be
self-executing, and the 2000 Legislature, to force compliance, directed the Board
18
to adopt implementing regulations in short order. (See § 49423.6 [“[o]n or before
June 15, 2001”]; see also ante, at p. 9.)
4. Failed Legislation.
Despite the foregoing evidence to the contrary, amici curiae supporting the
Nurses urge us to infer from a variety of failed bills that the Legislature believes
further, specific legislation is necessary before unlicensed school personnel may
administer insulin. Because section 49423 and its implementing regulations
plainly do authorize such personnel to administer prescription medications and
were in fact adopted for that purpose, “to undertake the problematic exercise of
inferring legislative intent from subsequent, failed legislation seems especially
inappropriate . . . .” (Martin v. Szeto (2004) 32 Cal. 4th 445, 451-452.) In any
event, we find nothing in the failed bills‟ history that supports amici curiae‟s
argument.
Assembly Bill No. 481 (2001-2002 Reg. Sess.) would have required school
administrators and other designated, unlicensed personnel to be trained to
administer insulin and required them to administer it, in the absence of a school
nurse, in accordance with guidelines on diabetes care to be developed by a group
of seven state and private organizations. The Governor vetoed the bill, explaining
his reasons as follows: “Existing law already provides that any pupil who is
required to take prescription medication during the regular school day may be
assisted by school personnel if a written statement is obtained from a physician
and a written request is made by the pupil‟s parent/guardian. [¶] This bill, while
well-intentioned, would create a costly new state reimbursable mandate estimated
by the Department of Finance to be potentially tens of millions of dollars. Neither
this bill, nor the 2002 Budget Act contains an appropriation for this purpose.”
(Governor‟s veto message to Assem. on Assem. Bill No. 481 (Sept. 26, 2002) 6
Assem. J. (2001-2002 Reg. Sess.) pp. 8872-8873 [in relevant part].)
19
This history does not show the Legislature in 2002 — let alone in 1968 and
1976 when it enacted and reenacted the operative language of section 49423 —
believed that further, more specific legislation was required to permit unlicensed
school personnel to administer any prescription medication. To the contrary, the
Legislative Counsel‟s Digest of the vetoed 2002 bill noted that “[e]xisting law
provides that any pupil who is required to take . . . medication . . . may be assisted
by the school nurse or other designated school personnel,” and explained that the
bill “would specifically make those provisions applicable to a pupil with diabetes”
under guidelines to be developed later. (Legis. Counsel‟s Dig., Assem. Bill. No.
481 (2001-2002 Reg. Sess.), italics added.) The bill was, thus, analogous to other
statutes in which the Legislature has imposed, for particular medications (e.g.,
epinephrine, glucagon and antiseizure medication), additional restrictions on
schools‟ use of the general authority concerning medications granted in section
49423. The Legislature‟s unsuccessful attempt to impose comparable restrictions
on insulin did not abrogate the existing general authority.
Three additional failed bills did not come to a vote. Senate Bill No. 1487
(2007-2008 Reg. Sess.) would have amended section 49414.5, which permits
unlicensed school personnel with special training to administer glucagon in
emergencies, to administer insulin under similar conditions. (Assem. Bill No.
1487, supra, § 1.) Another bill, Assembly Bill No. 1802 (2009-2010 Reg. Sess.),
while expressly authorizing unlicensed personnel to administer insulin, would
have permitted parents, rather than school administrators, to designate the school
employees who would be allowed to administer insulin. (Ibid., § 2.) Finally,
Assembly Bill No. 1430 (2009-2010 Reg. Sess.) would have provided that no one
other than licensed health care providers would be allowed to administer any
medications in schools, except in emergencies. (Id., § 2.) Because none of these
bills came to a vote, and because the Legislature‟s cursory deliberations on them
20
postdated section 49423‟s enactment by decades, none provides a sound basis for
inferring the 1968 and 1976 Legislatures‟ intents on the question whether section
49423 permits unlicensed personnel to administer insulin.
5. The Department’s 2005 and 2006 Advisory Statements.
In 2005 and 2006, the Department issued advisory statements recommending
that school personnel other than licensed health care providers not administer
medications by injection generally (2005) or insulin in particular (2006). (State
Dept. of Ed., Program Advisory on Medication Administration (May 2005) p. 7
< http://www.cde.ca.gov/ls/he/hn/documents/medadvisory.pdf > [as of Aug. 12,
2013] (2005 Program Advisory); State Dept. of Ed., Medication Administration
Assistance in California . . . Frequently Asked Questions (2006) p. 1 (2006 FAQ).)
The Nurses contend we should defer to these recommendations as authoritative
interpretations of section 49423 by an agency charged with its enforcement. But
the Department‟s advisory statements are not entitled to the same judicial
deference as the binding, quasi-legislative regulations formally adopted by the
Board. (Tit. 5, §§ 600-611; see § 49423.6 [regulatory authority].) “An agency
interpretation of the meaning and legal effect of a statute is entitled to
consideration and respect by the courts; however, unlike quasi-legislative
regulations adopted by an agency to which the Legislature has confided the power
to „make law,‟ and which, if authorized by the enabling legislation, bind this and
other courts as firmly as statutes themselves, the binding power of an agency‟s
interpretation of a statute or regulation is contextual: Its power to persuade is both
circumstantial and dependent on the presence or absence of factors that support the
merit of the interpretation.” (Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal. 4th 1, 7.)
Reviewing the 2005 Program Advisory and the 2006 FAQ under these
principles, we find they lack persuasive force. Before explaining that conclusion,
21
however, we note those documents do not reflect the Department‟s current
position. In their amicus curiae brief to this court, the Department and the
Superintendent maintain that section 49423 and its implementing regulations (tit.
5, §§ 600-611), in combination with the NPA‟s medical-orders exception (Bus. &
Prof. Code, § 2727, subd. (e)), do indeed permit unlicensed school personnel to
administer insulin. With that clarification, we turn to the documents in question.
In its 2005 Program Advisory, the Department confirmed that unlicensed
personnel may administer medications generally but “recommend[ed] that . . .
unlicensed staff member[s] . . . not administer medications that must be
administered by injection . . . .” (Id., at p. 7.) The 2005 Program Advisory‟s
recommendations are nonbinding, both because the document so states (id., at
p. 1) and as a matter of law. (See § 33308.5 [“Program guidelines issued by the
[Department] shall be designed to serve as a model or example, and shall not be
prescriptive”]; tit. 5, § 611 [“The [Department], with the approval of the [Board],
may issue and periodically update an advisory providing non-binding guidance on
the administration of medication . . . . The advisory shall be a program guideline
under . . . section 33308.5 . . . .”].) The 2005 document offers no discussion or
analysis of its recommendation concerning injections and cites no authority that
might support it. The document does cite section 49423 and sections 600, 601 and
604 of title 5 (2005 Program Advisory, at p. 6), which, as we have seen, were
specifically intended to permit unlicensed personnel to administer medications,
and none of which forbids administration by injection. The document also cites
statutes describing the specific licensure required of physicians, nurses and other
health care providers employed as such in the schools (§§ 44871, 44873-44878),
and also section 49422, which provides that only licensed health care providers
and certain other persons with relevant credentials “shall be . . . employed or
permitted to supervise the health and physical development of pupils . . . .” (2005
22
Program Advisory, at p. 6.) As already noted, however, section 49422 cannot
mean that only licensed health care providers may administer medications in
schools because section 49423 expressly applies “[n]otwithstanding Section
49422.” (§ 49423, subd. (a).)
Unlike the 2005 Program Advisory, which the Department issued with the
Board approval required for such documents (see § 33308.5 and tit. 5, § 611), the
Department apparently issued the 2006 FAQ unilaterally. In that document, the
Department flatly asserts that unlicensed school personnel may not administer
insulin. (2006 FAQ, at p. 1.) Ignoring its own conclusion just one year earlier that
unlicensed personnel may administer medications generally, even if not by
injection, the Department in the 2006 FAQ wrote that “[n]o . . . California statute”
other than sections 49414 (epinephrine auto-injectors) and 49414.5 (glucagon)
“allows an unlicensed school employee to administer any other medication in
California public schools, even if the unlicensed school employee is trained and
supervised by a school nurse or other similarly licensed nurse.” (2006 FAQ, at
p. 1, italics added.) In attempting to justify this conclusion, the Department
inexplicably cited section 49423 (2006 FAQ, at p. 2, fn. 2) and omitted any
reference to the statute‟s implementing regulations (e.g., tit. 5, § 604, subd. (b)
[“Other designated school personnel may administer medication to pupils”]).
In its 2006 FAQ, the Department also invoked the NPA as authority for the
following assertion: “California law states, with a few clearly specified legal
exceptions, that only a licensed nurse or physician may administer medication. In
the school setting, these exceptions are situations where [¶] The student self-
administers the medication, [¶] A parent or parent designee, such as a relative or
close friend, administers the medication, or [¶] There is a public disaster or
epidemic.” (2006 FAQ, at p. 1, fns. omitted.) The noted exceptions reflect
statutory exceptions to the NPA. (Bus. & Prof. Code, § 2727, subds. (a)
23
[gratuitous nursing by friends or family members], (d) [nursing services in
emergencies].) But the document entirely overlooks the medical-orders exception,
which expressly permits “any person [to perform] . . . such duties as required in
. . . carrying out medical orders prescribed by a licensed physician . . . .” (Id.,
subd. (e).)
Viewing the 2005 Program Advisory and the 2006 FAQ in their full legal
context, we conclude the documents‟ recommendations are not entitled to judicial
deference to the extent they might be thought to preclude unlicensed school
personnel from administering insulin. The 2005 Program Advisory makes no
serious effort to reconcile its recommendation concerning injections with the
applicable statutes (§§ 49423, 49423.6) and binding regulations (tit. 5, §§ 601-
611), and ignores the NPA‟s medical-orders exception (Bus. & Prof. Code,
§ 2727, subd. (e)). The 2006 FAQ shares these faults and, in addition, both
contradicts the 2005 Program Advisory‟s correct conclusion that unlicensed
personnel may administer medications generally and also lacks the Board approval
required for program guidelines. (See § 33308.5; tit. 5, § 611.) Under these
circumstances, the documents‟ recommendations lack persuasive force on the
question before us, and we thus do not defer to them. (Yamaha Corp. of America
v. State Bd. of Equalization, supra, 19 Cal. 4th 1, 7.) We recognize, however, that
the 2005 Program Advisory constitutes an important source of advice for local
education agencies on matters beyond the scope of this case, and we emphasize
that we reject that document‟s recommendations only to the extent they contradict
the views set out in this opinion.
6. Conclusion.
Finding no merit in the arguments to the contrary, we conclude California
law does permit trained, unlicensed school personnel to administer prescription
medications, including insulin, in accordance with written statements of individual
24
students‟ treating physicians, with parental consent (Ed. Code, §§ 49423, 49423.6;
tit. 5, §§ 600-611), and that persons who act under this authority do not violate the
NPA (see Bus. & Prof. Code, § 2727, subd. (e)). Because schools may administer
prescription medications only in accordance with physicians‟ written statements
(§ 49423; tit. 5, § 600, subd. (a)), state law in effect delegates to each student‟s
physician the decision whether insulin may safely and appropriately be
administered by unlicensed school personnel or instead whether a particular
student‟s medical needs can be met only by a licensed health care provider. State
law, however, presents no categorical obstacle to the use of unlicensed personnel
for this purpose.
In view of this conclusion, we need not address the Association‟s contention
that federal law would preempt a contrary rule.
B. The APA.
The Nurses contend the 2007 Legal Advisory is ineffective on the theory the
Department should have adopted it as a regulation in compliance with the APA.
(Gov. Code, § 11340 et seq.) The superior court agreed with the Nurses on this
point. The Court of Appeal, ruling for the Nurses on other grounds, did not reach
the issue.
We also do not reach the issue, for two reasons: First, the Nurses forfeited
the issue in this court by failing to file, in response to the petition for review, an
answer raising it. (See Cal. Rules of Court, rule 8.500(a)(2).) While we have the
power to address additional issues (id., rule 8.516(b)(1)), the briefs touch upon the
APA issue only cursorily, and we have not requested additional briefing (cf. Cal.
Rules of Court, rule 8.516 (b)(2)).
Second, and more importantly, our holding that California law permits
unlicensed school personnel to administer insulin authoritatively resolves the
dispute independently of the 2007 Legal Advisory, based on the relevant
25
provisions of the Education Code and its implementing regulations. We therefore
need not determine whether the Department violated the APA in adopting the
2007 Legal Advisory. Our decision leaves the Department free to revise the Legal
Advisory to reflect California law as we have interpreted it, and leaves the parties
and the lower courts free to identify and resolve, if necessary, any issues that may
remain concerning APA compliance.
III. DISPOSITION
The Court of Appeal‟s judgment is reversed and the case is remanded for
further proceedings in accordance with the views set forth herein.
WERDEGAR, J.
WE CONCUR:
KENNARD, Acting C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
McGUINESS, J.
__________________

Presiding Justice of the Court of Appeal, First Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
26
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion American Nurses Association v. O‟Connell
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 185 Cal. App. 4th 393Rehearing Granted
__________________________________________________________________________________
Opinion No. S184583
Date Filed: August 12, 2013
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: Lloyd Connelly
__________________________________________________________________________________
Counsel:
Remcho, Johansen & Purcell, Robin B. Johansen and Kari Krogseng for Defendants and Appellants.
Reed Smith, James M. Wood, Paul D. Fogel, Dennis Peter Maio; Disability Rights Education and Defense
Fund, Inc., Arlene Mayerson and Larisa Cummings for Intervener and Appellant.
Remcho, Johansen & Purcell, Robin B. Johansen and Kari Krogseng for State Superintendent of Public
Instruction Tom Torlakson and California Department of Education as Amici Curiae on behalf of
Intervener and Appellant.
Jason D. Russell, Allen L. Lanstra, George C. Fatheree and Allison B. Holcombe for Los Angeles Unified
School District, Children‟s Rights Clinic, Disability Rights Advocates, Disability Rights California,
Disability Rights Legal Center, Disability Rights Texas and The Legal Aid Society-Employment Law
Center as Amici Curiae on behalf of Intervener and Appellant.
Fagen Friedman & Fulfrost, Lenore A. Silverman, Kimberly A. Smith and Melissa L. Phung for California
School Boards Association as Amicus Curiae on behalf of Intervener and Appellant.
Claire Ramsey; Morrison & Foerster, Miriam A. Vogel, Benjamin J. Fox, Sheila L. Sadovnik and Lindsay
M. Andrews for Child Care Law Center as Amicus Curiae on behalf of Intervener and Appellant.
Cooley, Lori R. Mason, Maureen P. Alger, Brandon J. Kimura and Jon F. Cieslak for American
Association of Diabetes Educators, the American Academy of Pediatrics Section on Endocrinology,
California District of the American Academy of Pediatrics, The Endocrine Society and the Pediatric
Endocrine Society as Amici Curiae on behalf of Intervener and Appellant.
U.S. Department of Education, Charles P. Rose, General Counsel; Thomas E. Perez, Assistant Attorney
General (United States), Samuel R. Bagenstos, Principal Deputy Assistant Attorney General, Gregory B.
Friel and April J. Anderson for United States as Amicus Curiae on behalf of Intervener and Appellant.
Page 2 – S184583 – counsel continued
Counsel:
Pamela Allen, Brendan White; Alice L. Bodley, Jocelyn Winston, Maureen E. Cones; Pillsbury Winthrop
Shaw Pittman, John S. Poulos, Carrie L. Bonnington and Kevin M. Fong for Plaintiffs and Respondents.
Cummins & White and Melanie L. Balestra for National Association of School Nurses, American
Occupational Therapy Association, Inc., Arkansas School Nurses Association, Association of
periOperative Registered Nurses, Association of School Nurses of Connecticut, California Association for
Nurse Practitioners, California School Health Centers Association, California Teachers Association,
Coalition of Labor Union Women, Colorado Association of School Nurses, Delaware School Nurses
Association, Emergency Nurses Association, Florida Association of School Nurses, Georgia Association of
School Nurses, Illinois Association of School Nurses, Illinois Nurses Association, Indiana Association of
School Nurses, Iowa School Nurses Organization, Kentucky School Nurses Association, Maine
Association of School Nurses, Maryland Association of School Health Nurses, Massachusetts School
Nurse Association, Michigan Association of School Nurses, National Association of Pediatric Nurse
Practitioners, National Association of State School Nurse Consultants, National Board for Certification of
School Nurses, Nebraska School Nurse Association, Nevada State Association of School Nurses, New
Hampshire School Nurse Association, New Jersey State School Nurses Association, New Mexico School
Nurses Association, New York State Association of School Nurses, Ohio Association of School Nurses,
Pennsylvania Association of School Nurses and Practitioners, Rhode Island Certified School Nurse
Teachers, Rhode Island Institute for Nursing, Rhode Island State Nurses Association, School Nurse
Organization of Arizona, School Nurse Organization of Idaho, School Nurse Organization of Minnesota,
School Social Work Association of America, South Carolina Association of School Nurses, Tennessee
Association of School Nurses, Utah School Nurse Association, Vermont State School Nurses Association,
Virginia Association of School Nurses, West Virginia Association of School Nurses, Wisconsin
Association of School Nurses and Wyoming School Nurses Association as Amici Curiae on behalf of
Plaintiffs and Respondents.
Lisa C. Demidovich for United Nurses Associations of California/Union of Health Care Professionals
NUHHCE, AFSCME, AFL-CIO as Amicus Curiae on behalf of Plaintiffs and Respondents.
Laura P. Juran; David J. Strom; Michael R. Clancy, Arnie R. Braafladt; Altshuler Berzon and Jeffrey B.
Demain for California Teachers Association, American Federation of Teachers, California Federation of
Teachers and California School Employees Association as Amici Curiae on behalf of Plaintiffs and
Respondents.
Cummins & White, Karen L. Taillon; Vedder Price and Thomas G. Abram for National Council of State
Boards of Nursing, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Dennis Peter Maio
Reed Smith
101 Second Street, Suite 1800
San Francisco, CA 94105
(415) 543-8700
Maureen E. Cones
American Nurses Association
8515 Georgia Avenue, Suite 400
Silver Springs, MD 20910
(301) 628-5123

Presiding Justice of the Court of Appeal, First Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.