Board’s legal advisory on insulin shots struck down as violation of APA

A state appellate court in California invalidated, on procedural grounds, a legal advisory issued by the state's board of nursing which had purported to allow non-licensed school employees to administer insulin to students

(American Nurses Association v. Torlakson).

The ruling, issued by the Court of Appeal of California in Sacramento May 8, was mostly a moot point, as California’s Supreme Court had recently ruled that state law allowed the practice, regardless of the legal advisory.

In 2005, a group of parents of diabetic children joined with the American Diabetes Association to file a class action suit against the California Department of Education, claiming that it had failed to meet its obligations to administer insulin treatments to diabetic children during the school day due to a lack of school personnel needed to administer the treatments.

In response, the Department issued a 2007 legal advisory stating that unlicensed school employees, with the permission of both the children’s parents and physicians, were qualified to administer insulin during school instructional hours if a nurse was not available.

The American Nurses Association, disapproving of the new rules, brought an action seeking to have them thrown out, claiming that it violated the state’s Administrative Procedure and Nursing Practices Acts. Two lower courts ruled in favor of the nurses, saying that the board had, indeed, violated the APA when it issued the advisory.

The case eventually rose to the state’s Supreme Court, which ruled in favor of allowing the unlicensed treatment. However, instead of validating the new rules, the court held that state law already allowed unlicensed school employees to administer insulin. In doing that, the court refrained from ruling on the validity of the advisory and sent the case back to the lower appellate court for further action.

On remand, the appellate court ruled that the legal advisory was a rule subject to the APA. And, despite the fact that the Department had used the legal advisory to correctly interpret the statute, it had not conformed to the APA when it was issued, so the advisory was invalid.

This meant little, however, as the recent Supreme Court ruling made the fight over the new rules mostly a moot point. Whether or not the Department took an official position, unlicensed school personnel were still able to administer insulin under California law.