The California Decision

Many advocates in the diabetes community view the recent decision rendered by the California Court of Appeal as a setback. The disappointment is understandable. (Read the opinion here.)

Nurses' organizations in California, like those in Illinois, have opposed every effort to develop a sensible, collaborative policy solution to address the issues facing students with diabetes in school. As a result, nurses' organizations are perceived to be less friend and more foe, protecting their turf at the expense of the welfare and civil rights of students with diabetes. It makes a ruling in their favor seem wrong.

But it's not and here's why:

In October 2005, elementary students with diabetes filed a suit in California, asking school officials to comply with federal law and provide the assistance that students with diabetes required to manage their diabetes during the school day. Plaintiffs' argument persuaded the respondents to enter into a settlement agreement rather than go to trial. (See: K.C., et al. vs. Jack O'Connell, et al).

But there was a problem. The settlement agreement permitted what the state legislature had not--the use of trained volunteers to administer insulin.

Medically and from a policy perspective, the settlement agreement was sound but legally it couldn't stand. It rewrote state law without the benefit of the state legislature. That’s why the nurses' association sued. Does that mean they were right? As far as state law goes, there were right. On policy, they are not and the court said as much.

Allowing trained volunteers to help provide diabetes care is safe, proven and helps schools comply with federal anti-discrimination laws. But until the California state legislature amends its law, the state can only do one thing--assign every child with diabetes a nurse to comply the acute care standard embodied in their law as currently written.

Will this happen? No, of course not. There are not enough nurses and there’s no money. More importantly, though, a staffing mandate doesn't solve the problem, which is why California will eventually have to do what other states have done and change its law.

In Illinois, we chose to exhaust the legislative path, knowing that if we failed, we would have been forced to sue. But unlike the California case, we would sue FOR nurses for every child to effect compliance with the law. Of course, it's an absurd position and it would have never stood for long but it’s the only claim the law would have supported. This strategy would have likely driven a legislative solution but on the way, these suits would have cost the state a fortune, cultivated all sorts of conflict and ill will, and devastated the perception of school nurses--nothing we wanted.

The decision made buy the Court of Appeal undoes the settlement agreement. As discouraging as the ruling is, it affirms that the correct fix to this problem is first and foremost legislative. In fact, the judges acknowledge the problem and state the solution plainly--change the law.