FFAC(LEGAL) - WELLNESS AND HEALTH SERVICES: MEDICAL TREATMENT
Consent to Medical Treatment
The school in which a minor student is enrolled may consent to medical, dental, psychological, and surgical treatment of that student, provided all of the following conditions are met:
- The person having the power to consent as otherwise provided by law cannot be contacted.
- Actual notice to the contrary has not been given by that per-son.
- Written authorization to consent has been received from that person.
Family Code 32.001(a)(4)
Form of Consent
Consent to medical treatment under this policy shall be in writing, signed by the school official giving consent, and given to the doctor, hospital, or other medical facility that administers the treatment. The consent must contain:
- The name of the student.
- The name of one or both parents, if known, and the name of the managing conservator or guardian of the student, if either has been appointed.
- The name of the person giving consent and the person's relation to the student.
- A statement of the nature of the medical treatment to be given.
- The date on which the treatment is to begin.
Family Code 32.002
Minor's Consent to Treatment
A minor may consent to medical, dental, psychological, and surgical treatment furnished by a licensed physician or dentist if the minor:
- Is 16 years of age and residing separate and apart from the minor's parents, managing conservator, or guardian, with or without the consent of the parents, conservator, or guardian and regardless of the duration of the residence, and is man-aging his or her own financial affairs, regardless of the source of the income;
- Consents to the diagnosis and treatment of any infectious, contagious, or communicable disease required to be reported to the Texas Department of State Health Services (DSHS), including all reportable diseases under Health and Safety Code 81.041;
- Is unmarried and pregnant, and consents to hospital, medical, or surgical treatment, other than abortion, related to her pregnancy; or
- Consents to examination and treatment for drug or chemical addiction, drug or chemical dependency, or any other condition directly related to drug or chemical use.
Family Code 32.003; Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979)
Upon adoption of policies concerning the administration of medication to students by district employees, the district, its board, and its employees are immune as described below, provided:
- The district has received a written request to administer the medication from the parent, legal guardian, or other person having legal control of the student.
- When administering prescription medication, the medication is administered either:
- From a container that appears to be the original container and to be properly labeled; or
- From a properly labeled unit dosage container filled by a registered nurse or another qualified district employee, as determined by district policy, from a container that appears to be the original container and to be properly labeled.
By Volunteer Professionals
If a district provides liability insurance for a licensed physician or registered nurse who provides volunteer services to the district, a board may allow the physician or nurse to administer to any student nonprescription medication or medication currently prescribed for the student by the student's personal physician.
Immunity from Civil Liability
A district, a board, and its employees shall be immune from civil liability for damages or injuries resulting from the administration of medication to a student in accordance with this policy.
Education Code 22.052(a), (b)
[See DG regarding protection of nurses for refusal to perform acts.]
Nursing Peer Review Committees
"Nursing peer review committee" includes a committee established under the authority of the governing body of a political subdivision for the purpose of conducting peer review.
A person shall establish a nursing peer review committee to conduct nursing peer review under Occupations Code Chapter 303 and Chapter 301 if:
- For vocational nurses, the person regularly employs, hires, or contracts for the services of eight or more nurses; and
- For professional nurses, if the person regularly employs, hires, or contracts for the services of eight or more nurses, at least four of whom are registered nurses.
A person required to establish a nursing peer review committee under this section may contract with another entity to conduct peer review for the person.
Occupations Code 303.001(4), .0015
Self-Administration of Asthma or Anaphylaxis Medicine
A student with asthma or anaphylaxis may possess and self-administer prescription asthma or anaphylaxis medicine while on school property or at a school-related event or activity if:
- The medicine has been prescribed for that student as indicated by the prescription label on the medicine;
- The student has demonstrated to the student's physician or other licensed health-care provider and the school nurse, if available, the skill level necessary to self-administer the prescription medication, including the use of any device required to administer the medication;
- The self-administration is done in compliance with the prescription or written instructions from the student's physician or other licensed health-care provider; and
- A parent of the student provides to the school:
- Written authorization, signed by the parent, for the student to self-administer the prescription medicine while on school property or at a school-related event or activity; and
- A written statement, signed by the student's physician or other licensed health-care provider, that states:
- That the student has asthma or anaphylaxis and is capable of self-administering the medicine;
- The name and purpose of the medicine;
- The prescribed dosage for the medicine;
- The times at which or circumstances under which the medicine may be administered; and
- The period for which the medicine is prescribed.
The physician's statement must be kept on file in the school nurse's office, or, if there is no school nurse, in the office of the principal of the school the student attends.
[See FFAF for care of students with diagnosed food allergies at risk for anaphylaxis.]
No Waiver of Immunity
The provisions above neither waive any liability or immunity nor create any liability for or a cause of action against a district, a board, or its employees.
Education Code 38.015
A student may possess and use a topical sunscreen product while on school property or at a school-related event or activity to avoid overexposure to the sun and not for the medical treatment of an injury or illness if the product is approved by the federal Food and Drug Administration for over-the-counter use. This provision does not waive any immunity from liability of a district, its board, or its employees; or create any liability for or a cause of action against a district, its board, or its employees. Education Code 38.021
A district employee commits a Class C misdemeanor offense if the employee:
- Knowingly sells, markets, or distributes a dietary supplement that contains performance enhancing compounds to a primary or secondary education student with whom the employee has contact as part of the employee's school district duties; or
- Knowingly endorses or suggests the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance enhancing compounds by a primary or secondary education student with whom the employee has contact as part of the employee's school district duties.
Education Code 38.011(a), (c)
Prescription Medication and Special Education Students
An employee of a district is prohibited from requiring a child to obtain a prescription for a substance covered under the federal Controlled Substances Act (21 U.S.C. 801 et seq.) as a condition of attending school, receiving an evaluation for special education, or receiving special education and related services.
An employee is not prohibited from consulting or sharing class-room-based observations with parents regarding a student's academic and functional performance, behavior in the classroom or school, or the need for evaluation for special education or related services.
20 U.S.C. 1412(a)(25)
Psychotropics and Psychiatric Evaluations
A district employee may not:
- Recommend that a student use a psychotropic drug; or
- Suggest any particular diagnosis; or
- Use the refusal by a parent to consent to administration of a psychotropic drug to a student or to a psychiatric evaluation or examination of a student as grounds, by itself, for prohibiting the child from attending a class or participating in a school-related activity.
Psychotropic drug means a substance that is used in the diagnosis, treatment, or prevention of a disease or as a component of a medication and intended to have an altering effect on perception, emotion, or behavior.
Education Code 38.016(b) does not:
- Prevent an appropriate referral under the Child Find system required under 20 U.S.C. Section 1412, as amended; or
- Prohibit a school district employee who is a registered nurse, advanced nurse practitioner, physician, or certified or appropriately credentialed mental health professional from recommending that a child be evaluated by an appropriate medical practitioner; or
- Prohibit a school employee from discussing any aspect of a child's behavior or academic progress with the child's parent or another school district employee.
A board shall adopt a policy to ensure implementation and enforcement of Education Code 38.016.
A violation of Education Code 38.016(b) does not override the immunity from personal liability granted in Education Code 22.0511 or other law or a district's sovereign or governmental immunity.
Education Code 38.016
Child Abuse Reporting
An employee may not use or threaten to use the refusal of a parent, guardian, or managing or possessory conservator to administer or consent to the administration of a psychotropic drug to a child, or to consent to any other psychiatric or psychological testing or treatment of the child, as the sole basis for making a report of neglect, unless the employee has cause to believe that the refusal:
- Presents a substantial risk of death, disfigurement, or bodily injury to the child; or
- Has resulted in an observable and material impairment to the growth, development, or functioning of the child.
Education Code 26.0091; Family Code 261.111(a) [See FFG]
Opioid Antagonist Medication
A person or organization acting under a standing order issued by a prescriber may store an opioid antagonist and may distribute an opioid antagonist, provided the person or organization does not request or receive compensation for storage or distribution. Health and Safety Code 483.104
A prescriber may, directly or by standing order, prescribe an opioid antagonist to a person in a position to assist a person experiencing an opioid-related drug overdose. Health and Safety Code 483.102; 22 TAC 170.6
A person who, acting in good faith and with reasonable care, administers or does not administer an opioid antagonist to another person whom the person believes is suffering an opioid-related drug overdose is not subject to criminal prosecution, sanction under any professional licensing statute, or civil liability, for an act or omission resulting from the administration of or failure to administer the opioid antagonist. Health and Safety Code 483.106
A district may not enact, adopt, or enforce a rule, ordinance, order, resolution, or other regulation that prohibits the cultivation, production, dispensing, or possession of low-THC cannabis, as authorized by the Texas Compassionate-Use Act. Health and Safety Code 487.201
Dextromethorphan (Certain Cold Medication)
A district may not adopt or enforce an ordinance, order, rule, regulation, or policy that governs the sale, distribution, or possession of dextromethorphan. Health and Safety Code 488.005
Note: The following provisions apply only to a district that will adopt an unassigned epinephrine auto-injector policy or an unassigned asthma medication policy.
Maintenance and Administration of Epinephrine Auto-Injectors
A district may adopt and implement a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district.
If a policy is adopted, the policy:
- Must provide that school personnel and school volunteers who are authorized and trained may administer an epinephrine auto-injector to a person who is reasonably believed to be experiencing anaphylaxis on a school campus; and
- May provide that school personnel and school volunteers who are authorized and trained may administer an epinephrine auto-injector to a person who is reasonably believed to be experiencing anaphylaxis at an off-campus school event or while in transit to or from a school event.
A district that adopts a policy must require that each campus have one or more school personnel members or school volunteers authorized and trained to administer an epinephrine auto-injector present during all hours the campus is open.
The supply of epinephrine auto-injectors at each campus must be stored in a secure location and be easily accessible to school personnel and school volunteers authorized and trained to administer an epinephrine auto-injector.
Education Code 38.208
All Hours the Campus Is Open
"All hours the campus is open" is defined as, at a minimum, during regular on-campus school hours, and when school personnel are physically on site for school-sponsored activities.
A "campus" is defined as a unit of a school district that has an assigned administrator, has enrolled students who are counted for average daily attendance, has assigned instructional staff, provides instructional services to students, has one or more grades in the range from early childhood education through grade 12 or is ungraded, and complies with relevant Texas laws.
Unassigned Epinephrine Auto-Injector
An "unassigned epinephrine auto-injector" is an epinephrine auto-injector prescribed by an authorized health-care provider in the name of the school issued with a non-patient-specific standing delegation order for the administration of an epinephrine auto-injector, issued by a physician or person who has been delegated prescriptive authority under Occupations Code Chapter 157.
25 TAC 37.603
Local emergency medical services must be promptly notified by the school when an individual is suspected of experiencing anaphylaxis and when an epinephrine auto-injector is administered. If the trained school personnel or school volunteer is the only individual available to notify emergency medical services, the trained individual should administer the unassigned epinephrine auto-injector before notifying emergency medical services.
The parent, legal guardian, or emergency contact must be promptly notified by the school when an unassigned epinephrine auto-injector is utilized on their child as soon as is feasible during the emergency response to suspected anaphylaxis.
25 TAC 37.605(e)–(f)
School records of the administration of the unassigned epinephrine auto-injector and suspected anaphylaxis must be provided to the parent or guardian of the recipient upon request. 25 TAC 37.605(f)
Not later than the tenth business day after the date a school personnel member or school volunteer administers an epinephrine auto-injector in accordance with district policy, the school shall send a report to the school district; the physician who prescribed the epinephrine auto-injector; and the commissioner of state health services.
The report must include the following information:
- The age of the person who received the administration of the epinephrine auto-injector;
- Whether the person who received the administration of the epinephrine auto-injector was a student, a school personnel member or school volunteer, or a visitor;
- The physical location where the epinephrine auto-injector was administered;
- The number of doses of epinephrine auto-injector administered;
- The title of the person who administered the epinephrine auto-injector; and
- Any other information required by the commissioner of education.
Education Code 38.209
Notifications to the commissioner of DSHS shall be submitted on the designated electronic form available on the DSHS School Health Program website. 25 TAC 37.608
Personnel or Volunteers
At each campus in which a school adopts an unassigned epinephrine auto-injector policy, the principal may assign school personnel or school volunteers to be trained to administer unassigned epinephrine auto-injectors or seek school personnel or school volunteers who volunteer to be trained to administer unassigned epinephrine auto-injectors.
In order to increase the number of trained individuals in the administration of unassigned epinephrine auto-injectors, schools may distribute to school personnel or school volunteers in the district, at least once per school year, a notice that includes a description of the request seeking volunteers to be trained to administer an epinephrine auto-injector to a person believed to be experiencing anaphylaxis and a description of the training that the school personnel or school volunteers will receive in the administration of epinephrine with an auto-injector.
25 TAC 37.606(a)–(b)
Trained school personnel or school volunteers who administer the unassigned epinephrine auto-injector must submit a signed statement indicating that they agree to perform the service of administering an unassigned epinephrine auto-injector to a student or individual that may be experiencing anaphylaxis. 25 TAC 37.606(c)
A district that adopts an unassigned epinephrine auto-injector written policy is responsible for training school personnel and school volunteers in the recognizing of anaphylaxis signs and symptoms and administration of an unassigned epinephrine auto-injector.
Each assigned school personnel or school volunteer shall receive initial training and an annual refresher training. Training shall be consistent with the most recent Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs published by the federal Centers for Disease Control and Prevention.
25 TAC 37.607
Training may be provided in a formal training session or through an online education course. Training must include information on properly inspecting unassigned epinephrine auto-injectors for usage and expiration. 25 TAC 37.607(1)–(2)
Training must include information on implementing emergency procedures, if necessary, after administering an epinephrine auto-injector, and properly disposing of used or expired epinephrine auto-injectors. A district shall maintain records on the required training. Education Code 38.210
The initial training must include hands-on training with an epinephrine auto-injector trainer. The annual refresher training must include a hands-on demonstration of administration skills. The training must also include information about promptly notifying local emergency medical services.
Each school campus shall maintain training records and make available upon request a list of those school personnel or school volunteers trained and authorized to administer the unassigned epinephrine auto-injector on the campus.
25 TAC 37.607(3)–(6)
A physician or person who has been delegated prescriptive authority under Occupations Code Chapter 157 may prescribe epinephrine auto-injectors in the name of a district in accordance with law. Education Code 38.211
A district shall obtain a prescription from an authorized health-care provider each year, to stock, possess, and maintain at least one unassigned adult epinephrine auto-injector pack (two doses) on each school campus.
A school may choose to stock unassigned pediatric epinephrine auto-injector packs, based on the need of the school's population.
25 TAC 37.605(a)
The superintendent will designate appropriate school personnel to coordinate and manage policy implementation, including training of school personnel, and the acquisition or purchase, usage, expiration, and disposal of unassigned epinephrine auto-injectors. Throughout the school calendar year, the designated school personnel shall coordinate with each campus to ensure that the unassigned epinephrine auto-injectors are checked monthly for expiration and usage and the findings are documented. 19 TAC 37.605(b)
Notice to Parents
If a district implements a policy for the maintenance, administration, and disposal of epinephrine auto-injectors, the district shall provide written notice to a parent or guardian of each student enrolled in the district or school. Notice must be provided before the policy is implemented by the district or school and before the start of each school year. Education Code 38.212
A district shall provide electronic or written notice to the parent or guardian of each student.
If a district changes or discontinues the policy under this subchapter, written or electronic notice detailing the change or discontinuation must be provided to the parent or guardian of each student within 15 calendar days.
25 TAC 37.609
Unassigned epinephrine auto-injectors shall be stored in a secure, easily accessible area for an emergency, in accordance with manufacturer's guidelines. It is recommended that the school administrator develop a map to be placed in high traffic areas that indicates the location of the unassigned epinephrine auto-injectors on each school campus. It is recommended that the map also indicates the locations of the automated external defibrillator (AED). 25 TAC 37.605(h)
The district shall develop a plan to replace, as soon as reasonably possible, any unassigned epinephrine auto-injector that is used or close to expiration. 25 TAC 37.605(i)
Used unassigned epinephrine auto-injectors shall be considered infectious waste and shall be disposed of according to the school's bloodborne pathogen control policy.
Expired unassigned epinephrine auto-injectors shall be disposed of according to the school's medication disposal policy.
25 TAC 37.605(j)–(k) [See DBB]
Gifts, Grants, and Donations
A district may accept gifts, grants, donations, and federal and local funds to implement its policy. Education Code 38.213
Maintenance and Administration of Asthma Medicine
A district may adopt and implement a policy authorizing a school nurse to maintain and administer asthma medicine at each campus in the district.
The policy must provide that the school nurse may administer prescription asthma medicine to a student only if the school nurse has written notification from a parent or guardian of the student stating that the student has been diagnosed as having asthma and stating that the school nurse may administer prescription asthma medicine to the student. A school nurse may administer the prescription asthma medicine only at a school campus.
Education Code 38.208(a-1), (b-1)
The supply of asthma medicine at each campus must be stored in a secure location and be easily accessible to the school nurse.
No Negative Fiscal Impact
The policy may not require a district to purchase prescription asthma medicine or require any other expenditure related to the maintenance or administration of asthma medicine that would result in a negative fiscal impact on the district or school.
Education Code 38.208(e)–(f)
Asthma Medicine Standing Order
A physician or person who has been delegated prescriptive authority under Occupations Code Chapter 157, may prescribe asthma medicine in the name of a school district. Education Code 38.211(a)
Notice to Parents
The district shall provide written notice to a parent or guardian of each student enrolled in the district or school. Notice required under Education Code 38.212 must be provided before a policy is implemented by the district and before the start of each school year. Education Code 38.212
Immunity from Liability
A person who in good faith takes, or fails to take, any action related to Education Code Chapter 38, Subchapter E, related to the maintenance and administration of epinephrine auto-injectors and asthma medicine, is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act, including:
- Issuing an order for epinephrine auto-injectors or asthma medicine;
- Supervising or delegating the administration of an epinephrine auto-injector or asthma medicine;
- Possessing, maintaining, storing, or disposing of an epinephrine auto-injector or asthma medicine;
- Prescribing an epinephrine auto-injector or asthma medicine;
- Dispensing an epinephrine auto-injector or asthma medicine, provided that permission has been granted as provided by Education Code 38.208(b-1) [see Maintenance and Administration of Asthma Medicine, above];
- Administering, or assisting in administering, an epinephrine auto-injector, provided that permission has been granted as provided by Education Code 38.208(b-1) [see Maintenance and Administration of Epinephrine Auto-Injectors, above];
- Providing, or assisting in providing, training, consultation, or advice in the development, adoption, or implementation of policies, guidelines, rules, or plans; or
- Undertaking any other act permitted or required under Education Code Chapter 38, Subchapter E.
A district and school personnel and school volunteers are immune from suit resulting from an act, or failure to act, under Education Code Chapter 38, Subchapter E, including an act or failure to act under related policies and procedures.
An act or failure to act by school personnel or a school volunteer, including an act or failure to act under related policies and procedures, is the exercise of judgment or discretion on the part of the school personnel or school volunteer and is not considered to be a ministerial act for purposes of liability of the school district.
Education Code 38.215