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, 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 school district employees, a district, a board, and a district's 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.]
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 school 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 school 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
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
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; the Commissioner; 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.
Education Code 38.209
A district that adopts a policy is responsible for training school personnel and school volunteers in the administration of an epinephrine auto-injector.
Training must be completed annually; provided in a formal training session or through online education; and include information on recognizing the signs and symptoms of anaphylaxis, administering an epinephrine auto-injector, 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
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 school district in accordance with law. Education Code 38.211
Notice to Parents
If a school 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
Gifts, Grants, and Donations
A district may accept gifts, grants, donations, and federal and local funds to implement its policy. Education Code 38.213
Immunity from Liability
A person who in good faith takes, or fails to take, any action related to the administration of epinephrine auto-injectors 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;
Supervising or delegating the administration of an epinephrine auto-injector;
Possessing, maintaining, storing, or disposing of an epinephrine auto-injector;
Prescribing an epinephrine auto-injector;
Dispensing an epinephrine auto-injector;
Administering, or assisting in administering, an epinephrine auto-injector;
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 school 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 or open-enrollment charter school.
Education Code 38.215