Governor Cuomo recently signed legislation that expands access to emergency medication for students and school personnel. One new law, which goes into effect on March 5, 2015, allows school employees to administer epinephrine auto-injectors (“epi-pens”) to students or staff without prescriptions in emergency situations.[1] The other new law, which goes into effect on July 1, 2015, allows students diagnosed with asthma, allergies or diabetes to self-administer prescribed medical treatments.[2]

Emergency Administration of Epi-Pens

Public Health Law §3000-c(1)(a) has been expanded to include school districts, boards of cooperative educational services, county vocational education and extension boards, charter schools, and non-public elementary and secondary schools (collectively “schools”) or any person employed by those schools among the list of entities authorized to possess and use epi-pens.

The Education Law was also amended to include a new Section 921 that allows schools to provide and maintain epi-pens on-site in each instructional school facility. The legislation will allow epi-pens to be administered by trained school employees regardless of whether the person receiving the epi-pen has a prescription or a previous history of severe allergic reactions.

Any person employed by a school who has successfully completed a training course approved by the Commissioner of Health may administer an epi-pen in an emergency situation. There is no requirement that school employees must complete the course, and the training requirement does not apply to licensed or certified health care practitioners, such as school nurses, acting within the scope of their practice. Trained employees who administer epi-pens in emergency situations will be insulated from potential liability so long as the epi-pen was not administered in a grossly negligent manner.

Student Self-Administered Medication

Education Law § 916 has been amended to permit students who suffer from asthma or other respiratory diseases, allergies or diabetes to carry and self-administer medications such as inhalers, epi-pens and insulin while in school or at school functions if they have authorization from a physician or health care provider and written parental consent.

The physician’s or health care provider’s authorization must confirm the following: (a) that the student is diagnosed with a condition for which the rescue medication has been prescribed; (b) that the student has demonstrated that he or she can effectively self-administer the prescribed medication; (c) the name of the prescribed rescue medication; (d) the dose; (e) the times when the medication is to be taken; (f) the circumstances that may warrant the use of the medication; and (g) the length of time for which the medication is prescribed. A record of the physician or health care provider’s authorization and a record of written parental consent must be maintained in the student’s cumulative health record. In addition, upon the written request of a parent or person in parental relation, the school must allow a student to maintain extra medication in the school building under the custody of a licensed nurse, nurse practitioner, physician assistant or physician.

Schools are authorized, but not obligated, to have licensed registered professional nurses, nurse practitioners, physician assistants and physicians train unlicensed school personnel on how to inject prescribed glucagon to students in emergency situations where an appropriately licensed health professional is not available and the parent has given written consent.

This law specifies that, as long as schools and school employees attempt to reasonably and in good faith comply, they will be protected against legal or financial liability as a result of any harm or injury sustained by a student or other person as a result of self-administering medication.

Schools should modify any existing policies regarding administration of medication to reflect the new legislation.

Please contact us if you have any questions about this legislation or if you would like assistance complying with them, reviewing an existing policy or creating a new one.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014

[1] S.7262-A/A.7791-A

[2] A.9334-B/S.7758