Legal Updates


NEW LAW GOVERNING THE ADMINISTRATION OF MEDICATIONS TO STUDENTS

August 1, 2017

On July 17, 2017, Governor Walker signed into law 2017 Wisconsin Act 29, which now authorizes school district employees, school bus drivers and volunteers in schools to administer a potentially life-saving opioid antidote to a student or other individual in an emergency and protects them from liability.

According to the Wisconsin Department of Health Services, “Wisconsin is in the midst of a drug overdose epidemic driven by opioids.”  Since 2006, the rate of opioid overdose deaths has nearly doubled from 5.9 deaths per 100,000 residents to 10.7 deaths per 100,000 in 2015.[1]  Indeed, on September 22, 2016, Governor Walker issued Executive Order #214 to create a Task Force on Opioid Abuse.

Act 29 modifies Wis. Stat. § 118.29 in order to respond to the serious public health problem that has been created by the recent opioid epidemic.

Wis. Stat. § 118.29 generally governs the administration of medication to students in the public schools by authorizing school district employees, school bus drivers, school district volunteers, and CESA employees to administer nonprescription medications and prescription medications if certain conditions are met.  The administration of nonprescription medications by a particular school district employee, school bus driver, school district volunteer, or CESA employee, requires written authorization from a principal, the district administrator or school board and written consent from the student’s parent/guardian.  Moreover, the medication must be supplied in its original manufacturer’s packaging and must contain a recommended dosage in a legible format.  Furthermore, for purposes of administering medications by means other than through oral ingestion (which includes, but is not limited to, medications that are injected, inhaled, administered rectally, through a nasogastric tube, etc.), the school district employee, school bus driver, school district volunteer, or cooperative educational service agency (CESA) employee must have received training approved by the Department of Public Instruction before administering such medication.

With regard to the administration of prescription medication by a particular school district employee, school bus driver, school district volunteer, or CESA employee, written authorization from a principal, the district administrator or school board and written consent from the student’s parent/guardian must be issued beforehand.  The authorized individual must administer the medication in accordance with the written instructions of the student’s health care provider who prescribed the medication.  Moreover, the medication must be supplied in the original pharmacy-labeled packaging; it must specify the name of the student; the name of the medication; the dose; the effective date; the name of the health care provider who prescribed the medication; and the directions for administration; all in a legible format.

Wis. Stat. § 118.29 explicitly authorizes the administration of emergency medications, such as epinephrine and glucagon, to students in emergency situations, even if the student’s parent/guardian has not provided written consent or supplied the medications and even if the student’s health care provider has not provided written instructions to the School District staff.  In such an emergency situation, the school district employee, school bus driver, school district volunteer, or CESA employee must report the event by calling 911 (or if 911 is not available, by calling an emergency medical provider).

If prescription, nonprescription or emergency medications are administered by a school district employee, school bus driver, school district volunteer, or CESA employee, such individuals are exempt or immune from civil liability arising out of or related to the medication administration, provided that the individual administers the medication in good faith and unless the individual administering the medication was not properly trained or if the act or omission in administering the medication constitutes a high degree of negligence.  A “high degree of negligence” means criminal negligence or “ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.”  Wis. Stats. §§ 118.29(1)(d) and 939.25(1).  It is important to note that this exemption/immunity from liability under Wis. Stat. § 118.29 does not apply to health care professionals.

As a result of Act 29, Wis. Stat. § 118.29 has been modified to include as an emergency medication an opioid antagonist medication, such as naloxone, that satisfies all of the following: (a) the drug binds to the opioid receptors and competes with or displaces opioid agonists at the opioid receptor site but does not activate the receptors, effectively blocking the receptor and preventing or reversing the effect of an opioid agonist; and (b) the drug is not a controlled substance.  Therefore, a school district employee, school bus driver, school district volunteer, or CESA employee is now authorized to administer an opioid antagonist medication to a student or other person who appears to be undergoing an opioid-related drug overdose, which means that they observe “a condition including extreme physical illness, decreased level of consciousness, respiratory depression, coma, or the ceasing of respiratory or circulatory function resulting from the consumption or use of an opioid, or another substance with which an opioid was combined.”  However, similar to the procedure used when administering other emergency medications, the school district employee, school bus driver, school district volunteer, or CESA employee must be properly trained and must report the event by calling 911 (or if 911 is not available, by calling an emergency medical provider).  Under such circumstances, the school district employee, school bus driver, school district volunteer, or CESA employee will be exempt or immune from civil liability arising out of or related to the administration of the opioid antagonist medication, unless the act or omission in administering the medication constitutes a high degree of negligence.

Finally, it is important to note that school boards are required to adopt written policies governing the administration of prescription, nonprescription or emergency medications to students.  Such policies must be developed with the assistance of one or more school nurses who are employees of the School District or otherwise contracted to provide services to the School District.  The policies must also address the recordkeeping responsibilities related to and arising out of the administration of prescription, nonprescription or emergency medications to students.  It is advisable for school district officials to take steps to revise such board policies to encompass the changes to the laws governing the administration of emergency medications resulting from Act 29.

For questions regarding this article, please contact the author, Attorney Shana R. Lewis (email: slewis@strangpatteson.com telephone: 844.626.0902 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] https://www.dhs.wisconsin.gov/publications/p01690.pdf

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