A School Nurse s Guide to Key Legal Issues. Karen Haase

Transcription

1 A School Nurse s Guide to Key Legal Issues Karen Haase

2 The Plan for Today Tort Liability Medication Aide Act Student Records (FERPA and HIPAA) Service Animals Child Find

3 Tort Liability and Negligence

4 Definition of a Tort Black s Law Dictionary defines a tort a civil wrong for which a remedy may be obtained, usually in the form of damages A far less formal definition of a tort is: all the crazy stuff that you can possibly imagine happening to a person.

5 Torts: Fact or Fiction? Raise your hand if you think the following actually happened: 1. A woman sued a doctor for malpractice because he invited his friend to watch him deliver her baby. 2. A woman sued a cab company when a cab without a driver hit her. The driver had jumped from the moving cab to escape a robber who had pointed a gun to the driver s head. 3. A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off.

6 Negligent Torts: Elements There are four basic elements of a tort: 1) Duty 2) Breach 3) Causation 4) Damages

7 Negligent Torts: Duty Everyone has a duty to exercise due care all of the time. Due care is the amount of care that a reasonable person would exercise under the circumstances. A reasonable person is not any real person or even the average person, but an imaginary prudent person

8 Negligent Torts: Breach Breach is the simplest of the four elements. Did the defendant follow the standard of care established in the duty element? For example, if the standard of care requires the owner of an aggressive dog to keep the dog on a leash and the owner does not do so she has breached the duty of care.

9 Negligent Torts: Causation There are two types of causation: Causation in fact; and Proximate cause

10 Negligent Torts: Causation Causation in fact -- but-for causation, The question is, but for the defendant s actions would the injury have occurred? Example: A hits B in the shin with a golf club. B s shin would not have been injured if A had not him in the shin with a golf club.

11 Proximate Cause Proximate cause: policy question of where the law wants to cut off liability for a negligent actor. Theories exist regarding proximate cause: Direct Causation Forseeability The Danger Zone

12 Negligent Torts: Damages The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount. The real difficulty comes in calculating damages. For example, it is pretty easy to figure out how much a totaled car is worth, but it s not so easy to figure out how much eyesight is worth.

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14 Strough v. Bedford Comm. Sch. Dist., (D. Iowa May 12, 2015) High school football player paralyzed Student claimed brain damage caused by concussion School claimed injury caused by preexisting cavernous malformation Student testified he reported symptoms to the nurse after he was hit on the head with footballs during practice in late 2012

15 Strough v. Bedford Comm. Sch. Dist., (D. Iowa May 12, 2015) Jury awarded almost $1 million Found nurse was negligent in failing to notify coaches after student showed symptoms of a brain injury Found nurse negligent in failing to alert guardian School deciding whether to appeal

16 Estate of Jenkins, 2004 Tenn. App. LEXIS 766 SpEd student injured when his teacher attempted to move him from his chair. Student s leg broken in the fall Nurse arrived in room, examined child, did not detect fracture Family sued nurse for negligence

17 Estate of Jenkins, 2004 Tenn. App. LEXIS 766 Court: No liability nurse played no part in causing the fracture failure to diagnose the fracture was not negligent No injury caused by delay in treatment

18 Williams v. Hempstead School Dist., 46 A.D.3d 550 (N.Y. App. Div. 2d Dep't 2007) Kindergarten student with asthma Coughing in class, taken to nurse Nurse gave inhaler and called mother, who picked student up from school Nurse told mother to take child to doctor Mother drove home; called EMTs Pronounced dead at hospital

19 Williams v. Hempstead School Dist., 46 A.D.3d 550 (N.Y. App. Div. 2d Dep't 2007) Court: no liability No duty existed once mother assumed custody Nurse acted with reasonable care

20 Medication Aide Act

21 Medication Aide Act Neb. Rev. Stat to Obliges schools to provide training for purposes of administering or providing medications (both prescription and OTC) Must pass competency assessment no less than every 3 years Requires written protocols and records Check your policies (and change if necessary)

22 Medication Aide Act Neb. Rev. Stat to School district employees should not medically diagnose or prescribe treatment Written authorization zation from doctors should be on file Authorizations no protection if child is injured due to lack of proper supervision or error No statutory immunity Check on insurance coverage (contractual?)

23 Medication Aide Act Neb. Rev. Stat to No Reported Cases Under MAA So why do lawyers make a bid deal of it? Establishes a higher duty of care

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25 Cerny v. Cedar Bluffs Sch. Dist., 262 Neb. 66 (2001) Senior at Cedar Bluffs in 1995 Fell during game - dizzy - appeared normal and returned to game Symptomatic following practice Closed head injury in practice Suffered traumatic brain injury

26 Lessons from Cerny Legal standard: coaches judged based on a comparison to a reasonably prudent person holding a Nebraska teaching certificate with a coaching endorsement Keep current Supervise community coaches

27 Norman v. Ogallala Sch. Dist., 259 Neb. 184 (2000) Student injured in welding class when his shirt caught fire Student was wearing long-sleeved cotton shirt If school had complied with ANSI welding safety standards put out by the American Welding Society he would have been wearing protective clothing

28 Lessons from Norman Legal standard can be completely external to school context Important to stay current on best practices

29 Hughes v. School Dist. Of Aurora, 290 Neb. 47 (2015) Parent leaving school after volleyball match Fell in parking lot, sue alleging school was negligent in failing to install and maintain lighting at the exit School: no proof of proximate cause Plaintiff: National Fire Protection Association s Life Safety Code called for lights

30 Lessons from Hughes Courts are more willing to defer to external exits Reinforces need for insurance coverage for all eventualities

31 LB 511 Requires schools to have a return to learn protocol for students who are pediatric cancer survivors Students who have a history of cancer are disabled under the ADA and Section 504 Schools may lawfully provide the return to learn protocol through IEP/504 Plans

32 Student Records

33 FERPA Family Education Rights and Privacy Act (sometimes called The Buckley Amendment ) Response to perception of Secrecy of files from students and parents Disclosure of information to third parties

34 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

35 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

36 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

37 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

38 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

39 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

40 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

41 What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

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43 L.S. v. Mount Olive Bd. Of Ed. (D.N.J. 2011) Catcher in the Rye Assignment Parent sued School Principal Teacher School psych. Court: teacher and psych personally liable other school defendants dismissed

44 Letter to Wolf (FPCO 2011) Principal and teacher at volleyball game Parent sued school Parent also filed complaint with FPCO FPCO discussion should not have occurred in this public location and [staff] exercised poor judgment in breaching confidence Related lawsuit settled

45 Letter to Anonymous (FPCO 2013) Teacher s practice was to each student who failed a test Accidentally sent to entire group Asked FPCO for guidance FPCO Violation of FERPA Contacted school Launched an investigation

46 Letter to Anonymous (FPCO 2013) Two school board members at board meeting discussing issue with sons Parent filed complaint with FPCO FPCO Violation of FERPA Emphasized broad definition of school staff

47 FERPA and HIPAA HIPAA: applies to records containing information provided for the purpose of diagnosis and treatment HIPAA regs: records that are subject to FERPA are excluded from definition of protected health information Even when school provides health care to students, records are not subject to HIPAA

48 In re: Student with a Disability, 111 LRP (SEA NM 2010) Parents filed complaint against school nurse alleging violation of HIPAA DOE explained that the rules implementing HIPAA provide that records subject to FERPA of 1974 are not subject to HIPAA. Refused to address allegations

49 T.F. v. Fox Chapel Area Sch. Dist., 62 IDELR 74 (W.D. Pa. 2013) Kindergartner with nut allergy and asthma School nurse called doctor, shared info without HIPAA or FERPA authorization Parents sued in federal district court

50 T.F. v. Fox Chapel Area Sch. Dist., 62 IDELR 74 (W.D. Pa. 2013) Court HIPAA allows covered health care providers to disclose information about students to school nurses without authorization. Even if the school shared FERPA info with doc, such an error, "if any, constitutes nothing more than negligence. No private right of recovery under FERPA, therefore case dismissed

51 FERPA and HIPAA *Unauthorized disclosure by a school of a student s immunization records is a Class II misdemeanor. NEB. REV. STAT to

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53 Service Animals

54 Service Animals Title II of the ADAAA prohibits disability discrimination by all public entities Facilities Service dogs Amendment of ADA included new federal regulations Treat allowing animals as a public accessibility

55 Regulations School may only exclude if Out of control/not housebroken Presence results in fundamental alteration of service Presence poses a direct threat to others safety May not require certification, insurance, proof of shots, etc. Not required to provide handler

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57 Alboniga v. School Bd. Of Broward County, 65 IDRLR 7 (S.D. Fla 2015) 7 y/o with multiple disabilities (incl. seizures) Mom obtained service dog School required vaccinations, liability insurance, and a handler Mom was original handler, then janitor was Handler walks dog on leash next to student, takes dog outside to urinate, keeps kids from playing with dog

58 Alboniga v. School Bd. Of Broward County, 65 IDRLR 7 (S.D. Fla 2015) IEP did not require dog School refused to be responsible for care and supervision of dog Mom sues disability discrimination Court: provision of handler was a reasonable accommodation Enjoined from requiring vaccinations or insurance

59 Alboniga v. School Bd. Of Broward County, 65 IDRLR 7 (S.D. Fla 2015) Court reg says school should not have to be responsible for care or supervision of service animal. care and supervision refers to routine or daily overall maintenance of a service animal. Accommodating student by assisting him to lead dog outside to relieve himself is not part of that routine overall maintenance

60 School Admin. Unit #23, 113 LRP (OCR 2013) New Hampshire Seizure alert service dog School refused to provide school staff to handle dog; parents filed with OCR Resolution agreement - district to contract with a trainer experienced with service dogs and provide in-school training for aides to keep the dog from disrupting class.

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62 Child Find

63 Child Find in IDEA Part B Affirmative, ongoing obligation of states and local school districts to identify, locate and evaluate all children with disabilities... regardless of the severity of disability Even if they are advancing in grade 34 C.F.R

64 Section 504 of the Rehab. Act A recipient that operates a public elementary or secondary education program or activity shall annually: (a) Undertake to identify and locate every qualified handicapped person residing in the recipient's jurisdiction who is not receiving a public education; and (b) Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient's duty under this subpart. 34 C.F.R

65 In re Student with a Disability, 112 LRP 5256 (NM SEA 01/17/12) 8th-grade student, academically gifted, dx ADHD. Parents requested evaluation; MD team determined ADHD did not impact his education. Neither parent nor school considered ED as qualifying condition. Student struggled academically and socially. Several threats of suicide. Reported being bullied. Anxiety resulting from parents' divorce. 181 visits to nurse's office over 3 years.

66 In re Student with a Disability, 112 LRP 5256 (NM SEA 01/17/12) School: Not OHI due to ADHD. Poor grades due to missing class. Socially maladjusted. Family witnesses: "not socially maladjusted. H.O.: School violated child find by not evaluating student for ED.

67 Jana K. v. Annville Cleona Sch. Dist. 63 IDELR 278 (M.D. Pa. 2014) Girl had made 54 visits to school nurse Grades had significantly declined She had swallowed a metal instrument used to cut herself Parent did not notify school of depression diagnosis School violated child find obligation

68 A School Nurse s Guide to Key Legal Issues Karen Haase (402) karen@ksbschoollaw.com KSB School