Minnesota Guidelines for Medication Administration in Schools - May 2005

(Updated: September 2005)

Maternal and Child Health Section graphic of an outline of a parent with a child in the middle of the outline of Minnesota.



Appendix D: Relevant Laws

The legal basis for Minnesota Standards for Medication Administration in Schools is the following set of laws. The short descriptions are not intended as legal interpretations of these laws.

Federal Laws

Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.) and regulations promulgated by the Department of Justice. These laws prohibit all schools and day care centers, except those run by religious organizations, from discriminating against children with disabilities. The definition of disability is the same as in Section 504 of the Rehabilitation Act of 1973. The ADA extends the reach of nondiscrimination for students with disabilities to private secular schools and to colleges and universities.

http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00012101----000-.html
http://www.usdoj.gov/crt/ada/reg3a.html

Drug and Alcohol Treatment Records (D&A) (42 U.S.C. § 290dd-2; 42 C.F.R. part 2). The federal government enacted two laws in the early 1970s to guarantee the strict confidentiality of information about persons receiving alcohol and drug prevention and treatment services. While one dealt with alcohol abuse and the other with drug abuse patient records and information, both laws established the same confidentiality standards. They have been combined into one law, codified at 42 U.S.C. § 290dd-2. This statute does not prohibit the reporting under Minnesota law of incidents of suspected child abuse and neglect to the appropriate state or local authorities.

http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000290--dd002-.html

In 1987, federal regulations were adopted governing the confidentiality of both alcohol and drug abuse patient records (42 C.F.R. part 2). To find the regulations, see:

http://www.access.gpo.gov/nara/cfr/waisidx_04/42cfr2_04.html

Family Educational Right to Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. Part 99). FERPA is designed to protect the privacy of a student’s education records and gives parents certain rights with respect to their children’s records. Among the details covered in this federal law are inspection and review of students’ education records, specific information to be made available, procedure for access to education records, hearings to challenge and correct data, the release of education records, parental consent requirements, and exceptions.

http://www.law.cornell.edu/uscode/html/uscode20/usc_sec_20_00001232---g000-.html

To find title 34 of C.F.R., part 99, see:

http://www.access.gpo.gov/nara/cfr/cfr-table-search.html#page1

Health Insurance Portability and Accountability Act (HIPAA), and regulations adopted under it (45 C.F.R., chapters 160 and 164). HIPAA was enacted by Congress in 1996 to ensure continued health insurance coverage to persons who move from one job to another and to address the growing problem of health information confidentiality in the electronic era.

The privacy regulations adopted under HIPAA (45 C.F.R. chapters 160 and 164) apply to health information created or maintained by health care providers who engage in certain electronic transactions, health plans, and health care clearinghouses.

To find C.F.R. chapters, see:

http://www.access.gpo.gov/nara/cfr/cfr-table-search.html#page1

Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.). IDEA focuses on teaching and learning and established high expectations for students with disabilities to achieve educational results. It mandates that the federal government provide funding to education agencies, state and local, to provide to qualifying students with disabilities between the ages of three and 21 access to free publicly funded education “appropriate to their individual needs.” The school is then required to develop an IEP to accommodate the needs of each eligible student with disabilities. If the disability does not require special education, there is no obligation created under the IDEA.

http://www.law.cornell.edu/uscode/html/uscode20/usc_sec_20_00001400----000-.html

Individuals with Disabilities Education Improvement Act (IDEIA) (Public Law 108-446). IDEIA reauthorizes the Individuals with Disabilities Education Act (IDEA), the nation's special education law. H.R. 1350 strives to improve educational results for students with disabilities by: (1) making special education stronger for students and parents, (2) ensuring school safety and reasonable discipline, (3) reducing unnecessary lawsuits and litigation, (4) supporting teachers and schools, and (5) reforming special education funding and building on historic funding increases.

http://www.gpoaccess.gov/plaws/index.html

• Prohibition on Mandatory Medication Amendment (25; Public Law 108-446). Sometimes called the “Child Medication Safety Act,” this amendment requires state and local authorities to implement policies that prohibit public schools from conditioning a child’s education on the use of Ritalin or any other controlled substance.

http://www.gpoaccess.gov/plaws/index.html

OSHA Blood-borne Pathogen Standard (29 C.F.R. § 1910.1030). This law details what employers must do to protect workers whose jobs put them at a reasonable risk of coming into contact with blood and other potentially infectious materials. The standard requires employers to: (1) establish an exposure control plan and an exposure determination, (2) observe universal precautions to prevent contact with blood or other potentially infectious materials, (3) use engineering and work practice controls, (4) provide personal protective equipment such as gloves, (5) observe housekeeping standards, (6) make available, at no cost to the employee, Hepatitis B vaccinations to all employees with occupational exposure to blood-borne pathogens within 10 working days of assignment, (7) make available, at no cost to the worker, post-exposure evaluation and follow-up to any worker who experiences an exposure incident, (8) use labels and signs to communicate hazards, (9) provide information and training to employees, and (10) maintain employee medical and training records and a sharps injury log. The standard includes additional requirements for HIV and HBV research laboratories and production facilities.

To find the 29 C.F.R. § 1910.1030, see:

http://www.gpoaccess.gov/cfr/retrieve.html

Investigational New Drug, Antibiotic, and Biological Drug Product Regulation (21 C.F.R. 312.3 (b)). This law contains procedures and requirements governing the use of investigational new drugs. This section incorporates the definitions and interpretations of terms contained in section 201 of the Federal Food, Drug, and Cosmetic Act (see 21 U.S.C. §§ 301-392).

To find 21 C.F.R. § 312.3, see:

http://www.gpoaccess.gov/cfr/retrieve.html

To view the definitions in 21 U.S.C. § 321, see:

http://www.law.cornell.edu/uscode/html/uscode21/usc_sec_21_00000321----000-.html

Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794). Section 504 is a non-discrimination provision that defines disability more widely than IDEA does. According to this law, parents of qualifying children have the right to develop a Section 504 plan with their child’s school. To qualify for protection under Section 504, a child must have a record of such impairment, or be regarded as having such impairment. The school cannot refuse to administer medication upon the request of a parent/legal guardian; a school cannot require parents/legal guardians to waive liability as a condition of giving medicine. Any school that received federal funding must comply with IDEA and Section 504 laws. A child need not require special education to be protected.

http://www.law.cornell.edu/uscode/html/uscode29/usc_sec_29_00000794----000-.html

For definitions, see:

http://www.law.cornell.edu/uscode/html/uscode29/usc_sec_29_00000705----000-.html

State Laws

Administration of Drugs and Medicine (Minnesota Statutes §§ 121A.22, 121A.221, 121A.2205 and 121A.222). State law regarding the administration of medication in Minnesota schools is established in these statutes. Section 121A.22 was enacted in 1988. In 2001, section 121A.221, which deals with the safe possession and use of asthma inhalers by students in a school setting, was added. In 2004, section 121A.2205, which focuses on self-carrying of Epi-pens™, was added. In 2005, Section 121A.222, which focuses on self carrying non-prescription pain medication, was added.

http://www.revisor.leg.state.mn.us/stats/121A/22.html
http://www.revisor.leg.state.mn.us/stats/121A/221.html
http://www.revisor.leg.state.mn.us/stats/121A/2205.html
http://www.revisor.leg.state.mn.us/stats/121A/222.html

Children with a Disability (Minnesota Rules, chapter 3525). These are the state’s special education rules that relate to students requiring special education services. Minnesota schools serve students with a range of chronic or acute health conditions. Medications, treatments, therapies, and repeated hospitalizations can impact a student’s ability to learn and function at school.

http://www.revisor.leg.state.mn.us/arule/3525/

Children with a Disability (Minnesota Statutes, chapter 125A). These are the Minnesota statutes, some of which are required by the federal government, that ensure the right to a free and appropriate education to children with disabilities. These statutes relate to children and youth from birth through 21 years of age who reside in the state and have a disability, including children who have been suspended or expelled, children in early childhood programs, and children who require and are utilizing Minnesota’s coordinated, multidisciplinary, interagency, intervention services system.

http://www.revisor.leg.state.mn.us/stats/125A/

Emergency Treatment of Minors Act (Minnesota Statutes § 144.344). This brief statute states: “Medical, dental, mental and other health services may be rendered to minors of any age without the consent of a parent or legal guardian when, in the professional’s judgment, the risk to the minor’s life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.”

http://www.revisor.leg.state.mn.us/stats/144/344.html

Hazardous Substances, Employee Right-to-Know (Minnesota Rules, chapter 5206). These rules are enforced by Minnesota OSHA, instead of the federal OSHA Hazard Communication Standard (29 C.F.R. § 1910.1200). These Minnesota rules cover harmful physical agents and infectious agents, as well as hazardous substances, and require annual refresher training in addition to initial training. The rules govern almost all Minnesota employers, including general industry, schools, construction, maritime operations, mining, farming operations with more than 10 employees, and farming operations that operate a temporary labor camp and employ any of its residents.

http://www.revisor.leg.state.mn.us/arule/5206/

Health Standards; immunizations; school children (Minnesota Statutes § 121A.15). This law sets forth the requirements relating to immunizations for children in school and child care settings.

http://www.revisor.leg.state.mn.us/stats/121A/15.html

Maltreatment of Minors Act (Minnesota Statutes §§ 626.556 to 626.5563). This act declares that the public policy of Minnesota is to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse. The act requires the reporting of neglect, physical or sexual abuse, and maltreatment of children in the home, school, and community setting; provides for voluntary reporting of abuse or neglect and maltreatment of children, requires the assessment and investigation of the reports; and provides protective and counseling services as appropriate.

http://www.revisor.leg.state.mn.us/stats/626/

Minnesota Board of Teaching Rule on School Nurses (Minnesota Rules 8710.6100). This rule states that a school nurse is authorized to provide nursing services in a school setting to pre-kindergarten through 12th-grade students. The rule also lists the requirements and prerequisites for school nursing licensure.

http://www.revisor.leg.state.mn.us/arule/8710/6100.html

Minnesota Comprehensive Children’s Mental Health Act (Minnesota Statutes §§ 245.487 to 245.4887). This Act establishes a comprehensive mental health system for Minnesota children. Minnesota Statutes § 245.4876, subd. 5, governs the disclosure of information on children receiving services under this system. It provides in general that the case manager assigned to a child with a severe emotional disturbance shall not disclose to any person other than the case manager’s immediate supervisor and the mental health professional providing clinical supervision of the case manager information on the child, the child’s family, or services provided to the child or the child’s family. Disclosure is permitted if: (1) disclosure is required by statute; (2) disclosure is required under the Minnesota Government Data Practices Act; or (3) the case manager obtains informed written consent for the disclosure. Informed written consent must comply with Minnesota Statutes § 13.05, subd. 4(d), and must specify the purpose and use for which the case manager may disclose the information.

For Minnesota Statutes § 245.4876, see:

http://www.revisor.leg.state.mn.us/stats/245/4876.html

For Minnesota Statutes § 13.05, see:

http://www.revisor.leg.state.mn.us/stats/13/05.html

Minnesota Medical Practice Act (Minnesota Statutes, chapter 147; Minnesota Rules, chapters 5600 to 5620). These statutes and rules govern the granting and subsequent use of the license to practice medicine.

http://www.revisor.leg.state.mn.us/stats/147/
http://www.revisor.leg.state.mn.us/arule/a440.html

Minnesota Medical Records Act (MMRA) (Minnesota Statutes § 144.335). The Minnesota Medical Records Act (MMRA) applies to medical records created or maintained by providers such as medical doctors, physician’s assistants, psychologists, unlicensed mental health practitioners, licensed home care providers, and facilities licensed by the Minnesota Department of Health (such as hospitals, nursing homes, boarding care facilities, and supervised living facilities). Licensed professionals may also have professional codes of ethics that describe or limit how and when patient records may be disclosed. The MMRA requires that a provider supply to a patient: (1) “complete and current information possessed by that provider concerning any diagnosis, treatment and prognosis . . . in terms and language the patient can reasonably be expected to understand;” and, (2) upon a patient’s written request, copies of the “patient’s health record, including but not limited to laboratory reports, x-rays, prescriptions, and other technical information used in assessing the patient’s health conditions.” The provider can charge the patient a reasonable amount for the copies.

http://www.revisor.leg.state.mn.us/stats/144/335.html

Minnesota Comprehensive Adult Mental Health Act (MMHA) (Minnesota Statutes §§ 245.461 to 245.486). The Quality of Services section of this Act includes restrictions on access to mental health data. (See Minnesota Statutes § 245.467, subd. 6.) This statute states that the county board shall establish procedures to ensure that the names and addresses of persons receiving mental health services are disclosed only to: (1) county employees who are specifically responsible for determining county of financial responsibility or making payments to providers, and (2) staff who provide treatment services or case management and their clinical supervisors.

http://www.revisor.leg.state.mn.us/stats/245/467.html

Minnesota Nurse Practice Act (Minnesota Statutes §§ 148.171 to 148.285) and Minnesota Rules, chapters 6301 through 6340. This act and the rules promulgated by the Board of Nursing govern the practice of nursing in Minnesota in any/all settings. The act describes the scope of practice of advanced practice, professional and practical nursing, licensure and registration requirements, and grounds for disciplinary action, among other things.

http://www.revisor.leg.state.mn.us/stats/148/
http://www.revisor.leg.state.mn.us/arule/6300.html

Minnesota Pharmacy Act (Minnesota Statutes, chapter 151) and Minnesota Rules, chapter 6800. This act and the rules promulgated by the Board of Pharmacy govern the practice of pharmacy in Minnesota. The act provides information related to drugs and medicine and addresses the handling, labeling, and dispensing of drugs. It describes the scope of pharmacy practice, licensure and registration requirements, and grounds for disciplinary action, among other things.

http://www.revisor.leg.state.mn.us/stats/151/
http://www.revisor.leg.state.mn.us/arule/6800/

Minnesota Government Data Practices Act (Minnesota Statutes, chapter 13). This Act includes a section that protects the privacy of educational records. Minnesota Statutes § 13.32, subd. 3, provides that educational data are private, and cannot be disclosed except as specified in the statute. Minnesota Statutes § 13.32, subd. 2, provides that the following types of data are included in the definition of educational data:

• “Health data concerning students, including but not limited to, data concerning immunizations, notations of special physical or mental problems and records of school nurses”; and
• “Pupil census data, including emergency information and family information.”

For further information, call the Minnesota Department of Administration, Information Policy Division, at (651) 296-6733, (800) 657-3721, or email info.ipad@state.mn.us.

http://www.revisor.leg.state.mn.us/stats/13/32.html

School Health Services (Minnesota Statutes § 121A.21). This statute requires that services be provided to promote the health of pupils from early childhood through high school. For school districts of 1000 students or more, one full-time licensed school nurse must be employed or a contract for equivalent staff made. Any alternate arrangement is to be submitted to the Commissioner of Education for approval.

http://www.revisor.leg.state.mn.us/stats/121A/21.html

Vulnerable Adult Act (Minnesota Statutes §§ 626.557 to 626.5573). This act protects persons age 18 or older who, because of a physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment.

http://www.revisor.leg.state.mn.us/stats/626/

 

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