Providing Safe Health Care:
The Role of Education Support Professionals

Section 1: The Laws Governing ESP and the Care of Students with Special Health Care Needs

This section reviews federal laws that require the provision of certain health-related services to students with disabilities. Federal law does not specify which individual-a classroom aide, school nurse, teacher, or some other individual-is to provide these services, but rather leaves this decision up to school districts. Certain elements of the law provide opportunities for Education Support Professionals to help plan how health-related needs-and the needs of education employees themselves-can best be met. The first part of Section I outlines the laws that have brought more students with special health care needs into schools, and that guarantee their care there. The second part details how Education Support Professionals can advocate for themselves and the students in their care.

Caring for Students: What Are Your Responsibilities Under The Law?

In 1975, the U.S. Congress enacted what is now known as the Individuals with Disabilities Education Act, referred to as IDEA. The law was called the Education for All Handicapped Children Act when it was first passed, and was renamed IDEA by Congress in 1990. It was, and still is, sometimes referred to as Public Law 94-142. IDEA requires school districts receiving federal funding to provide a free, appropriate public education, or FAPE, for all eligible students with disabilities.

According to the law, a free appropriate public education means the provision by school districts of both special education - specially designed instruction to meet the unique needs of a child with a disability - and related services that students need to make their schooling possible, for all eligible students with disabilities. IDEA's regulations, which are legal mandates, define "related services" to include, among other kinds of services, "school health services."

This handbook focuses on IDEA's requirement for providing "school health services." Although the terms "medical services" and "school health services" may sound similar, they have very different meanings in the law. Medical services are defined as services that must be performed by a physician. Education Support Professionals should never be called on to perform these tasks. This document uses the term "school health services," or "health-related services" to distinguish them from medical services, which school districts are not required to provide other than for diagnostic or evaluation purposes.This is in order to ensure that the special needs of each student with a disability will be addressed in a way that will permit the child to benefit from her or his educational opportunity.

IDEA requires a written Individualized Education Program, or IEP, for each eligible student with a disability. This is in order to ensure that the special needs of each student with a disability will be addressed in a way that will permit the child to benefit from her or his educational opportunity. Each student's plan is prepared by a team that must include a representative of the school district who is a special education provider or supervisor, the child's teacher, one or both of the child's parents, the child if appropriate, and other individuals at the discretion of the parent or the school district.The law permits, but does not require, educational support staff to be members of the team that prepares the written IEP.

Why is the written IEP important? IDEA requires this document to identify, among other items:

• the specific education and related services to be provided to the child,
• the extent to which the child will be able to participate in regular education programs, and
• the projected dates of initiation of services and the anticipated duration of the services.

The important point is that the school district is legally responsible for providing any school health services identified in the child's written IEP. If there is no written IEP for that child, then it may be more difficult to successfully advocate for the provision of necessary services. No matter how much a child without a written IEP may need related services, there is no legal obligation for the school district to provide services not identified in that document. It is improper for a school district to tell anyone on a child's IEP team not to include related services the child needs in the document.

When should you, as an ESP, seek to be a member of the IEP team for a particular student with a disability? In general, if you work closely with the student on a day-to-day basis, you may know best, from first-hand experience, what related services that student will need. It may therefore be important for the child's interests that you be part of the team that identifies the child's needs in writing and establishes how they will be met. Your request to participate as a member of the IEP team should be directed to the person who decides who will participate on the IEP team.

If you are unable to participate in the IEP team, you should make the child's needs known to someone on the team who can be sure the IEP identifies his or her needs and the related services necessary to meet them.

In either case, you should know the content of the written IEP for each student with a disability with whom you work in order to ensure the continuity of instruction and care for that student. Federal law does not prevent you from having access to relevant school records, including the student's IEP, if you work with a student with special health needs. The Family Educational Rights and Privacy Act (FERPA) permits school employees to have access to the school records of students with disabilities without the written consent of parents if they have a need to know. You are considered to have a "need to know" if you are providing health care services for that student.

While a student's health care needs should be addressed in the IEP, they are sometimes omitted. Therefore, in addition to the IEP, it is a good idea-and sound practice-to create an Individual Healthcare Plan, or IHP, for each student with a disability who has special health care needs. The concept of the IHP is not contained anywhere in the federal law. However, federal law does not prohibit the development of an IHP for students with disabilities who have special health care needs. The IHP might typically contain a nurse's assessment of the child, a plan to implement appropriate care, and calls for an evaluation of the treatment once it has been provided.

An IHP is best incorporated into a student's IEP as a clearly identified special section of that document. There are two reasons for this. First, everyone in the school setting who works with that child should know about and have access to information about any special health-related needs and services the child has. Were the IHP a freestanding document-not part of the IEP-the chances are greater that school employees who work with the child will not know about his or her needs. Second, by incorporating the child's IHP as a section of the child's IEP, school employees and parents will be better placed to take advantage of the legal requirement that related services identified in a child's IEP must be provided by the school district. If the child's IHP is not a part of the IEP, then this federal requirement would not be in effect, and there would be no legal basis for a claim that services identified in the IHP must be provided.

What kinds of services constitute "school health services?" They might include administering medication, performing clean intermittent catheterization, suctioning of tracheotomy tubes, providing tube feedings, diapering, or monitoring medical support systems. Which services the school district must provide is a matter of interpretation for each child's IEP team. In general, the courts have ordered school districts to provide a particular health service when it:

• is "necessary" to enable the student to attend school,
• can be performed by a school nurse or some other "qualified person,"
• is not "unduly expensive," and
• does not require "constant" attention by a staff person.

IDEA does not specify precisely who should provide student health care. Federal law states only that services be provided by a "qualified school nurse or other qualified person." Just who may perform what kinds of health-related or medical services is a matter determined on a state-by-state basis. Each state has requirements as to what kind of services must be performed only by licensed nurses (and doctors, which is important in the case where an ESP or other NEA member is asked or told to provide a service that only a licensed physician may perform under state law.) These laws apply to the schools. Different states have made different decisions in this regard. You can find out more about them by contacting your local or state NEA representative, who can ask state Association legal counsel to find out what the laws in your state say on this matter.

For example:

• Some states have comprehensive laws that delegate authority specifically to licensed personnel, like a school nurse. Illinois and Indiana, for example, require that only certified nurses administer medication to students.
• Some states permit unlicensed personnel to administer some medication and perform health care procedures in schools. Maryland, for example, permits Education Support Professionals to perform many health care procedures for students, as long as responsibilities are delegated and supervised by a professional nurse. Maine allows Education Support Professionals to administer medication with written permission from a student's parents or physician.
• Some states give unlicensed personnel the right to refuse to administer medication or perform health care procedures. In Iowa, for example, employees may, by state law, refuse to perform special health services and "intrusive non-emergency medical services" for students.

All states have Nurse Practice Acts that govern licensed nurses. Under most Nurse Practice Acts, it is up to the school nurse, who is licensed, to determine what health care procedures, under what circumstances, can be delegated to non-medical ESP, and which ones must be performed by the nurse him or herself.

Where the question of who may provide school health-related services is not covered by law, local Association affiliates may wish to make it part of a collective bargaining agreement. That agreement would identify each school's process for determining who will provide health-related services without violating either the state nurse and medical practitioner licensing laws, or accepted guidelines on what constitutes safe and effective health practices.

Providing Safe Health Care: Advocating for Yourselves

By mandating a written IEP for students with disabilities with special health care needs, IDEA provides legal guarantees that they will receive adequate "related services" while in school. As education support employees, you can use the IEP process to advocate for your needs as well. A well-written IEP can ensure that you are qualified and confident about providing health care services.

• You must make yourself familiar with the medical practice and nursing laws in your state so you do not perform a procedure that requires a license you do not have.
• You will want to be sure you are trained and feel competent in the procedures you will perform.
• You will want to learn how to protect yourself from possible infection while maintaining students' rights to confidentiality.
• You will want to know what to do if you are working with a student who is covered by a legally-valid Do Not Resuscitate (DNR) order. (See Appendix.)
• You will want to know what your liability insurance covers.
• And you will want to know what to do if you are ordered to perform tasks for which you have not been trained, or which you believe you are not legally permitted to perform. Attempts to perform such tasks might jeopardize a student's safety, and your own well-being.

If you will be performing health care procedures, here are some guidelines to follow:

To ensure the safety of children under your care, you should be trained and supervised by a licensed health care professional. This makes sense for a student's safety and for your safety as well-no one would want an untrained person inserting catheters or breathing tubes. The licensed health care professional or nurse should document your training, include the documentation in your personnel file, and provide and document ongoing observation and supervision of your work. You are an important player on students' education teams, and students will benefit when you communicate regularly with their teachers and nurses about their health care and educational program.

You should be trained in techniques for "universal precautions" that you can use with all students to ensure their safety as well as your own. Some students' medical conditions-such as hepatitis, HIV or AIDS-pose a potential risk for employees administering health care. Many students who are at risk of contracting HIV will not be tested for the virus until they are older, and even if they have been tested, test results are imperfect. As noted earlier, federal privacy provisions do not bar you from access to school records of students with these or any other health conditions.

How, then, can you protect yourself from dangerous conditions? You should be trained in universal precautions. This means you should be issued protective equipment, and be instructed in its proper use. You should practice these techniques with all students in your care. In other words, treat all students as if they are infected. This protects students' confidentiality and your safety and well-being.

You should know what to do if you are working with a child who is covered by a legally-valid Do Not Resuscitate (DNR) Order. You will need to be prepared to respond appropriately if the student goes into cardiac or respiratory arrest while in school. (See Appendix.)

NEA provides active ESP members with Educators Employment Liability (EEL Program) Insurance as a benefit of membership. Many ESPs are justifiably concerned about the possible legal implications of caring for students with special health care needs. While all ESPs take their responsibilities seriously, there is always a chance that a very busy-or insufficiently trained-ESP might make a mistake. One office clerk in Nevada, for example, accidentally gave a child a potentially lethal dose of the wrong medication. As she later recalled, "We had about 20 kids on medication then . . . That day I just didn't notice that the boy's medicine had been moved from its usual place in the drawer."

Your school district may carry liability insurance, but its policy may have significant limitations as far as your needs are concerned, so don't take it at face value when your district tells you you're covered. You should find out if your district's policy would cover you in the event of an incident arising from the delivery of health care services. You will want to find out:

• What procedures or types of situations does the policy cover?
• What are the dollar limits on coverage?
• What policy exclusions might apply, such as giving medication if you are not licensed?
• How many claims per individual will the policy cover? Is it only one claim per person over the life of the policy? If so, it may not be helpful to you.

Remember that the policy is meant to cover the district, and not necessarily its individual employees. That's why NEA provides you with the EEL Program.

The Educators Employment Liability Program will protect Education Support Professionals from personal liability for carrying out their express or implied educational employment activities, including caring for students with special health care needs. In general, the EEL Program will cover ESPs if they:

• Provide emergency first-aid service when a school nurse or other medically trained person is not readily available.
• Inadvertently administer the wrong oral prescription or non-prescription medication, as long as they have written parental or guardian approval to be administering it, and as long as the parent or guardian has provided the medication in the original, properly-labeled container.
• Have personal property (except vehicles) damaged by a student in an assault upon the member while performing an employment activity. For instance, if a child assaults an ESP and breaks his or her glasses, the EEL Program will cover damage up to $250.

Whether the EEL Program will cover support staff who perform health care procedures will depend on the circumstances of the service and state law. According to the NEA's Health Information Network,

In general, if-under state law-the service can only be performed by a licensed health care professional, such as an RN, LPN, or physician, then the service would be considered a "medical art," which is not covered. On the other hand, if the service is not a "medical art," then it probably is covered. The NEA Office of Legal Services Programs, which administers the NEA liability insurance program ("EEL"), cautions that the question whether the provision of a certain health care service is covered must be answered on a case-by-case basis in light of the facts of the specific situation.

If your supervisor asks you to perform procedures that you believe are not covered, ask that the school district confirm in writing that it will hold you harmless in the event of a lawsuit, and ask that you be given a copy of your employer's insurance policy that covers you for any act or omission you perform on their behalf.

In order to avoid possible legal difficulties later when you're asked to administer health care procedures, you can protect yourself by doing the following:

• Make sure your supervisor is not asking you to perform a task that is illegal for someone in your occupation. If in doubt, ask your UniServ Representative to help you confirm this information. (See above.)
• Make sure your employer provides you with adequate training. (See Section 3.)
• Make sure your employer either confirms in writing that you will be held harmless, or provides you with primary liability insurance. (See Glossary.)

If an incident occurs and you think you might need your EEL Program coverage, contact your UniServ representative immediately. He or she will have you fill out claim forms. You should also write down a description of the incident as soon as possible for your own records, so you can remember the details.

For more information on the EEL Program, contact your local or state Association representative or your UniServ director.

Your state's laws, or your collective bargaining agreement might protect you from performing procedures for which you have not been trained, or which are not required in your job description. In some states, nursing procedures must be performed by a licensed Registered Nurse, and you are not allowed to perform them. In general, unlicensed personnel are prohibited from performing physical, occupational, or psychological therapy, (and the EEL Program does not cover ESP who perform these therapies without being properly licensed or certified ), but you will need to check with your state Association's legal representative, your state Association's legal department, or your UniServ director about your state's laws to see which procedures are considered under such a provision. Your contract might also protect you from performing certain health care procedures. Some ESP contracts guarantee your right to refuse to perform health care procedures that are not listed in your job description. A contract or job description can also prevent you from being involuntarily assigned to perform a health care procedure.

What do you do if your supervisor directs you to administer medication or perform health care procedures you have not been trained to do, or you are not qualified to do, or you are not legally allowed to perform? NEA recommends that, "Except in extreme circumstances, a school employee should always comply with a direct order from a supervisor and then seek redress by filing a grievance or other legal action." Proactive stances, such as participating in the creation of the IEP and IHP, are, of course, most effective. If you are put in the position of being directed to perform a task you are not qualified to do, or which you believe is illegal, you can explain to your supervisor (preferably an association representative or a co-worker will be with you for support) that it isn't safe-or it is illegal-for you to perform the procedures. If all else fails and the supervisor mandates that you perform the procedure or risk losing your job, do the following:

• Contact your UniServ director and local Association grievance committee immediately.
• Document what you are being asked to perform.
• Ask the supervisor to put the directive in writing.
• Comply with the direct order, unless you feel you will jeopardize the safety of the student.
• Put your objections in writing. (for example, "You are asking me to perform a health care procedure I have not been trained to do, and that could endanger the child.")

Remember: IDEA guarantees safe health care for students, and your training as a health care provider is important in providing safe care.

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