5. The Department’s 2005 and 2006 Advisory Statements. In 2005 and 2006, the Department issued advisory statements recommending that school personnel other than licensed health care providers not administer medications by injection generally (2005) or insulin in particular (2006). (State Dept. of Ed., Program Advisory on Medication Administration (May 2005) p. 7 <http://www.cde.ca.gov/ls/he/hn/documents/medadvisory.pdf > [as of Aug. 12, 2013] (2005 Program Advisory); State Dept. of Ed., Medication Administration Assistance in California . . . Frequently Asked Questions (2006) p. 1 (2006 FAQ).) The Nurses contend we should defer to these recommendations as authoritative interpretations of section 49423 by an agency charged with its enforcement. But the Department’s advisory statements are not entitled to the same judicial deference as the binding, quasi-legislative regulations formally adopted by the Board. (Tit. 5, §§ 600-611; see § 49423.6 [regulatory authority].) “An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts; however, unlike quasi-legislative regulations adopted by an agency to which the Legislature has confided the power to ‘make law,’ and which, if authorized by the enabling legislation, bind this and other courts as firmly as statutes themselves, the binding power of an agency’s interpretation of a statute or regulation is contextual: Its power to persuade is both circumstantial and dependent on the presence or absence of factors that support the merit of the interpretation.” ( Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7 .) Reviewing the 2005 Program Advisory and the 2006 FAQ under these principles, we find they lack persuasive force. Before explaining that conclusion, however, we note those documents do not reflect the Department’s current position. In their amicus curiae brief to this court, the Department and the Superintendent maintain that section 49423 and its implementing regulations
Chapter 23 – Provision of Healthcare Services, Charter SELPA As of 09/08/2017 CAHELP Governance Council Approved
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