Appendix A: California Department of Education (CDE) K.C. Settlement Agreement and Legal Advisory
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
(tit. 5, §§ 600-611), in combination with the NPA ’ s medical-orders exception (Bus. & Prof.
BP 2006 – Provision of Healthcare Services
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 11/16)
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