Appendix A: California Department of Education (CDE) K.C. Settlement Agreement and Legal Advisory
insulin, in accordance with written statements of individual students ’ treating physicians, with
parental consent (Ed. Code, §§ 49423, 49423.6; tit. 5, §§ 600-611), and that persons who act
under this authority do not violate the NPA (see Bus. & Prof. Code, § 2727, subd. (e)). Because
schools may administer prescription medications only in accordance with physicians ’ written
statements (§ 49423; tit. 5, § 600, subd. (a)), state law in effect delegates to each student ’ s
physician the decision whether insulin may safely and appropriately be administered by
unlicensed school personnel or instead whether a particular student ’ s medical needs can be met
only by a licensed health care provider. State law, however, presents no categorical obstacle to
the use of unlicensed personnel for this purpose.
In view of this conclusion, we need not address the Association ’ s contention that federal
law would preempt a contrary rule.
B. The APA.
The Nurses contend the 2007 Legal Advisory is ineffective on the theory the Department
should have adopted it as a regulation in compliance with the APA. (Gov. Code, § 11340 et seq.)
The superior court agreed with the Nurses on this point. The Court of Appeal, ruling for the
Nurses on other grounds, did not reach the issue.
We also do not reach the issue, for two reasons: First, the Nurses forfeited the issue in
this court by failing to file, in response to the petition for review, an answer raising it. (See Cal.
Rules of Court, rule 8.500(a)(2).) While we have the power to address additional issues ( id ., rule
8.516(b)(1)), the briefs touch upon the APA issue only cursorily, and we have not requested
additional briefing (cf. Cal. Rules of Court, rule 8.516 (b)(2)).
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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