Governor Cuomo recently signed two health related bills affecting schools into law. The first, codified under Education Law § 305(52) and signed on October 21, 2014, went into effect immediately. The law directs the Commissioner of Education to make a recommendation to the Board of Regents regarding the instruction of cardiopulmonary resuscitation (CPR) and the use of Automated External Defibrillators (AEDs) in high schools. If the Commissioner recommends adding CPR/AED instruction to the high school curriculum and the Board of Regents accepts the recommendation, the Board of Regents will then be tasked with adopting rules and regulations to implement the recommended curriculum. Based upon the timelines in the statute, if adopted, CPR/AED curriculum would be implemented during the 2015-2016 school year.
Prior to making a recommendation to the Board of Regents, the Commissioner must seek input from educators on proposed curriculum; provide opportunities for comments from parents, students and other interested parties; consider the amount of instructional time CPR/AED curriculum would require and whether it would detract from mandated courses; and consider the fiscal impact adding such curriculum would cause. This process must be completed within 180 days of October 21, 2014, and the Board of Regents will have 60 days to make a decision on the recommendation. If adopted, the curriculum must be implemented the next school year following the adoption.
The second bill, codified under Education Law § 921 and signed on November 2, 2014, takes effect on February 27, 2015. This law authorizes schools, including BOCES, charter schools and private schools, and their employees, to have and administer an epinephrine auto-injector device (a.k.a. epi-pen) in cases of emergency. Additionally, the statute allows schools and their employees to maintain epi-pens for emergency use. Finally, the statute allows emergency use of an epi-pen "whether or not there is a previous history of severe allergic reaction."
Possession or use of epi-pens by schools or their employees must comply with Public Health Law § 3000-c and any applicable regulations. The acquisition, possession and use of epi-pens must be pursuant to a "collaborative agreement" with an emergency health care provider. Such an agreement must include written practice protocols and policies and procedures regarding training of personnel, maintaining and disposing of the devices, and reporting use to the Commissioner of Health. The agreement must also be filed with the Department of Health and appropriate Regional Health Council.
Use of an epi-pen under the statute is considered to be first-aid or emergency treatment. Thus, school employees who administer an epi-pen are not liable for damages for injuries that may allegedly arise out of its administration unless an injury was caused by gross negligence.
We recommend that districts and schools develop policies and procedures related to employee administered epi-pens. They must first determine whether they, as institutions, wish to take advantage of the statute and if so, work with counsel to develop collaborative agreements with emergency medical providers. If not, schools and Districts should work with counsel to develop policies regarding employee initiated epi-pen administration.
