v. Docket No. 00-17-129
HARRISON COUNTY BOARD OF EDUCATION,
Respondent.
W. Va. Code §18-5-22 provides in pertinent part:
Specialized health procedures that require the skill,
knowledge and judgment of a licensed health professional,
shall be performed only by school nurses, other licensed
school health care providers as provided for in this section, or
school employees who have been trained and retrained everytwo years who are subject to the supervision and approval by
school nurses. After assessing the health status of the
individual student, a school nurse, in collaboration with the
student's physician, parents and in some instances an
individualized education program team, may delegate certain
health care procedures to a school employee who shall be
trained pursuant to this section, considered competent, have
consultation with, and be monitored or supervised by the
school nurse: Provided, That nothing herein shall prohibit any
school employee from providing specialized health procedures
or any other prudent action to aid any person who is in acute
physical distress or requires emergency assistance. For the
purposes of this section "specialized health procedures"
means, but is not limited to, catheterization, suctioning of
tracheostomy, naso-gastric tube feeding or gastrostomy tube
feeding. "School employee" means "teachers", as defined in
section one [§ 18-1-1], article one of this chapter and "aides",
as defined in section eight [§ 18A-4-8], article four, chapter
eighteen-a of this code.
Any school employee who elects, or is required by this
section, to undergo training or retraining to provide, in the
manner specified in this section, the specialized health care
procedures for those students for which the selection has been
approved by both the principal and the county board, shall
receive additional pay of at least one pay grade higher than
the highest pay grade for which the employee is paid
W. Va. Code §18-5-22a provides that:
All county boards of education shall develop a specific
medication administration policy which establishes the
procedure to be followed for the administration of medication
at each school.
No school employee shall be required to administer
medications: Provided, That nothing herein shall prevent any
school employee to elect to administer medication after
receiving training as provided herein: Provided, however, That
any school employee in the field of special education whose
employment commenced on or after the first day of July, one
thousand nine hundred eighty-nine, may be required toadminister medications after receiving training as provided
herein.
The Grievance Board has addressed this issue only once prior to the present
matter. In Elliot v. Randolph County Board of Education, Docket No. 98-42-305 (Mar. 1,
1999), it was held that administering injections, either with Epipens or hypodermic needles,
constituted specialized health procedures. This decision was based upon findings that
Ms. Elliot had been given specific instruction from the school nurse on administration of
medication in a manner which is not within the average individual's knowledge or
expertise. By comparison, Grievant administered only topical ointments and oral
medications. Linda Moran, HCBOE School Nurse, testified that she instructed Grievant
to wear rubber gloves, but she also opined that he did not perform any procedures that
could not be completed by the average mother. Grievant's own testimony establishes that
he filed this complaint after he learned that the Transportation Aide who assists S. R. to
and from school is paid the additional salary on the basis that she may need to assist the
student. Grievant concluded that the potential existed that he too may have to care for S.
R. if both Ms. Phillips and Ms. Burnetti were out of the classroom. In fact, Grievant stated
that he did offer assistance during one episode; however, he did not elaborate on his
actual participation.
Ms. Moran's testimony was that Grievant was not trained to assist S. R., and was
not expected to perform any medical procedures on him, although he could assist by
working with the other children, calling for an ambulance, etc. Ms. Moran stated that it washer understanding that Ms. Phillips had provided care to S. R. during the major illness he
suffered at school.
As a certified Emergency Medical Technician, Grievant evidently felt some duty
toward student S. R.; however, the evidence establishes that he had no responsibility for
the student. Further, the actual duties assigned to, and performed by, Grievant for student
S. D. cannot be characterized as specialized medical procedures. Although he
discussed the medication with the School Nurse, Grievant was not provided training, nor
was any required, as the application and dispensing of the medication was simple and well
within the ability of an average individual. While not inclusive, the statutory language
indicates that the additional compensation is to be awarded for complex medical
applications not readily performed by untrained individuals.
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
Date: September 25, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE