Food Allergies in Schools: Amendments to the Law Regarding the Emergency Administration of Epinephrine to Students for Anaphylaxis
There are millions of people in the United States who suffer from food allergies. Estimates indicate that about 1 in 13 students suffer from food allergies, and studies show the number of people affected by food allergies is continuing to grow.1
Individuals who suffer from food allergies can have severe, potentially life threatening reactions to a food-based allergen. These severe reactions are known as anaphylaxis. Approximately once every three minutes, a food allergy causes an individual to visit a hospital emergency room, and approximately 300,000 children under the age of 18 per year are seen by their local health care provider because of a food-related allergic reaction. Teenagers are at high risk of suffering from life-threatening anaphylaxis, and about 1 in 5 students with food allergies will suffer an allergic reaction at school.2
The first-line treatment for the onset of an anaphylactic reaction is a drug called epinephrine. Epinephrine can reverse the symptoms of an allergic reaction. However, in order to be effective, it must be promptly administered.3 Because of this fact, in 1993, the Legislature adopted a statute codified at N.J.S.A. 18A:40-12.3 to allow students to self-administer epinephrine in emergency situations.4 Since 1993, the statute has been amended, and other statutes were added to address the administration of epinephrine in emergency situations.5
In early 2014, the Legislature introduced legislation to once again amend the statutes dealing with the emergency administration of epinephrine to students with anaphylaxis. The legislation passed both houses in December 2014 and was signed into law by Governor Christie on February 5, 2015.6 School administrators need to be familiar with the changes in the law because the amendments take effect the first day of the 2015-16 school year.7
Under the law, including the amendments, every board is required to develop a policy for the emergency administration of epinephrine through an auto-injector mechanism (Epi-pen) to a student with anaphylaxis. The policy must require that each school year: (1) the parents provide the board with written authorization; (2) the parents provide the board with written orders from a physician or advanced practice nurse; (3) the board inform the parents in writing that the district and its employees will have no liability as a result of any injury resulting from the administration of the Epi-pen; and (4) the parents sign a statement acknowledging that the district and its employees have no liability and that they agree to indemnify the district and hold the district and its employees harmless from any claims in connection with the administration of the Epi-pen.8
The policy must indicate that the school nurse has the primary responsibility for administering the Epi-pen.9 The policy must require that the student’s Epi-pen be stored in a secure, unlocked location that is easily accessible by the school nurse (and any other designated individuals with training), and the location must be specified in the student’s emergency care plan.10 The policy must also provide for a back-up, pre-filled auto-injector mechanism, as necessary, and that the school nurse (or other designated individual) be available onsite at the school and at any school-sponsored functions in the event of an allergic reaction.11
The school nurse is required to make sure that any staff volunteer is properly trained in the administration of the Epi-pen. In addition, the school nurse is required to determine each school year that: (1) the parents have consented in writing to the administration of the Epi-pen by the designee(s); (2) the board has informed the parents in writing that the district and its employees are not liable for any injury resulting from the administration of the Epi-pen to the student; and (3) the parents have signed a statement acknowledging their understanding that the district is not liable for any injury resulting from the administration of the Epi-pen and that they will indemnify and hold the district and its employees harmless from any claims.12
School administrators should be aware that when a school nurse is not available, a trained designee must be available for the administration of epinephrine to students in case of an emergency.13 One such designee may be a licensed athletic trainer. Under the new amendments to the law, if a licensed athletic trainer volunteers to administer epinephrine in an emergency, the trainer will not be in violation of the Athletic Trainer Licensure Act.14
The amendments to the law have expanded the specific categories of individuals who are protected from civil and professional liability for good faith action (or omission). Currently, no school employee, including a school nurse, can be held liable (nor action taken against his/her nursing certificate) by action taken in good faith in the administration of emergency epinephrine. The law was expanded to protect physicians and advanced practice nurses who provide prescriptions under a standing protocol for epinephrine. “Good faith” action, however, does not include willful misconduct, gross negligence, or recklessness.15
School administrators should be aware that there are amendments pending to current regulations found at N.J.A.C. 6A:16–2.1 that address health care services to students including the emergency administration of epinephrine. Currently, these regulations require every board to develop and adopt written policies, procedures, and mechanisms for the management of food allergies and the emergency administration of epinephrine via Epi-pen by the school physician, school nurse or substitute school nurse, a student approved to self-administer an Epi-pen, and/or any school employee-volunteers trained and designated by the school nurse to administer an Epi-pen in an emergency.16
The proposed amendments to N.J.A.C. 6A:16–2.1 will clarify that school staff cannot be assigned as a “designee” for purposes of the emergency administration of epinephrine; rather, the staff member must be a volunteer and be properly trained.17 In addition, the regulation will be amended to remove the references to “Epi-pen” and replace them with epinephrine because Epi-pen is a brand of epinephrine auto-injectors. Thus, it is clear that any brand of epinephrine auto-injector may be used.18 Comments to the proposed regulations are due by May 15, 2015, and therefore, it is anticipated that these regulatory amendments will become effective for the 2015-16 school year.
In order to ensure compliance with the statutory changes, school administrators should begin reviewing and updating their policies and procedures that address the emergency administration of epinephrine. The school nurse should be informed of the changes and should ensure that staff volunteers are properly trained and that all documentation is in order for students who self-administer epinephrine. School administrators with questions regarding policy development, legal liability waiver forms, or other questions about the application of the law should contact the board attorney.
1. Food Allergy Research & Education, Inc. on the Internet at http://www.foodallergy.org.
4. Pub. L. 1993, ch. 308.
5. See Pub. L. 1997, ch. 21 (adding technical language so as to include nonpublic schools); Pub. L. 1997, ch. 368 (requiring the adoption of a board policy which permits the administration of epinephrine by a school nurse subject to parental approval and by orders from the students physician); Pub. L. 2007, ch. 57 (adding clarifying technical language, expanded the administration of epinephrine to trained volunteers, and provided for immunity); and Pub. L. 2012, ch. 17, §§74-76 (technical amendment to correct name of Department of Health).
6. Pub. L. 2015, ch. 13.
7. Id. at §5.
8. See N.J.S.A. 18A:40-12.5.
9. N.J.S.A. 18A:40-12.6.
10. N.J.S.A. 18A:40-12.5.
12. N.J.S.A. 18A:40-12.6.
16. See N.J.A.C. 6A:16–2.1.
17. See 47 N.J.Reg. 569(a) (March 16, 2015).