California students with diabetes need access to insulin at school and at all school-related activities. But kids are in jeopardy because some nursing associations insist that only a school nurse can give the life-sustaining medication. A trail of escalating legal cases has yet to be resolved in the kids' favor, but that may change now that the California Supreme Court is involved.
Eight years ago, the American Diabetes Association (ADA) sued the California Department of Education (CDE) and several school districts because children with diabetes were not getting the care they needed. In 2007, the case was successfully settled, and the CDE said that a non-nurse school employee could volunteer to be trained to give insulin when a nurse wasn't available.
After the settlement, however, several nursing organizations—the American Nurses Association, the California School Nurses Organization, and the California Nurses Association—sued the CDE. Those groups argued that under state law, only a licensed health care professional could give insulin to a student.
The ADA stepped in to represent children with diabetes. Trial and appellate courts sided with the nursing organizations. The judges didn't rule on the rights of kids to a fair education, matters of safety, or best medical practices, or the sensible thing to do, but focused simply on what the law states.
The Association's advocacy volunteers and staff were, quite frankly, outraged. There's only one school nurse for every 2,200 California students, and in many other states, trained school staff members successfully volunteer and give students insulin as needed. The Association pursued the case to the California Supreme Court.
The court agreed to review the decision and heard oral arguments on May 29, 2013. The Association asked the court to reverse previous courts and rule that state law allows nonmedical school staff to give insulin or, in the alternative, that federal law requires it.
One Diabetes Advocate, Dwight Holing, the Association's chair of the board-elect, shares below his personal account of the courtroom drama. He attended the hearing with his daughter, Mary Holing, who is a deputy city attorney.
Our Day in Court
By Dwight Holing, American Diabetes Association chair of the board-elect
Picture a historic courtroom on the fourth floor of the Earl Warren Building overlooking San Francisco's famed Civic Center. Seven California Supreme Court justices dressed in robes, an overflowing gallery of spectators, and attorneys taking turns delivering their respective arguments and answering questions from the justices.
I was expecting a somber proceeding, but what I watched was a dynamic exchange on an issue of the utmost importance—the health and safety of children. The feints, jabs, and counterpunches with words, wit, and statutory citations rivaled anything you might see at a World Boxing Association match. Just like those competitions, there were two preliminary bouts leading up to our case, the first a taxation case and the second a police shooting and negligence case. They paled compared with the main attraction, American Nurses Assn. et al. v. Tom Torlakson, as Superintendent of Public Instruction et al. (American Diabetes Association, Intervener). When it got under way, the anticipation and excitement in the courtroom were palpable.
In our corner was Dennis Maio, an attorney with Reed Smith, the law firm that has been so ably representing the Association on this matter along with the Disability Rights Education and Defense Fund. Maio is a true heavyweight. He served as a senior attorney for the California Supreme Court for years before joining Reed Smith's appellate team; he has worked on thousands of cases. In the opposite corner was Maureen Cones, an attorney from Maryland representing the American Nurses Association.
As appellant, Maio took the podium first, a 20-minute round where he presented our argument clearly and compellingly, debated with the justices, and cleverly asked and answered what opposing counsel's likely argument was going to be before she had a chance to make it. The justices were hardly idle spectators in the match, firing questions at will, arguing points, and demanding clarity. If body language and tone were any indication, they looked and sounded as if they agreed with Maio's argument.
As respondent, Cones took the podium for the second round, delivering a 30-minute argument that, in my eyes, seemed weakly constructed, unconvincing, and unnecessarily argumentative. On more than one occasion, the justices appeared vexed by her broad interpretations of existing law and generalities and inability to provide practical and reasonable alternatives to the shortage of school nurses.
Maio strategically saved 10 minutes of his allotted 30 minutes before the court for rebuttal. He connected time and time again with the justices in what would be the third and final round.
Of course, if it were up to me and the other Diabetes Advocates sitting in the courtroom, we would've jumped up when the final bell rang, raised his gloves—excuse me, hands—and declared victory on the spot. But allegory and metaphors are just that, and now the reality is that the decision rests solely with the seven justices of the California Supreme Court. They have 90 days to render a verdict. Time cannot pass too quickly until we know the decision. I know I'm not alone in believing right and justice for parents and children with diabetes will prevail.
Dwight Holing has lived with type 1 diabetes for more than 40 years. He is an author and communications consultant. He and his daughter, attorney Mary Holing, had ringside seats at the California Supreme Court during an important hearing about students’ access to insulin.
Good news: The California Supreme Court decided this case on Aug. 12, 2013.