Fw: The Nursing Practice Act and the ADA/Section 504

[Guest guest]

As a nurse I am saddened to see that the Nurse Practice Act is actually a

barrier to inclusion and in direct opposition to Olmstead/ADA and FAPE.

Wish I had more time in the day to fight, yet another battle!

Ellen

Ellen Garber Bronfeld

egskb@...

The Nursing Practice Act and the ADA/Section 504.

stevegoldada@...

The Nursing Practice Act and the ADA/Section 504.

Information Bulletin #332 (May 2011)

The U.S. Department of Justice recently filed an amicus curiae brief in

the California Supreme Court arguing in an IDEA/ " free appropriate public

education " case (American Nurses Association v. Jack O'Connell) that the

state's Nursing Practice Act was preempted by the federal disabilities

laws. Preemption means that the federal law - ADA, IDEA, 504, Federal

Housing Act - trumped a state law that conflicts with the federal law..

The DOJ was quite emphatic that it's position was limited to the facts in

that case, i.e., where the California Dept of Education would permit a

trained but unlicensed school employee to administer insulin per a

doctor's orders, but only if the other authorized/delegated persons were

unavailable.

DOJ argued that the State law was preempted by the federal ADA and Section

504, because the State law presented obstacles to compliance with the IDEA

and FAPE. It noted that the evidence established that because there were

so few school nurses or other authorized persons available, " some students

[who required insulin] have been deprived of their right to a FAPE. "

DOJ cited a number of cases that emphasized that disability rights laws

required reasonable accommodations and that a " proposed accommodation

under the ADA [or 504 or the Fair Housing Act] was not unreasonable simply

because it might require defendants to violate state law. "

Advocates have faced the Nursing Practice Act restrictions in a number of

contexts well beyond the IDEA and FAPE

How about integrating persons with disabilities into the community to

comply with the ADA and the Olmstead decision.. Advocates have confronted

the Nursing Practice Act when we have represented persons who use

ventilators, who require suctioning, who need catheters changed, or who

need to take medications but do not have the manual dexterity to take the

meds themselves. We have had States deny Medicaid Waiver services to

these people because the States argue their Nursing Practice Act requires

a nurse to provide the services. Then the States argue that, because more

nursing services are required than the waiver offers, the persons are

denied Waiver services and must remain institutionalized.

The above DOJ rationale would apply in the above vent, suctioning, etc.,

situations, all of which are non-IDEA. That is, if your State's Nursing

Practice Act requires a licensed nurse to provide any of the specific

services listed in the preceding paragraph, this requirement should not be

an obstacle or barrier to comply with " the most integrated " mandate of the

ADA and the Olmstead decision. Reasonable accommodations are available.

States should either pay for the nurses in the community or permit people

to have a reasonable accommodation of other people performing these tasks.

But in no circumstance should the State be allowed to use the Nursing

Practice Act as an obstacle to deny a person the ADA right to live in an

integrated community.

Steve Gold, The Disability Odyssey continues

Back issues of other Information Bulletins are available online at

http://www.stevegoldada.com with a searchable Archive at this site divided

into different subjects. Information Bulletins are also be posted on my

blog located at http://stevegoldada.blogspot.com/

To contact Steve Gold directly, write to stevegoldada@... or call

215-627-7100.

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[Guest guest]

I agree Ellen. It sounds like a question of what is legal vs. what is ethical.

But you are right, we do have to choose our battles.

Thais