Monday, May 16, 2011

The Nursing Practice Act and the ADA/Section 504.

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 with a searchable Archive at this site divided into different subjects. Information Bulletins are also be posted on my blog located at
To contact Steve Gold directly, write to or call 215-627-7100.

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