Gov. Snyder signs Epi-Pen bill, absolves parents of more responsibility

By: Dave Palmer

When it comes to education, the Michigan Legislature seems determined to make schools responsible for every aspect of a child’s life, including things that would and should normally be part of parents’ responsibilities.

Gov. Rick Snyder signed into law a piece of legislation that is no doubt extremely important for ensuring the safety of students. The law requires all schools in Michigan to carry a minimum of two Epi-Pens and train two faculty members in how to use the devices. However, as seems to be the case with almost all laws regarding education, pesky details like how to finance the Epi-Pens, defraying the associated training costs for schools, and what to do if both faculty members who are trained in Epi-Pen usage happen to be out sick seem to be missing or sparsely covered.

According to a Free Press article regarding the law when it was just a wee little bill in the Legislature: “The retail cost of two-pack of EpiPens is $280, Greenhawt said. If the bills are approved, schools could qualify for free EpiPens through a program offered by Mylan Specialty, a pharmaceutical company that markets EpiPEns in the United States. Even if free injectors are not available, backers contend the benefit far outweighs a cost they say is minimal.”

Hmm, $280 may seem minimal for someone who only has to buy one pack and is able to hang on to them for a bit. However, there are 900 public schools in Michigan. This means that the initial outlay will be $252,000, which is the approximate starting salary for ten teachers for a year (or one superintendent). Schools also have no way to predict how quickly they will go through their stock of Epi-Pens, and could wind up needing to replenish several times per year. If they went though ten Epi-Pens per year, the school could feasibly have a bill of $1,400, the cost of about three or four new computers for the school.

According to a March article in the Free Press, Massachusetts schools use an average of 200 Epi-Pens per year in emergencies, which is an average cost of $28,000 per year, which is the salary of a full-time educator. According to the Detroit News, ” The legislation was amended on the House floor to say if school boards cannot obtain EpiPens through private funding or programs, they can ask the state to reimburse them.”

So, let’s see if I this right: Schools may be able to get free Epi-Pens from Mylan Specialty. However, if they are not feeling particularly generous, schools have to try to privately fund them (bake sale anyone?), or they can ask the state for the cash if they can’t get private funding.

“Defenders of the law say that the stock of Epi-Pens is intended to save students who are not aware of their allergy.” This is all well and good, but how long will it take parents of kids with known allergies to start sending their kids to school without an Epi-Pen because they know that the school carries a stock of two?

The Free Press also states, “While Michigan’s parents now may send EpiPens to school now, those are prescribed only for their child and there’s no assurance that prescriptions are kept up to date,” and “The Michigan law, if passed, would allow doctors to prescribe the EpiPens not to a specific student, but to an entire school.” Well, at least the school won’t get into trouble for using another student’s prescribed medicine to help a student in an emergency. However, the article fails to mention whether Epi-Pen dosages are different from person to person, and what happens if a child either gets too low of a dose or too high of a dose. Either event would most likely end badly for the student in question.

The bill also “would require the schools…to train one or two employees to administer the medicine depending on a school’s size.” Great plan. So, what happens when both of those people happen to be unavailable and the classroom teacher has not been trained in the use of Epi-Pens? Of course, training all teachers is the answer many people would spout, which would add “emergency medical response” to the very long list of non-educationally related duties teachers are asked to perform.

“The Michigan bills would let doctors and pharmacists prescribe epinephrine to school boards. They would be shielded from malpractice lawsuits unless they are recklessly negligent, and teachers and other school workers who use the drug would be protected as long as they act in ‘good faith’,” the Free Press stated. Another great plan, so long as “recklessly negligent” and “act in good faith” have clear definitions written into the law. Otherwise, school districts and the state could wind up with a whole mess of lawsuits on their hands. For the record, malpractice suits usually don’t settle for less than six or seven figures.

It is obvious that this well-intentioned legislation is fraught with problems that have no current solutions within the final draft of the law. Schools will be required to carry Epi-Pens and provide professional development for faculty regarding how to use them, but no mention of where the money for such a plan will come from other than requiring schools and school districts to attempt to secure private funding for them (added to a growing list of things for which schools have to seek private funding) and mandating the state step in and pay “reimbursement” if they can’t get private funding. (That means schools have to pay up front, then file paperwork to get educational dollars back.)

There is no plan in the law for what schools are to do (or what protections are available for them) if both staff members that are trained in Epi-Pen usage are out sick, other than stating that schools are protected as long as they “act in good faith” and are not “recklessly negligent.” However, those legal arguments would be the equivalent of summiting an anthill for a savvy attorney looking to score 33% of settlements for associated malpractice suits in the event schools didn’t have a nurse or a backup plan for when trained staffers are sick.

This legislation also absolves parents of yet another responsibility that comes with bearing and rearing children which is taking their children to a doctor on a regular basis and having them tested for potential allergies. Many who defend the legislation say that it is important for schools to carry Epi-Pens to save students whose parents are unaware they have an allergy. While it is important for schools to have an emergency back-up in case of emergency, some parents who know their child has an allergy might see this as an invitation to send students to school unprepared in order to save some cash. Others may not see the need to take their kids to a doctor for an allergy test because they know schools will be set in the event their child has an allergy they were not aware of. Even if the school makes them aware of the allergy after an incident, the parent still has no incentive to take their child to a doctor for a prescription.

The moral of this story is that once again, Michigan lawmakers are taking responsibility out of the hands of parents (where it primarily should be) and putting it in the hands of schools and teachers. If this legislation is not fixed or completely repealed, soon schools could have to stock all manner of pharmaceuticals for students who need them “just in case” and be required to have a pharmacist on staff. Schools could be sued for not checking every student to see what dosage of epinephrine they might need in case of an allergy attack or failing to have a backup plan on file covering who delivers the Epi-Pen shot in the absence of trained staff. Michganders should not stand for this, and seek the ex post facto amending of this law or replacement legislation that is better written.

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