Filed 5/8/14 American Nurses Assn. v. Torlakson CA3
Opinion following remand from Supreme Court
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




AMERICAN NURSES ASSOCIATION et al.,                                                          C061150

                   Plaintiffs and Respondents,                                  (Super. Ct. No. 07AS04631)

         v.

TOM TORLAKSON, as Superintendent, etc., et al.,

                   Defendants and Appellants;

AMERICAN DIABETES ASSOCIATION,

                   Intervener and Appellant.




         This case returns to us on remand from the California Supreme Court. The
primary issue in the case originally was whether California law allows designated
“voluntary school employees,” who are not licensed nurses, to administer insulin to
certain diabetic students. In a 2007 legal advisory, the State Department of Education
(the Department) indicated such personnel were included in the categories of persons

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who could administer insulin to diabetic students. The American Nurses Association and
other trade organizations representing registered and school nurses (collectively Nurses)
challenged this advice as condoning the unauthorized practice of nursing. They further
argued this portion of the 2007 Legal Advisory was a regulation enacted in violation of
the Administrative Procedures Act (Gov. Code, § 11340 et seq.) (APA).
       In American Nurses Assn. v. Torlakson (2013) 57 Cal.4th 570 at page 575
(American Nurses), our Supreme Court held that “California law expressly permits
trained, unlicensed school personnel to administer prescription medications such as
insulin in accordance with the written statements of a student’s treating physician and
parents (Ed. Code, §§ 49423, 49423.6; Cal. Code Regs., tit. 5, §§ 600, 604, subd. (b)) and
expressly exempts persons who thus carry out physicians’ medical orders from laws
prohibiting the unauthorized practice of nursing (Bus. & Prof. Code, § 2727, subd. (e)).”
This opinion “authoritatively resolves the dispute independently of the 2007 Legal
Advisory, based on the relevant provisions of the Education Code and its implementing
regulations.” (American Nurses, supra, 57 Cal.4th at p. 591.) The court thus found it
unnecessary to reach the issue of whether the legal advisory violated the APA. “Our
decision leaves the Department free to revise the Legal Advisory to reflect California law
as we have interpreted it, and leaves the parties and the lower courts free to identify and
resolve, if necessary, any issues that may remain concerning APA compliance.” (Ibid.)
The court remanded the case to us “for further proceedings in accordance with the views
set forth herein.” (Id. at p. 592.)
       In supplemental briefing following remand, intervenor American Diabetes
Association (Association) argues the trial court’s judgment and writ of mandate should be
reversed. Because the contested portion of the 2007 Legal Advisory was consistent with
substantive California law, the Association argues, there is no APA defense. The
Department and the State Superintendent of Public Instruction (Superintendent) joined



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this supplemental brief. In response, Nurses argue the 2007 Legal Advisory is void
because it was a regulation and failed to comply with the APA.
       As we explain, the contested portion of the 2007 Legal Advisory was a regulation
and it was enacted in violation of the APA. However, since American Nurses held the
2007 Legal Advisory’s interpretation was the correct interpretation of California law, we
reverse the portion of the judgment granting a writ of mandate commanding the
Department and the Superintendent to refrain from implementing or enforcing the
contested provisions of the 2007 Legal Advisory.
                                     BACKGROUND
       In October 2005, the parents of several diabetic students, together with the
Association, filed a class action in federal court against the Department and others,
alleging that certain California public schools had failed to meet their obligations to
diabetic students under federal law. (K.C. et al. v. O’Connell (N.D.Cal., No. C-05-
4077MMC).) In 2007, the parties reached a settlement agreement. Under that
agreement, the Department issued the 2007 Legal Advisory on the Rights of Students
with Diabetes in California’s K-12 Public Schools (2007 Legal Advisory). (American
Nurses, supra, 57 Cal.4th at p. 577.)
       The 2007 Legal Advisory was directed to “all California school districts and
charter schools” to remind them “of the following important legal rights involving
students with diabetes who have been determined to be eligible for services.” The
conclusion of the 2007 Legal Advisory sets forth in a checklist the various categories of
persons who may administer insulin in California’s schools pursuant to an individualized
education program (IEP) or a Section 504 Plan under the Rehabilitation Act of 1973 (29
U.S.C. § 794). That checklist provides as follows:

       “Business and Professions Code section 2725[, subdivision] (b)(2) and the
California Code of Regulations, Title 5, section 604 authorize the following types of



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persons to administer insulin in California’s public schools pursuant to a Section 504
Plan or an IEP:

      “1. self administration, with authorization of the student’s licensed health care
provide[r] and parent/guardian;

      “2. school nurse or school physician employed by the LEA [local education
agency];

       “3. appropriately licensed school employee ( i.e., a registered nurse or a licensed
vocational nurse) who is supervised by a school physician, school nurse, or other
appropriate individual;

       “4. contracted registered nurse or licensed vocational nurse from a private agency
or registry, or by contract with a public health nurse employed by the local county health
department;

       “5. parent/guardian who so elect;

       “6. parent/guardian designee, if parent/guardian so elects, who shall be a volunteer
who is not an employee of the LEA; and

      “7. unlicensed voluntary school employee with appropriate training, but only in
emergencies as defined by Section 2727[, subdivision](d) of the Business and Professions
Code (epidemics or public disasters).

       “When no expressly authorized person is available under categories 2–4, supra,
federal law—the Section 504 Plan or the IEP—must still be honored and implemented.
Thus, a category # 8 is available under federal law:

       “8. voluntary school employee who is unlicensed but who has been adequately
trained to administer insulin pursuant to the student’s treating physician’s orders as
required by the Section 504 Plan or the IEP.” (Fn. omitted.)
       Nurses brought a petition for a writ of mandate and a complaint for declaratory
and injunctive relief, challenging the eighth category of the 2007 Legal Advisory. They
sought a writ of mandate setting aside, vacating, and invalidating “standard #8” of the
2007 Legal Advisory, and enjoining defendants from taking any action in conjunction
with that standard. They also sought a declaration that issuance of that standard violated
state law, including the APA, the Nursing Practices Act, and the California Constitution.


                                             4
       The trial court granted judgment for petitioners. It issued a peremptory writ of
mandate that commanded the Department and the Superintendent to refrain from
implementing or enforcing the portion of the 2007 Legal Advisory following category 7
of the checklist, and to remove that portion of the 2007 Legal Advisory.
       We affirmed the trial court’s judgment and issuance of the peremptory writ of
mandate. (American Nurses Assn. v. O’Connell (2010) 185 Cal.App.4th 393, revd. and
cause remanded sub. opn. American Nurses, supra, 57 Cal.4th 570.)
       Our Supreme Court reversed. (American Nurses, supra, 57 Cal.4th at p. 592.)
The court first determined that Education Code section 49423 and its implementing
regulations “plainly establish” “that unlicensed school personnel may administer
prescription medications.” (Id. at p. 581.) The court then considered whether the
Nursing Practices Act (Bus. & Prof., § 2700 et seq.) (NPA) prohibited unlicensed persons
from administering insulin and found the medical-orders exception applied. The
medical-orders exception provides that the NPA does not prohibit: “The performance by
any person of such duties as required in the physical care of a patient and/or carrying out
medical orders prescribed by a licensed physician; provided, such person shall not in any
way assume to practice as a professional, registered, graduate or trained nurse.” (Bus. &
Prof. Code, § 2727, subd. (e).) In determining this exception applied, the court
interpreted the phrase “assume to practice as a . . . registered . . . nurse.” The court
explained, “To ‘assume’ to do a thing has two possible meanings in the present context.
It might mean to ‘undertake’ to do a thing, or ‘[t]o take [a thing] upon oneself’—in effect
simply to do it. (Oxford English Dict. Online (2013) definition II.4.a; see Webster’s 3d
New Internat. Dict. (2002) p. 133, definition 2.) Alternatively, to ‘assume’ might mean
‘[t]o put forth claims or pretensions,’ to do a thing ‘in appearance only, . . . to pretend,
simulate, feign.’ (Oxford English Dict. Online, supra, definition III.8, 9; see Webster’s
3d New Internat. Dict., supra, at p. 133, definition 4.)” (American Nurses, supra, at p.
584.) The court found “[t]he statute’s language, broader statutory context and

                                               5
interpretive history all point” to the second definition; the first definition would “render
the exemption entirely meaningless.” (Id. at pp. 583-584.)
        Thus the court reversed our decision and “remanded for further proceedings in
accordance with the views set forth herein.” (American Nurses, supra, 57 Cal.4th at p.
592.)
                                       DISCUSSION
        On remand, the Association contends we should reverse the trial court’s judgment
and writ of mandate. The Association contends the contested portion of the 2007 Legal
Advisory is not a regulation, and therefore the APA does not apply. The Department and
the Superintendent join in this argument.
                                              I
                                          The Law
        The APA provides that “[n]o state agency shall issue, utilize, enforce, or attempt
to enforce . . . a regulation” without complying with the APA’s notice and comment
provisions. (Gov. Code, § 11340.5, subd. (a).) A regulation is defined broadly to mean
“every rule, regulation, order, or standard of general application or the amendment,
supplement, or revision of any rule, regulation, order, or standard adopted by any state
agency to implement, interpret, or make specific the law enforced or administered by it,
or to govern its procedure.” (Gov. Code, § 11342.600.)
        “A regulation subject to the APA thus has two principal identifying characteristics.
[Citation.] First, the agency must intend its rule to apply generally, rather than in a
specific case. The rule need not, however, apply universally; a rule applies generally so
long as it declares how a certain class of cases will be decided. [Citation.] Second, the
rule must ‘implement, interpret, or make specific the law enforced or administered by
[the agency], or . . . govern [the agency’s] procedure.’ [Citation.]” (Tidewater Marine
Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571.)



                                              6
       “As to the first test, a regulation subject to the APA has been construed to apply
‘to all generally applicable administrative interpretations of a statute,’ presumptively
including the advisory, whether or not the interpretation is in the form of a regulation and
whether or not it is a correct reading of the statute. [Citations.]” (California Grocers
Assn. v. Department of Alcoholic Beverage Control (2013) 219 Cal.App.4th 1065, 1073-
1074 (California Grocers).)
       As to the second test, “the APA’s procedural requirements do not apply where an
agency’s interpretation of a statute represents ‘the only legally tenable interpretation of a
provision of law.’ (Gov. Code, § 11340.9, subd. (f).)” (Morning Star Co. v. State Bd. of
Equalization (2006) 38 Cal.4th 324, 336 (Morning Star). This exception applies “only
in situations where the law ‘can reasonably be read only one way’ [citation], such that the
agency’s actions or decisions in applying the law are essentially rote, ministerial, or
otherwise patently compelled by, or repetitive of, the statute’s plain language.” (Id. at pp.
336-337.) “As the APA establishes that ‘interpretations’ typically constitute regulations,
it cannot be the case that any construction, if ultimately deemed meritorious after a close
and searching review of the applicable statutes, falls within the exception provided for the
sole ‘legally tenable’ understanding of the law. Were this the case, the exception would
swallow the rule.” (Id. at p. 336.)
                                              II
                                          Analysis
       The contested portion of the 2007 Legal Advisory, setting forth the eighth
category of persons who may administer insulin to students in California’s schools
pursuant to an IEP or a Section 504 Plan, qualifies as a regulation subject to the APA.
The 2007 Legal Advisory meets the first test of a regulation as a “standard of general
application” by an agency “to implement, interpret, or make specific the law enforced or
administered by it.” (Gov. Code, § 11342.600.) While the advisory was issued as part of
a settlement, it was intended to apply to “all California school districts and charter

                                              7
schools” to remind them “of the following important legal rights involving students with
diabetes who have been determined to be eligible for services.” Thus, the Department
intended the advisory “to apply generally, rather than in a specific case.” (Morning Star,
supra, 38 Cal.4th at p. 333.)
       The Association contends the 2007 Legal Advisory is not a regulation because it is
not an interpretation of the law; instead, “it merely constitutes a statement by the
Department of its understanding of the law and intent to comply with it.” The
Association relies on Excelsior College v. Board of Registered Nursing (2006) 136
Cal.App.4th 1218 (Excelsior College).
       For 20 years, the Board of Registered Nursing (the Board) had determined the
New York-based distance learning nursing program of Excelsior College was equivalent
to the minimum requirements of an accredited California program, as required by
Business and Professions Code section 2736. (Excelsior College, supra, 136 Cal.App.4th
at p. 1227.) After receiving correspondence expressing concern about the skill level of
new graduates from some nursing schools, the Board determined Excelsior’s program
had insufficient clinical practice requirements and issued a decision that “ ‘Excelsior
College graduates, like other out-of-state graduates, must meet the requirements set forth
in California Business and Professions Code Section 2736(a)(2) . . . .’ ” (Ibid.) Excelsior
College challenged this decision as an illegal underground regulation enacted without
compliance with the APA. This court rejected that argument. “The Board’s action of
February 6, 2004, merely confirmed that Excelsior graduates would be required to
comply with section 2736. The Board has not created an underground regulation merely
by enforcing the actual language of the statute.” (Id. at p. 1239, emphasis added.)
       Excelsior College is distinguishable. By its own terms, the 2007 Legal Advisory
did not seek to enforce the actual language of the statute, but to interpret it as necessary
to comply with federal law. As such, the contested portion of the advisory met the first
test of a regulation.

                                              8
       Next, the Association contends the contested portion of the 2007 Legal Advisory
was not subject to the APA because it embodied the “ ‘only tenable legal interpretation’ ”
of Education Code section 49423 and the NPA, the interpretation adopted by our
Supreme Court in Nurses Association. We disagree; “[W]hether the Department has
adopted the sole ‘legally tenable’ reading of the statutes represents a different question
than whether its interpretation is ultimately correct.” (Morning Star, supra, 38 Cal.4th at
p. 336.)
       As set forth ante, in determining that unlicensed school personnel are authorized
to administer insulin to students, our Supreme Court adopted one of “two possible
meanings” of the term “ ‘assume’ ” in the NPA. (American Nurses, supra, 57 Cal.4th at
p. 584.) Consequently, since the proper interpretation of the law required choosing
between two possible meanings, the interpretation set forth in the 2007 Legal Advisory,
subsequently sanctioned by the California Supreme Court, was not “rote, ministerial, or
otherwise patently compelled by, or repetitive of, the statute’s plain language,” as
required for the only tenable legal interpretation exception. (Morning Star, supra, 38
Cal.4th at p. 337.) Indeed, both the trial court and this court adopted a different
interpretation. That our Supreme Court ultimately accepted the interpretation advanced
in the 2007 Legal Advisory does not make that interpretation the only legally tenable one.
The test is not whether the interpretation, “after a close and searching review of the
applicable statutes,” is meritorious. (Id. at p. 336.)
       Thus the contested portion of the 2007 Legal Advisory qualifies as a regulation
subject to the APA because it meets both tests of a regulation. Defendants and the
Association do not dispute that the Department failed to comply with the APA in issuing
the 2007 Legal Advisory. The failure to comply with the notice and comment procedures
of the APA voids the regulation. (California Grocers, supra, 219 Cal.App.4th at p.
1073.) Our Supreme Court, however, has determined that the contested portion of the
2007 Legal Advisory correctly states the law in California. Consequently, we must

                                               9
determine what effect the failure to comply with the APA has on the judgment and writ
of mandate issued by the trial court in this case.
                                             III
                         Effect on Judgment and Writ of Mandate
       The trial court’s judgment has two parts. The first part declares the contested
portion of the 2007 Legal Advisory invalid. The trial court gave two reasons for this
invalidity: (1) the respondents (the Department and the Superintendent) had no authority
to enlarge the group of persons who may administer insulin under state law; and (2)
respondents failed to comply with the rule-making procedures of the APA. The first
reason is incorrect, as the California Supreme Court has determined that California law
allows school personnel who are not licensed health care professionals to administer
insulin. (American Nurses, supra, 57 Cal.4th at p. 591.) The second reason, however, is
correct. The trial court’s judgment is affirmed to the extent it declares the contested
portion of the 2007 Legal Advisory void as an illegal regulation.
       The second part of the judgment issues a peremptory writ of mandate requiring
respondents to refrain from implementing or enforcing the contested provisions of the
2007 Legal Advisory and to delete those portions of the advisory. The judgment and the
issuance of a writ of mandate are reversed to the extent that these orders prohibit
respondents from permitting unlicensed school personnel from administering insulin to
diabetic students. Such persons are allowed by California law to administer insulin to
diabetic students, as our Supreme Court “authoritatively resolve[d] the dispute” in
deciding American Nurses. (American Nurses, supra, 57 Cal.4th at p. 591.) We note our
Supreme Court has held that the Department is “free to revise the Legal Advisory to
reflect California law as we have interpreted it.” (Ibid.)
                                      DISPOSITION
       The judgment and issuance of a writ of peremptory mandate is reversed to the
extent it commands the Department and the State Superintendent of Public Instruction to

                                             10
refrain from implementing or enforcing the contested portion of the 2007 Legal
Advisory. In all other respects, the judgment is affirmed. The parties shall bear their
own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)




                                                       DUARTE                , J.



We concur:



      BUTZ                  , Acting P. J.



      HOCH                  , J.




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