Should parents sign a school's liability waiver? No!
A version of this article appeared in Food Allergy News, August, 1994. Permission to reprint required. (The information in this article is not meant to substitute for professional legal advice.)
Parents cannot release a school from the duty to safeguard their children.
When you send a child with a health condition such as food allergies to school, the school has a duty to anticipate reasonably foreseeable dangers and to take precautions to protect your child.
The school cannot ask you to sign a contract designed to release the school from its duty to care or require signing a waiver as a condition of school attendance or administering medication.
The school's best protection against liability or litigation is to focus on risk reduction not waivers. Successful risk reduction depends on schools and parents working together equally committed to building trust and understanding among all those who share responsibility for a child's well being. What are the school's responsibilities?
Schools are responsible for operating in ways that do not endanger or disenfranchise any student.
For example, all staff members share the duty to protect students from hazards in the school or on the playground. It is wrong for a school to impose customs, policies, conditions, risks or restrictions that discriminate against a child because of race, gender, or disability. A school cannot avoid its responsibilities by excluding children with a disability or by creating conditions that isolate or stigmatize them or make them miserable.
Schools have a duty to act in the best interests of the child, whether or not parents actively advocate for their child. Schools and parents cannot enter into any agreement or contract that denies children the care and protection they need, especially children who are vulnerable because of their age, health, or stage of emotional or psychological development.
For example, it is not reasonable to expect a five-year-old with allergies or diabetes to be responsible for reading ingredient labels or to refuse snacks offered by friends.
The level of the school's responsibility and care increases in proportion to the potential danger to the student, due either to the student's age, the maturity or skills required in the situation, or the dangers inherent in the activity. ("Tort Liability: A Primer for Prudent Principals, " Principal, March, 1990.)
Students with life-threatening food allergies depend on the staff's ability to protect students from exposure to problem foods, to recognize early signs of an allergic reaction, to use an EpiPen, and to get appropriate emergency help and to protect students from peer harassment or victimization.
To fulfill these obligations the school may provide class or whole school education and substitute certain foods or ingredients in cafeteria recipes, snacks, party foods, art materials and during field trips, bake sales, or other food-related activities.
A variety of laws, regulations and standards help define a school's responsibilities. The principal, school administrators, and school board must ensure that a school complies with public health standards, fire, safety and building codes, and state and federal regulations that define the appropriate operation of a school and the duties of school officials -- safe facilities, proper staffing, proper training, proper supervision, appropriate procedures, and a free and appropriate education in the least restrictive environment.
School policies and even state regulations can not be used to deny a child's rights under federal law, such as the child's constitutional due process rights or protection from discrimination in school under Section 504 of the Rehabilitation Act of 1973. If a teacher's contract, state medical practice act or other state law prohibits teachers from administering medication, for example, the school cannot simply withhold medication or require parents to run back and forth to school. The school meets its obligation to students by employing someone legally and professionally qualified to create conditions for the safe administration of medication -- the school nurse.
Schools sometimes assume that informal arrangements protect their liability better than the formal documentation of procedures, roles and responsibilities. Many schools do not document accidents, injuries, and medication administration, mistakenly thinking that writing things down somehow exposes staff to liability that they might otherwise avoid.
In fact, a school's best liability protection is having an ongoing risk management process that carefully records assigned tasks and responsible parties, and that proper procedures were followed.
If a student has food allergies, the school protects its liability by documenting a student's allergies and related needs, and then providing (and documenting) proper training and direction to staff designed to minimize the risk of harm to the student.
Schools cannot legally ask parents to consent to conditions that would put children at risk, for example, allowing medication to be administered by untrained or unqualified personnel, ignoring necessary precautions, or locking away life-saving medication so that delay or confusion in an emergency results in injury, suffering or death.
A risk management newsletter for schools points out the inappropriate uses of waivers and why courts invalidated them ("The Risk of Relying on Releases," Ed Risk Newsletter, December 1992, Vol. 3, No. 6). Invalid waivers, for example, are those used to deny rights protected by state or federal constitutions or civil rights laws, used as a condition for school entry or participation in school-related activities (sports or class field trips), or used to shield schools for the carelessness or negligence of school administrators or other employees. Even in cases where the release is only an agreement to waive claims for damages, waivers cannot be "contracts of adhesion", a contract prepared by one party, to be signed by a party in a weaker position, who has no choice about the terms.
What if there is no nurse?
Schools are responsible for providing staff training and taking other reasonable steps to create a safe environment, including such obligations as providing for the timely, effective and reliable administration of necessary medication.
State medical practice acts define who is legally responsible for making health-related or medical decisions and performing medical tasks. A parent's -- or even a doctor's -- well-intentioned attempt to simplify matters by suggesting that anyone give medication does not release the school from its obligation to care properly for a child or allow a principal to illegally impose a medical task on teachers or paraprofessionals.
What about delegation?
Delegation by default is not safe delegation. Delegation of health tasks is safe only if a qualified licensed health professional can ensure that school personnel understand a child's individual needs and follow proper steps for administering medication, protecting confidential health information and maintaining accurate records. Even a licensed health professional may not be considered qualified to be responsible for or to delegate tasks if he or she is not knowledgeable and competent in regards to the child's health condition or specific needs.
When conditions such as short staffing or improper delegation put students at risk, the school nurse (and others who are considered mandated reporters) cannot ignore them. In fact, a nurse may be held liable if she does not work to change such customs, policies or procedures. ("Liability Issues in School Nursing," Nadine Schwab, School Nurse, January/February, 1988.)
There is potential liability if competent, safe care is not the outcome of the delegation...Boards need to pursue criminal prosecution when there is clear evidence that unlicensed persons are performing nursing activities not delegated by nurses. (See Concept Paper on Delegation, National Council of State Boards of Nursing, Inc., 1990. Reprinted in Serving Students with Special Health Care Needs, Connecticut Department of Education, 1992.)
The safety and welfare of the individual student and the broader school community must be the central focus of all decisions regarding the delegation of nursing tasks and functions (ANA/NCSBN, 2006).
Delegation is used effectively in some areas, but unsafe and illegal delegation in school settings can occur. It is important for school districts, registered nurses, health care professionals, parents and the public to understand what activities can be delegated and when delegation is appropriate.
Delegation may occur when the registered nurse determines it is appropriate to provide necessary treatment, but such delegation may not be appropriate for all students or all school nursing practices. The legal parameters for nursing delegation are defined by State Nurse Practice Acts, State Board of Nursing guidelines, and Nursing Administrative Rules/Regulations (NCSBN, 2005). Delegation of nursing tasks is not allowed in some states. Read more: NASN Delegation Position Statement
Liability waivers hinder parent-school relationships and give school staff a false sense of protection from litigation and liability.
I hope that the information and references in this article will encourage schools to reevaluate the use of waivers and to develop opportunities for better parent-school partnerships based on a sense of shared responsibility for providing all students with a quality education in a safe and healthy environment.
Recommended: Schwab, N. & Gelfman, M., Eds. (February, 2001). Legal issues in school health services. North Branch, MN: Sunrise River Press.
The world endures solely by virtue of the breath of school children. (Talmud)