v. Docket No. 03-30-249
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent,
and
BETTY ANDERSON,
Intervenor.
W. Va. Code § 18A-1-1 provides for the employment of school nurses, and requires
them to be licensed registered, professional nurses (RNs). While Code § 18-5-22(d) refers
to “licensed health professional,” there is no statutory provision for employment of LPNs.
Accordingly, the Grievance Board has previously held that “[a]dding an LPN licensure
requirement to an aide's qualifications circumvents the statute's requirement that health
procedures be administered by an RN or by a 'trained' aide.” Scott/Chewning v. Randolph
County Bd. of Educ., Docket No. 01-42-071 (July 27, 2001). Therefore, Respondent had
two choices regarding the special needs students. It either had to provide services from
a licensed RN, or it had to train an aide to provide the care needed. Respondent's Director
of Special Education, DeEdra Lundeen, testified at level four that a trained aide would
simply not be qualified to provide the level of medical supervision and care that the student
required, per her physician's orders. Since it has already been determined by MCBE
officials that the student could not be cared for by a trained aide, it had no choice but toprovide for care by an RN. Care by an LPN is simply not permitted by the provisions of the
statute. Accordingly, Respondent erred in awarding the position to Intervenor. Since
MCBE also determined that an Aide would not be necessary in addition to the RN,
Grievant's request for relief cannot be granted.
(See footnote 2)
DATE: FEBRUARY 18, 2004 _______________________________
The following facts are undisputed.
2. On or about May 28, 2003, MCBE posted a position for an Extended School
Year (“ESY”) Summer Bus LPN/Aide. The position was to serve seven special needs
students, including Student X, while being transported to the summer education program
at Mountainview Elementary School.
3. An LPN was requested for this position based upon physician orders that
Student X was to have a nurse accompany her on the bus. This student, a six year old,
had undergone a heart transplant in 1999, and had continued to suffer multiple
complications since that time. In addition to experiencing some symptoms of rejection of
the transplanted organ, the student has been diagnosed with reflux, partial paralysis of the
diaphragm, seizure disorder, hiatal hernia, and hypertension. She is fed by a
gastrointestinal tube, is given medications, and her vital signs are monitored by the school
nurse during the day.
4. Because Student X has only a five to seven minute bus ride during the
regular school year, a nurse is not required to travel with her. The location of the summer
program resulted in the student traveling a greater distance over a substantially longer
period of time. Based upon the advanced level of care required by Student X, an individual
was needed who could not only monitor her condition, but could respond to emergency
needs, and make an informed medical decision when it was necessary to call 911.
5. Grievant is not a licensed LPN, and did not apply for the position, which was
awarded to Intervenor who has been employed by MCBE as an LPN/Aide for eight years. 6. MCBE determined that it was unnecessary to assign a second Aide to the
run.
Grievant argues that a board of education may not impose the requirement that an
applicant for an aide position possess licensure as an LPN, and as the most senior aide,
she was entitled to the position. Respondent asserts that medical training was required
to meet the needs of the position.
Specialized health care procedures, such as those required in this matter, may be
administered only by certain individuals identified in West Virginia Code § 18-5-22 (d):
Specialized health procedures that require the skill, knowledge
and judgment of a licensed health professional, may be
performed only by school nurses, other licensed school health
care providers as provided for in this section, or school
employees who have been trained and retrained every two
years who are subject to the supervision and approval by
school nurses. After assessing the health status of the
individual student, a school nurse, in collaboration with the
student's physician, parents and in some instances an
individualized education program team, may delegate certain
health care procedures to a school employee who shall betrained pursuant to this section, considered competent, have
consultation with, and be monitored or supervised by the
school nurse: Provided, That nothing in this section prohibits
any school employee from providing specialized health
procedures or any other prudent action to aid any person who
is in acute physical distress or requires emergency assistance.
For the purposes of this section "specialized health
procedures" means, but is not limited to, catheterization,
suctioning of tracheostomy, naso-gastric tube feeding or
gastrostomy tube feeding. "School employee" means
"teachers", as defined in section one, article one of this chapter
and "aides", as defined in section eight, article four, chapter
eighteen-a of this code. Commencing with the school year
beginning on the first day of July, two thousand two, "school
employee" also means "secretary I", "secretary II" and
"secretary III", as defined in section eight, article four, chapter
eighteen-a of this code: Provided, however, That a "secretary
I", "secretary II" and "secretary III" shall be limited to the
dispensing of medications.
The following conclusions of law support the decision reached.
Conclusions of Law
1. In non-disciplinary matters, Grievant has the burden of proving her claim by
a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State
Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000); Holly v. Logan County Bd. of Educ.,
Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket
No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
2. Specialized health procedures that require the skill, knowledge and judgment
of a licensed health professional, shall be performed only by registered school nurses,
aides, teachers, or secretaries, who have been trained and retrained every two years who
are subject to the supervision and approval by school nurses. W. Va. Code § 18-5-22.
3. Respondent violated the provisions of W. Va. Code § 18-5-22 by posting the
position at issue as an aide requiring an LPN license, and by placing Intervenor in the
position.
Accordingly, the grievance is GRANTED, and MCBE Ordered to post the position,
if it exists, in 2004, in compliance with this decision. All other relief is DENIED. Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Monongalia County. Any such appeal must be filed within thirty (30) days
of receipt of this decision W. Va. Code § 18-29-7. Neither the West Virginia Education
and State Employees Grievance Board nor any of its Administrative Law Judges is a party
to such appeal, and should not be so named. However, the appealing party is required by
W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance
Board. The appealing party must also provide the Board with the civil action number so
that the record can be prepared and properly transmitted to the appropriate circuit court.
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE
Footnote: 1 Grievant's level four appeal cited violations of W. Va. Code §§ 18-5-39, 18A-4-
8, 18A-4-8b, 18A-4-8e, and 18A-4-8g, occurred when an Aide position was posted with
the requirement of LPN certification. However, Grievant did not address Sections 18A-
4-8e, or 18A-4-8g, and those allegations are deemed abandoned.
Footnote: 2