Legal Rights of Children with Epilepsy in School & Child Care

Legal Rights of Children with Epilepsy in School and Child Care
7.6Q:
What if the only person available to administer this medication is located at
a separate special education school, but the student with epilepsy can be
educated appropriately in a less restrictive setting?
A: Although courts have held that cost can be a consideration when addressing
inclusion of students with disabilities into regular education, the Department of
Education has made clear that students must be placed on the basis of their
abilities, needs and individual IEPs, not solely on factors such as category of
disability, severity of disability, availability of space or administrative
convenience. See Comments to IDEA Regulations, Federal Register, Vol. 71,
No. 156, August 14, 2006, p. 46588. Placement of a student with epilepsy into a
separate special education school simply to have access to a licensed health care
professional who is authorized under state law to administer emergency
antiepileptic medication would constitute placement for administrative
convenience or placement made because of the way the service delivery system
is set up. It would be unlikely to withstand a challenge. However, if a district
proposes moving a student to another school which has a person who can
administer the medication, and also allows the student access to general
education services with students without disabilities, such placement would
likely be found acceptable by a court. 48
7.7Q:
What if school staff insist on calling 911 whenever a student with epilepsy
has a seizure?
A: It is important to determine if the school staff are relying on a district policy that
applies to all students or on a policy that applies to students with epilepsy. If the
policy is one that applies to all students, then it may be helpful to hold a meeting
with district administrators and their legal counsel to discuss modifying the
policy for students with epilepsy. There is a difference between a student who
has a first-time seizure and a student who has chronic seizures because he or she
has epilepsy. In the first case, it would be entirely reasonable to call 911; in the
second, there would be no reason to call 911 unless the student experienced
complications during or just after the seizure, e.g., if he or she stopped breathing,
turned blue, went into status epilepticus or took longer than usual to come out of
the seizure.
For students with epilepsy, seizures may be a way of life. Repeated 911 calls,
with their resultant paramedics and emergency room visits, may cause anxiety
48 See, e.g., Barnett v. Fairfax County Public Schools, 927 F.2d 146 (4 th Cir. 1991) (Court denied home
school placement to student who used cued speech interpreting, finding that whether a particular service or
method can be feasibly provided in a specific special education setting is an administrative determination; it
was acceptable for school district to centralize its cued speech interpreting program at a different regular
school and to consider cost as a factor); White v. Ascension Parish Sch. Bd., 343 F.3d 373 (5 th Cir. 2003)
(School boards have significant authority to determine school sites for the provision of IDEA services;
proximity factor is a preference, not a presumption that the child attend his or her neighborhood school).
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