Legal Rights of Children with Epilepsy in School & Child Care

Legal Rights of Children with Epilepsy in School and Child Care
process. Some courts, however, have taken a very expansive view of exhaustion
requirements, and attorneys should review the relevant law in their circuit before
proceeding. See the Selected Cases section at the end of this chapter for
additional information.
8.26Q: Does a parent need a lawyer to file a complaint or to go to mediation or a
due process hearing?
A: No. A parent does not need an attorney to file a complaint, go to mediation or go
to a due process hearing. However, many parents feel more comfortable being
represented by counsel at due process hearings because they are complex, school
districts are usually represented by counsel, and because parents may, in certain
circumstances, be liable for the attorney’s fees of the district. Especially in a
state in which there is only one level of due process hearing before an appeal to
court, parents may be particularly concerned about ensuring that they present the
strongest case possible at the due process hearing and may not feel that they can
do so without representation.
8:27Q: What can a parent do if he or she wants a lawyer but cannot afford one?
A: The school district must inform a parent about any free or low-cost legal or other
relevant services that are available in the area if the parent requests the
information or if the parent or the school district requests a due process hearing.
34 C.F.R. 300.507(b). The parent may also contact the Epilepsy Foundation for
a referral to an attorney that may be able to provide some level of free legal
services. For more information, see the introduction to this manual.
8.28Q: Can a parent sue a school district based on a claim of personal injury
seeking monetary damages for its failure to provide required medication or
care to a student with epilepsy?
A: Yes. A school district or its employees may have tort liability under state law if
there is a failure to take steps to prevent avoidable harm, or if the school district
has a policy that prohibits a student from carrying medication when that
medication is necessary for the student’s medical care—but the district is not
required to provide all care that could conceivably be required. 50 See, e.g. Taylor
v. Altoona Area School District, 05-350J (W.D. Pa. 2007), 48 IDELR 185 (court
upheld the parent’s claim against her child’s teacher, who had refused to allow
50 State tort remedies may be available when school officials had a duty to act and breached that duty,
provided that school officials do not have immunity from tort suits and other requirements for bringing a
claim are met. Tort law varies from state to state, especially with respect to whether a public or private
school or its employees are immune from liability. Negligence claims may be asserted when schools fail to
provide care and treatment for students. Unlike anti-discrimination law, tort claims are only available after
a student has suffered actual harm, such as physical injury.
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