Legal Rights of Children with Epilepsy in School & Child Care

Legal Rights of Children with Epilepsy in School and Child Care
Discussion and Possible Advocacy Strategy: Lizzie’s parents and their advocate have
met with the IEP team several times in an effort to resolve this matter and have followed
the advocacy strategy set out in Chapter 4 of this manual. However, the IEP team has
continued to refuse to consider any alternatives to the separate special education school.
Reluctantly, Lizzie’s parents decide that they must pursue formal dispute resolution. The
following advocacy strategy may be helpful:
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1) If Lizzie’s parents have been working with an advocate, they and their advocate
may wish to consult with an attorney regarding the best way to proceed. If the
decision is to proceed to mediation, Lizzie’s parents and their advocate may wish
to do that on their own. If, however, the decision is to proceed to due process,
Lizzie’s parents may wish to be represented by counsel, as the hearing process is
complex and school districts are generally represented by attorneys.
2) Lizzie’s representative (advocate or attorney) may wish to file a request for
mediation and a due process hearing. Because Lizzie’s parents are willing to be
flexible about placement, this is a case that could resolve at mediation if the
school district administrators are inclined to avoid a hearing. This will depend on
how strong a case Lizzie’s parents have, and how involved the administrators and
their counsel have been in making the decision that Lizzie should be placed in the
separate special education school.
3) If the case does not resolve at mediation, Lizzie’s parents will need to go forward
with a due process hearing unless they change their minds about placement. Their
advocate/attorney will have had to have been preparing for the hearing all along;
once mediation fails, there will be very little time left before the hearing occurs.
Lizzie’s parents will bear the burden of establishing that the proposed separate
placement is inappropriate for her and that she can be educated appropriately in a
less restrictive setting. To do this, they will need experts who can discuss the
benefits she gains by being educated with peers who do not have disabilities.
They can use teachers and administrators from Lizzie’s preschool. It also may be
helpful to obtain a college or university professor with expertise in inclusive
education who can review Lizzie’s records, observe her in her preschool setting,
observe the proposed placement, the neighborhood school kindergarten, and the
nearby regular elementary school kindergarten, and discuss what would be
appropriate for Lizzie and why. This professor could also talk about the least
restrictive environment provisions of the IDEA in general, how schools can
implement them effectively and how they can be specifically implemented in a
way that meets Lizzie’s needs. Lizzie’s parents should also use their witnesses as
well as the school witnesses on cross examination to show how the district’s
decision is based on administrative convenience and the configuration of the
service delivery system.
4) Lizzie’s parents will also need to present evidence regarding the administration of
the emergency antiepileptic medication and who may administer it. They will
need a witness who can testify about the Nurse Practice Act in their state and the