Legal Rights of Children with Epilepsy in School & Child Care

Legal Rights of Children with Epilepsy in School and Child Care
3.3Q:
Can a child care provider reject a child with epilepsy from care because the
child needs routine administration of antiepileptic drugs (AEDs) to prevent
or minimize seizures?
A: No. Even if a child care provider has a policy prohibiting the administration of
medication to any child, it may be necessary to make an exception to that policy
in order to make the child care program accessible to a child with a disability. In
one particularly helpful case, a court rejected the defendant private preschool’s
arguments that altering its “no-medication policy” and requiring staff to
administer asthma care amounts to a fundamental alteration. Alvarez v.
Fountainhead, 55 F. Supp. 2d 1048 (N.D. Ca. 1999). In this case, the parents of
Jeremy Alvarez, a four-year-old boy with asthma, challenged the policy, which
prevented the child from bringing his hand-held Albuterol asthma inhaler to the
preschool. The court, granting a preliminary injunction, 17 found that no
fundamental alteration would be required in providing the child with necessary
care. The court stated that it “is not convinced at this time that requiring teachers
to recognize symptoms of wheezing and supervising Jeremy’s use of the inhaler
would fundamentally alter the nature of Fountainhead’s educational program.”
Id. at 1052. Also, the court found that Jeremy’s asthma was stable and did not
require intensive monitoring or care and, therefore, contrary to the school’s
suggestion, did not require the continual focus of one teacher’s attention.
The court observed that “Fountainhead’s teachers are not being asked to engage
in a function that is wholly different from those duties already being performed
for other children.” Id. The court noted that “as part of their daily duties,
teachers routinely maintain custodial supervision over all children in the
program, which includes tasks such as providing toileting assistance, changing
diapers, changing clothes, and administering first aid to children when they need
it.” Id.
Regarding potential child care provider liability for injuries related to
administering medications, the DOJ Guidance referenced in Question 3.2
provides direction. The Guidance notes that “while some state laws may differ,
generally speaking, as long as reasonable care is used in following the doctors’
and parents’ or guardians’ written instructions about administering medication,
centers should not be held liable for any resulting problems.” See DOJ
Guidance, Answer to Question 14.
17 The court, in granting the preliminary injunction, found that irreparable harm would occur in the absence
of the injunction because there was no readily available alternative program for the child. A similar ruling
was reached in Burriola v. Greater Toledo YMCA, 133 F.Supp. 1034, 1039 (N.D. Ohio 2001) (boy with
autism denied access to YMCA day care program).
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