Legal Rights of Children with Epilepsy in School & Child Care

Legal Rights of Children with Epilepsy in School and Child Care
3.5Q: What level of individualized attention must be provided to a child with
epilepsy?
A: A child care provider is generally not required to hire additional staff or provide
its own constant one-to-one supervision of a child in a group child care situation.
However, most children need individualized attention at times. If a child who
needs some individual attention can be included successfully into a child care
program without fundamentally altering the program, the child cannot be
excluded from the program just because he or she needs some one-to-one
attention.
Child care centers have been required to provide some level of temporary
individualized attention to a child with a disability as long as providing such
care does not fundamentally alter the nature of the program. 19 Such
individualized attention can include, for example, administering diabetes
medication and monitoring for signs of hypoglycemic shock, 20 operating a
blood-glucose meter and insulin pump 21 and monitoring wheezing. 22 Required
individual care may also involve providing a disability-related service such as
changing diapers and removing leg braces, if such services can be provided at
minimal expense and with basic, non-medical training. 23
However, courts and enforcement agencies have been reluctant to require day
care centers to administer some medications, such as insulin, when use of
medications and care. In particular, the Department of Justice has actively enforced this requirement
through litigation and settlements. See, e.g., Settlement Agreement under the ADA between the United
States of America and La Petite Academy, Inc., available at http://www.usdoj.gov/crt/ada/lapetite.htm. The
complaint filed by the Department of Justice in this case alleged that La Petite Academy discriminated
against children with severe allergies by maintaining a policy of refusing to administer epinephrine through
the EpiPen (a disposable device used to administer a premeasured dose of epinephrine to people
experiencing anaphylaxis). The agreement called for, among other things, a total payment by La Petite of
$55,000 to three individual complainants. A similar settlement was reached by the Department of Justice in
a case involving “finger prick” blood glucose monitoring for children with diabetes. See Settlement in
Stuthard v. Kindercare Learning Centers, Inc., available at http://www.usdoj.gov/crt/ada/kinder1.htm.
19 DOJ Guidance, Question 7.
20 Settlement Agreement between Kindercare, Department of Justice, and American Diabetes Association,
available at http://www.usdoj.gov/crt/ada/kinder1.htm.
21 AP ex rel Peterson v. Anoka-Hennepin Independent School Dist. 11, 538 F. Supp. 2d 1125 (D. Minn.
2008) (finding on motion for summary judgment that it is likely that plaintiff can establish at trial the
reasonableness of a request that day care staff operate a blood-glucose meter and insulin pump for a boy
with diabetes in the event he is unable to do so on his own).
22 Alvarez v. Fountainhead, supra.
23 See settlement agreement between Department of Justice and the Sunshine Child Center, which involved
a four-year-old child with cerebral palsy who required diaper changing, at
http://www.usdoj.gov/crt/ada/sunchil.htm. Prior to the settlement, the center was willing to change her
diaper only if she remained in the center’s section for children three years old and younger, and staff
refused to remove her leg braces. Under the settlement agreement, her mother trained staff on how to
remove the braces and the center agreed to change her diapers while she was in the classroom for four year
olds.
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