Legal Rights of Children with Epilepsy in School & Child Care

What are the Legal Rights of Children with Epilepsy in the Child Care Setting?
4) Particularly because Joyful Children is part of a chain of child care centers and,
therefore, has more resources than a sole provider, it is quite likely that Ashley’s
mother would be able to make a successful argument that Joyful Children has
discriminated against Ashley if the center continues to refuse to administer
emergency medication. She could file a complaint under the ADA with the
Department of Justice or pursue a claim in court.
Case Scenario 3 — Private After-School Child Care Program on School Grounds
Teddy is a six-year-old child with epilepsy and cerebral palsy. He is fully included in a
first-grade class in his local elementary school. His parents tried to enroll him in “Busy
and Safe Kids” (BASK), an after-school child care program run by a small private agency
on the grounds of his school. Teddy is mobile with a walker or crutches, but he is not
toilet trained. BASK has refused to accept him because of his toileting needs and because
it has a “no medication” policy, and Teddy needs a dose of his antiepileptic medication
after school. Teddy’s parents contact an attorney for legal assistance.
Discussion and Possible Advocacy Strategy: As a private program, the BASK program
is subject to Title III of the ADA and cannot reject Teddy simply because he needs
medication after school. A reasonable accommodation of his epilepsy would be to modify
the “no medication” policy or to make an exception for Teddy so that he can attend the
program and receive his afternoon dose of medication. With regard to his toileting needs,
whether changing his diapers is a reasonable accommodation will depend on whether the
program provides diapering or toileting assistance to any other children in the program.
For example, since BASK is located at an elementary school, if the program is open to
preschoolers who might be attending the school, it is possible that staff are providing
diapering or toileting assistance to these younger children. If this is the case, then the
program will need to provide such assistance to Teddy as a reasonable accommodation. If
the program does not provide diapering or toileting assistance, then Teddy would still be
entitled to the assistance as a reasonable accommodation if the assistance does not
fundamentally alter the program. The following strategy may be of assistance to Teddy’s
parents and their attorney:
1) Arrange a meeting with the director of the BASK program to explain what Teddy
needs beyond the standard care provided to all children in the program. It is likely
that in the three-hour period Teddy is in after school care each day, his extra
needs would be limited to one administration of oral medication and one diaper
change. These needs should be easily accommodated.
2) If the director continues to be resistant, try to facilitate a meeting or conversation
between the BASK director and the school staff who work with Teddy during the
school day. School staff should be able to allay any concerns the BASK director
has about administering medication to Teddy or about the time involved in
addressing his toileting needs.
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