Legal Rights of Children with Epilepsy in School & Child Care

Special Education and Section 504
5.5Q: Would a student whose seizures are controlled with medication but who
needs school personnel to hand out or actually administer the medication
during the school day, or who experiences side effects from his or her
medication, qualify for services under Section 504?
A: Yes, if medication administration is needed as a reasonable accommodation, the
school district must provide this service to the student. Likewise, if side effects
substantially limit the child and he or she needs reasonable accommodations in
order to participate in school, the child is entitled to such accommodations under
Section 504. The fact that the student takes medication that controls his or her
seizures does not preclude him or her from qualifying for services under Section
504. The United States Education Department’s Office for Civil Rights (OCR)
issued a Guidance memorandum to its staff addressing this issue after the United
States Supreme court issued Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999). The memorandum explains that when a measure is effectively
unavailable to a student unless the school takes action or grants permission, then
the measure is not considered mitigating. For example, if a school must
administer the student’s medication or give the medication to the student to take,
or if the school must accommodate the student because of the medication’s side
effects, the fact that the school must do something for the child precludes it from
viewing the student’s medication as a mitigating measure. See: Sutton
Investigative Guidance: Consideration of “Mitigating Measures” in OCR
Disability Cases, U.S. Department of Education Office for Civil Rights
(September 29, 2000). 42 (Mitigating measures are medications and assistive
42 This Guidance is important to advocates because Sutton is sometimes erroneously used as a justification
for denying accommodations to students. In the Guidance, OCR noted the difference between mitigating
measures which the student may use without any action or assistance by the school, on the one hand, and
those reasonable modifications, academic adjustments, auxiliary aids and services, or related aids and
services that schools are required to provide, on the other.
OCR explains:
Mitigating measures should not be confused with reasonable modifications, academic adjustments,
auxiliary aids and services, or related aids and services, all of which are provided by, or are under the
control of, the educational institution. Examples of these are computers adapted for use by blind
students, sign language interpreters, and permission to monitor diabetes or inject insulin. When
some action or permission on the part of the school would be required before a student could use
a measure, the effects of the measure will not be considered as “mitigating” because the measure
is effectively unavailable to the student unless the school takes some action. Therefore, OCR
will not consider the impact of reasonable modifications, academic adjustments, auxiliary aids
and services, or related aids and services when evaluating whether a student’s impairment
substantially limits a major life activity.
OCR further explains:
If there is a mitigating measure involved, determine if the student can use the mitigating
measure independently in the school setting. Does the student need the school to take
some action (such as provide a related aid or service, or modify a policy, including giving
permission to use the mitigating measure during school hours, on school grounds) in order
to use the mitigating measure? If the student needs the school to take some action, do not
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