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New Jersey lawyer focusing on special education law and employment law

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Children with Epilepsy at Day Care Centers

In May 2012, I wrote about toddlers and children with diabetes who face discrimination at day care centers and summer camps. In that blog post, I explained that children with diabetes are protected under the Americans with Disabilities Act and cannot be excluded from public and private day-care centers based on their diabetic condition. I also provided links to settlement agreements entered into between the US Department of Justice and various child care centers and day camps.

In December 2012, another day care center, Toddlers ‘N Tots, Inc., agreed to enter into a settlement agreement with the US Department of Justice, agreeing not to discriminate against children with epilepsy. Additionally, Toddlers ‘N Tots agreed to train its staff to administer Diastat (Diazepam) when a child with epilepsy has a seizure.

This is a very important settlement agreement because it outlines what happened; why the day care center violated the Americans with Disabilities Act; and what the day care center must do to remedy the situation.

Every parent with a child with epilepsy — and every day care center — should be familiar with this settlement agreement.

In summary: The parents wanted to enroll their 3-year old child in a day care program. The parents told Toddlers ‘N Tots that their child had epilepsy and needed Diastat rectal gel to stop the seizures. Toddlers ‘N Tots stated that they could not accommodate the child’s need for Diastat administration and denied the student enrollment in its program.

According to the settlement agreement:

  • Toddlers ‘N Tots alleged that it did not discriminate against the child on the basis of disability, including children with epilepsy.
  • Toddlers ‘N Tots also alleged that administering Diastat would have resulted in a “fundamental alteration” to the nature of its day care program.
  • Toddlers ‘N Tots also seems to have alleged that a child with a seizure posed a “direct threat” and that it was not required to accommodate an individual who poses a “direct threat.”

Based on the facts alleged, the United States determined that Toddlers ‘N Tots discriminated against the child and “violated title III of the ADA and the Department of Justice’s title III regulation. 42 U.S.C. §§ 12181-12189; 28 C.F.R. pt. 36.”

The terms of settlement appear quite favorable to the parents and child. The terms include:

  1. Toddlers ‘N Tots agrees that it will not discriminate against any individual on the basis of disability.
  2. Toddlers ‘N Tots will post a non-discrimination statement at the day care center where the public can read the policy.
  3. Toddlers ‘N Tots will train its staff to administer Diastat.
  4. Toddlers ‘N Tots will pay $10,000 to the parents.

It is important that daycare centers across the nation be aware that discrimination on the basis of disability is a violation of the Americans with Disabilities Act. Failure to make reasonable accommodations or modifications may result in litigation and severe penalties.

Parents who are concerned that their child with epilepsy may be discriminated against should contact a local attorney who has expertise in disability discrimination or the US Department of Justice.

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