The absolute answer is yes, but with qualifiers. With respect to that waiver they want you to sign, no, that isn't legal no matter what their internal school policies are. They can't overwrite federal disability law, as La Petite montessori found out. The settlement in no uncertain terms is that the epis must be kept on site for administration as needed and that a caregiver must provide emergency medications.
Sounds good, right? Well, what is not spelled out is where stored, under what circumstances, and who will have access at what point to the epinephrine auto-injectors. Unless your state has specific law allowing a child to self-carry and that child is old enough to self-carry or is mature enough, many times the epinephrine is kept under lock and key accessible only by a school nurse. This is not a medically recommended storage.
This also fails to address many other issues such as field trips, substitute teachers, epinephrine injection training, school buses, field trips, how the administration of medications is done according to the emergency action plan for indicated symptoms, how the child will get to the rescue medication if a reaction is suspected (alone, or nurse comes to child), how far away the medication is or does it travel with the child to all locations, classes... saying nothing of PREVENTION of a reaction.
What you will probably want is the La Petite letter for precedence. The Department of Justice is both the resource and has jurisdiction for Title II and Title III of ADA, they will be your enforcers here. I will provide a link to the La Petite settlement for you to read through. It will have the decision, the federal codes (which I can find later to read if given enough time), and has named representatives from the Department of Justice.
You will want to read that through a few times to understand the whole of what is required because it will name what the parent must provide and what medical information must be provided. It is also a voluntary document that La Petite came up with in order to settle the matter (Agreement points 9-11) more to avoid the DOJ coming down on them. Essentially, they decided to change the policy before it was decided for them. That is worth noting.
This was the complaint.
The Jester, Bownds, and Carrabine Complaints allege that La Petite discriminated against children with severe allergies and their families by maintaining a policy of not administering the EpiPen, Jr. (a disposable device used to administer a pre-measured dose of epinephrine to children with severe allergies) to children in their custody who suffered severe allergic reactions. La Petite's policy at that time was to call 911 and request that Emergency Medical Services personnel be dispatched to administer the EpiPen, Jr.
This was the agreement by La Petite.
9. La Petite does not admit that any action it has taken violates title III of the ADA. This Agreement shall not be construed as an admission of liability by La Petite.
10. To avoid unnecessary and costly litigation, the parties hereby agree to the provisions set forth in paragraphs 11 and 12 below.
11. La Petite hereby agrees that the document entitled "La Petite Academy, Inc. Policy for Administering Emergency Treatment to Children with Severe Allergies," attached hereto as Attachment A, has been adopted by La Petite as its policy for treating children with severe allergies, including its policy for administering epinephrine through the use of the EpiPen, Jr. La Petite further agrees not to modify the policy without the prior written consent of the Department.
What you will further want to capitalize on is public schools fall under the jurisdiction of overlapping disability laws that extend where overlapping rather than limit. So Title III applies, further extended by Title II and then Section 504 (seated within the Dept of Education federal regulations and overseen by the Office of Civil Rights). Also check your state codes for two items (1) that a child may self-carry (2) what EMTs may administer pediatric epinephrine and which rescue trucks carry such level of EMT and the pediatric epinephrine itself. Why does that matter? If the school would like to call for a rescue truck to do it and most EMTs either aren't allowed to administer pediatric epinephrine that could matter.
Side note to myself, I gotta get my hands on 42 U.S.C. § 12188(b)(1)(B) because that was some juicy statement about the Attorney General filing a civil suit in federal court for a pattern or practice of discrimination.
Topic: ***UPDATE*** ADA/other Federal laws require the administration of Epi-pens? (Read 23271 times)
