Children’s Lives May be Endangered as Child Care Centers Refuse to Administer Emergency Medication

Landover, MD (March 13, 2008) — The Epilepsy Foundation recently joined in a lawsuit against a national chain of child care centers that refuses to administer a potentially life-saving medication to children with epilepsy. The suit was originally filed on behalf of an 8-year-old California boy when a Tutor Time Learning Centers, LLC, child care center refused to administer diazepam rectal gel (sold under the brand name Diastat AcuDial). The Foundation has joined the lawsuit as a plaintiff to represent the many children with epilepsy around the country who may have been prevented from attending any of the 200 child care centers affiliated with the Tutor Time chain because of their refusal to administer this medication.

Diastat AcuDial is the standard out-of-hospital FDA-approved medication for prolonged seizures, which may cause brain injury or death if not promptly treated. It was specifically approved by the FDA for administration by people without medical training—such as parents, child care workers and school personnel—who can do so safely and easily. Children with epilepsy are particularly susceptible to prolonged seizures that may cause serious brain injury or death if not promptly treated, yet the child care provider’s only plan was to call 911.       

“Most child care providers quickly understand that administering this medication is the right and necessary action to take,” said Eric R. Hargis, president and CEO of the Epilepsy Foundation. “Unfortunately, many other providers do not understand and may put children at risk and create an unnecessary burden on families who cannot find safe child care.”

Because the Americans with Disabilities Act prohibits discrimination against people with disabilities in public accommodations, including child care centers, Tutor Time must modify its policy against administering this medication to afford children with epilepsy equal access to the company’s services.  Tutor Time has provided no reasonable justification for its policy. “When a patient begins to have prolonged or recurrent seizures outside of their normal patterns, it’s [a condition] that needs to be treated immediately,” said James W. Wheless, M.D., professor and chief of pediatric neurology at the University of Tennessee Health Science Center. “In the United States, the amount of time that typically elapses between the onset of a seizure and a patient receiving treatment at a hospital can exceed one hour. That’s too long [to rely on 911 for treatment].  [Diazepam rectal gel] is a safe, effective treatment.”

A similar lawsuit against an Army-operated child care center that refuses to administer diazepam rectal gel is currently pending in Kentucky.

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Suit Filed Against Army-operated Child Care Program to Ensure Access to Emergency Antiepileptic Medication

The suit seeks safe child care for 3-year-old whose father is about to be deployed to Afghanistan.

FORT CAMPBELL, Ky. – On November 28, a Fort Campbell soldier and his wife sued the Army for not letting their 3-year-old into a daycare on post because the child has epilepsy and requires special emergency medication. 

Kenneth Rutherford's mother is a student and his father will soon serve in Afghanistan. The military post, which straddles Kentucky and Tennessee, provides childcare, but finding one that can accommodate Kenneth's medical condition has been difficult for the Rutherfords.

"Several times he has quit breathing during his seizures," his mother, Christy Rutherford, said.

If one of Kenneth's seizures continues for more than five minutes, he could sustain severe brain damage or die, Rutherford said.

Therefore, she never leaves home without this emergency medication. The medication, which is rectally administered, is designed to be given by parents and other caregivers after they have reviewed the manufacturer’s instructions. It is used to treat a prolonged seizure or a cluster of repeated seizures.

"Instantly, within 10 seconds, it pulls him out of his seizure," Rutherford said.

Fort Campbell provides childcare for children of soldiers, but Kenneth's mother said, not children like Kenneth.

She said her family was told the post isn't willing to give Kenneth his emergency seizure medication if he needs it.
 
"It just gets frustrating to not be able to use the programs that are there," she said.

After repeated denials since 2005, the Rutherfords decided to take the Army to court. 
The lawsuit alleges that under federal law prohibiting discrimination against persons with disabilities, the Army-operated child care program has an obligation to modify its policy against administering this medication. This policy change is necessary to afford Kenneth an equal opportunity to participate in the program. 

Christy Rutherford said, "It gets frustrating knowing my husband is about to leave for 15 months and the care is not going to be there."

The lawsuit was filed by a disability rights organization, Kentucky Protection and Advocacy. The Jeanne A. Carpenter Epilepsy Legal Defense Fund assisted in preparing the case.

For more on the story, visit Nashville's News Channel5.