This post was originally authored by Jim Rock, an Ancel Glink attorney, on our sister blog, The Municipal Minute:
In a fairly recent case, a federal district court in Illinois ruled that rectal administration of Diastat, an anti-seizure medication that is administered to patients with epilepsy during seizures, is not a reasonable accommodation under the Americans with Disabilities Act. U.S. v. N.I.S.R.A., Case No. 12 C 7613 (N.D. Ill. 2016).
The Northern Illinois Special Recreation Association had adopted a policy prohibiting its staff from administering Diastat. Instead, staff are directed to follow the person’s seizure plan to the best of their ability and to call 911 in the event of a seizure. Parents of a participant who suffers from epilepsy complained that the policy discriminated against their child and that the administration of Diastat is a reasonable accommodation under the ADA. The United States Attorney General sued NISRA, seeking a declaration that NISRA’s policy violates the ADA and an injunction requiring NISRA to administer Diastat to participants in NISRA programs as may be medically required.
The district court ruled that the Attorney General failed to show that administration of Diastat by day camp counselors is a reasonable accommodation. In reaching its decision, the court stated that:
the government’s requested accommodation seems to directly contradict the manufacturer’s instructions for Diastat, which are mandated by the FDA to accompany the drug. The manufacturer’s instructions state, in relevant part that the medication... should only be administered by caregivers who in the opinion of the prescribing physician 1) are able to distinguish the different clusters of seizures… 2) have been instructed and judged to be competent to administer treatment rectally, 3) understand explicitly which seizure manifestations may or may not be treated with Diazepam Rectal Gel, and 4) are able to monitor the clinical response and recognize when that response is such that immediate rectal evaluation is required.
The court found that the government’s request would require NISRA to disregard these instructions and held that request to be unreasonable.
While this decision provides park and recreation agencies guidance that they are not required to administer Diastat to their day camp participants, the discussion is not likely to end here. The U.S. has filed an appeal. Additionally, the court opened the door for further litigation when it concluded its opinion with the statement:
My decision might have been different had the government presented statistics on how a Diastat program under similar circumstances has been successful. Perhaps this data does not exist, and this issue may need to be reexamined at some point in the future if and when such data becomes available.
For now, administration of Diastat is not a reasonable accommodation under the ADA and is not required by law. We will provide updates as the litigation continues.