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FOR IMMEDIATE RELEASE November 28, 2007 Army-Operated Child Care Program’s Refusal to Administer Emergency Epilepsy Medication Discriminates Based on Disability Protection & Advocacy Files Civil Rights Lawsuit Seeking to Ensure Safe Child Care for 3-Year-Old Boy, Whose Father is about to be Deployed to Afghanistan Contact: Heidi Schissler Lanham 502-564-2967 Frankfort, KY -- Today, Protection and Advocacy, an independent, federally-mandated advocacy agency for people with disabilities, filed a lawsuit against the U.S. Army for refusing to provide emergency treatment to a 3-yearold boy with epilepsy in an Army-operated child care program at Fort Campbell. The boy’s physician prescribed the medication--to be administered rectally by his parents or other caregivers--in the event he experiences prolonged seizures, which can cause brain injury or death if not promptly treated. Protection and Advocacy claims in its lawsuit 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 the boy an equal opportunity to participate in the program. The boy’s father, Sergeant First Class Jerry Rutherford, will be deployed to Afghanistan early next year, underscoring the need for the family to secure safe child care services. The medication, diazepam rectal gel (the trade name is Diastat AcuDial), is the standard out-of-hospital, FDA-approved medication for prolonged seizures and may be given by caregivers such as parents, day care workers and school personnel who do not have medical training. (For more information on epilepsy and this medication, see the Background section attached.) The boy’s parents attempted to enroll their son in day care at Fort Campbell in 2006 so that Mrs. Rutherford could take time away from home to complete a bachelor’s degree in nuclear medicine. “Day care for my son is necessary for me to finish my schooling,” Mrs. Rutherford said. She added, “I have repeatedly attempted to provide the day care program information from my son’s doctor authorizing them to administer the medication and have myself attempted to inform them that it is easy and safe to use, but they are unwilling to provide this critical care for my son.” Fort Campbell’s child development center program for children with disabilities (which operates the child care program) claims that it will not comply with the parents’ request because its staff is not permitted to administer any medication rectally. However, day care staff currently is required to administer other comparable drugs and treatments to children with other serious conditions that require immediate intervention. Children with epilepsy are particularly susceptible to prolonged seizures that can cause serious brain injury or death if not treated very promptly, yet the Army’s only plan for treatment of the child’s seizures was to call 911. "When a patient begins to have prolonged or recurrent seizures outside of their normal patterns, it's a medical emergency that needs to be treated immediately," said James W. Wheless, M.D., professor and chief of pediatric neurology at the University of Tennessee Health Sciences Center. As Dr. Wheless noted in EpilepsyUSA magazine, "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 for this type of emergency. Diastat AcuDial is a safe, effective treatment, which is a significant patient advantage." The Protection and Advocacy lawsuit for the 3-year-old boy is based on a federal civil rights law, Section 504 of the Rehabilitation Act of 1973, which prohibits federallyoperated organizations and those that receive Federal financial assistance from discriminating against qualified individuals based on their disability. The law applies to the day care center at Fort Campbell because it is operated by a federal agency and receives federal funds. “We believe this is a strong case,” said Protection and Advocacy legal director Heidi Schissler Lanham. “This little boy is being denied equal access to day care because of his epilepsy. He most certainly would be in the day care if he did not require accommodations for his disability.” A similar lawsuit, against a national day care chain regarding its refusal to administer this medication to enrolled children, is currently pending in California. Although state law does not apply to the Fort Campbell’s day care program, under Kentucky Law (Kentucky Revised Statutes 158.838(1)(b)), the state’s schools have been required since 2005 to administer Diastat AcuDial to students with epilepsy who require it. A variety of school staff such as teachers aides are authorized to administer the medication. Debbie McGrath, executive director of the Epilepsy Foundation of Kentuckiana stated:“The Foundation strongly promotes the use of Diastat when medically necessary and prescribed to patients who experience seizures that do not stop on their own, or seizures that cluster, both of which can cause damage to the brain and are potentially life-threatening.” Mrs. Rutherford said, “All I really want is for Fort Campbell to agree to give my son the medicine he needs if he has a seizure that lasts longer than five minutes. It’s not difficult to do and would allow him to enroll in day care, just like the other Fort Campbell children." # # #

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