My child’s after school care program won’t agree to do any diabetic care for my child, who has Type I diabetes. Doesn’t the program have to make “reasonable accommodations” under the Americans with Disabilities Act?

February 19, 2012

The U.S. Department of Justice (“DOJ”) is tasked with enforcing the Americans with Disabilities Act (“ADA”) in connection with government-run and privately-run child care centers, including before and after school care programs.  Click to read the DOJ’s guidance on this topic.  In addition, the American Diabetes Association has a number of “Safe at School” resources.

Both the ADA and Section 504 of the Rehabilitation Act (“504”) address reasonable accommodations of diabetic children, and the legal standards under the ADA and 504 are usually analyzed the same.  Legally, what you would have to show is that your child is a person with a disability, that he is “otherwise qualified” for participation in the after school program and that he has been excluded from participation in or denied the benefits of that program or otherwise subjected to discrimination by reason of his disability.  In addition, to bring a claim under 504, you would need to show that the after school program receives federal funds.  These first legal hurdles are concerned with whether the after school program violated the ADA and 504 by failing to accommodate your child’s requests for diabetic care accommodations.  However, the analysis does not end here.

The next thing that you would have to show is that the after school program was “deliberately indifferent” to the disability discrimination alleged to exist.  If you could not show this, then the after school program would have no liability for money damages, which would mean it would have no real legal incentive to agree to the requested accommodations.    The deliberate indifference standard requires more than negligence or heightened negligence.  An after school program will be found to be deliberately indifferent when it acts with “conscious disregard” for a participant’s rights.  To show conscious disregard, you have to show that: (1) the after school care program actually knows that its actions will violate the participant’s rights; or  (2) such a violation is the “plainly obvious consequence” of the after school care program’s actions.

Therefore, in a failure-to-accommodate case, to establish the after school program’s deliberate indifference, you would first have to show that (1) you requested the accommodation; and (2) it was plainly obvious that the accommodation was reasonable and necessary.  In addition, if the after school program raised certain defenses under the ADA and/or 504, such as that making the accommodations would impose an undue burden on or would fundamentally alter the program, you would then have to show that it was “plainly obvious” when you requested the accommodation that it would not have created an undue burden on or fundamentally altered the after school program.  To put it another way, you would have to show that it was plainly obvious that these defenses would fail.  And, as at least one federal case concluded, if the after school program reasonably could have believed that the defense would succeed, it would not be liable for money damages.

In a recent case involving a public school student with Type I diabetes, Peterson v. Anoka-Hennepin Independent School District No. 11, 538 F. Supp. 2d 1125 (D. Minn. 2008), the  the parents of AP, a child with Type I diabetes, tried to enroll AP in an after-school program run by the school district.  The parents made three main requests for accommodation.  They asked the school district to provide staff that were trained and willing to (1) check AP’s blood sugar, which required operating his blood-glucose meter; (2); operate his insulin pump; and (3) give glucagon injections in the event of a hypoglycemic emergency.  The school district refused to provide any of the accommodations.

The school district asked the court to dismiss the case by filing a motion for summary judgment on the “deliberate indifference” standard.  The Minnesota federal trial court granted the school district’s motion as to the request to give the glucagon injections because it found that no reasonable jury could find that (a) it was “plainly obvious” that the glucagon injection request was a reasonable accommodation; or (b) it was “plainly obvious” that the glucagon injection request would not have placed an undue burden on the school district and would not have fundamentally altered the after school program.  The school district had presented evidence that Minnesota guidelines discourage school personnel, who are not supervised by school nurses, from giving glucagon injections, that giving glucagon injections is “at least modestly complicated”, that an unsupervised layperson should not give a glucagon injection and that it believed that it would have to hire a nurse for the after school program to give the requested glucagon injection.

However, the court found that the school district was not entitled to having the claims pertaining to the meter and pump operation dismissed on summary judgment because “both of these requested accommodations were almost certainly reasonably and almost surely would not have imposed an undue burden on [the school district] or fundamentally altered the” after school program.  The court also found that a reasonable jury could find that it was “plainly obvious” that the school district should have granted the requests and that doing so would not have been unduly burdensome.

The federal appeals court that governs cases arising in Georgia (the 11th Circuit) has not decided whether the “deliberate indifference” standard applies to civil money damages claims under the ADA and 504, or whether a more stringent standard applies, such as “discriminatory animus”.  Some recent cases have assumed that the deliberate indifference standard applies.  Litigants in Georgia can safely assume for the time being that they would have to show at least as much as AP had to show in MN, since that court applied the deliberate indifference standard.