July 2013 - Parks & Recreation - 24

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draw all reasonable inferences in favor of plaintiff. "
Arguably, the fact that NISRA had
been able to provide the requested
accommodation in the past would
appear to raise an inference that the
accommodation had been reasonable
and its discontinuation, without further explanation, would seem unreasonable and in violation of the ADA.
Facts of the Case
NISRA provides year-round recreational activities for children and
adults with disabilities in 13 communities in northern Illinois through a
partnership of member cities and
public park districts (www.nisra.org).
As a result, NISRA was considered a
" public entity " under Title II of the
ADA, which includes " any department, agency, special purpose district
or other instrumentality of a State or
local government. "

staff members are trained in responding to seizures pursuant to NISRA's
seizure-management policy.
Participants in NISRA's programs
with a history of seizures submit a
seizure plan in which their doctor
describes the type of seizures they
experience, the medications they currently take and the protocol to follow
in the case of a seizure. M.M. and
N.R., both diagnosed with epilepsy,
are former participants of NISRA's
summer camp program. Because of
their epilepsy, M.M. and N.R. have
a history of experiencing tonic-clonic seizures (also known as grand mal
seizures) and, because of this history,
both M.M. and N.R. were prescribed
Diastat AcuDial (Diastat).
Diastat is the only FDA-approved
medication for out-of-hospital treatment of emergency seizures. Diastat
and Valium are brand names for generic diazepam, which is commonly

As characterized by the court, " NISRA could
reasonably accommodate those participants, "
but chose not to, implementing a new policy that
" exposes its epileptic participants to a risk of serious
injury and death. "
NISRA's staff members are experienced in working with people with
disabilities, but they are not medical
professionals. Typically, one counselor is responsible for the supervision
of two to four participants, but at
times, NISRA provides one-on-one
service for its participants. Also, NISRA staff members are trained in administering epinephrine auto-injector
(EpiPen) shots, dispensing asthma
medication and feeding children with
gastronomy feeding tubes. Moreover,

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used to treat anxiety and panic attacks as well as seizures. Diastat is
a Schedule IV controlled substance,
which indicates that it has a low
potential for abuse but is only available by prescription for a currently
accepted medical treatment in the
United States.
In treating seizures, the sooner
Diastat is administered, the more
effective it will be. Diastat is injected rectally with a pre-filled plastic
syringe. The drug was developed so

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people without medical training can
administer the medication.
After its 2008 summer camp session, NISRA changed its policy to
no longer allow staffers to administer
Diastat. M.M. has since experienced
an onset of tonic-clonic seizures.
Attendance at the camp, coupled
with NISRA's refusal to administer
Diastat, makes participation in NISRA's programs a risk to her health
and life if an emergency presented
itself. Similarly, N.R.'s parents requested N.R.'s personal aide (already
provided by the camp) to be allowed
to administer Diastat if needed.
NISRA refused and replied the aide
would only monitor for seizures and
call 911 if a seizure occurred.
On the Basis of Disability
In its motion to dismiss, NISRA asserted " the complaint does not allege
a denial of benefits on the basis of
disability " as required by the ADA.
On the contrary, NISRA claimed
" no individuals were denied access to
NISRA's programs because of their
disability. " Specifically, in this particular instance, NISRA pointed to the
fact that M.M. and N.R. have participated in NISRA's programs. Moreover, NISRA relied upon the " facial
neutrality of NISRA's policy not to
administer drugs in contradiction to
established medical guidelines. " In
other words, the drug administration
policy treated everyone alike, without
any regard for the nature or severity
of any disability. As a result, NISRA
contended any discrimination was
not " on the basis of disability " as required by the ADA.
In response, the United States asserted it was not claiming that " NISRA denied M.M. and N.R. admission to its programs or that NISRA
employs a policy that facially dis-

July 2013 - Parks & Recreation

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