July 2013 - Parks & Recreation - 26

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instance, the court stated it would
" decline to be the first to do so. " In
so doing, the court noted NISRA's
reliance on case law that had held " a
requested accommodation unreasonable as a matter of law, " in particular
Davis v. Francis Howell Sch. Dist., 138
F.3d 754, 757 (8th Cir. 1998). In this
case, the court found the requested
accommodation was unreasonable
because " plaintiffs were requesting
the administration of drugs in excess
dosages. " See " Prescription Medication Policies Prompt ADA Claims "
(http://classweb.gmu.edu/jkozlo
ws/lawarts/01JAN02.pdf).

United States had alleged sufficient
facts that " could support a conclusion that the requested accommodation is reasonable under Title II. "
Plaintiff alleges Diastat was developed so people without medical
training can administer the medication. The complaint also suggests that any training required to
administer Diastat is comparable
to the training already provided by
NISRA: Staff learn how to properly respond to seizures, feed children
with gastronomy feeding tubes, and
administer other prescription and
emergency drugs.

" What is reasonable in a particular situation may not
be reasonable in a different situation - even if the
situational differences are relatively slight. "
In the opinion of the court, none
of the case law cited by NISRA
" carr[ies] weight " within the context
of this particular ADA complaint by
the United States. On a procedural basis, these cases relied upon by
NISRA were " decided at the motion
for summary judgment stage, and
not on the pleadings alone. " Summary judgment would have considered all of the pretrial evidence
offered by both sides and lead the
court to conclude there was no issue
left to decide that would necessitate
further proceedings at trial. In contrast, granting a motion to dismiss
would occur at a much earlier stage
in the proceedings. It would find the
allegations in the plaintiff 's complaint, even if accepted, would fail
to establish a legal basis for a claim
under the ADA.
In this case, the federal district
court found the complaint by the

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NISRA had also asserted that " the
requested accommodation is unreasonable as a matter of law " based
upon " the Food and Drug Administration, Physician's Desk Reference
( " PDR " ), and drug manufacturer
standards. " The federal district court
rejected this argument. In so doing,
the court found existing NISRA staff
training was in fact consistent with
PDR standards:
PDR standards do not make
Plaintiff 's request patently unreasonable, especially when NISRA
staff already have training related to
seizures and certain staff members
already provide constant one-on-one
care for participants....The PDR requests the person administering Diastat to receive instruction from the
prescribing physician, distinguish
certain types of seizures and provide
post-administration monitoring of
the individual receiving Diastat.

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NISRA had also relied on a claim
previously litigated by the United
States in which the Department of
Justice had found it would not be
a " reasonable accommodation for
Army staff to administer Diastat. "
In that instance, the court had
found " Diastat accommodations
sought are unduly burdensome and
are not required by law. " The federal district court, however, rejected
NISRA's argument that administration of Diastat was necessarily an
unreasonable accommodation in
every instance.
[W]hat is reasonable in a particular situation may not be reasonable
in a different situation - even if the
situational differences are relatively
slight....[A]dministration of Diastat may very well be a reasonable
accommodation in one situation and
yet unreasonable in another situation....[W]hat constitutes a reasonable accommodation under Title II
depends on a variable mix of factors;
factors not entirely obtainable at the
pleading stage [i.e., on a motion to
dismiss based only on alleged facts in
the complaint].
As a result, the federal district
court concluded the complaint itself
had alleged sufficient facts to establish a violation of the ADA and
overcome NISRA's motion to dismiss the claim.
Undue Burden
NISRA had also argued " the accommodation requested would
impose an undue administrative
burden, fundamentally alter the nature of NISRA's services, and subject NISRA to an undue amount
of liability. " As cited by the federal
district court, " Title II regulations
require reasonable modifications
in policies when necessary to avoid

July 2013 - Parks & Recreation

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