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L AW R E V I E W

was based on regulations in the Illinois Administrative Code governing
the " Administration of Medication
in Community Settings " (59 Ill.
Adm. Code 116.50 (2013)). These
regulations apply to " all programs
for individuals with a developmental
disability in settings of 16 persons or
fewer that are funded or licensed by
the Department of Human Services
and that distribute or administer
medications. " In pertinent part, this
state regulation prohibits the administration of any medication in an injectable form by non-licensed staff,
which could presumably include
injection of Diastat through a rectal
syringe.
a) Medications shall be administered in accordance with the Mental
Health and Developmental Disabilities Administrative Act [20 ILCS
1705] and the Illinois Nursing and
Advanced Practice Nursing Act [225
ILCS 65].
b) Non-licensed staff shall not administer any medication in an injectable form.
c) A registered professional nurse,
advanced practice nurse, physician
licensed to practice medicine in all of
its branches, or physician assistant
shall be on duty or on call at all times
in any program covered by this Part
[20 ILCS 1705/15.4(j)].
d) Authorized direct care staff
shall not administer PRN medications unless there is a written protocol approved by a nurse-trainer and
prescribing practitioner for each individual and for each medication.
Assuming " a conflict exists between state and federal law, " as
NISRA alleged in this particular
instance, the federal district court
acknowledged that " state laws can
be preempted by federal regulations
and statutes. " As a result, the al26

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leged conflict with state law would
not necessarily bar the United
States from obtaining the resumption of the requested reasonable
accommodation under the ADA.
That being said, at this preliminary
stage of the proceedings, the court
acknowledged that its review of the
legal sufficiency of the ADA complaint on a motion to dismiss would
not consider " whether preemption
applies to this case. "
In practical terms, it is not an " either/or " proposition when it comes
to complying with federal law and
state regulations. On the contrary, the
ongoing challenge for NISRA would
be to comply with state regulation of
medication administration consistent
with reasonable accommodations required by the ADA. Pursuant to the
Illinois Administration of Medication regulation, this might involve inclusion of a " nurse-trainer " to ensure
NISRA has " authorized direct care
staff " on site at their summer camp
to administer Diastat as necessary,
using a rectal syringe.
Conclusion
As a result, based solely on the
facts alleged in the complaint, the
federal district court found the
United States had adequately stated a " legal claim under Title II of
the Americans with Disabilities
Act. " Accordingly, the federal district court denied NISRA's motion
to dismiss and allowed the United
States to pursue the ADA claim in
further proceedings.
James C. Kozlowski, J.D., Ph.D., is an
attorney and associate professor in the
School of Recreation, Health and Tourism at
George Mason University. Email: jkozlows@
gmu.edu. Webpage with link to Law Review
archive (1982 to present): http://mason.gmu.
edu/~jkozlows.

July 2013 - Parks & Recreation

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