Academic journal article Journal of Law and Education

Asthma Inhalers in the Classroom, or Not?

Academic journal article Journal of Law and Education

Asthma Inhalers in the Classroom, or Not?

Article excerpt

Imagine you have a child with chronic asthma and the school will not let your child carry his inhaler with him to class. In the past, if your child's asthma required that he always have his inhaler with him, you might have had to home school your child or send your child to a school for disabled children. Historically, disabled students were not able to successfully participate in the regular public education process due to a lack of adequate services.1 Today, Congress finds that a student's education is enhanced by including the student in the general school curriculum whenever possible.2 Thus, more students requiring special medical services are entering the public school system with full congressional backing.3

With this influx of children with special needs, school officials are more frequently called upon to accommodate prescription medications, like insulin for children with diabetes or, as this article specifically addresses, asthma treatments for children with asthma.4 Understandably, schools must be careful to limit their liability while striving to provide the best possible education for these students. Although schools have no general obligation to dispense medications, most schools have a policy and procedure which permits school officials to administer medications.5 However, these policies may not cover the possibility that a child will have to carry his medication with him.

Additionally, schools are sometimes required by law to provide special services for the asthmatic child. There are three statutes which may regulate the school's obligations. The first is the Individuals with Disabilities Education Act ("IDEA");6 the second is Section 504 of the Rehabilitation Act of 1973 ("Section 504");7 and finally there is the Americans With Disabilities Act ("ADA").8 The extent of the school's legal obligations will depend on which of these three applies. The difficulty is determining which applies to any child's specific situation.

So, what does one do, how does one start? This discussion first takes a brief look into these three statutes. It then analyzes school policies in interaction with these laws, both where the child's asthma is not determined to be a legal disability and where it is. Further, once the condition is found to be a legal disability, this discussion reviews school policies from the most restrictive no-- medications policies to schools with very lenient policies. Finally, this article proposes a course of action that will fairly balance the needs of the children with the potential liability of the school.

I. Federal Education Disability Law

A. Individuals with Disabilities Education Act

The Individuals with Disabilities Act has four primary features which distinguish it from other educational disability legislation. First, the IDEA is enacted primarily to fund state development of special education for the disabled.9 Federal grants are given to states to help them with the financial burdens of providing special education for students with specific disabilities.10 Thus, states which participate in these funds have an affirmative duty to provide students with disabilities "access to a publicly supervised and publicly funded education appropriate to their individual needs."11

Secondly, the statute covers public education in the elementary and secondary years of the student.12 Thus, "[t]he Act guarantees all disabled children between the ages of three and twenty-one access to a free appropriate education which emphasizes special education and related services designed to meet their unique needs."13 While the upper age limit is twenty-one, the cutoff is age twenty-one or graduation from high school, whichever comes first.14 Therefore, the IDEA does not apply to private schools or college-level education.

Additionally, the IDEA does not provide these services to all disabled students. To be eligible, students "must be determined to have one of the following disabilities: specific learning disability; speech or language impairment; mental retardation; serious emotional disturbance. …

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