By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
For three-year-old Rachael Septon of Denver, the classic childhood food peanut butter can be a deadly substance. Rachael has a potentially fatal allergy to peanuts. If she ingests them in any form, she breaks out in hives, her eyes swell shut and she has trouble swallowing and breathing. Rachael's parents claim that the Auraria Child Care Center, where Rachael had been in daycare since she was about one year old, kicked her out of the school because of her allergy. Now the Septons have filed a complaint with the U.S. Department of Justice, claiming that the center discriminated against their daughter in violation of the Americans With Disabilities Act.
The Septons say that on May 11, Rachael's mother, Caryl, noticed that for the third time, peanut butter was being served in Rachael's preschool classroom. She thought her daughter's room was supposed to be free of peanut products, so she confronted center director Gina Hamelin.
"Ms. Hamelin was consciously indifferent to any need for the preschool to accommodate the special needs of a person handicapped with severe allergies," reads the complaint.
A few days after Caryl Septon confronted Hamelin, the center gave the Septons paperwork outlining requirements they would have to meet if they wanted Rachael to return to daycare: The Septons would have to provide all of Rachael's food and drink, give the school an EpiPen (a device used to administer medicine in case of an allergic reaction) and sign a release of liability.
The Septons did not comply, so Rachael did not return to the Auraria Child Care Center.
Director Hamelin and her supervisor, Dick Feurborn, admit that their requests were out of the ordinary, but they say Caryl Septon's demand that peanut products be eliminated from Rachael's classroom was out of line with their policies. The center can't accommodate every possible special need, Feurborn says, because it would cause such a heavy financial burden.
That's where he's mistaken, say the Septons.
"What has them particularly outraged is that it's a government agency just thumbing its nose at the law," says Jim Mitchem, an attorney who helped the Septons file their complaint. The daycare center is operated by the Auraria Student Assistance Center at the Auraria Higher Education Center, which is home to three state-run colleges. The Septons claim the center is ignoring Title II of the Americans With Disabilities Act, which sets guidelines for child-care services provided by government agencies.
According to the Department of Justice, children can't be excluded from a daycare program solely because they have severe allergies to certain foods. The law says that public daycare centers like Auraria cannot exclude children with disabilities unless accommodating them would require fundamentally altering their programs and that centers must make reasonable modifications for people with disabilities unless doing so would cause an undue burden. The Department of Justice must investigate all valid claims filed under Title II. If an investigation shows that Auraria did violate the ADA, the feds could use mediation to resolve the problem or resort to a lawsuit.
Representatives from the center say they responded the way they did because of the Septons' unwillingness to compromise.
Caryl Septon contends that even if she had signed the waiver and agreed to provide Rachael's food and drink, she couldn't have met the center's requirement that she provide an EpiPen. Rachael did have an EpiPen at the center, but on May 13 Septon replaced it with a new device, the Ana-Kit, because the EpiPen had been recalled by its manufacturer.
But Feurborn says a nurse who consults with the center decided that because teachers aren't trained to use the Ana-Kit, it wasn't an acceptable replacement. Furthermore, Feurborn says, Septon made the waiver necessary when she threatened to sue the center. In a fax Septon sent the center on May 12, she asked if the center had enough liability insurance to cover a wrongful-death suit.
"I don't consider that a threat," Septon says. "They probably did."
They did, according to Feurborn, and the center responded by requiring the release of liability. "It would not be our standard procedure to make people with allergies sign a waiver," he says. "They put us in that predicament."
Hamelin says the center doesn't have a written policy for dealing with children with allergies. "Every allergy is so different," she says. "It's kind of a case-by-case thing."
Parents can give information about their child's allergies on the child's enrollment form. If the allergy is severe, a form with instructions and emergency information is posted in the child's classroom. Generally, the center eliminates allergy-causing substances from classrooms where toddlers have severe allergies, since toddlers are too young to understand their allergies. For preschool children, however, the allergy-causing substance is not eliminated from the room. Instead, Hamelin says, the center tries to teach children how to handle their own allergies.
That's why there was peanut butter in Rachael's classroom, Hamelin says. But Septon claims she never heard anything about the school's policies until after school administrators asked her daughter to leave.
Officials at the daycare center say they dealt with Rachael's situation correctly, and both the nurse who consults with the center and an agent from the Social Services licensing department agree, says Hamelin.