Suit Filed Against Army-operated Child Care Program to Ensure Access to Emergency Antiepileptic Medication

The suit seeks safe child care for 3-year-old whose father is about to be deployed to Afghanistan.

FORT CAMPBELL, Ky. – On November 28, a Fort Campbell soldier and his wife sued the Army for not letting their 3-year-old into a daycare on post because the child has epilepsy and requires special emergency medication. 

Kenneth Rutherford's mother is a student and his father will soon serve in Afghanistan. The military post, which straddles Kentucky and Tennessee, provides childcare, but finding one that can accommodate Kenneth's medical condition has been difficult for the Rutherfords.

"Several times he has quit breathing during his seizures," his mother, Christy Rutherford, said.

If one of Kenneth's seizures continues for more than five minutes, he could sustain severe brain damage or die, Rutherford said.

Therefore, she never leaves home without this emergency medication. The medication, which is rectally administered, is designed to be given by parents and other caregivers after they have reviewed the manufacturer’s instructions. It is used to treat a prolonged seizure or a cluster of repeated seizures.

"Instantly, within 10 seconds, it pulls him out of his seizure," Rutherford said.

Fort Campbell provides childcare for children of soldiers, but Kenneth's mother said, not children like Kenneth.

She said her family was told the post isn't willing to give Kenneth his emergency seizure medication if he needs it.
 
"It just gets frustrating to not be able to use the programs that are there," she said.

After repeated denials since 2005, the Rutherfords decided to take the Army to court. 
The lawsuit alleges that under federal law prohibiting discrimination against persons with disabilities, the Army-operated child care program has an obligation to modify its policy against administering this medication. This policy change is necessary to afford Kenneth an equal opportunity to participate in the program. 

Christy Rutherford said, "It gets frustrating knowing my husband is about to leave for 15 months and the care is not going to be there."

The lawsuit was filed by a disability rights organization, Kentucky Protection and Advocacy. The Epilepsy Foundation’s Jeanne A. Carpenter Epilepsy Legal Defense Fund assisted the organization in preparing the case. The Defense Fund provides legal guidance to persons with epilepsy experiencing discrimination nationwide, along with referrals to lawyers who provide legal representation.

For more on the story, visit Nashville's News Channel5.