Legal Reference Blog by Renee C. Walsh, Attorney

I can attest from personal experience how challenging it can be to find the right care for your child when they have mental and emotional issues. Many facilities wont accept them or have a hard time controlling kids with special needs. I love my children and I want them to have the best care they can get. Now I have a nurse to take care of my children when Im at work because I can afford it. I hope the future can provide accomodations for children with special needs.

Need legal input:
My child has a peanut allergy and requires an EPI-PEN injection in case of contact with peanut and reaction occurs. My child was in a program that runs 1 and half hours, that met once a week/Friday, for 10 consecutive weeks. The program was run in MI by Troy Parks & Rec. It was in the same building as a Licensed Troy Preschool.

The program that my child was in, never asked for a BACL-3731 form to be filled out or a consent form regarding administration of the EPI-PEN. This was even after medical issues were discussed with the program aides. Contacted DHS and initially all the people said that a BACL form was required. So, filed a complaint. DHS then said that BACL 3731 was not needed as the program did not need to be required to be licensed because it was 1 and half hours only.

Questions:
1. Why doesn't the class that met for 1 and half hours, once a week/Fri, for 10 consecutive weeks require a license for daycare?
2. Is there some law in MI that states if less than 2 hours a week, no license? Act 116 only states if the class is held for 2 consecutive weeks and does not mention hours.
3. According to Act 116 a medical consent written by the parent is required for administering medication?
a. Why is it that this class as described above, offered in the same building as the preschool -- not required to have this written consent? Is it because it is on Troy Parks & Rec building?

4. I also requested the names of the teachers/aides involved in order to check the certifications of the teachers/aides. Troy Parks & Rec would not release or did not give a response back. Is there a law that would entitle me to get those names?

5. Do you know of an attorney we could talk to regarding requirements for licensing of daycares and laws in MI?

Thank you for your help

Dear S. Tobias:

If you are a parent or legal guardian, you should be able to request access to her medical records. It would be best in any event to open a probate estate and become appointed personal representative of her estate. You will then have Letters of Authority to request access to her medical records and begin your investigation.

We had a family member who had been in foster care since infancy due to mental disability. She died August 4, 2009. The family received word August 19,2009 from the Mckinley Home in Taylor MI. We are concerned about how she deceased. She was buried without our knowledge or benefit of medical review. What are our legal rights?

A child care center is subject to both state and federal law. A state can provide greater rights to its citizens but cannot limit the rights provided to them under the federal law. A state cannot limit rights provided under the federal law an must follow the federal law mandate at the minimum with regard to rights provided to citizens.

Keep in mind that the fact that insulin was not provided for in the settlement agreement makes no difference as to what is binding law. The settlement agreement was just that an agreement between the parties to settle the matter and is not caselaw establishing precedent to be followed.

Under the Michigan Public Health Code, only a physician can order the administration of medication. Upon the physician's order, none other than the parent, a licensed nurse or someone acting under nursing supervision, may administer the medication ordered by the physician. Insulin is a medication. To do so would constitute the practice of nursing.

Under Michigan Compiled Law, MCL 333.17211, a person shall not engage in the practice of nursing unless licensed. MCL 333.17201 defines the practice of nursing to include the systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability.

KinderCare unlikely would have settled had they been required to provide insulin. Their argument would be that the accommodation is unreasonable. Doing the testing and perhaps assisting in the utilization of an insulin pump would be as far as they would go because to require the administration of insulin would force KinderCare to keep a licensed nurse on staff to administer the insulin. The settlement appears to have contemplated that monitoring of the glucose levels along with modifications in diet and close contact with emergency services and parents according to the parents' directives, should go a long way to keeping these children healthy and happy.

Note well though, this was a settlement. The issue has not been litigated and is up for grabs for willing participants. There may be child care centers for which providing insulin would not be an unreasonable accommodation. The analysis is case specific.

I am a Parent Advocate with the American Diabetes Association. I had a family referred to me by FSN. Apparently a child care provider will no longer allow a child who was recently diagnosed with Type I Diabetes to attend her establishment. They are unwilling to accommodate the child. I understand federal law in regards to daycares, preschools and school accommodations but what about a child care center that accepts money from the state. Would it be subject to federal law?

The Michigan Disabilities Act requires the centers to provide reasonable accommodations for disabled children. The OCR has ruled that diabetes care tasks are not unreasonable, yet in the settlement with KinderCare, insulin was not required to be provided as a reasonable accommodation. The failure to provide insulin would render the accommodation useless in that these children must have insulin to live. Am I to understand that there is not access to child care for a child with Type I Diabetes unless it is run by the school? Thank you in advance for your response.