managing food allergies in school: legal and practical considerations by: regan k. dahle
TRANSCRIPT
MANAGING FOOD ALLERGIES IN SCHOOL:
Legal And Practical Considerations
MANAGING FOOD ALLERGIES IN SCHOOL:
Legal And Practical Considerations
By: Regan K. Dahle
What is a Food Allergy?What is a Food Allergy?
• An interaction between food and the immune system
• An allergic reaction occurs when an individual’s immune system recognizes a particular food protein as a foreign invader by releasing histamine and other chemicals.
Most Common Food AllergensMost Common Food Allergens
• Peanuts
• Fish
• Tree Nuts
• Milk
• Eggs
• Soy
• Wheat
• Shellfish
Typical Allergy Symptoms Typical Allergy Symptoms
• Hives
• Swelling
• Cramps
• Nausea
• Vomiting
• Diarrhea
• Itchy, watery eyes
• Shortness of breath
• Coughing
• Wheezing
• Runny Nose
• Reduced Blood Pressure
• Fainting
• Shock
• Feeling of Impending Doom
AnaphylaxisAnaphylaxis
• A sudden, severe allergic reaction that involves various areas of the body simultaneously or causes difficulty breathing with swelling of the throat and tongue
• In extreme cases, it can cause death. Also called a general reaction or allergic shock.
Why Should Schools Be Concerned?Why Should Schools Be Concerned?
• According to a recent study in the Journal of School Nursing, 84% of children with food allergies will have a reaction at school, and 25% of children have their first reaction at school.
• As little as a milligram of an offending food can cause a life-threatening allergic reaction.
Why Should Schools Be Concerned?Why Should Schools Be Concerned?
• Anaphylactic reactions can result in death if untreated or under-treated.
• Anaphylactic symptoms can develop in minutes after eating an offending food.
Why Should Schools Be Concerned?Why Should Schools Be Concerned?
• Fatalities from anaphylaxis most often are associated with either not using epinephrine or delay in the use of epinephrine.
• There is no cure or preventative medication for food allergies.
• Avoidance is the only way to prevent a reaction from occurring.
Legal FrameworkLegal Framework
Federal LegislationFederal Legislation
Section 504Section 504
• Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability.
• Applies to institutions receiving financial assistance from the federal government, including public schools
• Ensures that qualified students with disabilities receive a free and appropriate public education
34 CFR §104.33
What is a Disability?What is a Disability?
• A physical or mental impairment that substantially limits one or more of an individual’s major life activities
• Having a record of such an impairment
• Being regarded as having such an impairment
34 CFR §104.3(j)
Is a Life-Threatening Food Allergy a Disability?
Is a Life-Threatening Food Allergy a Disability?
• Under recent amendments to the Americans with Disabilities Act and Rehabilitation Act, a student with a life-threatening food allergy would likely qualify as disabled.
Federal Government Acknowledges Allergies as Disability
Federal Government Acknowledges Allergies as Disability
• Allergies may be considered a “hidden disability” similar to diabetes and epilepsy.
U.S. Dept. of Ed. Office of Civil Rights, Pamphlet: The Civil Rights of Students with Hidden Disabilities under Section 504 of the Rehabilitation Act of 1973
Federal Government Acknowledges Allergies as Disability
Federal Government Acknowledges Allergies as Disability
• The Department of Agriculture has identified students with life-threatening food allergies as “disabled” under Section 504 of the Rehabilitation Act.
USDA Guidance for School Food Service Staff: Accommodating Children with Special Dietary Needs in the School Nutrition Program
What Does it Mean to Provide a Free and Appropriate Education?
What Does it Mean to Provide a Free and Appropriate Education?
• Parents cannot be charged for services necessary for the education of the disabled child, unless other students are also charged. 34 CFR §104.33
• Unless it can be demonstrated that the child cannot receive a satisfactory education, disabled students must be educated with non-disabled students. 34 CFR § 104.34
• Disabled students must have equal access to educational opportunities and extracurricular activities to the maximum extent appropriate. Id.
What Does it Mean to Provide a Free and Appropriate Education to a Student with Food
Allergies?
What Does it Mean to Provide a Free and Appropriate Education to a Student with Food
Allergies?
• Students with food allergies should not be excluded from the cafeteria
• They generally should not be denied access to the school bus or on field trips
• Accommodations may need to be made in classroom, lunchroom, during recess, etc., so the student can safely be educated with non-disabled students.
504 Enforcement Mechanisms504 Enforcement Mechanisms
• Individuals may file a complaint with the Dep’t. of Ed. Office of Civil Rights. 34 CFR § 100.7
• Failure to comply could result in suspension of federal funds or legal proceedings brought by the Dep’t of Justice. 34 CFR §100.8
504 Enforcement Mechanisms504 Enforcement Mechanisms
• Violations of Section 504 can result in private civil actions against District. 29 U.S.C. §794(a)
• Eleventh Amendment immunity does not apply. 42 U.S.C. § 2000d-7
504 Plans504 Plans
• Written agreement developed for a particular student that specifies the aids the school will provide to that student so that the student gets equal and safe access to educational opportunities and extracurricular activities.
504 Plan Should Address . . . 504 Plan Should Address . . .
• School bus - training of driver, location of student, storage of medications
• Classroom - food in classroom, materials for projects, birthday/other celebrations, education
• Substitutes – training, awareness of student, willingness to act
• “Special” classes – training, awareness, food in classroom, shared equipment/instruments, etc.
• Lunchroom – seating arrangements, washing hands, appropriate monitoring, accessibility to meds, qualified staff
• Recess – appropriate monitoring, accessibility to meds, qualified staff
504 Plan Should Address504 Plan Should Address
• Medication storage – on student, if appropriate, in classroom, in office, “on-the-move” with student
• Parent volunteers – hand washing, awareness, no food in classroom, education
• Bathrooms – hand washing, monitoring of student
• Drinking fountain – use of water bottles
• Assemblies – location of student, accessibility of medication, monitoring
• Field Trips – trained staff, transportation of medication, safety of destination, accommodations at destination
IDEAIDEA
• Individuals with Disabilities Education Act, 20 USC §1400 et seq.
• Generally supports students whose disabilities affect their ability to learn
IDEAIDEA
• Qualified students are entitled to an Individualized Education Program that addresses the special services to be provided to the student
• Less common that a food allergy would be covered by IDEA since the student’s ability to learn is not typically affected, but possible if the restrictions on the student’s activities are extensive enough or if the child has other impairments.
ADA - Americans with Disabilities ActADA - Americans with Disabilities Act
• Ensures that no qualified individual with a disability shall be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 USC § 12132
Americans with Disabilities ActAmericans with Disabilities Act
• School must provide reasonable modifications to rules, policies or practices and auxiliary aids and services to ensure that the disabled student is not excluded, denied services, segregated or otherwise treated differently than a non-disabled student.
28 CFR § 35.104
Americans with Disabilities ActAmericans with Disabilities Act
• No Eleventh Amendment immunity from ADA claims. 42 USC § 12202
• Violation of the ADA can result in a private civil action, administrative agency complaints, as well as the loss of federal funding. 42 USC § 12133
Food ServiceFood Service
• USDA, National School Lunch Program and School Breakfast Program regulations require that schools make substitutions to regular meals when a student cannot eat the regular meal because of a disability
• Substitutions or modifications must be based on a valid prescription
• Substitutions or modifications must be at no extra cost to the student
7 CFR § 15b
Michigan Legislation Michigan Legislation
Public School’s Duty to Provide a Safe Environment
Public School’s Duty to Provide a Safe Environment
• The public schools of this state serve the needs of the pupils by cooperating with the pupil’s parents and legal guardians to develop the pupil’s intellectual capabilities and vocational skills in a safe and positive environment
MCL §380.10
Revised School Code Section 1179Revised School Code Section 1179
• Students may possess and use epinephrine at school or school-sponsored event under the following conditions:
–Student has written approval from both physician and parent/guardian
–The principal has received a copy of the written approvals
–Student has an Emergency Care Plan on file.
Emergency Care PlanEmergency Care Plan
• Contains specific instructions on student’s needs
• Prepared by a physician in collaboration with the student and parent/guardian
• Updated as necessary for changing circumstances
Revised School Code, Section 1178Revised School Code, Section 1178
• A designated school employee who, in good faith, administers medication to a student in a life-threatening, emergency situation, is not liable in a criminal action or for civil damages, except in the event of gross negligence or willful or wanton misconduct
Governmental ImmunityGovernmental Immunity
• Immunity may be available for tort liability if the employee reasonably believes he or she is acting within the scope of his or her authority; the district is engaged in the exercise or discharge of a governmental function; and the employee's conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
MCL § 691.1407
Persons with Disabilities Civil Rights ActPersons with Disabilities Civil Rights Act
• Prohibits discrimination by educational institutions. MCL § 37.1402
• Follows similar analysis as ADA claims.
• Affords aggrieved individuals a private cause of action as well as administrative remedies. MCL § 37.1605
Proposed LegislationProposed Legislation
• Both federal and Michigan legislators have introduced bills into their respective houses regarding managing food allergies in school
Food Allergy and Anaphylaxis Management Act
Food Allergy and Anaphylaxis Management Act
• Versions in both the United States House and Senate
• Currently in House and Senate Committees
• H.R. 2063 and S.1232
Food Allergy and Anaphylaxis Management Act
Food Allergy and Anaphylaxis Management Act
•Would require the U.S. Secretary of Health and Human Services to develop a voluntary policy to manage food allergies and anaphylaxis in schools and make it available to local educational agencies.
State of Michigan House Bill 5052 State of Michigan House Bill 5052
• Sponsored by Representative Fran Amos
• Introduced on July 24, 2007
• Currently before Committee on Education
House Bill 5052House Bill 5052
• Would require the Department of Education, in conjunction with the Departments of Agriculture and Community Health, to do the following:
–Review and revise as necessary all guidelines and policies published by the Department of Education and other state agencies involving life-threatening food, insect sting, latex or other substance allergies and asthma
–Provide school districts a model local policy concerning the management of these allergies and asthma
House Bill 5052House Bill 5052
• Model Policy would address the following:
–Training
–Storage of medication
–Standardized Emergency Care Plans
– Individual Health Care Plans for students with life-threatening allergies
Creating a Safe Environment for Students with Food Allergies Requires a Team Approach
Creating a Safe Environment for Students with Food Allergies Requires a Team Approach
ParentsParents
1. Notify the school. If possible, for a new student, the year before the student starts.
2. Provide medical documentation.
3. Coordinate preparation of the Food Allergy Action Plan with the student’s doctor, the school nurse, administration and the teacher.
ParentsParents
4. Provide appropriate medication and enough of it. Monitor expiration dates of medication and replace when necessary.
5. Provide safe food for the student.
6. Educate .
7. Provide current emergency contact information.
TeachersTeachers
1. Know the symptoms of an allergic reaction.
2. Keep information about the student readily accessible to substitutes.
3. Ensure that lesson plans involving food are safe.
TeachersTeachers
4. Know how to administer epinephrine.
5. Avoid cross contact or contamination in the classroom.
6. Teach tolerance in the classroom.
7. Create class awareness.
School NurseSchool Nurse
1. Educate everyone with whom the student will come in contact.
2. Develop an emergency treatment plan for treatment at the school.
3. Create an emergency plan of action in the event 911 needs to be called.
School NurseSchool Nurse
4. Check medication for expiration dates.
5. Meet with parents.
6. Meet with the student.
7. Develop the Individualized Health Plan or 504 Plan where appropriate.
Principals and AdministratorsPrincipals and Administrators
1. Create a food allergy management plan for your school.
2. Educate staff.
3. Set the tone that this is a significant health issue that will be taken seriously.
4. Support parents, teachers and school nurse.
How is Michigan Doing?How is Michigan Doing?
• Study found that Michigan public schools lacked structured, school-wide approach to managing food allergies.
• Avoidance strategies were deficient
• Lack of Emergency Action Plans
• Epinephrine not easily accessible
Annals of Allergy, Asthma and Immunology, Vol. 86, 172-176
