Written by Greer Gurland, Esq.
Many parents of children with life-threatening food allergies know to contact the school’s administration even before the first school bell rings. The goal: To set up a plan to keep their child safe.
But starting a productive dialogue about creating a positive school environment—one that allows the child equal access to school programs–can be tough when the ground rules are unclear. As a parent, you can do a lot to help by bringing information to your school team about what the law requires. Then, instead of asking for special help, you can take on the role of helping the school to fulfill its legal mandate to its students.
In honor of National Nutrition Month, here is a quick overview of four available tools (from lowest to highest level of intervention) that you can utilize to protect your school-aged child with life-threatening food allergies, nutrition concerns and medical issues.
1. Have an Emergency Care Plan (ECP). This provides a first level of protection for a student with a life-threatening allergy in emergency situations. Typically, an ECP only addresses how a school must respond if a child with an allergy has an emergency in school.
To obtain an ECP, you should reach out to your child’s doctor for a signed care plan to bring to the school which becomes the ECP. An ECP may read like doctor’s orders, written for the school to carry out. The ECP should include:
- The allergens your child must avoid;
- Symptoms that would require emergency care, such as use of an epinephrine auto injector;
- Procedures for calling 911 and taking your child to medical care; and
- Emergency contacts.
2. Arrange for an Individualized Healthcare Plan (IHCP). If you’re looking for the school’s help in making changes throughout your child’s day to keep him or her safe—in addition to emergency measures—an Individualized Healthcare Plan may make more sense. It usually contains an ECP but goes beyond it since an ECP is often not enough to meet a child’s school needs.
An IHCP states the actions that a school will take to keep a school environment safe for a child with life-threatening food allergies. To get an IHCP, you need to collaborate with not only your child’s healthcare provider, but also the school nurse and administrators. Together, they develop a written plan, the IHCP, which should include the following:
- List of allergies;
- Actions the school will take to minimize exposure of the child to the risk of allergens;
- Procedures for lunch and classroom snacks;
- Use of food during the school day as rewards;
- The role of parents, teachers, administrative staff, nurse;
- Training of staff and teachers;
- Use and training of substitutes;
- Rules child will follow regarding sharing of food;
- Changes in classroom or lunchroom;
- Procedures during field trips and on school buses;
- Food allergy bullying;
- Plan for storage of safe snacks; and
- An emergency care plan (it may incorporate an ECP).
Parents should raise issues of concern for their child. Most children with serious allergies should have an IHCP, if not a Section 504 plan (see below), for their protection in school. An IHCP can contain the very same provisions as a Section 504 Plan; however a Section 504 Plan is a legal document and therefore adds procedural safeguards that do not attend an IHCP.
3. Obtain a Section 504 Plan (504 Plan). Like an IHCP, a 504 Plan describes the actions the school will take to keep a child with life-threatening allergies safe in school. But since it is a legally binding document, a 504 Plan offers due process protections. These can really matter, especially when implementation is a concern. A school may be facing limited resources, like inadequate nurse staffing. Getting a 504 Plan in place before such concerns arise can help to address them efficiently.
To obtain a 504 Plan, you need to write to the school’s 504 Committee chairperson and request a meeting to start the process of developing a 504 Plan for your child. It’s also important to have medical documentation ready. To qualify for a 504 Plan, your child must qualify as having an “impairment” for purposes of Section 504 of the Rehabilitation Act of 1973. An “impairment” under Section 504 is a “…physical or mental impairment which substantially limits one or more major life activities.”
Schools and parents alike are often surprised to learn that the major life activity that the impairment limits doesn’t have to be learning in order for a child to qualify for a 504 Plan in school. For example, if the child’s impairment affects his ability to eat, walk or breathe, a 504 Plan is appropriate for that child to have in school. A serious food allergy that affects a child’s ability to eat safely in school should qualify as an impairment for the purposes of Section 504.
A 504 Plan can incorporate the terms of an IHCP plan, or otherwise include all the IHCP components listed above. In addition, a 504 Plan entitles the parent to:
- Access to a 504 compliance officer to insure implementation;
- The right to parental notice and review of the plan;
- The right to a due process hearing if the plan is not implemented or a dispute arises; and
- Further rights of action with the Office of Civil Rights, and possibly the Federal Courts.
These provisions help make schools accountable, which can make life easier for parents. Parents report that having a legally enforceable 504 Plan relieves them of the burden of having to continually ask for assistance or special accommodations. 504 Plans are available tools in all public schools, as well as private schools that receive or benefit from public funding.
4. Get an Individualized Education Plan (IEP) to protect your child with food allergies. However, the main purpose of an IEP is to provide for a child to receive special education and related services. An IEP may contain all the measures that would go into a 504 Plan, but an IEP is only provided when a child requires special education and related services. A child does not need both an IEP and a 504 Plan. An IEP is a legally binding contract authorized under the Individuals with Disabilities in Education Act (IDEA). Pursuing an IEP makes sense for a child who has allergies in addition to special education needs.
In order to obtain an IEP, you need to write the Director of Special Services for the school district and request a Child Study Team to evaluate your child for special education and related services. When the provisions of a 504 Plan are folded into an IEP, they usually appears in the Modifications and Accommodations section of the IEP.
What if your child attends a private school that does not receive or benefit from federal funding?
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) gives parents of children in private, non-religious schools a tool to advocate for their children with food allergies.
In fact, the original Federal Americans with Disabilities Act was amended in 2008 to further address the needs of children with food allergies. Title III of the ADAAA requires that private, non-religious schools ensure that no child, due to his disability, is “excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”
Private, non-religious have a lower standard to meet. A private, non-religious school can refuse to give an accommodation if it fundamentally alters the program or service, or if the school believes it will result in an “undue burden.” However, courts have established that private, non-religious schools cannot refuse to administer an epinephrine auto-injector to a child who has a life-threatening reaction to certain foods or to bee stings.
Parents should know that if a school refuses to work with them to provide an appropriate plan, the parent may seek redress through the Department of Education, the Office of Civil Rights, the Federal Courts or even the Department of Justice. A special education attorney can assist a parent in negotiating with the school in order to explain the child’s needs and rights, and help a parent work productively towards an amicable agreement with the school on an appropriate plan. Any plan should be in writing, and an attorney can help determine which plan is appropriate for a child’s protection.
Sussan, Greenwald & Wesler attorneys are available to answer questions from parents who are looking to put plans in place for their children with food allergies
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