notnutty
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 Posted: Dec 4th, 2007 at 09:12 am
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I am posting a decision that one of our members received as a result of a impartial hearing. I think this information is invaluable. Thank you to the person who gave me permission to post.
We are hoping to have this posted as a part of our resource thread in a more user friendly format, but until then I wanted to make sure anyone who needs this information can gain access to it. The ruling is 28 pages long plus a 5 page reconsideration. The fomat will be awkward as a result of current board limitations. If you would like a pdf format or a word format sent to you, just PM me.
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Student v, the Newtown Board of Education
Appearing on behalf of the Parents
Appearing on behalf of the Board of Education
Attorney Ajaz Fiazuddin
State of Connecticut
Office of Protection and Advocacy For persons with Disabilities
60B Weston Street
Hartford, CT 06120-1551
Attorney Michelle Laubin
Attorney Melanie Brooks
Berchem, Moses & Devlin, PC 75 Broad Street
Milford, CT 06460
FINAL DECISION AND ORDER
STATEMENT OF ISSUE
The issue to be addressed at the hearing is as follows:
Whether the Student is entitled to protection of Section 504 of the Rehabilitation Act of 1973.
SUMMARY OF DECISION
The Student has a known allergy to tree nuts which requires diligence and care to
limit his exposure to these allergens as well as to peanuts; the Student also has asthma
and environmental allergies. The evidence presented shows the results of allergy tests
and recommendations for the Student's health care. The record evidence does show that
the Student's impairment rises to the level that it substantially impacts his major life activities.
Page 2
This 504 Hearing was held in response to request from parents whose son was
denied protection under Section 504 of the Rehabilitation Act of 1973 by a 504 Team of
the Newtown Public Schools.
The requesting party had the burden of proof which has been met. The Decision of the 504Team that the Student is not a student with a disability requiring
accommodations under 504 is not supported.
PROCEDURAL HISTORY
The Parents of the Student requested a due process hearing from the Newtown
Board of Education in the spring of 2007 because the Student was found not be eligible
for a designation of a child with a disability under Section 504 of the Rehabilitation act.
Accordingly, the undersigned Hearing Officer was appointed May 3, 2007 by the
Newtown Board of Education to preside over the hearing, rule on all motions, determine
findings of fact, conclusions of law, and issue a decision and order in the above stated matter.
A pre-hearing conference call was held May 18, 2007 with the Hearing Officer,
Attorney Ajaz Fiazuddin, for the parents and Attorney Michelle Laubin for the Newtown
Board of Education. The agenda (HO 1)' in the initial conference call covered the
following items: Set a Hearing Date; Determine the Issue; Establish time table for
exchange of witness lists and documents; Determine whether the hearing is to be
recorded and ano9th other general topic. Initial hearing dates were discussed for the last
week of July/first week of August. The issue put forth was whether the Student was
eligible for accommodations under Section 504 of the Rehabilitation Act of 1973.
HO refers to the Hearing Officer's records which consist primarily of e-mail exchange between the parties and the Hearing Officer.
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notnutty
Dec 4th, 2007 at 05:20 pm »
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“The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers.” Scott Peck
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notnutty
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Posted: Dec 4th, 2007 at 09:14 am
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Page 3
Witness lists were discussed as well as a time table for exchanging documents. A second
conference call was held July 6, 2007 to adjust hearing dates since some witnesses were
not available at the suggested dates. E-mail messages were exchanged between all
conference calls for the purpose of clarifying dates, use of a court reporter and so on. A
third conference call was held July 13, 2007 to establish the following time line: Attorney
Laubin would distribute the Board's witness list and documents by July 31, 2007,
followed by the family's list of witnesses and documents from Attorney Fiazuddin. The
Family's case would be presented August 10, 2007 followed by the Newtown Board of
Education, August 20, 2007. In lieu of written briefs the parties agreed to meet again
August 23, 2007 to make Closing Statements limited to an hour for each side with fifteen
minutes for rebuttal. Both Parties were asked to provide clear citations for the cases used
in their closing statements. (In fact both Attorneys gave the Hearing Officer copies of the
cases or Letters they cited.) The parties agreed to share the cost of a reporting service.
Post Reporting covered all three days of the hearing. Attorney Michelle Laubin handled all cross examination of the Family Witnesses and served as Supervising Attorney for Attorney Melanie Brookes who conducted all direct examination of the Board's
witnesses.
There were no objections to the proposed witnesses offered by either party. Dr.
Kenneth Backman, the Student's mother, and the Student's father appeared as witnesses
for the Family. Dr. Richard Lee, Ms. Sally Cox, School Nurse, and Dr. Michael Regan,
Director of Special Education appeared as witnesses for the Newtown Board of Education.
Page 4
Time did not permit comments regarding the exhibits prior to the hearing so all
Exhibits were marked for Identification purposes and as each was presented objections
were raised or marked as Exhibits without objections. The Board's exhibits were
numbered 1-36 and all but B-1 was presented and entered into evidence: many of the
Board's exhibits were presented by the Family's attorney. The Family objected to all the
Board's exhibits which represented minutes of 504 Meetings; the minutes (B-18. B-29,
B-34) were marked as exhibits because they represented the Business Documents of the
School. The Family initially offered page three of B-34 as an Exhibit but withdrew the
offer of the Exhibit when objections were raised about submitting on part of the Exhibit.
The Exhibit B-34 later came in through the Board of Education presentation. The Family
Exhibits 1-5 which were the Student's mother's transcription of her tape recordings of the
504 Meetings were not admitted to evidence over the objection of the Family because
they couldn't be completely verified as reliable and were not helpful or relevant in
advancing the issue of the Student's eligibility. Family Exhibit 65 was not admitted to
evidence because several sections of this Medical Record from Dr. Lenard were redacted
with black marker, therefore making the record incomplete; in addition Dr. Lenard was
not called as a witness. Several Family Exhibits marked for identification were not
presented. Family Exhibits 17-25; 27-55 were all e-mail messages exchanged between
the family and the school over the course of the school year. Those e-mail messages
were marked as a group illustrating the intensity and frequency of communication
between the family and school.
The Appendix attached to this Decision and Order contains a complete listing of
the Exhibits which were accepted as evidence.
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“The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers.” Scott Peck
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notnutty
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Posted: Dec 4th, 2007 at 09:16 am
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Page 5
STATEMENT OF FACTS
1. The Student is a six year old who was enrolled in the Elementary
School, Newtown Public Schools as a kindergarten student in April 2006. He has a birth
date of. B-2)2 He lives with his parents at Newtown,
CT 06482.
2. When the Student was enrolled at Elementary in April 2006 the
Student's mother completed the Student's health history (B-2). She indicated the Student
had food allergies - peanuts and tree nuts; asthma, frequent coughs and colds, pneumonia
and bronchitis and wheezing, and that he required an epic-pen. Further, she indicated the
Student had two out patient emergency room visits: once for ingestion of a substance and
once for playing in the yard with tree nuts. (Testimony R. Riley; B-2, pgs 3, 4) In the
Health Assessment Record, Part I dated July 21, 2006 and completed by the parent, the
Student's mother indicated she did not have any overall concerns about the child's
general health but stated the Student has asthma and severe tree nut/peanut allergies
which required nightly medication and noted the two incidents which required trips to the
Emergency room. 3 The Student's Healthcare Provider completed Part 11, Medical
Evaluation, on July 21, 2006 and indicated the Student has mild to moderate asthma and
anaphylactic reactions to foods: nut and peanuts which may require emergency action at
school. However, the health care provider, Pediatric Healthcare Associates, indicated the
2 B represents the exhibits from the boards of Education which are listed in an appendix.
3 During testimony and in written evidence the parents referred to the trips to the Emergency Room as
hospitalizations. The time in the emergency room extended several hours but there is no evidence the
Student was formally admitted to the hospital.
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Student could participate fully in the school program, including physical education and that the student has maintained his level of wellness. (B-2, pp 1, 2)
3. The Student's mother called the school nurse, Sally Cox, in April
2006 to talk about her son's food allergies and also to relay the Doctor's comments about
those allergies. On July 14, 2006, the School Principal, Donna Page and the
School Nurse, Sally Cox, sent a letter to all Parents and Guardians of children in the
morning and afternoon kindergarten classes of Janet Vollmer advising them that several
students in Kindergarten have allergies to peanuts and other nuts, asking for cooperation
in not sending a child to school with any nuts or products containing nuts or nut oils or
nut flavors. (B-5) The classroom was identified as a Nut Free Room. The Classroom
teacher, Janet Vollmer, and the Student's mother reviewed the Student's medical history
prior to the opening of school and discussed how to keep the Student safe in school.
Conversations continued with the school nurse about snacks, labels, class products. On
August 28, 2006 the classroom paraprofessional called to ask if the hazelnut coffee she
drinks would affect the Student's allergies. The Student's allergist said "no".
(Testimony, R. Riley) The Student's parents sent a four page letter to the Staff at
Elementary School in order to describe their son's medical history and his severe, potentially fatal food allergy to nuts and peanuts. (Testimony, R. Riley; F-164)
4. Ms. Cox, the School Nurse testified that a Food Allergy Action Plan was in
place before school started. The plan was signed by both the Student's mother and his
pediatrician, Dr. E. Lenard on August 28, 2006. (B-4) The Plan for this Student with
peanut and nut allergies is divided into two Sections: Step I, Treatment and Step 2,
4 Family documents entered as evidence are marked F and contained in an appendix to the decision. 5 This document uses the form suggested by the Food Allergy and Anaphylaxis Network.
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“The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers.” Scott Peck
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notnutty
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Posted: Dec 4th, 2007 at 09:17 am
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Page 7
Emergency Calls. Step I describes what is to be done in the case of ingestion but no
symptoms and in case of specific symptoms. The Student is to be given Epinephrine and
Antihistamine - first two teaspoons of oral Benadryl immediately, followed by use of an
auto Epi-pen. Step 2 provides all the emergency numbers to be called on behalf of the
Student but no. I is to call 911 and indicate an allergic reaction has been treated and more
epinephrine may be needed. (B-4, pg. 1) The second page of the Food Allergy Action
Plan again reviews symptoms and describes minor reactions such as hives, no respiratory
symptoms or GI symptoms which only require two teaspoons of oral Benadryl.
However, if an Allergen is ingested, then the Student must be given an Epi-pen, Benadryl
and transported immediately to the nearest hospital emergency room. (B-4, pg. 2)
Included with the Food Allergy Action Plan is a guide for Training Paraprofessionals by the School Nurse in the use of Epi-pens and understanding emergency care plans for
specific students.
5. The Student started school August 29, 2006. Ms. Cox testified she met with
the Student's mother before school started to review the Emergency Plan, the Student's medications, the medical release for use of the Epi-pen. Ms. Cox discussed how meds are stored and the process by which teachers are alerted to medical needs.
6. Early in September a child in the Student's class had a peanut butter snack
which was identified by the teacher who moved the child with the snack to a separate
section of the room away from the Student. The Student did not have any reaction as a
result of the other child having a peanut snack. (Testimony, Cox) The parents then
wrote a lengthy letter dated September 12, 2006 to all school parents which they asked
the school to distribute. The letter was not distributed per board policy. The parents
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removed the Student from school. The Student's allergist, Dr. Kenneth Backman wrote
the school regarding the severity of the Student's food allergies and his history of
anaphylaxis6 and advised that an Epi-pen be available to the Student on his school bus.
(B-6)
7. School bus drivers, by law, are not permitted to administer Epi-pens 7;
however, Ms. Cox testified that she communicates with the transportation company at the
beginning of the year regarding students with special problems so that bus drivers are
alerted. Dr. Backman again wrote the schools September 26, 2006 supporting the
parents' decision to keep the Student out of school until safety issues were resolved to the
Student's mother's satisfaction in the classroom and on the bus. (B-7)
8. The Student's parents met with Dr. Michael Regan and other school staff
October 3, 2006 to discuss the Student's needs. Dr. Regan sent the parents a copy of the
Individualized Health Care Plan (hereinafter IHCP) and the Emergency Health Care Plan (hereinafter EHCP) as he believed these documents reflected agreements made during their meeting. (B -88) (B-9) Dr. Regan indicated in his letter the school district was in the process of hiring a paraprofessional as a bus aide who could be trained in the use of an Epi-pen. (B-13) In the mean time the school offered the family a mileage
reimbursement. The parents were asked to sign a release form so that the school could
Anaphylaxis is a potentially life threatening medical condition occurring in individuals after exposure to an allergen. It is a collection of symptoms affecting multiple systems of the body which may include skin, respiration, gastrointestinal, cardiovascular besides other symptomatology. Guidelines for Managing LifeThreatening Food Allergies in Connecticut School.
C.G. S. 10-212 details who in schools may administer medication; subset (d) (l) states that with written
authorization of a student's parents and pursuant to a written order of a student's physician ...a school
nurse and a school medical advisor may jointly approve and provide general supervision o an identified
school paraprofessional to administer medication, including, but not limited to medication administered
with a cartridge injector, to a specific student with a medically diagnosed allergic condition that may
require prompt treatment in order to protect the student against serious harm or death.
8 Board Exhibit 3 represents an earlier IHCP; B-9 represents an IHCP in a newer, more detailed form
developed by the school nurse/staff
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“The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers.” Scott Peck
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notnutty
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Posted: Dec 4th, 2007 at 09:19 am
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Page 9
communicate directly with the Student's physicians. Dr. Regan stated the school
expected the Student's return October 11, 2006. (Testimony, Regan, B-9)
9. The response to Dr. Regan was another letter from Dr. Backman, dated
October 9, 2007, reviewing the Student's allergy testing, his history of anaphylaxis and
the medications which should be available to the Student at all times in a safe
environment. (B-10) Thereafter a 504 Accommodation Meeting was scheduled for
October 25, 2007 (B-11). During the 504 eligibility Meeting the Team discussed the
criteria for eligibility and stated they needed more medical information. The parents
declined to sign a release of medical information or permit any school personnel to speak
with the Student's physicians because they considered any such exchange to be an
invasion of their privacy. (B- 18) The Team agreed to put questions in writing for the
Student's allergist and the parents agreed to get the answers from the allergist, Dr.
Backman. (B-18) The 504 meeting was recessed until such time as the Team's written
questions could be answered.
10. Dr. Backman's written response to the 504 Team's questions was presented
to the 504 Team in a meeting held November 17, 2006. The Student's mother met with
Dr. Backman, secured the answers and also presented him with an IHCP which she had
substantially revised. Dr. Backman supported the parent's revised IHCP. (B -19) Dr.
Backman described the Student's food allergies and indicated he has a severe food
allergy with a history of systemic reaction to nuts and peanuts which puts the Student at
risk for life threatening reactions to nuts and peanuts. (B-19) Once again the school staff
stressed the importance of open communications between the school and the Student's
physician. In a letter dated December 12, 2006 Dr. Regan stated that before the 504
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eligibility process could continue, the school needed consent to speak with Dr. Backman.
The school proposed the communication be between Dr. Richard Lee, a certified allergist
and Dr. Backman or in the alternative Dr. Lee be permitted to examine the Student at the
school's expense. Dr. Regan emphasized the need for the Student to return to school;
tutoring was not a sufficient replacement for the in school experience. (B-24, Testimony,
Regan). Another 504 Meeting was scheduled for February 1, 2007; at that meeting the
family agreed to sign a release of information so long as they could participate fully in any conversations and had the ability to rescind the release. (B-30)
1 1. It has never been in dispute that the Student has severe food allergies and
asthma and that his medical history indicates he has had at least two instances of
anaphylaxis which required emergency room treatment. The first allergic reaction
occurred when the Student was just 18 months old and ate either jelly beans or valentine
candy with peanuts or nuts. He reacted with hives, and red ears; his Dr. gave him
Benadryl and recommended avoidance of peanuts and nuts until the Student could be
tested at about age three. At age three, September 3, 2004, the Student ate cashews or
peanuts at a neighbor's house and complained of a stomach ache. He was taken to his
Doctor where he was given Benadryl and asked to wait. The Student began to vomit and
broke out in hives; The Dr. administered an Epi-pen and called 911. The Student was
taken to the Emergency Room at Hospital where he was treated for
anaphylaxis with an IV of Solumedral9 and Benadryl. The Student was released to return to his Pediatrician, Dr. Edward Lenard, and given prescriptions for Benadryl and a
cortisone like drug as well as a Epi-pen Jr. with directions for use. (F-Exhibit 66,
9 Solumedral is a prednisolone steroid for intravenous use.
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“The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers.” Scott Peck
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notnutty
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Posted: Dec 4th, 2007 at 09:21 am
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Page 11
Testimony, R. Riley) The Student was referred by Dr. Lenard to Dr. Kenneth Backman1, an allergy and asthma specialist.
12. Dr. Backman first saw the Student September 22, 2004. During that visit
Percutaneous (skin) Tests were done for food allergies based on the Student's history.
Skin tests results gave positive results for cashew, walnut, hazelnut and pecan as well as
peanut. Dr. Backman recommended strict avoidance of those foods, nightly use of
Benadryl and Albuterol and use of an Epi-pen when needed. He also recommended
RAST the next time bloods were drawn. RAST tests allergic anti-bodies in the blood
stream. These tests were taken April 1, 2005 by Quest Diagnostics: the Student had a
extremely high level of allergen relative to cashews, high levels for pecans and walnuts,
moderate levels for hazelnuts and low levels for peanuts. (Testimony, Backman, F-4)
Dr. Backman next saw the Student in his office August 15, 2006; he noted the Student
had an incident in which after Student was playing with tree nuts in a neighbor's yard he
broke out with hives and congestion. The Student was treated with Benadryl and an Epi-
pen by his mother and transported to Hospital where he was given oral steroids
which were also prescribed for five days. The examining physician noted the Student
was not having trouble breathing on arrival and had no swelling of the mouth. He was
dismissed to his primary care physician. The Student's mother requested aeroallergen
testing from Dr. Backman; the testing demonstrated the Student is allergic to mold, car,
dog, and tree and weed pollens. Dr. Backman discussed the Student's entering school
and recommended the availability of someone on the bus who could use an Epi-pen. (F-
64; B-6, Testimony, Backman)
Dr. Kenneth Backman was graduated from Cornell University and the University of Chicago School of
Medicine; he treats both adults and children as a specialist in Allergy and Asthma Care in a private
practice.
Page 12
13. Dr. Backman testified during the hearing that he wrote the October 9, 2006
letter to the school at the request of the parents who suggested the content; Dr. Backman
did the wording. He also reviewed the IHCP the Student's mother had prepared and
believed it to be more adequate than another IHCP he reviewed although he couldn't
recall what else he had reviewed. Further, Dr. Backman said the family would not give
him permission to speak to anyone at the school regarding their son. He was willing to
communicate in writing. (B-23) Dr. Backman stressed the severity of the Student's
allergies; the Student is allergic twenty- four hours a day, seven days a week as well as
being asthmatic. He described specific protocols to be observed in emergency situations:
at the sign of allergic symptoms administer oral Benadryl, Epi-pen and call 911 for
transfer to an Emergency Room. The Student can have symptoms from ingestion,
contact and possibly inhalation. Nut oils, peanut oil rarely create inhalation risk; opening
a bag of nuts or peanuts might cause a peanut or nut dust to become airborne. It is more
likely that anyone with severe food allergies will react from contact with this form of
allergen or ingestion. A child handling a food containing the allergen or cross
contaminated with the allergen may react just as the child ingesting a food containing an allergen, and will develop symptoms of allergic reaction which tend to increase in
severity over time. (Testimony, Backman)
14. Once the family gave Dr. Backman permission to speak with the school's
identified expert, Dr. Richard Lee, a conference call was held with the family present as
well as other school staff. Dr. Backman was directed by the family that he could not
communicate with the school or their representatives if they were not present.
(Testimony, Backman, B-30, B -36) Generally, he testified, he is not restricted by
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“The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers.” Scott Peck
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notnutty
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Posted: Dec 4th, 2007 at 09:22 am
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Page 13
patients in communicating with other medical personnel. The parents and Dr. Backman signed an authorization for administering medications in November 2006. (B-2 1)
15. On cross-examination, Dr. Backman stated that the Student has never
exhibited signs of allergies in his office; he relies on the parents for his patient
information. From the Doctor's perspective the Student has normal functions of
chewing, swallowing, digesting, and excreting although Dr. Backman said he has never
done any developmental examination because he is not the primary care physician, only
the Student's allergist. Between visits the Student is always returned to his pediatrician.
16. Following a conference call on February 7, 2007 with Dr. Backman and Dr.
Lee, the family and school staff Sally Cox and Dee CupoleI I, the Student's parents
requested a 504/IHCP Team meeting. (B-31) The meeting was called for March 5, 2007.
( B-32) The Student's parents summarized in a Memo to the Staff the reasons they
believe their son to be eligible for 504 Accommodations under the Rehabilitation Act of
1973 as amended because the child is unable to care for himself, and his breathing is
impacted. (B-33) The Team developed another IHCP for the Student which was sent to
the parents following the meeting. The Team concluded the Student did not meet the
eligibility requirements for designation as a student with a disability under 504 criteria.
The Student does not have trouble breathing when he is not suffering from anaphylaxis
and that his ability to care for himself is age typical. (Testimony Dr. Regan, B-34). They
acknowledge his food allergies and believe an IHCP can provide the safety and
protection the Student needs. The parents disagreed with the decision and as noted in a
follow-up letter from Dr. Regan refused to further discuss the IHCP unless an aide was
Sally Cox is the school nurse for -lementary School and Dee Cupole is the Nursing
Supervisor for the Newtown Public Schools.
Page 14
provided on the bus for the Student. There were no further communications between the
parties and the Student did not return to school. (B-35, Testimony)
17. Over the course of the 2006-2007 school year the school staff revised,
amended and strengthened the IHCP proposed for use. The parent proposed a 24 page
IHCP plan which Dr. Backman approved without any discussion with school staff. The
IHCP written in March 2007 details the Interventions necessary for the Student to be safe
in school and includes a number of items which were in the IHCP plan proposed by the
parent. These interventions outline what the parent (emphasis added) will do such as 1.
Inform school nurse and teacher of Student's peanut tree nut allergy. 2. Provide
physician's order and medication for the treatment of the nut/peanut allergy. 3. Alert the
school nurse to any changes.4 Provide emergency contact information and update as
needed. 5. Provide safe snacks for the student. Speak with school nurse/staff regarding
IHCP. 7. Educate the Student to age appropriate self management and 8.communicate
with the Student's bus driver. The school nurse and the teacher (emphasis added) 1.
Will provide health counseling for age appropriate ways for the Student to participate in
self management. 2. Review the symptoms and sources of all nut/peanut allergens. 3.
Review treatment methods and reporting of symptoms of allergens to school personnel
and follow the Emergency Plan. 4. Post Peanut/Nut free posters so they are visible on the
class room door and doors of all special classroom areas. The school nurse 1. Will
develop and implement the IHCP and the ERP and modify as needed (for school and
bus). 2. Obtain physician's order and emergency response protocols. 3. Obtain
medications from parents. 4. Provide teachers, including substitutes, specialists and
specialty teachers with copies of the IHCP and ERP to be maintained in a designated
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“The truth is that our finest moments are most likely to occur when we are feeling deeply uncomfortable, unhappy, or unfulfilled. For it is only in such moments, propelled by our discomfort, that we are likely to step out of our ruts and start searching for different ways or truer answers.” Scott Peck
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notnutty
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Posted: Dec 4th, 2007 at 09:24 am
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Page 15
place 5.. Will instruct school staff and student regarding measures for avoidance of
allergens prior to the start of the school year, 6. Will contact the transportation director
prior to the start of the school year so the bus driver's are aware of the Student's allergies
7. Will Provide in-service training for school staff including bus drivers, about allergic
reactions and anaphylaxis. 8. Train designated staff in the use of the Epi-pen. 9. Identify
the Student's known peanut/tree nut allergens, 10. Discuss symptom of mild to severe
allergic reactions, including anaphylaxis. 11. Develop specific guidelines for treatment
(from mild to severe) ERP. 12. Document each episode of an allergic reaction. 13.
Review Cleaning protocols for the peanut tree nut free area in the school with the
appropriate school staff and 14. Orient substitute teacher to the IHP and ERP and
medication Protocols. The Teacher 1. Will avoid the use of peanuts and tree nuts in the
classroom and on field trips (snacks, educational tools and art and craft projects and class
parties). 2. Students and Staff will use hand wipes before entering the classroom and after
recess. 3. Will be trained about anaphylaxis and will follow the IHCP and the ERP. 4.
Will encourage alternative classroom treats (non food) for parties and celebrations. 5.
Will make sure the Student's travel medication pack goes with him at all times and when
he leaves the classroom for any reason. (See ERP for location of travel medication
packs). 6. Will seat the Student with a staff member on a field trip bus or other outings. 7.
Will allow the Student to go the nurse for any reason and will be accompanied by a staff
person. The Student will 1. Not eat any food except those that come from home or have
been approved in writing by the parent (food specific). 2. Inform teacher/staff if he is not
feeling well, for any reason but especially if he thinks he may have eaten a peanut or tree
nut product. 3. Should not trade or share foods with others. 4. Should wash hands before
Page 16
eating and after recess or use hand wipes. 5. Will carry his travel medication bag with
him at all times. 6. Will clean his desk in the "specials" with a hand wipe. 7. Should not
drink from the water fountain. 8. Should try to keep his hands away from his mouth,
nose and eyes. 9. Will be transported to school by the school bus or his parents. Other.
Substitutes will be instructed by the office to check with the school nurse prior to the start
of the school day. The parents did not accept this IHCP.
18. Dr. Richard Lee12 appeared at the hearing as an expert witness for the school
administration. 13 In his testimony he described various means of testing for allergies:
skin testing, immunocap test (the most sensitive) and an oral challenge. The oral
challenge test would only be done in a hospital setting. Blood tests turn negative sooner
than skin tests which can present false/positive results. Dr. Lee described anaphylaxis as
a life threatening event which can present through cutaneous reactions, gastro-intestinal
symptoms, and target various organs of the body such as the nose which becomes stuffy,
or asthma symptoms which may close airways. An allergic reaction which results in
anaphylaxis may be more severe in a subsequent episode. He was given the Student's
medical records (F-64) and the allergen test results. He questioned whether the Student
really had a peanut allergy but stated the test results clearly show a level five reaction to
cashews and moderate levels for hazelnuts, high levels for pecans and walnuts and low
levels for almonds. He recommended the complete avoidance of cashews and the
creation of a safe environment in school by creating a nut free classroom, wipes for
children's hands, avoiding cross contamination, tree-nut free tools for the classroom, no
1 2 Dr. Lee was graduated from Rutgers University and SUNY Down State Medical School, He is a board
certified Internist and Allergist and Immunologist who practices at Danbury Hospital.
13 Dr. Lee stated he had held a conference for the Newtown Administrators and nurses about food allergies
and nut/peanut allergies in particular.
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notnutty
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Page 17
food sharing and the availability of an Epi-pen in the classroom. Dr. Lee testified that he
had spoken with Dr. Backman and raised the issue of the low level on the peanut test.
However, Dr. Backman felt the skin test was positive. Dr. Lee stated that it would be his
recommendation to administer an Epi-pen at the first signs of an allergic reaction,
followed by Benadryl because of the speed of the response and the fact that another dose
may be needed on the way to the hospital. Dr. Lee had read the IHCP (B-20) but said he
didn't know who had written it. In his opinion the Plan was too complicated, too
detailed. Dr. Lee stated a Plan must be feasible so that the Plan works: children can wash
their own hands and it is important that a child with allergies be integrated into the
classroom and learn to protect himself. The greatest likelihood for the Student to be
exposed to an allergen is through accidental ingestion or contact. Inhalation in a class
room is rare. In small confined spaces, such as airplanes which re-circulate air, the
opening of a bag of peanuts can send peanut dust into the air. (Testimony, Dr. Lee)
19. Dr. Lee continued to testify that the Student should be in a nut/peanut free
room which should get wash downs. The bus should not be a problem so long as the bus
driver is able to call 911. The use of a sports team bus could be a challenge since sports
teams tend to eat and may leave contaminants on the seat. Adults with Epi-pens should
always be on class trips. It is Dr. Lee's philosophy that the Student should be as fully
integrated in the school as possible with appropriate measures to protect and teach the
child. He stated it is never appropriate to remove a child from school. Dr. Lee stated
he has never seen the Student's complete medical records because the family has not
allowed open discussion. He expressed concern about the Student's asthma impacting
his allergies. Further, he stated he believed the Student has no problems eating; the
Page 18
Student is only limited in what he eats. Any child with a food allergy always has
limitations. On cross examination Dr. Lee stated that with a history of anaphylaxis even if
an immunocap test result is low it is possible to have an anaphylactic reaction to the low
allergen. Specifically Dr. Lee was asked on cross-examination whether he approved the
IHCP developed in January 2007 (B-28). He indicated the staff wrote this plan but it
reflects items he agrees with. The plan calls for the Student to wipe down work spaces in
"special" rooms. Dr. Lee was challenged on how this avoided potential contact with an
allergen if the Student had to wipe down a table or desk. Dr. Lee again expressed some
concern about the Student's asthma and stated that he did not disagree with Dr.
Backman's letter (B-10). He recommends the Student carry his own water bottle because research shows that water fountains frequently have contaminants. Dr. Lee stated
however, he saw no reason for the Student not to be in the classroom.
APPLICABLE LAW:
♦Section 504 of the Rehabilitation Act (29 U.S.C. 704) forbids discrimination in
federally funded programs. That the Newtown Public Schools receive federal funds is
not in contention.
No otherwise qualified individual with handicaps in the United States
shall solely by reason of his/her handicap... be excluded from the
participation in, be denied the benefits of. Or be subjected to discrimination
under any program or activity receiving federal financial assistance ...
♦29 U.S.C. 794 A handicapped14 person is thus "qualified" for the program if
she or he is
(i) of an age during which non handicapped person are provided such services.
14 Congress amended the Rehabilitation Act of 1973 replacing "handicap" with disability. They mean the
same.
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notnutty
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Page 19
(ii) of any age during which it is mandatory under state law to provide such
services to handicapped persons or
(iii) to whom a state is required to provide a free appropriate education under
section 612 of the Education of the Handicapped Act.
♦34 C.F.R. 104.3 (k) In its Regulations under 34 C.F.R. 103.3 (j.) defines a
handicapped person as any person who (i) has a physical or mental impairment which
substantially limits (emphasis added) one or more major life activities, (ii) has a record of such an impartment, or (iii) is regarded as having such an impairment.
Physical or mental impairment means A) any physiological disorder of condition,
cosmetic disfigurement, or anatomical loss affecting one or more of the following
body systems: neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic or lymphatic; skin; and endocrine...
34 C.F.R. 104.3 (j) (2) (i)
♦Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.
34 C.F.R. 104.3 (j) (2) (ii)
Neither the statute nor regulations under Section 504 define "substantial
limitations" to a major activity but both require it for eligibility for 504 accommodations.
Rather the definition appears to be left to the fact finder on a case by case basis.
♦ Title I of the Americans with Disabilities Act (42 U.S.C. 12101, et seq.)
requiring equal opportunities for qualified individuals with disabilities does define substantially limits (emphasis added).
(j) Substantially limits - (1) means (i) unable to perform a major life activity that
the average person in the general population can perform or (ii) significantly restricted as
the condition, manner or duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or duration under which the
average person in the general population can perform that major life activity
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(2) The following factors should be considered in determining whether an
individual is substantially limited in a major life activity: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and the permanent
or long term impact, or the expected permanent or long term impact or resulting from the
impairment.
29 C.F. R. Ch. XIV Part 1630.2
DISCUSSION:
1. The only issue considered in this decision and order is whether the Student
is eligible for accommodations under Section 504 of the Rehabilitation Act
of 1973.
Section 504 of the Rehabilitation Act of 1973 provides the following:
No otherwise qualified individual with handicaps in the United States
shall solely by reason of his or her handicap, as defined in Section 706 (8) of this title, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving federal financial assistance ...
29 S. C. 794
A. The Student does qualify as a student with a disability under Section 504.
The Student must demonstrate that he is handicapped which is defined as "any
individual who (i) has a physical or mental impairment which substantially limits one or more of such person 's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment " to be eligible for accommodations under 504. 29 U.S.C. 706 (8) (emphasis added). A "handicapped person" is defined under the
regulations found at 34 C.F. R., Part 104 as follows:
j. "Handicapped person" (1) Handicapped person" means a person
who (i) has a physical or mental impairment which substantially
limits one or more major life activities, (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment.
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notnutty
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Posted: Dec 4th, 2007 at 09:28 am
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Page 21
(2) As used in paragraph j (i) of this section, the phrase (i) physical or
mental impairments (A) any physiological disorder or condition, cosmetic
disfigurement or anatomical Loss affecting one or more of the following
systems : neurological, musculoskeletal; special sense organs, respiratory,
including speech organs; cardiovascular; reproductive, digestive, genitor-
urinary; hemic and lymphatic; skin and endocrine; or (B) or any mental or
psychological disorder such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning disabilities.
(ii) "Major life activities: means function such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing
and learning.
The Student is physically handicapped within the definition of a disability
because his life threatening food allergies represent a physical impairment which at his
age render substantially limited in his ability to care for himself and at risk for exposure
through casual contact or inadvertent exposure to allergens which impede his breathing.
B. The Student is substantially limited in a major life activity
The Statues and regulations of Section 504 do not define what constitutes a
"substantial limitation" to a major life activity so we must look to case law and
regulations created by other federal agencies who apply the definition of disability and most particularly we must look to the facts of this case.
Title I of the American's with Disabilities At of 1990 (the ADA) (42 U.S.C.
12201 et seq.) requiring equal opportunities for individuals with disabilities includes a
definition of what constitutes a "substantial limitation to a major life activity in an
employment context:
(j) Substantially limits - (1)means (i) unable to perform a major life
activity that the average person in the general population can
perform or (ii) significantly restricted as the condition, manner or
duration under which an individual can perform a particular life
activity as compared to the condition, manner or duration under which
the average person in the general population can perform that major
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activity.
(2) The following factors should be considered in determining whether an
individual is substantially limited in a major life activity; (i) the nature and
severity of the impairment; and the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
29 C.F. R. Ch. XIV Part 1630 0)
It is not in contention that the Student has life threatening allergies; the issue
becomes whether that medical diagnosis is sufficient to produce the existence of a
disability and therefore, the need for accommodation under 504 and the ADA. The U.S. Supreme Court in Albertsons, Inc. v. Kirkingburg, 527 U.S., 555, (1999) the court found that simply having a medical diagnosis is not enough. In 2002, in Toyota Manufacturing, Kentucky, Inc. v. Williams 534 U.S. (2002) the court again address what constitutes "a
substantial limitation".
It is insufficient for individuals attempting to prove disability status...
to merely submit evidence of a medical diagnosis of an impairment.
Instead the ADA requires them to offer evidence that the extent of
the limitation caused by their impairment in terms of their own
experience is substantial. Id. at citing Albertsons, Inc. v.
Kirkingburg, 527 U.S. at 576. That the Act defines "disability"
with respect to an individual. "Sec. 1202 (2) makes clear that Congress
intended the existence of a disability to be determined in such a case by
case manner. See, e.g. Sutton v. United Airlines, Inc. 527, U.S. 471, 483.
1. The Student cannot care for himself
This Student is a six year old child who must be compared to other children in the same elementary age groupings. The Newtown Board of Education argued that this
Student can care for himself the same as every other child in the general age group.
What does it mean for an average six year old to care for himself? Is it enough to say
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notnutty
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Posted: Dec 4th, 2007 at 09:29 am
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Page 23
that he can dress himself, bathe himself, tie his shoes, be toilet trained, have a reasonable
attention span, read or recognize letters or numbers? In the case at hand the facts indicate this Student cannot care for himself.
Schools certainly set expectations for each grade level and expect a range within
those expectations of skill development. This Student is according to all testimony a
normally developing child with the one exception which singles him out from the general
population of six year olds. He has a life threatening allergy to tree nuts and peanuts as
well as asthma and environmental allergies. These allergies don't make him unique but
they set him apart in what can be expected of him at this age level.
According to testimony from both Dr. Backman and Dr. Lee this child is in a
constant state of risk for exposure to life threatening allergies for which there is no
preventive medication, only preemptive cautions and reactive solutions. The only
prevention is avoidance of known allergens which are potentially present in multiple food
products or present as cross contaminants in food products produced in areas in which the
nuts or peanuts may be present. The Student cannot read food labels - this would be true
even if he has grade level reading ability. He must rely on adults to decipher the food
labels and hope that the food products are appropriately labeled as to the potential for production in areas where there nuts or peanuts.
At age six this child may not recognize all the premonitory symptoms he may experience and allergic reactions: children often "don't feel well" but may not
differentiate what is a cold coming on or the beginnings of a systemic response to an
allergen which could lead to anaphylaxis. The Student needs systems in place which
Page 24
afford him protection and at the same time allow him to participate as fully in the educational process as any other child.
The majority of case law dealing with accommodations for persons with
disabilities is found in employment situations. However, the United States Department
of Education (hereinafter, "USDOE") has declined to treat elementary schools as they
would employment situations, restricting modifications to accommodations that are
"reasonable". Instead, the USDOE interprets Section 504 as requiring a school district to
provide whatever modifications, services or supports may be necessary for the student to
receive a free appropriate public education. In re: Student v. Mystic Valley Regional
Charter School, BSEA #03-3629 quoting Letter to Zirkle, 20 IDLR 134 (1993).
In Fraser v. Goodale, 342 F.3' 1032 the Ninth Circuit held that "broadly
speaking, eating is a major life activity. However, eating specific types of foods, or
eating specific amounts of food, might or might not be a major life activity. If a person is
impaired only from eating chocolate cake, he is not limited in a major life activity
because eating chocolate cake is not a major life activity. On the other hand, peanut
allergies might present a unique situation because so many seemingly innocent goods
contain trace amounts of peanuts that could cause severely adverse reactions."
This Student can eat in the literal sense that he can chew and swallow and digest
without difficulty: it is the type of food which limits this major activity. Not only must
the Student take great care to eat only "safe" foods - those free from all tree nuts and
peanuts from sources or manufacturers which have not been contaminated with nuts or
peanuts- but so must all the students and adults around him avoid eating foods containing
or exposed to those allergens.
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notnutty
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Posted: Dec 4th, 2007 at 09:30 am
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Page 25
In the easy care free life of children at school where it is common to touch each
other, to share food, space, equipment, this Student must be protected with modifications and services that enable him to freely participate as others do. " We must carefully
separate those who have simple dietary restrictions from those who are truly disabled. At the same time, we must permit those who are disabled because of severe dietary
restrictions to enjoy the protections of the ADA." Id, 1042.
While the Student's impairment is life threatening and according to testimony of
both expert witnesses, Dr. Lee and Dr. Backman, the Student will never "outgrow" his
allergies, his ability to control the circumstances around the impairment will increase as
he gets older and more knowledgeable about how to care for himself by learning to read
food labels, by recognizing symptoms, by asking for help and by learning to ask the right
questions. Consequently his eligibility as a student requiring accommodations will
change.
2. The Student's Breathing is impaired
The Newtown Board of Education argued that the Land v. Baptist Medical
Center, 164 F3d 423 (8`h Cir. 1999) is applicable to the case at hand. Land is a prominent
case which addresses peanut allergies specifically and the eligibility for protection under
the federal disabilities law. However, there are significant differences between Megan,
the child in Land, and this Student. Megan had two reactions while in Day Care and
although the Court agreed that Megan's allergy to peanuts and all peanut derivatives fit
the definition of disability, they concluded that the allergy did not limit her ability to eat
or breathe, which they agreed were major life activities within the ADA. Land in the
majority opinion also states "Whether a major life activity is substantially limited is an
Page 26
individualized and fact-specific inquiry." (Id. See Colwell v. Suffolk County Police Dept.
158 F. 3d 635, 643 (2d Cir. 1998) Megan in Land was only allergic to peanuts; the
Student in this case is allergic to tree nuts such as cashews, walnuts, pecans, hazelnuts,
almonds and peanuts. While it is true that the Student in this case at hand appears to
have no breathing problems when not exposed to nut/peanut allergens the fact that he has
had two significant anaphylactic reactions and the testimony of the two expert witnesses,
Dr. Backman the Student's allergist and Dr. Lee, the school's consultant, about the life threatening nature of his allergies coupled with his asthma" raise the threat and risk level for his breathing.
C. The Student's medical needs must be addressed so that he is protected under Section 504 of the Rehabilitation Act of 1973 as amended.
The Newtown Public Schools protects the health and safety of all its students and
accordingly developed an Individualized Health Care Plan for the Student which over the
course of the academic year and the continuing discussion of the eligibility of the Student
for accommodations under 504 became more explicit and useful. This IHCP will be an
important element of any 504 Plan as will the Emergency Plan developed by the school.
1. The Student must return to school while the 504 plan is developed.
The IHCP which was developed in March 2007 will enable the Student to return to school this fall while a 504 Plan is crafted by the School's 504 Team with the
cooperation of the parents. As Dr. Lee testified, there is no reason for this Student not to be in school.
15 Fatal anaphylaxis is more common in children with food allergies who are asthmatic even if the asthma is
mild and well controlled. Guidelines for Managing Life-Threatening Food Allergies in Connecticut
Schools.
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notnutty
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Posted: Dec 4th, 2007 at 09:31 am
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Page 27
The Newtown administration did not submit any policies or guidelines it uses in
determining eligibility for 504 or any related services for children with food allergies
although Sally Cox, the school nurse, referred to policies under review and revision in her
testimony and the subsequent versions and forms for the IHCP seem to confirm that these
policies are in place.
2. The Family must cooperate fully with the School Team by providing
unfettered releases for communication with the Student's physicians.
All health care plans for children with significant health issues must be developed
by a Team primarily selected by the school which also includes the parents and, when appropriate, physicians. It is imperative that the Team or its designee such as a school nurse or medical director have unrestricted access to the Student's physician if the best plans are to be made to ensure the health and welfare of the Student while he is in school and school related programs. The Student's physician becomes an important source of information for the Student's medical condition and while he can make
recommendations, he cannot dictate what the 504 Team does. The Student's physician is
not in the school nor is he expected to be knowledgeable about school procedures and
policies.
It is imperative that all parties recognize that any plans developed are not
permanent and will always be fluid as the Student and his needs fluctuate. It is in the best interest of the Student that all parties begin planning in a positive, completely cooperative atmosphere.
Page 28
DECISION
The parents met their burden of proof that the Student is eligible for Section 504
protection. The Student is an individual with a physical impairment which substantially limits one or more major life activities. The Student does have demonstrable life
threatening allergies to tree nuts, cashew, walnut, pecans, hazelnuts and almonds, and to a
lesser degree peanuts. The Student's allergies have resulted in respiratory distress with
two anaphylaxis incidents which necessitated trips to the emergency room. His allergies
to foods can be exacerbated by his asthma. The Student must be permitted to access all
aspects of his education without difficulty in a manner similar to all other students. The
Newtown Board of Education has instituted an IHCP for the Student which will permit
the Student to return to school while a Plan is developed under Section 504 of the
Rehabilitation Act of 1973. The 504 Team's decision that the Student is not eligible for
protection under Section 504 of the Rehabilitation Act of 1973 is not supported.
Peggy McLouth Pschirrer
Impartial Hearing Board
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notnutty
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Posted: Dec 4th, 2007 at 09:33 am
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Reconsideration Page 1
NEWTOWN BOARD OF EDUCATION
IMPARTIAL HEARING BOARD
Before Hearing Officer
Peggy Pschirrer
V.
NEWTOWN BOARD OF EDUCATION October 8, 2007
RESPONSE TO BOARD'S PETITION FOR RECONSIDERATION
The Newtown Board of Education petitioned the Impartial Hearing Board to Reconsider its Final
Decision and Order of September 1, 2007 in which it determined that the Student, :The
Student) is an individual with a disability who is eligible for accommodations pursuant to Section 504 of
the Rehabilitation act of 1973 (Section 504) on the basis that the Hearing Officer erred on two counts:
(A) Did the Hearing Officer err in concluding that the Student is substantially limited in the major life
activity of caring for himself on the sole basis of Student's age? (B) Did the Hearing Officer err in
concluding that the Student is substantially limited in the major life activity of breathing? The Board's
Petition questions, albeit in a footnote, whether the hearing or the request for reconsideration is
actually subject to the Uniform Procedure Act. However, no objections or alternate procedures were
ever raised as the Hearing Officer indicated in an opening statement that the Uniform Administrative
Procedure Act would be applied in the hearing.' The Student's legal counsel was provided an
opportunity to respond to the Board's Petition which he did on October 2, 2007.
The Hearing Officer has reviewed the Decision of September 1, 2007, read the request for
reconsideration as well as opposing counsel's response to that request and concludes that the Student is
1 C.G. S. Section 4-181a (a0 (1) Unless otherwise provided by law, a party in a contested case may, within fifteen
days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the grant that (AS) An error of fact or law should be corrected... Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty- five days shall constitute a denial of the petition.
Reconsideration Page 2
eligible for accommodations under Section 504 of the Rehabilitation Act of 1973. The Decision of
September 1, 2007 stands.
A. The Hearing Officer Did not Conclude the Student is Unable to Care For Himself Solely on the
Basis of the Student's Age. Rather, the Student's Impairment Substantially limits His Ability to
Care for Himself.
A handicapped person is defined under 34 C.F.R. 104.3 (k) as any person who (i)
has a physical or mental impairment which substantially limits (emphasis added) one or major
life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an
impairment. The definition of "substantial limitations "is left to the fact finder on a case by case
basis in determining eligibility for 504 accommodations. See Decision, September 1, 2007 at
19. Title I of the Americans with Disabilities Act (42 U.S.C. 12101 et. Seq.) defines substantially
limits as (1) unable to perform a major life activity that the average person in the general
population can perform.
The Hearing Decision found that the Student is impaired in his ability to care for himself
because of the nature of his life threatening allergies. The Student's general population of
comparison must be tailored to other kindergarten, first grade students - not the total school
population which would exhibit such varying levels of maturity and or ability as to render any
comparison useless. See Decision at 22, 23. The Board's Petition suggests that the Hearing
Officer failed to compare the Student to other children in the general six year old population.
Board's Petition, at 5, 7. Indeed, the Hearing Officer did compare this Student with his general
population of other kindergarten and first grade students and found that the life threatening
nut/peanut allergies combined with his asthma require that he needs "systems in place which
afford him protection and at the same time allow him to participate as fully in the educational
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Recent 504 impartial hearing ruling - (Read 7,755 Times)