Stinky
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 Posted: Jun 16th, 2008 at 05:27 pm
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Here is our communication: Attny = Bold
To respond to your communication with more detail I have taken your email from Wednesday (below in blue - indented - HERE BOLD AND Italyx) and added my thoughts to each comment. I again want to thank you for your time and attention to this matter. Hopefully the information I have provided will save you some time.
Unless I misunderstand the facts, however, I do not think that there is any disagreement about the conclusion that a severe allergy, depending on the facts, can qualify as a hidden disability for either children or employees under Section 504 and/or the Americans with Disabilities Act.
Please see our “504 Written Request K (document attached) which details k’s history and conditions including documentation from his physicians (full packet to be delivered on Monday, Allergist letter hand delivered to School on June, 9th 2008). We would be pleased to provide any further documentation that you may request.
The issue I wanted to research for you is how Section 504 could or would apply to a student with peanut allergy disability who otherwise has no difficulty learning or accessing school.
He would not be able to access school without accommodations to compensate for his disability.
See also
http://www.fns.usda.gov/cnd/Guidance/special_dietary_needs.pdf
Section II A> Disability (Page 3-5) (pdf attached)
I wanted to look at this question further because usually, for children who have significant and severe allergies precipitated by episodic and unpredictable exposure to such things as bee stings or to contact/ingestion of certain foods, what is required would be to have critical emergency medical response planning in place.
Agreed, emergency medical response planning is critical.
Also critical are:
o Measures taken to prevent exposure and thus a reaction
o Training to recognize when a reaction is occurring
o Access to learning which can not be accomplished without accommodations
o Inclusion and normalcy needs
For those children who do not require any form of classroom or structural accommodation and for whom the life-threatening potential of exposure to the cause of the allergic response does not per se interfere with learning, they are not typically considered as disabled children under Section 504 nor would adults be who do not required any accommodations in the work place.
Please see….
http://www.504idea.org/custom_training.html
Found on the left side column under > Resources > 504 Q&A > Evaluation tab)
Question 14: What if the major life activity impaired is not learning? Can the child still qualify under Section 504?
A common misperception in 504 is that a student must possess a physical or mental impairment that substantially limits the major life activity of learning in order to be 504 eligible. OCR’s position is that while it “may be true in a practical sense that most impairments that would be of concern in an education setting would be those that impair learning,” the major life activity of learning need not be the focus of the equation. “Students may have a disability that in no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning. For instance, a child may have very severe asthma (affecting the major life activity of breathing) that requires regular medication and regular use of an inhaler at school. Without regular administration of the medication and inhaler, the child cannot remain in school.” Letter to McKethan, 23 IDELR 504 (OCR 1994).
Preparation to respond to the possibility of the medical crisis is extremely essential.
Yes of course I agree. K has had to be treated in a crisis by school personnel at his preschool. Their training and knowledge enabled them to act quickly, correctly and decisively. However he is continuously excluded from activities, and has had to be kept home many times during holidays, “events” and activities involving foods due to his allergy when a safe alternative would be easily accomplished.
When school districts do Section 504 planning for children with disabilities it is because their hidden or patent disabilities significantly interfere with their ability to learn and/or access education/school (for example, they may have ADHD and need to take more time on tests in a quiet area) or to physically access the school environment (for example, to get into the school ramps are required or a child may need to be helped to take medication during the school day.)
I liken the allergen free class room to the school ramp. Without that accommodation he can not attend school. When he was first diagnosed (based on his allergist’s recommendation) we pulled him from his preschool until they created a safe (nut free environment) and updated staff training
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Stinky
Jun 16th, 2008 at 05:44 pm »
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I spell bad and am not a medical professional.
DS(1 and only) - PA,
Ddog - allergic to wheat - on gf raw food
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Stinky
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Posted: Jun 16th, 2008 at 05:30 pm
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Many students and employees have disabilities that do not significantly interfere with learning or working, and they require no Section 504/ADA accommodations either at school or in their employment. A child whose disability does not significantly interfere with the child’s ability to learn or with some other major life activity does not require a Section 504 plan and therefore may not be seen as a Section 504 child.
In his request document I will detail the major life activities that are significantly impacted.
There are many, many of those children attending public schools who have hearing aides, glasses, artificial organs/limbs, heart murmurs, blood disorders, and many other physical and medical conditions which do not interfere with their education and do not require any modifications in the classroom or school house setting and whose disabilities – hidden or not hidden -- do not require any Section 504 accommodations at all. There are, of course, many others even with similar disabilities which do require accommodations. These situations are all individually considered and decided and must be.
Yes they must be looked at individually.
Again the question is: what is the application of Section 504 for children whose only disabilities requires an emergency medical response and which do not interfere on any on-going or regular basis with the children’s learning.
Learning is affected by living with the constant knowledge that a common food source could kill you and that you are never 100% safe. Even in an allergen free home contamination can occur through the mail, clothes and shoes, visitors, pets, pests, etc. In a school environment the best that you can do is to reduce the risk, but the allergic child/person must always be aware of their surroundings in order to protect themselves. They must develop strategies and mechanisms to advocate for themselves in an environment where well meaning authority figures might unknowingly expose them or encourage them to eat food which may not be safe. Most four year olds would happily accept candy from a teacher or chew on a pencil or skip washing their hands, but these are things that an allergic child must never do. It is a constant effort for a young child to remember and accomplish these things.
I do think it is entirely possible that as the wave of children with life threatening food allergies age into the school system that eventually the IDEA and IEP will be used as it will be shown that they actually qualify and would be better served through that process. However with regard to the 504, as shown above, learning need not be affected and impact need not be ongoing.
I’m certain that there are children whose life threatening allergies could and do interfere with their learning at school and, therefore, would require some in-classroom modifications. I think of a situation such the need for a built-in air cleaning or air conditioning system so a child with a severe dust or pollen allergy could breathe safely at school or he/she couldn’t attend school at all. That is not the basis for your concern as I understand you to be saying that in the event of a major medical crisis related to your son’s condition that he will have an allergic response that will interfere then with his learning, his breathing, and other major health functions and that you want a plan to avoid that happening. That would not typically be seen as any type of Section 504 application of which I am aware; but I wanted to look at that question for you.
Saluda > copy to be delivered
Because the Section 504 plan for a sixth-grader with a peanut/tree nut allergy did not specifically identify the safety procedures implemented to protect the student from accidental exposure, the persons responsible for emergency responses, or the training to be provided to staff members, OCR concluded that a South Carolina district failed to develop an appropriate 504 plan. OCR noted that plans such as the student's need to set forth certain types of information, including the specific measures that will be taken to protect the student from accidental exposure, procedures regarding the proper handling of epinephrine, the identities of the persons responsible for emergency responses, and the sanctions that will be imposed on persons who harass the student because of his disability. "Although the [student's]plans meet some of the FAPE and other elements references above, they do not include -- or reference district policies, procedures or protocols that include-- [these. specific terms]," OCR wrote. OCR also pointed out that the district failed to provide documentation to the student's parent regarding staff training. Furthermore, OCR observed that the district continued to serve peanut butter sandwiches in the school cafeteria for nine months, and that it failed to notify parents and students about the nature and
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DS(1 and only) - PA,
Ddog - allergic to wheat - on gf raw food
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Stinky
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Posted: Jun 16th, 2008 at 05:33 pm
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severity of the student's allergy. However, noting that the district signed a voluntary agreement addressing the parent's compliance concerns, OCR closed the parent's complaint
Gloucester > OCR resolution letter copy to be delivered and pdf attached and linked
http://www.wrightslaw.com/law/504/OCR.va.peanut.pdf
http://www.wrightslaw.com/info/sec504.index.htm
OCR ruled that Gloucester Co, VA denied FAPE
Complainant alleges that the school denied FAPE by failing to timely develop and implement a 504 or other Plan. The school contends that it was not required to provide the student with a 504 because she doesn’t have a disability.
OCR: “When a school division’s decision that a student is ineligible for Section 504 services could result in the death or serious illness of the student, there is a basis for finding that the case involves “extraordinary circumstances” that support a substantive OCR review of the Division’s decision.
Student had evidence that allergies could be life-threatening. from doctor’s letters (2).
OCR had “concerns regarding the consistency with Section 504 and Title II of the “result” or substance of the Division’s determination that the Student in ineligible for Section 504 services. These concerns are also based on the fact that the evidence from the Student’s doctor was not contradicted by any other evidence, and that neither the evaluation team members nor anyone with whom they consulted had qualifications approaching those of the Student’s doctor to diagnose the nature and severity of the Student’s PTAs and the likelihood, nature and severity of the harm that could result from the Division’s failure to find the Student eligible for Section 504 services.”
OCR got the school to re-evaluate the student to determine “whether she is eligible for services under Section 504 and Title II, and, in doing so will comply with 504 process requirements. The agreement provides that if the Division finds the Student is ineligible for services under Section 504 and Title II, it will provide OCR with documentation of its decision. If the Division finds the student is eligible for Section 504 services, it will provide OCR with a draft 504 Plan that complies with the requirements and regulations under Section 504 and Title II. We note that one of these requirements is the FAPE requirement.”
Mystic Valley (pdf attached)
Mass. Bureau of Special Education Appeals Ordered: Mystic Valley Regional Charter School shall implement the following accommodation under Student’s 504 Plan: 1. No peanut/tree nut products are allowed in the Students classroom. 2. All other accommodations accepted by Parents shall continue to be implemented. 3. Child must have access to all classroom activities such as the celebration of Chinese New Year, accommodated accordingly ie., no restaurant prepared food, food preparation not to include peanut oil, etc.
The cases above document that indeed a 504 plan can and should be applied to children with peanut allergy. Please understand that while a plan to avoid a reaction and to treat one effectively is definitely needed, also needed is a plan to apply his comprehensive rights to access and inclusion in an educational setting. In my formal request I will detail some of the emotional aspects with documentation from experts in the field and as to how the constant exclusion can lead to risky behavior and may account for the increase in fatalities during the teen years.
I am unclear what you feel would be the need/benefit or advantage of having a Section 504 designation or plan for your son in addition to the required emergency health care plan. Please feel free to share anything more that would help me understand your thinking about this.
It is not required to demonstrate “need” in order to be eligible.
A 504 plan offers broader protection than an IHP would alone. We have been overwhelmingly pleased with Principal, Counselor, Nurse and all the teachers that we have observed and met at the Elementary. However there is no assurance that they will continue in those roles. A 504 designation would outline the duties of the School and its personnel that would supersede the employment or will of any of the individuals involved. It would also encompass more than emergency reaction plan but include provisions for inclusion, access to all facets of school life, and enforcement procedures.
I have demonstrated that K qualifies for this Civil Rights protection and feel that it will not only benefit him in the long run but will also benefit the School District.
On Monday I will deliver to you hard copies of the attached request for a 504 designation as well as copies of his medical reports and the Saluda case.
I hope that you have found this helpful and that we can move forward in developing a comprehensive plan for K’s safety and well being in
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Stinky
Jun 16th, 2008 at 05:34 pm »
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I spell bad and am not a medical professional.
DS(1 and only) - PA,
Ddog - allergic to wheat - on gf raw food
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Stinky
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Posted: Jun 16th, 2008 at 05:33 pm
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in his school career.
Should you have any questions or concerns I would be happy to address them.
Thank you very much for your time and concern in this matter.
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I spell bad and am not a medical professional.
DS(1 and only) - PA,
Ddog - allergic to wheat - on gf raw food
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melissa
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Posted: Jun 16th, 2008 at 05:43 pm
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Way to go SB!!! Wow, we need to sticky those responses...you've just done everyone's work for them!
Melissa
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It is only with the heart that one can see rightly; what is essential is invisible to the eye.
Antoine de Saint-Exupery
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Momcat
Member Member is offline Kliban's Momcat
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Posted: Jun 16th, 2008 at 05:51 pm
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<SWISH!>
Was that the sound of a slam-dunk? 
I bet that attorney wet her pants when she read your message 
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DD12 allergies: peanuts
DS8 allergies: eggs
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CMdeux
Moderator1 Member is offline Sure, the voices aren't real-- but sometimes they have good ideas.
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Stinky
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Posted: Jun 16th, 2008 at 05:54 pm
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I am not worthy!
although I am proud of these two lines....
I liken the allergen free class room to the school ramp. Without that accommodation he can not attend school.
I do think it is entirely possible that as the wave of children with life threatening food allergies age into the school system that eventually the IDEA and IEP will be used as it will be shown that they actually qualify and would be better served through that process. However with regard to the 504, as shown above, learning need not be affected and impact need not be ongoing.
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I spell bad and am not a medical professional.
DS(1 and only) - PA,
Ddog - allergic to wheat - on gf raw food
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Momcat
Member Member is offlineKliban's Momcat
Posts: 5,635
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Posted: Jun 16th, 2008 at 05:55 pm
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Jun 16th, 2008 at 05:52 pm, CMdeux wrote:
Is that a bear cannon... or are you just happy to see me? 
Hard copies, coming up!
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DD12 allergies: peanuts
DS8 allergies: eggs
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Stinky
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Posted: Jun 16th, 2008 at 06:46 pm
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I spell bad and am not a medical professional.
DS(1 and only) - PA,
Ddog - allergic to wheat - on gf raw food
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McCobbre
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Posted: Jun 16th, 2008 at 06:47 pm
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Oh, you are rockin' SB!!! Totally rockin'!!
It's brilliant, absolutely brilliant. As someone recently said, "should be set to music."
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"Words are our most inexhaustible source of magic. They are potent forms of enchantment, rich with the power to hurt or heal."~Albus Dumbledore
Me: shellfish, chamomile, sesame and a few odds & ends
DS: peanuts
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McCobbre
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Posted: Jun 16th, 2008 at 07:55 pm
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Your SD's attorney just doesn't get that it's about access.
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"Words are our most inexhaustible source of magic. They are potent forms of enchantment, rich with the power to hurt or heal."~Albus Dumbledore
Me: shellfish, chamomile, sesame and a few odds & ends
DS: peanuts
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Stinky
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ajasfolks2
Moderator1 Member is offline Pointing toward TRUTH
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Posted: Jun 16th, 2008 at 08:16 pm
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How many freaking times did you have to beat your head against the brick wall and state again that 504 IS NOT ABOUT LEARNING (one-and-only) HAVING TO BE AFFECTED?!
GGA! This is the SD atty?!
Or is she just playing games?
Printing THIS thread before I disconnect my printer later this week to move it.
~e
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lilpig99
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Posted: Jun 17th, 2008 at 02:38 pm
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wow SB, you've done a great job with your response!!! 
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He doesn't need a 504 - an IHP will act as his 504 : Page 3 = 504 winning arguement; Page 5 - one month in - (Read 6,328 Times)
