MANAGING FOOD ALLERGIES IN SCHOOL: Legal and Practical Considerations

1. MANAGING FOOD ALLERGIES IN SCHOOL:Legal and Practical Considerations By: Regan K. Dahle

2. What Is a Food Allergy? • An interaction between food and the immune system. • An allergic reaction occurs when an individual’s immune system recognizes a particular food protein as a foreign invader by releasing histamine and other chemicals.

3. Peanuts Fish Tree Nuts Milk Eggs Soy Wheat Shellfish Most Common Food Allergens • Sesame allergies are on the rise.

4. Hives Swelling Cramps Nausea Vomiting Diarrhea Itchy, watery eyes Shortness of breath Coughing Wheezing Runny Nose Reduced Blood Pressure Fainting Shock Feeling of Impending Doom Typical Allergy Symptoms

5. Anaphylaxis • A sudden, severe allergic reaction that involves various areas of the body simultaneously or causes difficulty breathing with swelling of the throat and tongue. • In extreme cases, it can cause death. Also called a general reaction or allergic shock.

6. Why Should Schools Be Concerned? • According to a recent study in the Journal of School Nursing, 84% of children with food allergies will have a reaction at school, and 25% of children have their first reaction at school. • As little as a milligram of an offending food can cause a life-threatening allergic reaction.

7. Why Should Schools Be Concerned? • Anaphylactic reactions can result in death if untreated or under-treated. • Anaphylactic symptoms can develop in minutes after eating an offending food. • Some researchers now believe that even minute exposures to the allergen that may not cause a reaction can caused increase sensitivity.

8. Why Should Schools Be Concerned? • Fatalities from anaphylaxis most often are associated with either not using epinephrine or delay in the use of epinephrine. • There is no cure or preventative medication for food allergies. • Avoidance is the only way to prevent a reaction from occurring.

9. Legal Framework

10. Federal Legislation

11. Section 504 • Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability. • Applies to institutions receiving financial assistance from the federal government, including public schools. • Ensures that qualified students with disabilities receive a free and appropriate public education. 34 CFR §104.33

12. What Is a Disability? • A physical or mental impairment that substantially limits one or more of an individual’s major life activities. • Having a record of such an impairment. • Being regarded as having such an impairment. 34 CFR §104.3(j)

13. Is a Life-Threatening Food Allergy a Disability? • Under the Section 504 definition, food anaphylaxis should be considered a physical impairment since it is a physiological condition that affects multiple body systems. 34 CFR §104.3(j)

14. Is a Life-Threatening Food Allergy a Disability? • Breathing and eating are major life activities. • 34 CFR 104.3(j) Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001)

15. Is a Life-Threatening Food Allergy a Disability? • No Michigan court has addressed whether an individual with life-threatening food allergies is substantially limited in any major life activity.

16. Is a Life-Threatening Food Allergy a Disability? • In a case involving an individual with diabetes who, like an individual with life-threatening food allergies also had significant restrictions on his ability to eat, the Seventh Circuit articulated well why the issue of substantial limitation would be, at the very least, a jury question:

17. “Mr. Lawson's physician characterized the measures he must take to manage his disease as "a perpetual, multi-faceted and demanding treatment regime" requiring "continued vigilance.“ If Mr. Lawson fails to adhere strictly to this demanding regimen, the consequences could be dire: he could experience debilitating, and potentially life-threatening, symptoms. This evidence is sufficient for a jury to find that Mr. Lawson is substantially limited with respect to the major life activity of eating. Lawson v. CSX Transp., Inc., 245 F.3d 916, 924 (7th Cir. Ind. 2001)

18. Federal Government Acknowledges Allergies as Disability • Allergies may be considered a “hidden disability” similar to diabetes and epilepsy. U.S. Dept. of Ed. Office of Civil Rights, Pamphlet: The Civil Rights of Students with Hidden Disabilities under Section 504 of the Rehabilitation Act of 1973

19. Federal Government Acknowledges Allergies as Disability • The Department of Agriculture has identified students with life-threatening food allergies as “disabled” under Section 504 of the Rehabilitation Act. USDA Guidance for School Food Service Staff: Accommodating Children with Special Dietary Needs in the School Nutrition Program

20. What Does it Mean to Provide a Free and Appropriate Education? • Parents cannot be charged for services necessary for the education of the disabled child, unless other students are also charged. 34 CFR §104.33 • Unless it can be demonstrated that the child cannot receive a satisfactory education, disabled students must be educated with non-disabled students.34 CFR § 104.34

21. What Does it Mean to Provide a Free and Appropriate Education? • Disabled students must have equal access to educational opportunities and extracurricular activities to the maximum extent appropriate. Id. • Students with food allergies should not be excluded from the cafeteria.

22. What Does it Mean to Provide a Free and Appropriate Education to a Student with Food Allergies? • They generally should not be denied access to the school bus or on field trips. • Accommodations may need to be made in classroom, lunchroom, during recess, etc., so the student can safely be educated with non-disabled students.

23. 504 Enforcement Mechanisms • Individuals may file a complaint with the Dep’t. of Ed. Office of Civil Rights. 34 CFR § 100.7 • Failure to comply could result in suspension of federal funds or legal proceedings brought by the Dep’t of Justice.34 CFR §100.8

24. 504 Enforcement Mechanisms • Violations of Section 504 can result in private civil actions against District. 29 U.S.C. §794(a) • Eleventh Amendment immunity does not apply. 42 U.S.C. § 2000d-7

25. 504 Plans • Written agreement developed for a particular student that specifies the aids the school will provide to that student so that the student gets equal and safe access to educational opportunities and extracurricular activities.

26. 504 Plan Should Address . . . • School bus • Classroom • Substitutes • “Special” classes • Lunchroom • Recess

27. 504 Plan Should Address • Medication storage • Parent volunteers • Bathrooms • Playground • Drinking fountain • Assemblies • Field Trips

28. IDEA • Individuals with Disabilities Education Act, 20 USC §1400 et seq. • Generally supports students whose disabilities affect their ability to learn.

29. IDEA • Qualified students are entitled to an Individualized Education Program that addresses the special services to be provided to the student. • Less common that a food allergy would be covered by IDEA since the student’s ability to learn is not typically affected, but possible if the restrictions on the student’s activities are extensive enough or if the child has other impairments.

30. ADA - Americans with Disabilities Act • Ensures that no qualified individual with a disability shall be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 USC § 12132

31. Americans with Disabilities Act • School must provide reasonable modifications to rules, policies or practices and auxiliary aids and services to ensure that the disabled student is not excluded, denied services, segregated or otherwise treated differently than a non-disabled student. 28 CFR § 35.104

32. Americans with Disabilities Act • No Eleventh Amendment immunity from ADA claims. 42 USC § 12202 • Violation of the ADA can result in a private civil action, administrative agency complaints, as well as the loss of federal funding. 42 USC § 12133

33. Harassment Concerns • Both federal and state laws prohibit harassment of individuals who exercise their rights under these statutes. • Required accommodations can often be unpopular with staff, students and other families. • Staff should be cautioned against conduct that could be considered threatening, harassing or discriminatory against a student or the student’s family. • Staff should be advised to monitor for and report any teasing or bullying of the food-allergy student.

34. Food Service • USDA, National School Lunch Program and School Breakfast Program regulations require that schools make substitutions to regular meals when a student cannot eat the regular meal because of a disability. • Substitutions or modifications must be based on a valid prescription. • Substitutions or modifications must be at no extra cost to the student. 7 CFR § 15b

35. Michigan Legislation

36. Public School’s Duty to Provide a Safe Environment • The public schools of this state serve the needs of the pupils by cooperating with the pupil’s parents and legal guardians to develop the pupil’s intellectual capabilities and vocational skills in a safe and positive environment. MCL §380.10

37. Revised School Code Section 1179 • Students may possess and use epinephrine at school or school-sponsored event under the following conditions: • Student has written approval from both physician and parent/guardian • The principal has received a copy of the written approvals • Student has an Emergency Care Plan on file.

38. Emergency Care Plan • Contains specific instructions on student’s needs. • Prepared by a physician in collaboration with the student and parent/guardian. • Updated as necessary for changing circumstances.

39. Food Allergy Action Plan

40. Food Allergy Action Plan

41. Revised School Code, Section 1178 • A designated school employee who, in good faith, administers medication to a student in a life-threatening, emergency situation, is not liable in a criminal action or for civil damages, except in the event of gross negligence or willful or wanton misconduct.

42. Gross Negligence • Conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.

43. Willful or Wanton Misconduct • Where there is an intent to harm or, in circumstances in which injury is probable, there is such indifference to whether harm will result.

44. Governmental Immunity • Immunity may be available for tort liability if the employee reasonably believes he or she is acting within the scope of his or her authority; the district is engaged in the exercise or discharge of a governmental function; and the employee's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. MCL § 691.1407

45. Persons with Disabilities Civil Rights Act • Prohibits discrimination by educational institutions. MCL § 37.1402 • Follows similar analysis as ADA claims. • Affords aggrieved individuals a private cause of action as well as administrative remedies. MCL § 37.1605

46. Proposed Legislation • Both federal and Michigan legislators have introduced bills into their respective houses regarding managing food allergies in school. • Current proposed amendments to the ADA may also affect analysis of food allergy issues.

47. Food Allergy and Anaphylaxis Management Act • Versions in both the United States House and Senate. • Currently in House and Senate Committees. • H.R. 2063 and S.1232

48. Food Allergy and Anaphylaxis Management Act Would require the U.S. Secretary of Health and Human Services to develop a voluntary policy to manage food allergies and anaphylaxis in schools and make it available to local educational agencies.

49. State of Michigan House Bill 5052 • Sponsored by Representative Fran Amos. • Introduced on July 24, 2007. • Currently before Committee on Education.

50. House Bill 5052 • Would require the Department of Education, in conjunction with the Departments of Agriculture and Community Health, to do the following: • Review and revise as necessary all guidelines and policies published by the Department of Education and other state agencies involving life-threatening food, insect sting, latex or other substance allergies and asthma. • Provide school districts a model local policy concerning the management of these allergies and asthma.