Not every child with an allergy or chemical sensitivity qualifies for protection under 504 or the IDEA (for purposes of this article we are going to limit the focus to 504). The school must first evaluate to determine if the student is eligible. A student is eligible if the allergy “substantially limits one or more major life activities”. So, what does that mean? Well just like no two people are the same, no two children’s reaction or allergies are the same and it must be decided on a case by case basis. Many school districts make the mistake of not evaluating a student or finding him ineligible under Section 504 simply because the student was performing well in school. A student’s allergy or chemical sensitivity need not substantially limit the major life activity of learning in order to be eligible under 504 – if the condition substantially limits another major life activity. Food allergies can substantially limit major bodily functions such as breathing, respiratory function, and immune system function, among others, therefore students with food allergies may be eligible under Section 504. Food allergies and chemical sensitivities also have the potential to limit the major life activity of learning for example, a student who has frequent disability -related absences grades may begin to decline. This is where it becomes important to remember that schools must look at each case individually because not every allergy or chemical sensitivity will qualify. What are that child’s reactions like, what is the history of reactions, information provided by a doctor such as, data showing that the student’s life could be threatened by mere exposure? This is important because one child with a food allergy may need to ingest the allergen while for another student mere exposure might be enough to cause a reaction.
Not every allergy that is evaluated will automatically be eligible, however, the district has a duty to evaluate first. An Individualized Health Plan (IHP) or an allergy action plan does not absolve the district of its duty to refer a student for an initial evaluation. So, as a Parent of a child with a food allergy or a chemical sensitivity you can be proactive in letting the school know that your child suffers from a serious allergy and that you would like your child to be evaluated under Section 504. In evaluating your child for eligibility, the 504 team should be made up of persons knowledgeable of the child and the meaning of the data. There is no requirement that this includes the parents, but it is good practice since no one has more knowledge of a child then their parents. The team should consider different sources of information, such as but not limited to doctors reports and recommendations, parent input, teacher input, records from the school nurse, the nature and severity of the students allergies, types of exposure that may cause a reaction, what is needed to ensure the students safety in each type of exposure and what measures are necessary to provide the student’s safety, as well as inclusion with classmates.
The saying “it takes a village” is so appropriate when discussing raising our children in today’s fast paced world. Whether it’s helping new parents by bringing them a hot meal, giving another teammate a ride to a concert or sporting event, or just lending an ear or a shoulder to cry on as we navigate adolescence, we all need help from our community. One area that can be particularly challenging to navigate is educating children with allergies and keeping them safe while at school. This can be so much easier when everyone in the “village” helps. So, what does that mean…it means the fact that a student with a disability might require a service or accommodation should not surprise anyone, yet sometimes other parents do not understand and the school’s ability to provide FAPE (free appropriate public education) under either Section 504 can require active cooperation by nondisabled students and their parents to protect allergic students from allergens.
The school, in efforts to satisfy their obligations under the law, is often required to provide a student with an allergy additional or different services and supports that their nondisabled peers do not receive. For example, some schools have banned all peanut and tree-nut products in order to protect a student(s) with a severe life-threatening allergy. Nondisabled students and their parents may object for several reasons, such as because they are required to change their own lifestyle or because they see the services as an unfair advantage. It may be shocking to learn that here in America we do not have a constitutional right to feed our kids peanut butter – trust me that very case has already been brought and decided upon. All joking aside, for some children this allergy is extremely serious and for the parents of those children to feel safe sending their kids to school they need buy in from the other families in the community.
Prior to ADA/ADAA (The Americans with Disabilities Act/ ADA Amendments Act) in 2008, a student with a food allergy or chemical sensitivity may not have been considered a person with a disability because of what are called mitigating measures. Now, mitigating measures cannot be considered in determining eligibility. So, what would be a mitigating measure? Things like student’s frequent hand washing or bringing a homemade lunch to minimize risk of exposure. The student’s school may have created and implemented an Individual Health Plan (IHP) to address such issues as hand and/or desk washing and use of an Epi-pen a in without necessarily providing an evaluation, placement or due process procedures. The effect of the Epi-pen or other mitigating measures cannot be considered when determining whether a student with a food allergy has a disability. The school must first evaluate whether that food allergy would be substantially limiting without considering the medication and other measures.
Parents need to understand though that a risk-free environment is not the requirement – a reasonably safe environment is. You cannot eliminate all possible risk for any student, but the school must take steps necessary to make the school environment as safe for students with disabilities as they are for non-disabled students. Similarly, you cannot require the school to take precautions and measures that you do not take at home or when out in other public places. Also, you cannot isolate students with allergies because they need to the ability to participate with their peers. Therefore, it takes the entire village to keep all kids safe. Providing information is essential to cooperation. If you are going to ask other families to alter their customary behavior, i.e. sending their kid to school with a PB&J, it is reasonable that they might question the necessity of the procedures they were being asked to follow, i.e. not bringing peanut products to school or handwashing every day before entering school. Just because another parent asks questions does not mean they object to what is being asked. Communication is the key to success. Bans or prohibitions should be as limited as possible while still providing the appropriate level of safety to the student with the disability. However, if a ban or limitation is required, then it should be explained sufficiently to enable nondisabled peers and parents to understand why it is necessary, even if it requires getting FERPA (The Family Educational Rights and Privacy Act) consent to disclose details.
Take Away Tips:
• Providing an allergen-free table. An alternative would be to have a Peanut friendly table. It would depend on the current make up of students to determine what would work.
• Providing alternate snacks for kids who accidentally bring non-allergy friendly snack or provide teachers and other families with a list of safe snacks.
• Wheat/Gluten sensitivities and allergies are on the rise and require different accommodations then other allergies: Permanent laminated bathroom pass or Gluten-free curriculum for cooking class or cooking demonstrations.
• Students with allergies, food or chemical sensitivities can fall behind in schoolwork due to absences, doctor appointments or frequent trips to the nurse’s office, therefore it is important to have a plan to assist them with missed assignments.
• Cleaning surfaces and equipment in a classroom or elsewhere in the school is an accommodation that is necessary in some cases of students with severe allergies, however, the extent of cleaning required, and whether it is required at all will depend on the nature and severity of a particular student.
• Deciding most appropriate placement of Epi-Pen. Whether it is with the student for self-injection, with the nurse, with the teacher or via auto injector.
• In some cases, a student’s allergy may make them eligible under IDEA as “other health impairment” if the condition adversely effects the child’s educational performance or requires specifically designed instruction or related services. For example, separate transportation may be required or counseling with the school guidance counselor to deal with anxiety or past related trauma.
• Detailed EMERGENCY PLANNING and STAFF TRAINING are a MUST.
