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Posted: May 8th, 2008 at 09:15 am     

From another thread currently taking place, a member thought it would be a good discussion to get experiences, advice, and discussion going regarding the caring for one's self impairment regarding qualifying for a 504.

As any of you that have used this argument or have thoughts please share so we have a good resource for those going this route trying to get 504 eligibility.

My experience was with the breathing impairment, although I did argue that it could also be the ability to care for one-self.

From page 21 of the ruling WarmT shared with us located at:

http://allergy.hyperboards.com/index.php?action=view_topic&topic_id=1672&start=1


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.


And from page 22/24:

"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 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 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  but so must all the students and adults around him avoid eating foods containing

or exposed to those allergens.

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.


I think this is very good language to keep in mind if you are making that argument.