QuoteQuote of the day

If a school district is meeting the needs of children without disabilities to a greater extent than it is meeting the needs of children with disabilities, discrimination is occurring. Letter to Zirkel

Quote
Sorry, I know this was lengthy and I know it's been brought up..but I thought it pertinent to the recent discussions. (For those that don't know this was a board of sped appeals case in MA)

What I take from this and other things I've read is that it's:

1. up to the FA parents to prove LTFA by documentation. Letters from allergists being the best.

2. ask for specific accommodation

If the school says no, they need to state specifically why and come up with an alternative. (get this in writing)

However, if the requested accommodation is reasonable and does not cause an undue burden, then the school has to do it. They can not say no b/c of inconvenience.

Also from the following:

http://www.livingwithout.com/features/vault_schoollunch.html


In a suburb southeast of Cleveland, Ohio, Aurora City School District nurse Sandra Petti says there are 20 severely allergic children out of 2,500 students in the Aurora schools. The district has been able to keep these children safe by changing relatively few things. The cafeterias switched to self-contained peanut butter packs and started serving celery sticks with ranch dressing instead of peanut butter. Certain crafts, like the pine cone bird feeder filled with peanut butter and bird seed, are no longer made in school.

"We haven't had a parent ask for a peanut-free cafeteria or ask to have their child placed at a peanut-free table, but that's certainly a possibility," Petti says. "The government requires us to provide a free and appropriate public education for all kids. We're doing all we can to help these families so that it doesn't come to the point where parents feel their only recourse is to file a complaint under the American Disabilities Act."

Another great link for fape (and not so great in some ways)

Section 504 and students with special dietary needs.

http://lathropclark.com/contentpublications/PDF/SpeechSeminars/2007/WCASS%20Sec%20504%20outline.043007.final.pdf

Quote
Under the particular facts of this case, this argument is not persuasive. The evidence shows that Student receives most of his instruction, and has lunch and snacks, in the same classroom. He only leaves this room for reading. So long as no food is consumed in the
other classroom while Student is there, and assuming that Mystic Valley continues to implement the rest of the accepted accommodations for Student in that classroom, it will be able to maintain Student's safety.
Furthermore, numerous schools and school districts in Massachusetts and elsewhere in the United States and Canada have successfully implemented bans on peanut/tree nut products. (SE-11) Specifically in Massachusetts, while some school districts have banned peanut products altogether from classrooms and cafeterias, others have addressed this issue by offering a compromise solution, such as providing a peanut free table in the classroom and/or the cafeteria. These decisions depended on the number of allergic 28 students in the particular school/district, the age of the student, etc. (SE-11; Testimony of Ms. Beyer, Ms. Moriarty, Mother) Dr. Ostro recommended adopting a policy prohibiting peanuts/tree nut products in Student's classroom as he stated that said accommodation was reasonable given Student's sensitivity to these products, and because such a policy has proven to be effective and workable in schools that have implemented them. (Testimony of Dr. Ostro) The evidence supports this finding.

Dr. Biegler testified that Mystic Valley feared an increase in liability by imposing a ban. (Testimony of Dr. Biegler) He explained that if said policy were in place the staff would have a false sense of security and would fail to act as diligently as they would without the ban. This argument is not persuasive first, because the Parents never argued that this ban should be implemented to the exclusion of any other accommodation which is already in place (eg., teacher checking students' lunches and snacks daily, sanitation protocols). Those accommodations should stay in place. Second, this charter school imposes numerous other additional bans regarding food, dress code, make-up, hair style, personal appearance, body piercing, jewelry, weapons, drugs, smoking, etc. For an infraction on each of these, the student's handbook states a consequence. (PE-24; Testimony of Ms. Kinnon, Mr. Biegler) Dr. Biegler testified that for the most part, parents and students comply with the school rules and that the most common infraction has to do with food.
Dr. Biegler stated that "if you have a ban there will be violations" (Testimony of Dr. Biegler) While infractions may occur, Mystic Valley's own experience shows that having a policy in place is a deterrent and that more often than not students and parents
follow its strict policies. Also, as is the case now, if a student brings a forbidden food item it is taken away and the student is offered the alternate lunch.

Since Mystic Valley failed to introduce substantial evidence with respect to the costs or other burden of implementing the peanut/tree nut free classroom for Student, there is no basis to conclude that the accommodation sought by Parents imposes an undue hardship on Mystic Valley. Moreover, Student did show that he requires the aforementioned accommodation and that it can be provided. I find that Student met his burden but Mystic Valley did not meet its burden to show that the accommodation would cause it undue hardship. See Garcia-Ayala v. Lederle Perenterals, Inc., No. 98-2291 (1st Cir. 5/18/00) cited in In re: Worcester, at 26, 27.

Mystic Valley Regional Charter School shall implement the following accommodations under Student's 504 Plan:

3. Child must have access to all classroom activities such as the celebration of the Chinese New Year, accommodated accordingly ie., no restaurant prepared food, food preparation not to include peanut oil, etc.

Quote
The position expressed by Mystic Valley's administrators is legally flawed in many respects. First, in reaching their determination as to whether the accommodation requested by Parents is or is not reasonable, they weigh the inconvenience of a total ban
on other students. (Testimony of Ms. Kinnon) The impact of a modification on the rights of other students is in regard to education and how the modification would effect their
education. Nothing under the facts of the case at bar shows that the educational program of other students would be affected by banning peanut/tree nut products from the classroom.

Mystic Valley's argument in favor of protecting the right of other students to bring peanut butter snacks and lunches into the classroom over providing a safe environment for this seven year old Student, is mistaken. It considers the inconvenience to individual
parents/students over the needs of the handicapped individual. The hardship discussed in the statute relates to the institution, not other children. More importantly, Mystic Valley failed to provide any evidence that the program would in any way be fundamentally
altered if peanut/tree nut products were banned. Its actions disregarded the needs of the handicapped student in question and resulted in discrimination regarding access to class
activities (ability to participate in the Asian party) and access to education (having to leave the classroom as a result of allergic conjunctivitis). Throughout the 2002-2003
school year, Student's kindergarten year, peanut butter sandwiches were one of the two alternate lunches offered in Student's classroom. (Testimony of Dr. Biegler) The evidence is clear that having a peanut tree/nut ban would not fundamentally alter the nature of the educational program. Section 504 is concerned with whether the requested accommodation even if reasonable, would cause undue hardship to the institution, the administration, its finances or as stated above, fundamentally alter the nature of the educational program. As discussed in In re: Worcester Public Schools, 6 MSER 194 (2000)...the school system must engage in a process of considering whether to provide an accommodation, and this process must carefully and conscientiously consider possible accommodations and weigh their likely impact on the school system. The school district may not "simply embrace what was most convenient for faculty and administration" but instead must consider "alternative means, their feasibility, cost and effect on the academic program."12 ...Rather, whether the accommodation is so substantial a modification as to impose an undue hardship must be determined on the basis of facts regarding the particular student and school. Wynne v. Tufts University School of Medicine, 976, F.

The evidence shows that Mystic Valley already has a variety of food-related bans including a prohibition regarding fast food, including hamburgers, fries, hot pizza and
sub sandwiches made at a commercial establishment, as well as chewing gum and candy. (PE-24; Testimony of Ms. Kinnon) Given the high risk involved here, the ages of Student and the children in his class, the set-up of the classroom, and the number of students in his class, the opportunity for contamination is high. At least one breach in its
policy resulted in a Student having an allergic reaction in October 2003. Common sense would dictate that if the peanut/tree nut products were banned from the class while continuing to implement the rest of the accepted modifications, this would add another layer of protection and would minimize the opportunities for contamination.
Mystic Valley further argues that even with the ban it could not assure 100% compliance. This is true, but the result would be implementation of the same policy that is already in place for students who forget their lunches or bring in a forbidden item. Here, if a student is found to have brought in a lunch or snack containing a peanut/tree nut product, it would be taken away and s/he would be offered the alternate lunch/snack instead. (PE-24; Testimony of Ms. Kinnon) No teacher or administrator in Student's class would have
any more responsibility than the one s/he already has. Ms McKinnon testified that due to scheduling issues, if Student required a peanut free classroom it might be necessary to make the whole school peanut free. She was unsure that Mystic Valley wanted to "go down that road", although she acknowledged that Parents were not requesting this accommodation. (Testimony of Ms. McKinnon)

Quote
(Testimony of Ms. McKinnon) Section 504 mandates equality of access to education and equality of treatment of the handicapped individual vis a vis the non-handicap individual by an institution receiving federal funds. In re: Gabriel C., 3 MSER 29 (1997); 34 C.F.R. 104.34(b). In this regard, "Student must be able to participate with non-handicapped persons in classroom activities, including eating to the maximum extent appropriate to his needs." 34 C.F.R. 104.34(b) 10 Mystic Valley argues that it has provided a "safe place" free of food contaminants for Student and that this is a reasonable accommodation. 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 simply "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. Letter to Zirkel, 20 IDELR 134 (1993) For children as young as Student, socialization skills (learning to take turns in conversation, listening, discussing unfamiliar topics, learning acceptable ways of speaking, table manners, etc.) are an integral part of their education. (Testimony of Ms. McKinnon) Ms. McKinnon testified that Mystic Valley stood for "high standards on values for children," the reason for its creation, and that it wanted its students to be "well-rounded beyond reading and math." It fosters positive intrinsic values and has set many strict rules to accomplish this goal. (Testimony of Ms. McKinnon) Mystic Valley's current policy in this regard is contrary to its own purpose and discriminates against Student based on his handicap. Letter to Zirkel, 20 IDELR 134 (1993) As such, Student is entitled to equal access to a pool of other students during snacks and lunchtime so that he may learn appropriate social pragmatics in a natural environment, simultaneously with the rest of the age like peers in his class. Cascade School District, 37 IDELR 300 (2002)

In his book The Peanut Allergy Answer Book, Dr. Young discusses the danger for allergic students to be singled out as different. (SE-11) Massachusetts Department of Education (hereinafter, "MADOE")
Guidelines, promulgated in October 2002, recognize that "school policies and protocols must respect the physical safety and the emotional needs of these students". (SE-10) It is doubtful that the result of implementing Mystic Valley's current policy is consistent with the MADOE premise.

The DOE Guidelines represent a middle ground. They have been developed as a guide (an indication or outline of policy or conduct) which is meant to offer direction, not to establish the only options available in all cases. The guidelines were intended to be flexible and adaptable. (Testimony of Dr. Young) Dr. Young corroborated that he had been involved in the development of the MADOE guidelines and that the intention was to provide general principles that should be individualized according to the allergic student's specific needs. (Testimony of Dr. Young) A guide's suggestions can be exceeded if necessary. This concept is embodied in decisions issued by the 1st Circuit Court of Appeals. See Wynne v. Tufts Univ. Sch. Of Med. ("Wynne 24 II")11, 976 F.2d 791, 795 (1st Cir. 1992) Dr. Young advocated for a plan where Student could participate in his school program safely. (Id.) According to him, if exposure to peanut products caused a reaction under the plan devised by Mystic Valley Mystic Valley's argument in favor of protecting the right of other students to bring peanut butter snacks and lunches into the classroom over providing a safe environment for this seven year old Student, is mistaken. It considers the inconvenience to individual parents/students over the needs of the handicapped individual. The hardship discussed in the statute relates to the institution, not other children. More importantly, Mystic Valley
failed to provide any evidence that the program would in any way be fundamentally altered if peanut/tree nut products were banned. Its actions disregarded the needs of the handicapped student in question and resulted in discrimination regarding access to class
activities (ability to participate in the Asian party) and access to education (having to leave the classroom as a result of allergic conjunctivitis). Throughout the 2002-2003 school year, Student's kindergarten year, peanut butter sandwiches were one of the two
alternate lunches offered in Student's classroom. (Testimony of Dr. Biegler) The evidence is clear that having a peanut tree/nut ban would not fundamentally alter the nature of the educational program.the plan should be revised. (Id.)

Quote
The documents included in presentation contain a checklist of what Section 504 mandates. This checklist identifies students with life-threatening allergies as disabled and protected under federal law and states that eligible students "cannot be excluded from field
trips, eating in the cafeteria, or class projects because of their food allergy." (SE-5)

Parents argue in rebuttal that daily exposure to peanut/tree nut products denies their son the same opportunity as other students have to a safe and healthy classroom experience, and that the peanut/tree nut free table accommodation segregates him unnecessarily and constitutes a violation to Section 504's mandate to the contrary.

Because of the possible fatal or near fatal allergic reaction, peanut allergy is a potentially severe allergy worthy of serious intervention in school settings given the great amount of
opportunity for accidental ingestion. (PE-21p.17) Avoidance of all peanut and tree nut products is therefore, essential. (PE-21p.34) For this reason, several private schools, public schools and public school districts throughout Canada, Massachusetts and other
parts of the United States, have imposed a total ban on students bringing peanut products into schools. (PE-22) According to Janice Breyer and Michelle Moriarty, who worked in schools where such a ban was in place, the parents of non-allergic students were very
compliant with this policy, and neither one experienced any violations of the policy. (Testimony of Ms. Breyer, Ms. Moriarty)

Having weighed Student's ability to protect and advocate for himself with the risks to his life should ingestion occur, the fact that he is only seven years old cannot be ignored. It is not he who should bear the responsibility to educate the adults but rather the adults who have the responsibility to provide a safe environment for him. While he may be able to control much of what he ingests himself, he cannot prevent incidents like the one involving the girl with the peanut cracker. She acted consistently with how a child would
be expected to act. The results in this case could have been ominous if a peanut product had reached Student's mouth.

Furthermore, there is a real question as to whether Mystic Valley's policy regarding Student may have resulted in discrimination at least once. Over the 2002-2003 school year, Dr. Gebhardt excused Student from school on January 31, 2003, a date when Asian food was being served in the classroom. She raised serious concern over the likelihood that Student might come in contact with the substances to which he is allergic as there is a high content of peanut products in Asian food. (PE-10) She stated that Student would be "missing out on an educational experience because of a potential health problem", 22 namely the risk that he could have an anaphylactic reaction. (PE-10) Excluding Student from educational opportunities is precisely what Section 504 strives to avoid. The current policy prevents Student from participating in the general curriculum not only in instances like the Asian party described above but also every time he suffers an allergic reaction as a result of coming in contact with the peanut/tree nut substance. Each time, Student loses learning time and is deprived of access to the general curriculum. Parents also argue that the accommodation sought by them for Student would eliminate unnecessary isolation and segregation. Currently, Student goes to the peanut/tree nut free table at least three times per day while the other students can stay and eat at their desks. Student can bring a friend to the designated table but the potential for stigmatization is still there. The Parties agreed that Student has many friends. (Testimony of Ms. Duck) He is a "good kid" who readily complies with instructions given to him by adults and follows the protocol for snacks and lunch established for him as he is a docile, child who lives in fear of having an allergic reaction. (Testimony of Mother, Ms. Duck) Given that first grade students are expected to spend the day in the classroom, that he spends every lunch and snack time at the designated table, which constitutes approximately 1 hour per day, the table assignment is stigmatizing and isolating. This fact is made even more poignant when one considers the regular set up of the classroom (students desks are clustered in groups of six) which seems to be designed to promote closeness and cooperative learning among these very young children, as depicted in PE-35.