Quote from: 13 post_id=109373 date=1219767636Another link to
Letter to Zirkel from OCR

http://www.dueprocessillinois.org/zirkel.html

I couldn't get the link for this in top post to work today.

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Closure/Resolution Letter from OCR to Gloucester County, VA Public Schools

This link is to a bit of a landmark moment for us in that OCR investigated an complaint based on ineligibility. Pete Wright has posted it on wrightslaw.com.

Currently you can scroll down to the fourth paragraph when you see Peanut Allergy.

http://www.wrightslaw.com/info/sec504.index.htm

The link to the Resolution Letter is here:
http://www.wrightslaw.com/law/504/OCR.va.peanut.pdf

And the thread that deals with it is here:
http://allergy.hyperboards.com/index.php?action=view_topic&topic_id=4795

I'm quoting Notnutty from that thread because of the summary:

QuoteJun 6th, 2008 at 08:37 am, notnutty wrote:
. . . I quickly looked through the decision and it appears that the OCR is strongly advising the school to qualify this student based upon the evidence presented.

They have not said that the student is eligible, but are requiring the school to look at the evidence, again...even though the evidence has not changed. What else is the school to do than to qualify? If they do not find the student eligible this time, the school has to provide the OCR documentation of the decision . . . .

The school basically ignored the doctor's evidence that the child has LTFA and didn't produce any counter evidence (like they could). OCR ruled that the SD denied FAPE. This is a very important ruling to us. And how wonderful that OCR went beyond its typical practice. 

QuoteHere is the summary of an OCR case published in the Individuals with Disabilities Education Law Report.  It strongly supports accommodations for PA students.

Here's a link:

http://preview.tinyurl.com/ytz8dk

Here's a summary:

Quote
47 IDELR 22
106 LRP 60925
Saluda (SC) School District One
Office for Civil Rights, Southern Division,
D.C. (SC)
11-06-1102
August 4, 2006
Related Index Numbers
405.030 Discrimination
405.076 Section 504 Plans
405.055 In General
Judge / Administrative Officer
Sharon Solomon, Team Leader

Case Summary

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
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.

QuoteHere is a copy of the OCR letter and settlement agreement with Saint Edward Elementary in Brockton (Brockton Public Schools). The following is a public document obtained through FOIA.

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UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
REGION 1
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE, ROOM 701
POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-4557

AUG 6 2004
Basan N. Nembirkow
Superintendent
Brockton Public Schools
43 Crescent Street
Brockton, MA 02301
Re: Complaint No. 01-03-1214
Dear Superintendent Nembirkow:
I am writing to share with you the results of the Office for Civil Rights� (OCR�s) investigation of the subject complaint filed against the Brockton Public Schools (District) on September 8, 2003 by ****** (Complainant) on behalf of her daughter ******- (Student). The Complainant alleged that Saint Edward Elementary School (School), a private, parochial school associated with the Archdiocese of Boston, discriminated against the Student by denying her access to Federally funded educational programs when it excluded her from attending the kindergarten program at the School.
Jurisdiction and Legal Standard
OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 (Section 504) and its implementing regulation, at 34 C.F.R. Part 104, which prohibit discrimination on the basis of a disability in programs and activities receiving Federal financial assistance extended by the United States Department of Education (Department). OCR also has jurisdiction as a designated agency under Title II of the Americans with Disabilities Act of 1990 (Title II) over complaints alleging discrimination on the basis of a disability that are filed against certain types of public entities including elementary and secondary schools.
OCR determined that the School did not directly receive Federal funds, nor was it a public entity. However, the District does receive funds from the Department; therefore, it is subject to the provisions of Section 504 and Title H. Consequently, pursuant to 34 C.F.R. � 104.4(a) and (b)(v) and 28 C.F.R � 35.l30(a) and (b)(1)(v), the District has an obligation to ensure that it does not perpetuate discrimination against a student by providing any �significant... aid, benefit, or service� to an organization that discriminates on the basis of disability.
If a private school is indirectly receiving Department aid, benefit, or service that flows to the private school from a school district, the school district must ensure that the private school does not discriminate. If discriminatory acts are occurring, the school district must take steps to eliminate the discrimination or terminate its assistance to the private school.
OCR determined that the District provides, through Federally funded programs, significant aid, benefit and service, as defined by the law, to the School.
Both public and private schools that receive Federal funds are required to consider the rights of persons with a disability under Section 504 34 C.F.R �104.33(a) requires a public school district that is a recipient of Federal funds to provide a free appropriate public education to students with a disability who are in the district�s jurisdiction. 34 C.F.R. � 104.39(a) provides that a private school that is a recipient of Federal funds may not exclude a person with a disability if the person can, with minor adjustments, be provided an appropriate education.
A public school district is held to a higher standard under Section 504 than a private school, which is a recipient of Federal funds. A public school district must provide a free, appropriate public education to all disabled persons within their district regardless of the extent of the disability. A private school, which is a recipient of Federal funds, by contrast, must simply refrain from excluding a disabled person provided they could accommodate the student with no more than minor adjustments to their program.
The obligations of private schools indirectly receiving Federal funds from a public school district does not exceed those articulated in 34 C.F.R. � 104.39. Thus, when it is alleged that a private school that indirectly benefits from Federal funds discriminates, while the public school district recipient is accountable, the public school district recipient is only required to ensure that the �sub-recipient� private school complies with the standard articulated for private school recipients.
Issue
Based on the allegation presented, OCR investigated whether the District discriminated against the Student by providing significant aid, benefit, and service to a discriminating organization, in violation of 34 C.F.W � 104.4 (a) and (b)(v) and 28 C.F.R. � 35.130(a) and (b)(l)(v), when the School denied admission to the Student based on her disability without engaging in a process to determine if the School could accommodate the Student with minor adjustments.

Facts
� The Complainant alleged that the School denied the Student access to educational programs at the School that were receiving significant aid, benefit, and service from the District when it excluded her from attending the kindergarten program at the School.
� The Complainant informed the School that the Student was �highly allergic to peanuts� on the School�s admission application, which was submitted to the School in July of 2003.
� The School admitted the Student on July 8, 2003 to attend the kindergarten class in early September. Subsequent to the decision to admit the Student, the Complainant had two phone conversations with the School in July, and on approximately August 18, 2004 a family member (the Complainant was away on vacation) attended an orientation at the School. The fact that the Student had a peanut allergy was discussed during these telephone conversations and at the orientation.
� On August 25, 2003, the Complainant called the School early in the morning and requested to meet with the kindergarten teacher to discuss the Student�s peanut allergy.
� On August 25, 2003, the Complainant and her spouse went to the School for a meeting with the kindergarten teacher. During this meeting, in addition to the kindergarten teacher, the Complainant interacted with the principal, kindergarten teacher�s aide, and secretary.
� The Complainant, her spouse, and the principal, teacher, teacher�s aide, and secretary discussed possible ways to accommodate the Student�s allergy.
� The parties discussed the use of epi-pens and it was determined that the School would, with training and supervision by the District�s nurse, administer an epi-pen to the Student if necessary. It was also agreed that the Complainant would provide three epi-pens to the School.
� The parties discussed the Complainant coming into the kindergarten class and talking to the other kindergarten students about the Student�s peanut allergy and agreed to a date for doing so.
� The parties also discussed procedures for cleaning the rooms used by the kindergarten class and checking the other kindergarten students� lunches and food labels.
� During this meeting on August 25, 2003, the Complainant informed the School that the Student�s allergy was airborne. This was the first time the Complainant had clarified the airborne nature of the allergy. The School had made the incorrect assumption, based on the application materials submitted in July, that the allergy only concerned ingestion of peanuts.
� The School personnel were concerned about the airborne nature of the peanut allergy and about the Student�s safety due to the fact that the School building was used for multiple purposes and by outside groups
� At this point in the August 25, 2003 discussion, the School personnel did not understand the nature of the Student�s airborne allergy to peanuts in view of the Complainant�s request that the kindergarten classroom be peanut-free.
� The principal requested that the Complainant provide the School with a letter from the Student�s doctor explaining the nature of the Student�s airborne allergy. During an interview with OCR, the secretary also explained that she informed the Complainant that she wanted such a letter in order to write the letter home to kindergarten parents explaining the allergy. The Complainant agreed to provide the letter. The School disputes that its letter was only intended to be sent home to kindergarten parents.
� However, the Complainant did not provide the letter from her doctor because the School rescinded the Student�s admission on August 26, 2003.
� The Complainant and her spouse left the meeting on August 25, 2003 with the understanding that the School had agreed to provide a peanut-free classroom for the Student and that the School could make no guarantee that the Student would not come in contact with peanuts.
� The principal stated to OCR that she had a different understanding. The principal stated that on August 25, 2003, the Complainant, in the presence of the secretary, insisted on a peanut-free school. The principal stated to OCR that she told the Complainant that the School could not provide a peanut-free building.
� While the principal�s sincere perception may have been that the Complainant was requesting a peanut-free school, OCR determined based on its investigation, including interviews with the Complainant and the principal, teacher, teacher�s aide, and secretary, that the Complainant had requested a peanut-free classroom. Specifically:
� The Complainant requested to speak to the kindergarten teacher about the Student�s airborne peanut allergy.
� The Complainant wanted to have a letter sent home to kindergarten parents.
� The Complainant wanted to speak with the kindergarten students.
� The parties had a substantive conversation about the use of epi-pens evidencing that the Complainant understood that exposure to peanuts was a possibility.
� The parties discussed cleanup procedures in the rooms used by the kindergarten class and inspection of kindergarten student lunches and reading food labels.
� On the morning of August 26, 2003, the principal directed the secretary to call the Complainant and rescind admission.
� The secretary indicated to the Complainant that the decision was based upon the great risk to the Student�s health and safety posed by the multiple uses of the School building. The secretary informed the Complainant that the School could not provide assurance that the School would be peanut-free. The Complainant had a subsequent conversation with the principal as well. The principal stated to OCR that she also told the Complainant that based on the multiple uses of the School building by numerous community groups she could not provide assurance that the School would be peanut-free.
� The parties do not dispute that a peanut-free building may have been more than a minor adjustment for the School; the parties dispute whether the Complainant ever requested a peanut-free school.
� OCR determined that the Complainant was requesting a peanut-free kindergarten classroom and was not requesting a peanut-free school or assurance that peanuts would not be introduced anywhere in the School.
Conclusion
In July of 2003, the Complainant clearly indicated on the School�s admissions application that the Student was �highly allergic to peanuts� The School incorrectly assumed that this meant ingestion of peanuts and not airborne sensitivity. Between July 8, 2003 (the date of admission) and August 26, 2003 (the date of the rescission of admission), the School did not attempt to ascertain the nature of the Student�s �highly allergic� condition. The School�s assumption about ingestion of peanuts, when coupled with the School�s misperception that the Student required a peanut-free school, led the School not to consider, through an appropriate process, whether the School could accommodate the Student with minor adjustments.
When the School learned in July that the Student was �highly allergic to peanuts� it did not determine the nature or extent of the Student�s allergy and, therefore, it did not subsequently determine if it could, with minor adjustments, accommodate the Student�s needs. The School rescinded admission on August 26, 2003 based on its unsupported perception of the severity of the Student�s disability.
The School could have reviewed medical documentation or spoken with the Student�s doctor. Had the School waited to receive a written explanation from the Student�s doctor, they would have learned that the Student�s doctor did not believe that the Student needed, nor was the doctor recommending, a peanut-free school. OCR, as part of its investigation, did receive a written explanation from the Student�s doctor confirming this fact. It could have talked with the District�s nurse assigned to the School or with District health professionals about airborne allergies. The School could have spoken with their counterparts at other parochial schools to ascertain if their counterparts had any experience with airborne allergies. The School could have spoken with other area private schools, and, especially, with the Student�s pre-school. The School excluded the Student from the program without determining the severity of the Student�s disability and the necessary accommodations.
Therefore, while the School was concerned for the Student�s health and safety, the School�s process was flawed and signals a compliance concern for the District under 34 C.F.R. � 104.4 (a) and (b)(v) and 28 C.F.R. � 35.130(a) and (b)(1)(v). As a means to fulfill the District�s obligation, the School has voluntarily agreed to take certain actions in order to resolve this compliance concern. A copy of a Resolution Agreement outlining these actions is enclosed. As is our standard practice, OCR will monitor the School�s implementation of the agreement. We also are requesting that upon receiving any information about implementation of the agreement, the District will review that information and inform OCR in writing of its views of the agreement�s implementation. While OCR is confident that the School will comply fully with the Resolution Agreement, the District must understand that it is legally obligated under Section 504 and Title II to monitor the School�s involvement in programs which benefit indirectly from Federal funds.


OCR wishes to thank you and the District for cooperating with us in resolving this complaint. If you have any questions, please contact Equal Opportunity Specialist Mary-Anne Khoulani by telephone at (617) 223-4147 Attorney Thomas V. Flynn at (617) 223-4137, or Fannie Gaines, Team Leader, at (617) 223-4140.
Sincerely,

Thomas Hibino
Regional Director
______________________________________________________________

To facilitate the resolution of a complaint docketed against the Brockton Public Schools (District), based on the District�s provision of �significant aid and benefits� pursuant to 34 CF.R. � 104.4 (a) and (b)(v) and 28 C.F.R. � 35.130(a) and (b)(1)(v) to St. Edward Elementary School. Brockton (School), in which ******(Complainant) alleged the School denied her daughter (Student) access to educational programs at the School that was receiving significant aid and benefit from the District when it excluded the Student from attending the kindergarten program at the School, the Roman Catholic Archbishop of Boston, a Corporation Sole, at St. Edward Elementary School, Brockton and at St. Mary Elementary School, Quincy (RCAB), agrees, without any admission of liability, fault, or misconduct, to voluntarily take the actions set out below in order to facilitate the District�s compliance with Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990.
1) The School will develop a process by which to determine its ability to accommodate, through minor adjustments, students with disabilities based on their individual needs. The School will provide a written description of this process to OCR for OCR�s review and approval no later than September 1, 2004. The School will commence implementation of the process upon receipt of final approval by OCR. The School will ensure that the approved description is available for review by employees of the School, the parents of the children who currently attend the School, the parents of children known to be considering application to the School, and the District. The School and its attorneys will have the ability to seek guidance from OCR and the District in developing the process.
2) The School will reimburse the Complainant for the difference between the academic tuition at Bright Horizons private kindergarten program in Quincy, Massachusetts and the academic tuition for the kindergarten program at the School for the 2003 -2004 school year.
The RCAB, on behalf of its aforementioned schools, may require from the Complainant and her spouse a general release and withdrawal of all claims, including any pending matters before any agency of the Commonwealth of Massachusetts or before the United States Department of Agriculture (USDA), against the School, Saint Mary Elementary School in Quincy, Massachusetts, the Roman Catholic Archbishop of Boston, a corporation sole, its employees, agents, servants, and priests, incardinated in the Archdiocese of Boston, as a prerequisite to the reimbursement described herein. OCR will provide reasonable assistance to the parties in order to facilitate the receiving, holding, and exchange of a reimbursement check and general release.
The RCAB, on behalf of Saint Mary Elementary School in Quincy, Massachusetts, may require written confirmation from USDA of the closure of the ****** case regarding Saint Mary Elementary School in Quincy, Massachusetts as a further prerequisite to the reimbursement to the Complainant as described herein. --
The School recognizes that the District and OCR will monitor the terms of this Agreement. In
September 2004, September 2005, and September 2006 the School will report to the District and to OCR on the number of students with disabilities for whom accommodations were requested and on the outcome of each request.

Signed and Dated 7/28/2004

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Here are some useful legal links regarding peanut allergy:

Cascade School District
http://oah.state.or.us/decisions/Department_of_Education/R_P_504_Plan_FO_02.doc

La Petite Academy
http://www.usdoj.gov/crt/ada/lapetite.htm

Land vs. Baptist Medical Center
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=8th&navby=case&no=982019P

Mystic Valley
http://www.doe.mass.edu/bsea/decisions/03-3629.pdf

Tennessee Attorney General's opinion
http://www.attorneygeneral.state.tn.us/op/2005/OP/OP178.pdf

Letter to Zirkel from OCR
http://www.allergysupport.org/rhondadocs/Zirkel.pdf