USDA Mountain Plains Regional Office Memo

[ajasfolks2]

Single Post

May 2011

Gail W:

http://www.dese.mo.gov/divadm/food/allergypreventionindex.html

Click on the last document titled, "USDA Mountain Plains Regional Office Memo"

Maybe someone with better tech skills can copy and paste the text. This is relevant to 10 states including Missouri.

[Bunny]

I won't be sharing THIS memo with my school. 

[twinturbo]

Yeah, working on that ever since I found the relevant DOJ and HHS/OCR (Dept of Ed) federal regs. Unfortunately I need to hit a law library with valid GPO copies which is nearly impossible given time constraints. I need to verify findings in preparation to cite sources before posting anything that would turn over any apple carts.

Gail, a couple of questions if you'll bear with me.

1. This is a state government site and cites state government codes (RSMo). It (the abstract prefacing the document you linked to) cites its DHSS Department of Health and Senior Services, (Misssouri) Department of Elementary and Secondary Education. Please note that the state DHSS is not the federal HHS, Housing and Human Services.

Consider two things here.
  A. The USDA has its own internal Office of Civil Rights that has the following mission statement front and center.

Civil Rights at USDA:
A Backgrounder on Efforts by the Obama Administration

For decades, the United States Department of Agriculture had an unfortunate and checkered history with regards to civil rights.  Reports going as far back as the 1960's have found discrimination at USDA in both program delivery and the treatment of employees, and we are the subject of a number of lawsuits brought by minority farmers and ranchers alleging discrimination.  This reputation is so pervasive that USDA has been called "the last plantation."  The bottom of this document addresses this history in more detail in a section entitled "A Brief History of Discrimination at USDA."

President Obama and Secretary Vilsack have made civil rights a top priority for the Department, and USDA is working to turn the page to move into a new era for civil rights.  We are correcting past errors, learning from mistakes, and taking definitive action to ensure that there is no disparity in program benefits based on race, color, sex, age, sexual orientation or disability.  It is Secretary Vilsack's goal that the USDA achieves Abraham Lincoln's vision of "the people's department" where each employee and customer is treated fairly and equitably. 

  B. The recent opinion of Maryland Court of Appeals found that the state including the USDA at state level did not have any responsibility to an individual student's food allergy.

Given all this I have to put it to the regional USDA Do you have jurisdiction to do this?

There's a couple of outcropping issues I see conflating their supposition of authority and compliance here.

Evelyn McGregor has a title of Civil Rights, I believe this is USDA internal Civil Rights, not the Housing and Human Services Office of Civil Rights that oversees Section 504 under the federal Department of Education.

There is a passing statement that this policy meets compliance with Section 504 by not excluding children. Really? Show me, Ms. McGregor. Show me where federal HHS, Dept of Ed, Dept of Justice and OCR signed off on this for every child with a 504.



Then there is the question I put to USDA regarding nutrition itself: I would like the authors of the memo to put in excruciatingly explicit detail how many treats should go in the treatbox, what the portion size should be, how often these treats should be eaten, the complete nutitional value of all these treats including total calorie count, sugar in grams, fat, refined carbs and show how that fits in with the nutritional goals of the USDA's programs.

If they want to define a treat box why not totally define it and if they have a LIMIT on how much sugar, carbs, calories and fat they are allowed to define for students as treats within a given timeframe I'd like to hear that, too.

Notice also in their pursuant to (regulations) they cite only Section 504 and USDA, nowhere in there is there anything from the Department of Justice which does have jurisdiction over exclusion from activities with special note that nothing under ADA limits or overwrites where 504 or other regulations have greater or equal protection of disability rights.

So, 28 CFR 36.202 (DOJ Title III ADA). Note that this is not even government institutions but public accommodations. I haven't gone through Part 35 yet for activities but Title II has this specific language Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. There can be no exclusion of ADA if it offers more and greater protections than Section 504 alone and the state government must be compliant with ADA. The only named exemptions are Department of Transportation.

PART 36: NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

Subpart B: General Requirements

36.202 - Activities.

(a) Denial of participation. A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

(b) Participation in unequal benefit. A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.

(c) Separate benefit. A public accommodation shall not provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.

Again, does Evelyn McGregor have the authority to suggest parents pay for a treat box? Must a parent pay for a separate benefit offered to unaffected individuals in order to be included at an activity? How is that ADA compliant? If ADA and 504 offer greater and/or more protections how does USDA feel it can suggest limiting participation or put that burden on the disabled student's family? If compliance means a separate treat must be provided at no cost to the affected student of equal benefit and value whose budget does USDA suggest this come from? Is USDA suggesting a LIMITLESS calorie, sugar count and LIMITLESS budget for this treat box? If not, what treat calorie count is the USDA limit for the health of students? What nutritional value does USDA suggest for these treats that are equal in benefit and value?

There's a few ways to dig in to this it's going to be about how you want to challenge it. Me, I'd first stop at Department of Justice to see if a child with a 504 must pay to be included in an activity he would otherwise be excluded from based on his disability alone. Then I'd put that same question to the OCR. After that I'd go to someone not from that USDA office and ask if an agent of USDA acting in their behalf suggests a child eat junk food as a class activity in order to not be excluded from the activity, how much is the upper limit the USDA is suggesting? Knowing it must be of equal benefit and value, what do they suggest filling a treat box with? What portion size? Calorie count and nutritional value per week? Month? Year? Or, is this something completely outside of what the USDA is allowed to do. If it is, they need to say how much.

Good case in hand hopefully with clear direction, strong citation of relevant federal regulations and laws with enforceable jurisdiction I'd force a challenge on the policy stated in the memo.


Remember

DOJ is 28 CFR with Parts 35 and 36 as Title II and Title III ADA respectively
Dept of Ed is 34 CFR with Part 104 Section 504... you know
USDA is 7 CFR

Disability law is rather well spelled out to extend rather than limit when policies and departments overlap. I'll definitely keep the door open on this one with you.

[Bunny]

I agree with everything you said.  In addition, I think it is WRONG to say that a "safe treat box," no matter what its contents, satifies inclusion requirements when random parents bring in random treats (cupcakes, cookies, donuts, whatever) for the class. 

And what is up with this "unplanned" treats thing?  Why does everyone assume that it is perfectly ok for random parents to show up with random treats whenever they feel like it? 

[twinturbo]

No more than the jailhouse lawyer we're all forced to become on disability law in education. What professional insight I do have comes from using federal regulations in private sector under heavy handed oversight from a powerful agency that audited with ecstatic glee, spiced with some state level public sector justice administration that had a mix of overlapping agencies and jurisdictions. It was all lying dormant until a new poster a week ago put the pieces together for me by stating she called ADA and *POP!* came out a federal reg. Essentially I got handed the schematics to a castle I've been trying to storm.

Business at hand. I'd love a FAS task force group that could build a usable models and mapping of agencies, their jurisdictions with special emphasis on enforcement, and a list of known, knowledgeable agency contacts that are both experienced enough to understand their respective regulations and known to have good readings of the regulations.

Which brings me to reading. I gotta run so I'll make this short. The only truly valid regulations are current paper copies from the Government Printing Office (GPO). With a CFR purchase you fill out a card to receive updates that come through a year. GPOs tend to be small, cramped and CFRs expensive, therefore it would be cost and time prohibitive to sit around a GPO reading CFRs hence law library which is most likely to have a reference copy by my best guess. For research purposes I've been using online versions always from a .gov when I can.

One of the most important points in a CFR is the structure. Isolated specific parts read without General Provisions can be invalid or outright incorrect because of the global elements clearly defined within General Provisions must be applied to the text. For example 28 CFR Part 104 Section 504.

104.2 Application.

This part applies to each recipient of Federal financial assistance from the Department of Education and to the program or activity that receives such assistance.

(d) Department means the Department of Education.

(h) Federal financial assistance means any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the Department provides or otherwise makes available assistance in the form of:

(1) Funds;

(2) Services of Federal personnel; or

(3) Real and personal property or any interest in or use of such property, including:

(i) Transfers or leases of such property for less than fair market value or for reduced consideration; and

(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government.

(i) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or interest in such property.

These definitions mean that one cannot make Federal financial assistance within the context of 504 mean whatever federal institution of your choice under any circumstances, it clearly spells out Department means Department of Education and that Federal financial assistance means provided from or through the Department of Education. It also means assistance in a variety of reception not merely funds.

In isolation Federal financial assistance could be construed as any federal monies not the unmistakably defined assistance provided in all mentioned forms by or through the Department of Education. So a reading must apply global definitions. Forgive me if you know this but it is vital to have this understanding on the same page to work in concert.

Crud, gotta run.

Came back to add what's on my To Do in rough outline. No particular order after #1.

1. Kill a tree to print out related regs. Go over with a fine tooth comb with a special eye to violations. As ajas says, The Teeth.

2. OCR's definition of Federal financial assistance needs verification that it is only assistance either from Ed itself or must be assistance from other sources via Ed, or at Ed's behest, under contract with Ed, etc.

3. Determine if there's a streamline method to determine if a private school or organization receives said assistance from or via Ed. Streamline meaning we can check ourselves or Ed has dedicated personnel who track that info. Goal here is to see where 504 is applicable without asking the school itself.

4. Any sections of interest double check against current paper CFR for accuracy.

5. Determine how to identify individuals at different agencies who can provide accurate information. I'd like to go in to a local or regional DOJ office or OCR to see who is manning response to the public through email, phones. Is it a Admin I who's been on the job 8 months on the phones with a regulations cheat sheet in front of him/her? How do we get to someone with sufficient seniority? Who at DOJ works often enough with disability in education?

6. Organization of agencies which in theory isn't hard but reality may prove different.


Other stuff I'm too tired to organize my thoughts on right now that I can add later or that you suggest. In parallel I am extremely interested to see what's 'under the hood' of PTOs in the sense of power, authority in official terms as well as bullying by individuals and groups.

Thoughts from lawyer land?

[ajasfolks2]

Thank you, you 2!!

That USDA memo, quite frankly, FROSTED ME as to the safe treat box.

[ajasfolks2]

Wondering aloud (on boards) --

what about a letter drive/petition to insist that USDA retract that portion?

The barrier to access IS the party/reward/celebration food.

There should never be request/requirement for safe treat box -- regardless of who provides the "safe" food (school OR parents).

I'd like to get USDA to re-think this.

Thoughts?

[twinturbo]

One to the point letter in unison from all sent directly to USDA internal Civil Rights division Secretary Vilsack with copies openly CC'd to Attorney General's office for ADA and OCR for 504. Attach copies of code sections highlighted to point out non-compliance. It would be a strong opening volley that might initiate an internally driven resolution for good or bad. Would I trade slugs with the memo authors? I wouldn't tip my hat to them and at the point where their opinion is already in challenge it's appropriate to escalate and increase transparency where authority overlays to form an expansive lattice of protections.

In other words don't give them the chance to prepare defenses. No matter how legally savvy a civilian is they can work the system better or else USDA wouldn't have to post how awful they have been on civil rights.

Another strategy may be souring the milk at the source. The momentum is there execute a take down using that directional energy. Ask about the upper limit in calories of total treats the kids should be consuming in sedentary activities in a defined time frame and which non-parent budget this comes from with respect to ADA compliance which, oops!, they forgot. Also to amend the memo to include a statement that where a disability regulation offers greater protection it must be observed therefore this suggested policy in no way may overrule a 504 stipulation.

Make it so darn cumbersome it becomes pointless to adopt.

Just IMO.

[twinturbo]

Corrections/updates as of today.

OCR offices (plural) operate as agencies within multiple departments with essentially the same function but area of enforcement is determined by 1) subject matter 2) recipients 3) source of Federal financial assistance.

If the source of Federal financial assistance is the USDA then their internal OCR agency is the correct agency to oversee USDA programs. This, however, is not the only federal department OCR agency having enforcement within education. DOE's OCR would have enforcement in this area as well, and the greater protections would still prevail. Below states why the DOJ would not be the department of enforcement because it has designated the DOE as the department regarding Title II.

Given all this I would think the only recourse would be a singular complaint filed with DOE's OCR if the adopted policy violated a 504 in effect. The department OCR agencies have stated a desire to reduce duplicity of complaints filed, choosing the department with the most relevant assistance to the recipient and subject matter of the complaint.

Otherwise a complaint may not be opened if another department's OCR agency has already opened an investigation. And if you didn't choose the department that provided the largest share of assistance and the subject matter differed greatly... perhaps not the best resolution to the complaint.

The U.S. Department of Education is designated by the U.S. Department of Justice to resolve complaints alleging noncompliance with this part against public elementary and secondary education systems and institutions, public institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools), and public libraries.

[ajasfolks2]

 


We seem to have like minds today -- see your PM! 

[twinturbo]

I'll try to get all the supporting sources cited for public perusal/peer-review within a week or two. I could be wrong but I'd sum it up as no BIG teeth but perhaps a wider variety of smaller teeth.