Lexology-- legal commentary (gold mine!!)

[CMdeux]

Wow, is this site ever a gold mine of info and links to case law!!!






For example:

Don't be handicapped when dealing with student disabilities-- which lays out what a school's obligations are under ADA.

Student athletics and ADA

College and K-12 extracurriculars and ADA

ADA, higher ed, and food allergies  <--- this one will need to go into our teen/young adult/college information. 

[CMdeux]

This one is EXCELLENT and very very thorough in linked citations.


Nuts! How your US employees' allergies affect you

Again, this one should be repeated in young adults' section somehow-- as it relates to not only secondary ed, but also to first employment for many people.

[twinturbo]

I hate to be a party pooper but I wasn't crazy about a lot of what I read. Out of habit when a private attorney interprets I like to have citation to the CFR/USC they refer to when citing federal laws and regulations when interpreting.

Huge leaps in logic particularly about peanut induced anaphylaxis. That narrative is reductive and dangerous for a lot of kids.

Question 9 – What Steps Should The School Take To Determine What Accommodation Is Reasonable?

The law requires schools to engage in an interactive process, which is usually initiated when the student or parent of the student requests an accommodation. But if the school has evidence or knowledge of the disability prior to a request for accommodation, you have an obligation to inquire whether the parent wishes to disclose a disability and engage in this interactive process. Most importantly, each stage of this process should be clearly documented by the school.

The first step of the process is to document the request and ensure that the request is received by the appropriate personnel. If the request is made to a teacher, the teacher should not respond. Instead, the teacher should document the request in writing to the Head of School. The school should also confirm the request, in writing, to the parents.

The second step is to prepare for and set up a preliminary meeting with the parents. To some extent, the individuals who should attend the meeting may depend on what type of accommodation the student is requesting. Generally, the Head of School, and the disability coordinator, if one exists, should attend. If the disability is not apparent, the school may either assume that the student is disabled or prepare an inquiry to the student's physician to determine whether the student is disabled.

Regardless of the decision made, a medical inquiry should always be made to determine whether the accommodation is necessary, whether other possible accommodations exist, and if they would be effective. Narrowly tailor medical inquiries to obtain only the information necessary to determine whether the student is disabled and needs an accommodation, or whether the student is a direct threat. Thus, the school may not request the student's complete medical records or treatment plans.

The third step is to hold the meeting with the parent and appropriate personnel to discuss the disability and the requested accommodation. The school should have the parent sign a HIPAA-compliant Authorization for Release of Medical Information. A copy of the medical inquiry to the student's physician should be attached so that the parent can see what information the school is seeking.

Since the law does not require the school to provide the student's preferred accommodation, if you do not believe the accommodation is reasonable, explore other possible accommodations that meet the student's need. The other accommodation options may be included in the medical inquiry for comment by the treating physician or psychologist. While the school may certainly receive any documentation from the parent related to the student's disability or accommodation request, we recommend that the school request the authority and opportunity to communicate with the student's doctor directly.

The fourth step is to evaluate the medical documentation and the requested accommodation, and make a decision regarding the appropriate accommodation, if any.

The final step is to communicate your decision to the parent in writing. If the school determines that no accommodation is reasonable, this communication should set out the alternatives considered, the deciding factors, and the rational justifications for the conclusion.

ANSWER: You obtain the medical documentation from the doctor of the student with the peanut allergy. The medical documentation shows that the student does have a peanut allergy, but it is only when the student himself actually ingests a peanut, and it only causes a slight rash to the student, which could affect his ability to concentrate. You find that the student has a disability, but deny the accommodation requested.

Through the interactive process, you offer an alternative accommodation by asking the parent to provide all lunch and snack food for the student. You also inform the student's teachers and other personnel who have direct contact with the student to allow the student to eat only the food provided by the parent, with no exception, unless they obtain written approval from the parent. You have reasonably accommodated this student's disability.

[twinturbo]

Hold on my itchy trigger finger forgot the last paragraph. I mean it's interesting in the sense it gets one inside the head of the school district attorney which is incredibly valuable in prevailing for necessary accommodations in which the school has an incorrect interpretation of what induces anaphylaxis and that one reaction is not predictive of any other reactions as far as presentation of symptoms.

Of course, if the medical documentation had, in fact, supported the parent's initial claim that her child would go into shock by the mere presence of a peanut in the room, your response may be quite different. You may have to ensure that your facility is completely peanut-free, unless you can prove that such measures would cause an undue burden on the school, in that it would require significant difficulty or expense based on the financial resources of the school.

That should underscore the importance of not signing an open HIPAA release to keep the communication to specific written questions for the parent to read first consulting the allergist on others as needed. Otherwise it turns into a fishing expedition on how to most expediently deny an allergen free room, hand washing, open policy on treats, food in curriculum. Also, the FAS gold standard letter than names parents as experts in daily management.

Nothing new to anyone here, I openly acknowledge. I'm just a little concerned about the interpretation for someone reading it as a novice.

[CMdeux]

Good point.

I was actually SUPER-excited that it promoted INDIVIDUAL evaluation under the law, and careful documentation, and SO clearly lays out that over-accommodation is the preferable risk, not the other way 'round.

I also like the links to references in those summaries.    Convenient, because digging for them as a parent with either OCR or DOJ is a huge PITA.

[daisy madness]

Notice also that he recommends the school ask the parents to make the alternate accommodation of providing all lunches and snacks for the child.  I realize we do this anyway.  But since this school presumably has a lunch program, the school would need to provide safe lunches if the parent wanted their child to participate.