Peanut Allergy and K teacher who thinks its no big deal

[CMdeux]

VA Beach here.

Mystic valley here

Letter to Gloucester here

Letter to Zirkel here  <-- I sincerely hope that you don't need this one, but this basically says that the law says nothing about "reasonable" in an educational setting.  It's about "necessary."


Go get 'em!!

[Macabre]

OCR - Virginia Beach City Schools 2012

OCR Compliance Review: Referral for 504 Eval if IHCP

OCR Ruling on 504 Ineligibility--Gloucester

Look at the link in this thread and read the whole first page thre. I summarized relevant cases up to Gloucester there. But read up to that and after a bit. Read what I quoted  of Notnutty's post.
Link to the 504 evaluation request letter/504 eval. guidance thread

[FrustratedinNJ]

Thanks so much! I appreciate your help!

[Macabre]

Ignore Land v Baptist in that list of case precedents.  The new ADAAA supersedes that. 

And the ADAAA doesn't mention food allergies specifically if I remember correctly, but it does mention the fact that medication/remission is not a mitigating measure.

And OCR interprets FAs on their page to be covered by the ADAAA. It specifically mentions peanut allergy.  FTW!
http://www2.ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html

Q13: Are the provision and implementation of a health plan developed prior to the Amendments Act sufficient to comply with the FAPE requirements as described in the Section 504 regulation?

A: Not necessarily. Continuing with a health plan may not be sufficient if the student needs or is believed to need special education or related services because of his or her disability. The critical question is whether the school district's actions meet the evaluation, placement, and procedural safeguard requirements of the FAPE provisions described in the Section 504 regulation. For example, before the Amendments Act, a student with a peanut allergy may not have been considered a person with a disability because of the student's use of mitigating measures (e.g., frequent hand washing and bringing a homemade lunch) to minimize the risk of exposure. The student's school may have created and implemented what is often called an "individual health plan" or "individualized health care plan" to address such issues as hand and desk washing procedures and epipen use without necessarily providing an evaluation, placement, or due process procedures. Now, after the Amendments Act, the effect of the epipen or other mitigating measures cannot be considered when the school district assesses whether the student has a disability. Therefore, when determining whether a student with a peanut allergy has a disability, the school district must evaluate whether the peanut allergy would be substantially limiting without considering amelioration by medication or other measures. For many children with peanut allergies, the allergy is likely to substantially limit the major life activities of breathing and respiratory function, and therefore, the child would be considered to have a disability. If, because of the peanut allergy the student has a disability and needs or is believed to need special education or related services, she has a right to an evaluation, placement, and procedural safeguards. In this situation, the individual health plan described above would be insufficient if it did not incorporate these requirements as described in the Section 504 regulation.

The nature of the regular or special education and related services provided under Section 504 must be based on the student's individual needs. As noted in Q2 above, the student would also be protected from discrimination under Title II's statutory and regulatory requirements, as well as Section 504's general nondiscrimination provisions.

Q14: Does the Amendments Act affect the situation in which a parent or guardian believes that his or her child has a disability and is not receiving special education or related services as described in the Section 504 regulation?

A: As stated in Q4 above, students who were in the past determined not to have a disability may now, in fact, be found to have a disability. If a parent or guardian of a child with an impairment believes that the child may be a student with a disability and therefore requires services that he or she is not currently receiving in school, the parent or guardian can ask the school district to evaluate or reevaluate the child pursuant to the requirements of the Section 504 regulation. The evaluation would determine whether the child has a disability, and, if so, whether the child needs special education or related services. As noted in Q9 above, school districts must evaluate a child if that child needs or is believed to need special education or related services because of a disability.

If, as described in the Section 504 regulation, a child is receiving special education or related services that the parent or guardian believes are inadequate, the parent or guardian can request changes to the educational placement. If agreement cannot be reached, the parent or guardian may invoke the procedural safeguards set forth in 34 C.F.R. § 104.3615 to address the child's needs and current educational placement.[/quote

[FrustratedinNJ]

Thanks! I reviewed the district policy and it was clearly not followed in my sons case. We don't have an individualized health plan and was told that the action plan created by my allergist was not used in the district, even though it says in the policy that the district requires it. I feel armed and ready. First step is determination that he qualifies. Which he absolutely does... She will try to talk me out of the504 and I wish I had fought last year but honestly, she made me feel that I was doing my kid a disservice... She played to my emotions I guess... I allowed that to happen. I thought I was so educated until I started reading this forum...then I realized how much I didn't know!
Shame on me... However, I am back and prepared.
I know she will again make the argument that 400 other kids have the right to peanut butter... Instead of focusing on what will make my child safe.
This will be an uphill battle...thanks again.

[Macabre]

You will be great! 

[twinturbo]

I know she will again make the argument that 400 other kids have the right to peanut butter... Instead of focusing on what will make my child safe. This will be an uphill battle...thanks again.

Read this: Parent challenges 504 nut ban accommodation

It's a very handy logical guide for counterarguments regarding the interpretation of disability law specifically a nut ban accommodation. The opinion cites state law but it mirrors federal and OCR was involved.

Defendants also submitted the affidavit of Nancy Campbell, the superintendent of the school district, who explained the procedures that were followed to adopt the 504 plan for student A. According to Campbell, the board of education had voted in September 2010 to seek guidance from the federal Office for Civil Rights regarding the ban and was advised that § 504 of the Rehabilitation Act required school districts to provide a free, appropriate public education to students with disabilities, including students with nut allergies. The Office for Civil Rights was not aware of any law that required a school district to accommodate a student who wished to consume nut products at school

Plaintiff argues that the nut-ban policy deprives her of a liberty or property interest because it requires her to purchase more expensive foods she otherwise would not have to buy. The trial court did not err in rejecting this claim. The nut-ban policy does not require plaintiff to purchase any specific food item; it only prohibits plaintiff's child from bringing to school one very narrow class of items. The ban is not an arbitrary exercise of power but, rather, is rationally related to the legitimate government purpose of providing an education for a student with a life- threatening allergy to nut products

Beware the use of equivocation on the term "reasonableness". It should be in the docs linked above mine in the Letter to Zirkel.

Additionally from OCR's site:

Reasonable accommodation: a term used in the employment context to refer to modifications or adjustments employers make to a job application process, the work environment, the manner or circumstances under which the position held or desired is customarily performed, or that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment; this term is sometimes used incorrectly to refer to related aids and services in the elementary and secondary school context or to refer to academic adjustments, reasonable modifications, and auxiliary aids and services in the postsecondary school context

Link --> http://www2.ed.gov/about/offices/list/ocr/504faq.html

[Macabre]

Hoping to see good things here at some point today!

[CMdeux]

Me, too!

(I was all excited to see a fresh post)

[FrustratedinNJ]

Well, we got the ball rolling.
The principal is just so uneducated regarding allergies. It's amazing. ( Or disturbing...really)The assistant superintendent called today to tell me I basically can have whatever I want... She said that she went herself and reviewed everything with everyone and sadly it is the principal that is the one that just doesn't get it. School nurse is awesome as is the cafeteria manager...
Now, the presented a list of procedures to be followed which I felt was ok... Although we got resistance to having a peanut free sign but she finally agreed. With these obviously just typed procedures, I wanted to review it before we went to the 504.
I guess i felt like i wanted to sit and review what they gave me first... they answered my concerns...but i come home and think would a 504 protect him more than these procedures?
I dont know how they're making these accommodations for us without a 504 in place and I have many questions like- who is enforcing this? It is a tiny school and I felt that the staff was genuine and that me questioning forced the principal to become educated.
When she whipped out the 504 paperwork, I told her that I wanted to look through what she handed me first. When she said that she didn't want to hang the nut free sign bc she feels that parents will be upset and what if a nut comes in to the classroom... ( yes she said that)  I kind of looked at her like she was nuts and said the priority is to keep the kid with a life threatening allergy safe. I also encouraged her to follow the district policy and write a letter home which she said she had to run by the superintendent... Huh..she is the authority in school and she allows the teacher to send home letters about no nuts. As I am typing this, I am literally smacking myself in the head saying duh! 504.
My husband and I did a good job of pointing out flaws in what she was saying to us... She told to lead off with the conversation that she claims to not have had with me about me making my kid different. Not sure where she went to principal school but, you don't lead off a meeting with a parent like that!
I am getting long winded... Sorry!

I kind of hate the peanut free table bc I feel like he is 6 and socialization is huge. Today he sat with the other nut allergic kid who he doesn't know... They say he is just interested in eating and getting outside... It totally bothered him...heis 6; he doesn't know he to ask someone yet to sit at lunch!

Be kind... I feel stupid that I didn't just say 504. I wanted to see what they had in place...My allergist told us to see what they offer first, assistant superintendent said same. It's a small school, I know they are being accommodating but am I wrong if I do not do the 504? As I am sitting here I think that I know the answer...

[twinturbo]

They would be in the wrong to deny eligibility and accommodations. I'm not saying that to either be nice or mean, I mean legally. It's part of the foundation of what must be done to provide FAPE.

Take a short break. Watch a movie w/the family, exercise, garden. Then come back to it.

[Macabre]

I had a six page document listing everything we could dream if in the way of procedures that I used when DS was in K in Dallas and in 1-3 in Houston and in 4th in Virginia. Every year folks signed off on it. Literally. It was signed by the principal.

In 3rd grade DS was sent out into the hallway because a mom brought cupcakes to celebrate the teacher's birthday. This happened more than once. And wow, she was such a sweet teacher, too. Really. And she lived DS. But she sent him into the hall while the other kids ate cupcakes. My document had covered this. It shouldn't have happened. But it did.

In 4th the Junior League came to help make bird feeders. They didn't use peanut butter for DD's class but they did for other classes and they used the same sunflower seeds. DS sat out. He didn't know if the seeds had been made on shared lines with peanuts. My document had covered a situation like this in great detail.
But those procedures weren't followed.

Later that year the class went on an overnight trip to DC. DH was not allowed to ride on the bus. I tried to get info about the trip, who would be in the room with DS's group, etc., from his teacher. But at 5:00 the day before the trip (the left at 6:00 am) I still hasn't heard from him.


The procedures that the schools had agreed to were not enforceable. There was nothing binding the school to hold to them.

With a 504, there have been missteps, but with it there have been opportunities to say that the 504 plan says X and Y happened. With the 504, my email pointing this out means something to the school.  If there were egregious violations, I would have recourse.

Your child is only 6. Really, you have no idea what the future will be like at school and what situations will arise--and what kind of changes in accommodations he will need. I don't know why you wouldn't grab the chance to get the designation--that can follow him to college. Really (and I'm not being mean) you have no idea what he will need in four years. Why not cover your bases now?  Administration can change. Nurses can change. You could move. We did--out of state--and we never dreamed we would. Really. But DS started high school with a 504--was the first one to do so--because we brought it with us.

There are plenty of people here who don't have 504s. Some have an amazing school and haven't felt the need. Some have tried and have given up.

Your child might be fine without one. But it seems to me it's like insurance--better to have theborotection coverage offers if you can get it.

[Macabre]

Btw it's rare that an allergist is well versed in disability law. I don't know that the allergist's advice to wait is what you want to be paying attention to. If the vice superintendent advised that, too, yikes. I would suspect that she or he is trying to get out of the responsibilities of the 504.

[FrustratedinNJ]

Point taken. Thank you.
Allergist said first see, and he would help. Assistant super said see and then go from there... So I feel like we saw but now a 504 would be appropriate...

[CMdeux]

I dont know how they're making these accommodations for us without a 504 in place a


Um-- by not following the Federal law on the subject?



Seriously-- they aren't SUPPOSED to grant accommodations WITHOUT a finding of eligibility under 504.

How would it be if some students-- but not others-- were to get "extra" help with reading?  Extra time on exams that determine future placement?

Just because, I mean.

Because that is essentially what they are "offering" you.  I wouldn't do it.  Because you'll be right back where you started if an administrative change occurs. 

It isn't about NEED.

It's about the fact that he is qualified.  Which-- to be clear-- they've already de facto determined anyway since they admit that accommodations ARE NEEDED...  ergo, he IS a student with a suspected disability or they wouldn't be "offering" you anything at all except maybe a walk to the front doors and a handshake.  And really, as an aside, trust me on this one-- if they WOULD offer any parent more than that just for the asking, ohhhhhhhh BOY do you need the protections of a 504 plan.  With teeth.  You'll see.  I'm concerned at just how "worried" your principal seems to be about "parents" and what they think and how happy they are.  That may be baaaad, baaaaad news down the road. 

So your answer really needs to be --

This all looks GREAT.  That's going to make writing a 504 plan very straightforward.  Now about that eligibility...

If they balk, hand them your documentation (from up-thread) and act puzzled if they get unhappy.... WOW, why wouldn't everyone want a document that offers them a basis upon which to accommodate your child.  This gives the SCHOOL a way to shrug and say "Well, look-- federal law... compliance... blah-blah-blah..." if/when other parents complain.

Also-- read Stinky's thread.  Her school tried some of this, too.  The "you don't NEED a 504 because we're going to do all of this and call it a healthcare plan."

I mean-- look at VA Beach and Gloucester again.  Truly-- you're helping them.  Helping them to be in compliance with the law.