UPDATE Please help with 504, the school bus and a very stubborn district

[daisy madness]

Well, the superintendent just called and stated that he discussed my concerns with the board during their closed meeting last night and the board feels they have done everything they could do and are not willing to put an aide on the bus. I told him I have a letter from DS's allergist and asked if I should send it to the principal. He asked what it said, and I said "it says he needs an adult on the school bus to give him an epipen." He said, "there's no eating allowed on the bus."  I said "he's had delayed reactions 45 minutes after ingestion. he could eat something before getting on the bus and have a reaction while on the bus." He said (try not to fall off your chairs) "the schools are really diligent so there shouldn't be an issue at the end of the day. And as far as the morning, we're not responsible if you accidentally give him something and he has a reaction on the bus." 

What next?  And does it seem to anyone else that they're intentionally trying to keep this "off the record?"  The school board has discussed this twice in closed committee meetings.  They have yet to put it on the agenda to discuss at a regular meeting.  And the superintendent has been responding to me via phone rather than email, except for the first denial which was via email.

[twinturbo]

LOU requesting the decision including the variety of sources they used in making the decision and what criteria. Formally request the decision that contradicts your doctor's medical opinion/prescription and ask for clarification about how it would be parental 'fault' if he has a reaction on the bus. This makes no sense to you or your doctor.

I wasn't really sure about the epi rules in your state, city and county but if EMTs are regulated differently, you can show that the arrival of epinephrine for children is not guaranteed.

I'm not expecting them to buckle but it would be wise to start handling this as if you are case building. The attorney you get may know more about the SD attorney. It would be good to know if it's a single person or a practice on contract.

[maeve]

Also, check your state code (laws) to see that laws are regarding transportation.  There's no Federal requirement that schools provide transportation and, likewise, many states don't have laws requiring transportation.  However, most states do require that school districts provide transportation for disabled students. That might be your angle because under the American with Disabilities Act Amended food allergies are considered a disability.

[twinturbo]

The other way... and I'm not advocating it more following a line of thought. Only one department can investigate per complaint in this case a bus service for public schools. The school district points to the bus service saying it's outside of their control. They're also claiming it's not part to 504. The bus is getting money from SD but shelve that for a moment.

Go after the bus company to provide an aide. The standard outside of Title II and 504 *is* lesser (Title III) but it would be under the jurisdiction of the Dept of Justice rather than Ed and DOJ has much more effective enforcement.

You could possibly go with a tactic that takes this off the school's plate, finalize your 504, then file a complaint against the bus service. The DOJ's settlement with La Petite, a private montessori school, shares similar factors with your current situation. Their policy was to dial 911 for EMS to deliver epinephrine, and if I remember correctly were hit with a monetary concession as part of the settlement as well as train employees to use EpiPens.

Now, if you have evidence that their policy is not only discriminatory but is incorrect that emergency squad is not a guarantee of pediatric epinephrine administration, I think they would be VERY up the creek.

Two things:

* Under no circumstances call in the DOT. I've read ADA itself and DOT is largely exempt.
* Fixing the bus company doesn't fix the issue of what to do on field trips but you could always come back to that in the 504 once you get it finalized. Just a thought because it is possible to add that later.


Here's a link to La Petite Academy settlement agreement with DOJ. http://www.ada.gov/lapetite.htm

I quoted the most relevant parts but save and print the whole document.

The Jester, Bownds, and Carrabine Complaints allege that La Petite discriminated against children with severe allergies and their families by maintaining a policy of not administering the EpiPen, Jr. (a disposable device used to administer a pre-measured dose of epinephrine to children with severe allergies) to children in their custody who suffered severe allergic reactions. La Petite's policy at that time was to call 911 and request that Emergency Medical Services personnel be dispatched to administer the EpiPen, Jr.

11. La Petite hereby agrees that the document entitled "La Petite Academy, Inc. Policy for Administering Emergency Treatment to Children with Severe Allergies," attached hereto as Attachment A, has been adopted by La Petite as its policy for treating children with severe allergies, including its policy for administering epinephrine through the use of the EpiPen, Jr. La Petite further agrees not to modify the policy without the prior written consent of the Department.

12. La Petite hereby agrees to pay a total of Fifty-Five Thousand and 00/100 Dollars ($55,000.00) as full and final settlement of the Complaints set forth in paragraphs 6, 7, and 8 above

[Macabre]

If you happen to be in Virginia and would find it helpful to know of a city that did have a bus aide as an accommodation--and for an older child, PM me. 

I agree that an LOU is your next step.  Be dispassionate in it.  Describe the date of your most recent conversation and what your interpretation of it is.  Ask for clarification on any points that you may be misunderstanding. And give them a date by which to clarify. 

In this letter, I would also make a written case for this accommodation.  You're documenting. And this is probably your last chance to spell things out for them in black and white.  I would include:
--a description of your doctor's recommendation (and also a copy of the letter)
--a statement that your child needs an adult to administer epinephrine
--a statement that pediatric epinephrine is not necessarily carried in your county (I think I read that correctly).  And if you have a written policy indicating that, include a copy of it
--some statement about the critical nature of receiving epinephrine immediately. I would site the AAAAI recommendations.  I'm going to give you links to some deaths that occurred as a result of not having epinephrine early enough at the bottom of this. During a reaction, your child can't wait until EMTs arrive--even if they do carry it.
--copy the part of Section 504 that I detailed above that mentions transportation -- give them the law basically. Spell it out for them.
--refer to the attached OCR cases that are applicable (and then I would attach one I think RebekahC mentioned).
--refer to any state law, if it exists, regarding the transport of children with disabilities
--remind them that your child is guaranteed FAPE, just as his non-disabled peers are.
I might not keep hammering the delayed reaction line. Even if there is no food allowed on the bus, your child can have a reaction from peanut protein that is brought onto the bus from students riding it. 

Okay--children who died because they did not get epinephrine soon enough.  It's heartbreaking to read these accounts.  It really is.  But the fact is--in the event of anaphylaxis, not getting epinephrine in time can cost your child his life.

Jharell Dillard
http://www.gadailynews.com/news/71833-teen-jharell-dillard-dies-after-eating-cookie-containing-peanut.html

Tyler Cody Davis
http://wsbtv.com/news/news/gbi-says-student-died-from-allergic-reaction/nDrXg/

Emily Vonder Muelen
http://www.today.com/id/21471171/ns/today-today_health/t/threat-peanut-allergy-very-real/#.UkM9E8ZwqSo

Ammaria Johnson She died at school
http://www.cnn.com/2012/01/04/health/virginia-allergy-death/index.html

[daisy madness]

Does LOU stand for letter of understanding?  It's my only guess....  As far as the attorney, it's a practice on contract.  Also, in this letter, should I also say that the district has failed in following procedural safeguards (I was notified verbally rather than in writing that my child was being evaluated, I was not given opportunity to review relevant records, and I have not been notified of my rights to due process).  I have literally received nothing in writing from the school district except for the 504 itself and that one email from the superintendent.

I heard back from EMS.  I emailed the captain and he sent me a very detailed response.  But basically, all their EMTs are certified for Epi except for new recruits which have a bit of a gap before they're certified.  Currently, there are 6 new recruits not certified but currently taking the course.  It is unlikely but possible that the only EMTs to arrive on the ambulance would not be certified.  IN THAT CASE, he would not get the Epi until he arrived at the ER.  Response times aren't fabulous either.  The call comes in, depending on the cell phone tower that it bounces off of, it may have to be transferred one or more times.  Then the EMTs need to be called in.  They usually arrive at the EMS building in 4-8 minutes.  I didn't realize this.  I just assumed they'd be already at the building.  Then the ambulance has to get to the bus...my best guess is it would be a 5-8 minute ride.  He said the best case scenario for total response time would be 6 minutes but likely would be longer and could be substantially longer.  And if there are no Epi trained EMTs, there would be the additional drive time to the ER.  My guess would be 8 minutes, plus the time to load him onto the ambulance.  I feel sick.

[twinturbo]

I know. You're amongst people that know.  Don't give up this is far from over.

Try to get as close to Macabre's list of what to assemble. That record will work well for the school, your attorney, and OCR if it comes to that. For your attorney it'll be handing it to him or her on a platter.

I would stay away from direct statements mentioning safeguards. What I would do is what Macabre wrote which is the same thing but outlines exactly what actions they should have taken but didn't. Feel free to post a draft letter here with personal information left out.

BTW, that's a terrific captain.

[Macabre]

Here is the resolution letter for the OCR case rebekahc mentioned:
http://www2.ed.gov/about/offices/list/ocr/docs/investigations/05105001-a.pdf

Wow. What you got from EMS was really good (and very scary) information. There's no way the school can find that acceptable.

Here's another term to be aware of and use where appropriate:

in loco parentis  For an explanation, see this:  http://www.wrightslaw.com/blog/?p=58 

[daisy madness]

Ok.  I finished the letter but I'd rather not post it.  It seems that this may turn into a lawsuit and I don't want my posts here to be found.  I should probably edit some for the sake of making them more anonymous.

I'll be sending my letter certified/rr.  Should I CC anyone?  Principal? County Superintendent?  I wrote a letter to the county superintendent last week.  I haven't heard anything back.   

[Macabre]

Yeah, not posting it seems like a wise idea under the circumstances.

I would cc the superintendent.

[daisy madness]

Ok.  Letter is sent with a cc to the principal and county super.  I'll let ya'll know if I get a response.  I will not be accepting any phone calls from them about this matter.  I alternate between thinking they're idiots and being really pissed off at them.  I don't know if they just don't know any better or if they know better but are being sneaky.  I wonder if they've intentionally not allowed this to be addressed in the public meeting because then I will have exhausted all my steps within the district.  As it is now, if I file an OCR complaint, they could say "the school board has never formally addressed this" and skirt by unscathed.  I made sure my letter said that "as per our conversation, the school board's final decision is x." 

[joanna5]

My post is the first one TT linked.  It sounds like you're past this, but just for anyone else in the same boat, here's our allergist's letter:

____  has multiple food allergies to milk, eggs, peanuts, tree nuts, and mustard seed with a history of anaphylaxis.  If he has an unintentional exposure to any of his allergens, it is medically necessary that he receive his EpiPen injection immediately and not wait, as there is a significant risk of life threatening anaphylaxis.  This plan applies to all school settings including the school bus, field trips, and sports activities.  Thank you for your consideration and attention.

Sincerely,
Awesome allergist

Once we got this, we had no issue with the district being willing to provide an aide.  With that said, we have run into issues staffing the position.  My son's school runs on the latest schedule of all the schools in the district- which means that no aide who works at any other building can do it in the morning since their school day has already begun when we'd need one.  The district posted the position in multiple locations, the special ed secretary contacted every bus aide they've used in the last ten years, they spoke with cafeteria staff and the police department re their crossing guard staff.  No one.  So we drive him in the am, and he rides the bus with an aide in the afternoon. It's not perfect, but they truly have tried to fill it (and continue to do so) so I can't get too worked up about it. 

[Macabre]

I don't think OCR would expect the school board to have dealt with this.  I am frankly very surprised that there was talk of your school board dealing with it. 

You have exhausted every possibility.  I hope this one works!

[daisy madness]

We hired an attorney.  I feel very confident with her abilities.  She knows her stuff off the top of her head.  She sent a letter today to the school's attorney.  Hopefully we'll get a response soon because she faxed it as well as mailed it.  I really hope the school's attorney knows the laws and will advise the district to put an aide on the bus ASAP.

The superintendent completely ignored my letter.  No response at all.  I requested that he respond by letter within 10 days with the requested clarifications and sources/criteria for the district's decision.  So I casually mentioned to the principal that we were hiring an attorney and very quickly received an email from the superintendent's secretary that he is working on a solution and will be in touch next week.  It was all I could do not to respond and tell him to shove it, but I ignored it.  I doubt his solution is an aide on the bus.  I suspect he's coming back with a re-routed, shorter bus ride which we will decline.  I'm really angry at this point.  I suspect he knows he's ignoring the law but just assumed I would go away after the final no.  Otherwise, he wouldn't be "working on a solution" when he caught wind of an attorney being hired.     

BTW, the attorney was very impressed with my letter.  I told her I had some help!!  She was also shocked at the district's incompetence in crafting DS's 504.   

Would there be anything to gain by filing an OCR complaint even if the district backs down and puts the aide on the bus?  Or will OCR just dismiss it because it's been resolved.  I'm just very, very upset at the lack of concern they have shown for my son's safety.     

[twinturbo]

I'd give the attorney-to-attorney negotiation some time before taking the next step. Any complaint won't resolve instantly, plus get the download from your attorney what opposing counsel is like/has to say so you can get a sense of their strategy. Information is power. If I remember correctly you know it to be a practice on contract so they may have a reputation. Also remember when you file a complaint you may not have resolution in your favor so... you know. It may work better as a resort to continually apply pressure to themselves.

A neutral way to mention the attorney is saying she's going to "help you with X, Y, Z" if you want less escalation--not that I'm insinuating there's a problem with anything but sometimes people get panicky. Does your attorney have trial experience? Some don't go to trial if you need it. Again, not saying you will just musing as I look around and evaluate lawyers for myself. I've interviewed a couple haven't had good luck.

Good luck, daisy. Keeping it  for your family.