TF vs Fox Chapel School District

[kindergartenmom]

https://www.facebook.com/pages/I-support-TF-from-Fox-Chapel-School-District/132432773572853

[LinksEtc]

http://www.foodallergy.org/document.doc?id=304

A case involving a kindergarten student with a tree nut allergy has the potential to set a precedent for food-allergy-related accommodations in a federal appellate
court. FARE, joined by the Council of Parent Attorneys and Advocates, recently filed an amicus (friend of the court) brief in the civil rights case, T.F. vs. Fox Chapel Area School District, in the Third U.S. Circuit Court of Appeals.

[twinturbo]

'oly moly. They appealed. Once I find that amicus brief I'm going to read its finger-licking goodness.

High-five, Links.

OH. Then I'm going to see who, if anyone, filed amicus brief for school side.

[Macabre]

Thanks for starting this thread!  I was happy to get an email from FARE about the case this afternoon but didn't have time to look carefully at it.

The plaintiff brief is substantial and amazing and thorough. And worth every second of your time.

[twinturbo]

TF vs Fox Chapel Appeal

I'm scanning it quickly now I'll read it in full tonight when I get home from the gym around midnight. I'll update this post as I go--we'll all need to read this.

FARE amicus brief

and this.

Links, you deserve a raise. You know why. 

Check it: The attorneys representing the family who wrote the appeal brief are part of a law school whose clinic works with the Maryland Disability Law Center (MDLC).

MDLC is Maryland's designated Protection & Advocacy (P&A) agency and a member of the National Disability Rights Network.  - See more at: http://www.mdlclaw.org/about-us/brief-history-funding/#sthash.Meu5c8Mv.dpuf

All those threads about NDRN P&A. Legal clinic. This means this brief and this sort of legal aid should be available for kids w/LTFA to access. We can comfortably rec them to people especially with this reference.

[twinturbo]

One of the citations from the Appeal brief (not the FARE amicus brief). Importantly, the FARE brief does not mention the Letter to Zirkel, instead using the reasonable standard as the federal judge in circuit court did instead of calling it into question. Remember that this is the great divide between OCR's application of standards for primary and secondary education and the circuit court. FARE should embrace the regulations themselves and OCR clarification, not the recent circuit court's interpretation.

Although the Third Circuit adopted a reasonable accommodation standard in Ridley Sch. Dist., 680 F.3d at 280, OCR has clarified that Section 504 FAPE does not contain a "reasonable accommodation" standard or other similar limitation. "If a school district is meeting the needs of children without disabilities to a greater extent than it is meeting the needs of children with disabilities, discrimination is occurring." OCR Policy Letter to Zirkel, 20 IDELR 134, 8/23/93. While Section 504 FAPE does not contain a "reasonable accommodation" limitation, Fox Chapel fails to meet even this standard.

See id. Pursuant to a delegation by the U.S. Attorney General, OCR is the principal agency for administering and enforcing Section 504. OCR's policy letters have persuasive authority, meaning that courts defer to its interpretations of the regulations. See 29 U.S.C. § 794(a), (b).

It'll take me a while but in my PM box are the links to Ridley, I think. It is an important case that both sides are referring to in their arguments and counterarguments.

[LinksEtc]

Links, you deserve a raise. You know why. 

Over my current salary of $0.00?   

At least you guys appreciate me. 

[Macabre]

Oh wow TT--thank you for making the brief accessible. Wow.  Reading now.

[Macabre]

From the FARE/COPAA Amici brief:  I want to pull this out to note a resource we should be aware of (but I wasn't):

For students with disabilities who require medical care, schools must
evaluate the student for an individualized § 504 Plan. See generally Daniel Kim &
Elizabeth Samples, Comparing Individualized Healthcare Plans and Section 504
Plans: School Districts' Obligations to Determine Eligibility for Students with
Health Related Conditions, 45 URB. LAW 263 (2013) (hereinafter "IHP and § 504
Plans"). T

[momma2boys]

Need to read this tomorrow!

[Macabre]

I will say YEA to FARE for finally getting involved.  What FARE is known for in my house wrt schools is "false sense of security" and in recent years some nifty forms for the allergist. And that's been it. 

This--this that we've been scratching the ground ourselves for for years--this is helpful.  Taking a stand. Being an advocate. Yea FARE.


Now--the reasonable thing--they need to get on board with quashing that myth. 

[twinturbo]

Filing an amicus brief on behalf of the family in this case is HUGE. And I am going to let them know that as a FARE member heck yeah, FARE. But not 'heck'.

Tweet those briefs! Let loose The Kraken! Heck, I'm going to tweet a resounding thank you for the amicus brief straight to them.

I'm not going to sweat the reasonable standard just now because this is filed in circuit court where OCR does not have jurisdiction. However, for the appeal to note that the *school district* should have noted OCR's clarification is meaningful, and really disarms the pettiness of challenging the idea of reasonable by making note of a lack of meaningful engagement which doesn't even satisfy reasonable.

Oh, it's got every last little item I would have wish listed. They really did it right based on what I've read thus far. Two clown thumbs up.

[Macabre]

Yeah--I was going to ask if you minded, since this is a link to your drop box.  I assume it's a-okay.  I'll start in the morning.  The east coast FA folks start going at it about 5:30 my time. 

[twinturbo]

It's not mine I found it on Facebook. Shout it from the rooftops, write it in the sky. Weaponize that hashtag. ADVOCACY. EDUCATION. CIVIL RIGHT.

[Macabre]

Thoughts and notes while reading the appellate brief:

Wow--how would a "care plan" not at least include the administration of epinephrine?  Seriously?  Even the most grievous plans have included that.

Does Pennsylvania have the designee person like NJ has--for administering epi?     

I'm seeing so much gross negligence by the school.  No real plan. No provision for subs. 

"The Special Education Coordinator admitted that she did not even respond to
these emails. JA 440, 441; Dist. Ct. doc. 35-1 at 39, 40. She also testified that
T.F.'s parents did not have a right "to know how things were being implemented[,
w]hat [Fox Chapel was] doing in order to have a safety plan in place and also to
train [the] staff." JA 568; Dist. Ct. doc. 35 at 80. "


This, to me, seems a bit sensationalistic.  It's not clear to me (though it may be to teh people who matter) that these are real opposites of a single spectrum of choices.  It may not be either initiate criminal proceedings OR revising plan/parental advocacy.  I hope it doesn't hurt the case:
"In response to T.F.'s withdrawal, Fox Chapel initiated criminal
truancy proceedings rather than engage T.F.'s parents in revising T.F.'s 504 Plan
to address the accommodations necessary to allow T.F. to attend school safely. JA
47; Dist. Ct. doc. 35-1 at 123. Fox Chapel pursued the truancy charges even after
being informed that T.F. attended cyber school. Id. Ultimately, Fox Chapel
conveyed the message that it would choose criminal charges rather than suffer
vigorous parental advocacy."


I'd keep TF at Shady Side through elem and have the SD pay for it. There is plenty of precedent. And that may give the SD enough time to get their act together before MS. If I add correctly, TS is 9 now.  MS will be coming up soon.


Pulling this out to look at later: 
"Thus, FAPE under Section 504 is a comparative standard. Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008)."


Also pulling this out, which TT referred to above:
"6 Although the Third Circuit adopted a reasonable accommodation standard in
Ridley Sch. Dist., 680 F.3d at 280, OCR has clarified that Section 504 FAPE does
not contain a "reasonable accommodation" standard or other similar limitation. "If
a school district is meeting the needs of children without disabilities to a greater
extent than it is meeting the needs of children with disabilities, discrimination is
occurring." OCR Policy Letter to Zirkel, 20 IDELR 134, 8/23/93. While Section
504 FAPE does not contain a "reasonable accommodation" limitation, Fox Chapel
failed to meet even this standard."


"Substantive harm under
Section 504 is present where the procedural violations result in "a loss of
educational opportunity for the student, seriously deprives parents of their
participation rights, or causes a deprivation of educational benefits."  Heck--it could ultimately deprive parents of their child's life.


Okay--finally. I was wondering why they hadn't filed a complaint with OCR.
The U.S. Department of Education's
Office of Civil Rights ("OCR") will only enforce implementation of the specific
terms of a written 504 Plan. 34 C.F.R. § 104app. . . . . In the absence of a written
agreement, parents cannot seek enforcement through either OCR or the
Department.


Nice, nice quote. Certainly usable in 504 requests:
"For a child with a severe food allergy, a FAPE is an education free from fear
. . .  and also an education from which the student will return home at the
end of the day."


Another really helpful quote:
"The written 504 plan for a food allergic child details the implementation of
the child's accommodation needs including what is necessary to enter school each
day with reasonable assurance that in the event of anaphylaxis, their educators are
willing and able to respond appropriately. JA 133, 134; Dist Ct. doc. 32-5 at 4, 5.
The plan outlines who will be trained, how they will be trained, what events would
trigger action and who is responsible for taking that action. Id. In order to attend
school free from unnecessary fear and real danger, a school district must detail in a
written 504 plan, what happens if a child is known to have ingested an allergen,
what happens if a child develops symptoms but is not known to have ingested the
allergen, what events prompt administration of epinephrine, where epinephrine
would be stored, who would administer epinephrine, and how soon after
administration of a first dose of epinephrine a second dose would be administered.
7

JA 131; Dist Ct. doc. 32-5 at 2. 5. If epinephrine is locked away in the nurses
office, if the teacher or substitute is not trained to follow the steps outlined in the
504 plan, if the adults responsible do not recognize or respond appropriately to
early warning signs outlined in a plan specific to that child, the child can go into

7
See generally, supra at FN 3.
29

cardiac arrest, coma, and can die, all while staff is attempting to locate or unlock
the EpiPen.
8

Unlike perhaps any other disability, the most important accommodation for
the food allergic child is not what a school does when a child is in anaphylaxis, but
the 504 plan itself."


This case argues for the need of an individualized 504 Plan.  However, if memory serves correctly (and I haven't delved into the legal stuff for a few years now, given my kid's age and 504 status), there doesn't legally have to be a written plan.  I wonder if that will be brought up at all.  (please DNQ---may delete that bit tomorrow)


Hmmm. Okay:
"The law guarantees children with disabilities more than verbal promises;
the law requires a written plan. See 34 C.F.R. § 104.33(b)(1); . . . . "
For future: 
"This case is analogous to Centennial Sch.
Dist., where the court recognized a denial of FAPE claim is supported when a
school district fails to provide a record of what accommodations were provided
and where there is no record of the effectiveness of any such accommodations."



Okay--it seems to me they're not using Zirkel the way they should be. Anyone else read this as funny? Like the opposite?
"Fox Chapel denied T.F. a FAPE, as the facts establish that it was "meeting
the needs of children without disabilities to a greater extent than it [was] meeting
the needs of [T.F.]" See Letter to Zirkel. Without including reasonable and
necessary accommodations in the 504 Plan, T.F. could not be guaranteed access to
a safe and healthy education. It is clear that the District Court erred when it failed
to find that the foregoing resulted in a denial of FAPE by denying T.F. and his
parents a written and individualized 504 Plan that provided access to a safe
educational environment."



Okay--thinking of this for my friend with a green thumb:
"Where a specific accommodation is not included in the 504 plan, both OCR
and the Department are unable to enforce the implementation of an
accommodation, no matter how vital it is to a student's safety. Where a school
district refuses to incorporate specific, necessary accommodations into a 504 plan,
the impact is that neither OCR nor the Department will investigate and assist in
enforcing the student's right to those services.10"


This brief addresses well the rights/needs of parents to be involved in creating the plan. 


Okay--yes, they're going after private education reimbursement.  Good.


Wow--this is amazing.  It does such a good job articulating what many of us have had to--to our schools or SDs.  Brilliant work.