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Children and adolescents with food allergies are particularly vulnerable students. Not only are they more likely than non-allergic students to be bullied (Lieberman, 2011), to find it necessary to avoid foods to which they are allergic (Cash, 2012), to be required to learn to recognize the symptoms of anaphylaxis and to report these persuasively to a responsible adult (Wallace & Cash, 2011), and to safeguard one or more epinephrine auto-injectors which they should carry at all times (Wallace & Cash, 2011), but they also must know that if they fail to carry out these responsibilities faithfully, the results could be fatal. Especially for younger children, these extra burdens necessitate that schools provide some sort of assistance. It is critical to determine what accommodations are necessary and how parents can ensure that they are implemented. Knowing and using Section 504 of the federal Rehabilitation Act of 1973 can help.
Section 504 of the Rehabilitation Act of 1973
Section 504 prohibits discrimination based upon disability. It mandates that the needs of students with disabilities be met just as effectively as those of students who are not disabled. Section 504 states, “No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...” [29 U.S.C. §794(a), 34 C.F.R. §104.4(a)]. Since all public schools and most charter and private schools receive federal aid, this statute applies in virtually all educational settings, including colleges and universities. To be covered under Section 504, a student must be “qualified ” (which usually means that they must be between three and 22 years old, depending on the program as well as state and federal law, and must have a documented disability [34 C.F.R. §104.3(k)(2)].
Perhaps parents of students with food allergies don’t think of their children as having a disability. However, federal law indicates, “An individual with a disability means any person who: (i) has a mental or physical impairment that substantially limits one or more major life activity; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment” [34 C.F.R. §104.3(j)(1)]. As defined in Section 504, an “impairment may include any disability, long-term illness, or disorder that ‘substantially’ reduces or lessens one’s ability to access learning in an educational setting because of a learning-, behavior- or health-related condition.” [“It should be emphasized that a physical or mental impairment does not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities” (Appendix A to Part 104, #3)].
Since avoidance of or exposure to a food allergen can result in substantially reduced educational functioning or even potentially fatal anaphylactic reactions, and since education is a major life activity for students, many, if not most, who have food allergies would qualify as having a disability. Major life activities include, but are not limited to, self-care, manual tasks, walking, seeing, speaking, sitting, thinking, learning, breathing, concentrating, interacting with others, and working. As of January 1, 2009 with the reauthorization of the Americans with Disabilities Amendment Act (ADAA), this list has been expanded to include reading, concentrating, standing, lifting, bending, etc. Thus individuals with Attention-Deficit/Hyperactivity Disorder (ADHD), dyslexia, cancer, diabetes, severe allergies, chronic asthma, Tourette ’s syndrome, digestive disorders, cardiovascular disorders, depression, Conduct Disorder, Oppositional Defiant Disorder, HIV/AIDS, behavior disorders, and significant temporary conditions would also qualify. Even disorders that are episodic or in remission are now covered if they create a substantial limitation in one or more major life activity while they are active (Durheim, 2013). Food allergies are often not readily apparent to others, but if they substantially interfere with receiving an appropriate education as defined by Section 504, food allergic students may be considered to have an “impairment” under Section 504 standards. As a result, they may, regardless of their academic aptitude, be unable to attain educational benefits equal to that of non-disabled students without special accommodations.
Although the term “substantial limitation” is not specifically defined in the federal regulations, the Office for Civil Rights (OCR) has indicated that “this is a determination to be made by each local school district and depends on the nature and severity of the person’s disabling condition.” Section 504 standards must now conform to the ADAA and are “intended to afford a broad scope of protection to eligible persons.” In considering substantial limitations, students must be measured against their same-age, non-disabled peers in the general population and should not take into account medication or other mitigating measures such as learned behavioral or adaptive neurological modifications, assistive technology, or accommodations.
Evaluations for accommodations
Parents, guardians, school personnel, and virtually any others can refer a child for evaluation under Section 504. However, the OCR has stated that in order to provide such an evaluation, “the school district must also have reason to believe that the child is in need of services under Section 504 due to a disability” (OCR Memorandum, April 29, 1993). Thus, a school district does not have to refer or to evaluate a child under Section 504 solely upon parental request. The key to a referral is whether the school district staff suspects that the child is suffering from a mental or physical impairment that substantially limits a major life activity and is in need of either regular education with supplementary services or special education and related services [letter to Mentink, 19 IDELR 1127 (OCR) 1993]. If a parent requests an evaluation, and the school district refuses, the school district must provide the parent with notice of their procedural rights under Section 504. Generally, however, a letter from the student’s physician stating that the student has a potentially life-threatening food allergy and requesting the evaluation should be sufficient.
Under Section 504, no formalized testing is required. The 504 Committee often looks at grades over the past several years, teacher reports, information from parents or other agencies, state assessment scores or other school administered tests, observations, discipline reports, attendance records, health records, and other behavioral data. Schools must consider a variety of sources, and the evaluation must include any and all area(s) of suspected disability. A single source of information (such as a doctor’s report) cannot be the only information considered. Schools must ensure that all information submitted is documented and considered and that the evaluation addresses all areas of suspected disability. Under Section 504, schools are not required to pay for an outside independent evaluation. If a parent disagrees with the school’s evaluation decision, they may request a due process hearing or file a complaint with the Office for Civil Rights. Ask your district or campus for a copy of Notice of Parent and Student Rights under Section 504 of the Rehabilitation Act of 1973.
Students receiving accommodations under Section 504 must be re-evaluated at least every three years or whenever a “significant change in placement” is contemplated. However, the campus 504 committee should re-evaluate the accommodation plan every year to make sure that it is appropriate based on the student’s current schedule and individual needs. In addition, the plan may be revised at any time during the school year if needed.
Determination of eligibility
According to federal regulations, when an evaluation has been completed, “...placement decisions are to be made by a group of persons who are knowledgeable about the child, the meaning of the evaluation data, placement options, least restrictive environment requirements, and comparable facilities” [34 C.F.R. §104.35(c)(3)]. The federal regulations for Section 504, unlike special education, do not require or even mention that parents are to be a part of the decision-making committee. The decision to include parents or not is made by each school district and should be spelled out in the district’s procedures for implementing Section 504. However, parents should at least be asked and encouraged to contribute any information that they may have (e.g., doctor’s reports, outside testing reports, etc.) that would be helpful to the committee in making their determination of what the student may need. Parents must always be given notice before their child or adolescent is evaluated and/or placed under Section 504 (34 C.F.R. §104.36). Parents must also be given a copy of their child’s Section 504 accommodation plan if the committee determines that the child is eligible for accommodations. Usually, if a parent requests to participate with the decision-making committee, the school will not refuse.
Each student’s needs under Section 504 must be determined on an individual basis based on the nature of the disabling condition and what that child requires in order to have an equal opportunity to compete when compared to those students who do not have a disability. Students with disabilities are still expected to produce, and there is no guarantee of particular grades. The goal for all students, with or without disabilities, is to give them the knowledge and skills they will need to be able to function in life after graduation. Common 504 accommodations include, but are not limited to, highlighted textbooks, extended time on tests or assignments, peer assistance with note taking, more frequent monitoring of and feedback on progress, an extra set of textbooks for home use, computer aided instruction, enlarged print, frequent positive reinforcements, behavior intervention plans, rearrangement of class schedules, visual aids, preferred seating assignments, permission to tape lectures, oral tests, and individual contracts (Durheim, 2013). Many of these accommodations, however, are not needed for food allergic students. Instead, those who have food allergies often require extra help in avoiding exposure to food allergens, a special “go to” person for assistance when they are in distress, the option to get to that “go-to” individual without specific permission in an emergency, protection against deliberate allergen exposure by bullies, authority to carry an epinephrine auto-injector at all times, an anaphylaxis emergency plan, and maintenance of non-student-specific epinephrine auto-injectors at the school (Wallace & Cash, 2012).
A Section 504 eligible student is to be educated in regular classrooms unless “... the student with a disability is so disruptive in a regular classroom that the education of other students is significantly impaired; then the needs of the student with a disability cannot be met in that environment. Therefore, regular placement would not be appropriate to his or her needs and would not be required by §104.34” (34 C.F.R. §104.34, Appendix A, #24).
While behavioral problems may not be a concern for most food allergic children and adolescents, difficulties can arise. Students receiving services under Section 504 are still bound by the district’s code of conduct. However, schools must consider any relationship between the disability and the misbehavior if the student is going to be removed from the regular setting for longer than 10 days. Students with disabilities can be sent to a discipline center, be suspended in-school, or have an out-of-school suspension for up to three days. Nevertheless, there are very strict guidelines in discipline issues with students who receive services under Section 504. A student with food allergies who also has behavioral problems should have an individual discipline plan as well as a behavior intervention plan.
Under Section 504, schools must provide equal opportunities in areas such as counseling, physical education and/or athletics, transportation, health services, recreational activities, and special interest groups or clubs. However, in most states, students must pass their courses to be eligible to participate in organized activities such as sports (34 C.F.R. §104.37).
Parents’ rights (Durheim, 2013)
Parents or legal guardians have the right to:
- Receive notice regarding the identification, evaluation and/or placement of your child;
- Examine relevant records pertaining to your child;
- Request an impartial hearing with respect to the district’s actions regarding the identification
- File a complaint with your school District Section 504 Coordinator, who will investigate the allegations regarding Section 504 matters other than your child’s identification, evaluation, and placement.
- File a complaint with the appropriate regional Office for Civil Rights. For additional information, contact: U.S. Department of Education, Washington, D.C. 20202-1100, (800) 421-3481, www.ed.gov/ocr, E-mail: firstname.lastname@example.org.
Cash, R. E. (2011). Bullying and food allergy: What can allergists do? Retrieved from /allergist/Resources/letters/Pages/BullyingandFoodAllergyWhatCanAllergistsDo.aspx
Durheim, M. (2013). A parents guide to Section 504 in public schools. Retrieved from http://www.greatschools.org/special-education/legal-rights/868-section-504.gs
Lieberman, J. A., Weiss, C., Furlong, T. J., Sicherer, M., and Sicherer, S. H. (2010). Bullying among pediatric patients with food allergy. Annals of Allergy, Asthma, and Immunology, 105(4), 282-286. doi: 10.1016/j.anai2010.07.011
US Department of Health and Human Services. Office for Civil Rights (2006). Your rights under Section 504 of the Rehabilitation Act. Retrieved from http://www.hhs.gov/ocr/civilrights/resources/factsheets/504.pdf
Wallace, D. V. and Cash, R. E. (2012). Back-to-school with allergies and asthma: Keeping our children safe. Retrieved from here.