ADA law & interpretation

22 replies [Last post]
By debnjoe on Thu, 03-04-99, 04:19

A recent ruling on a case of a peanut allergic child found that the child was not covered under the ADA laws. The case was Marie Land v. Baptist Medical Center in Arkansas. The only good news was that there was a dissenting opinion. If this case had been heard in the 9th district court, I have been told that they have been viewed as more liberal in granting or expanding rights under a statute, such as ADA. One option may be to amend the ADA statute to cover this type of allergic rxn.
The address is
[url="ftp://server.wulaw.wustl.edu/8th.cir/990106/982019.P8"]ftp://server.wulaw.wustl.edu/8th.cir/990106/982019.P8[/url]
(cut and paste exactly as is do not use http or www)

It is interesting to note that the Wall Street Journal reported on 3/3/99, that a school in Iowa had to have a full time nurse in attendance for a student that was ventilator dependent & quadriplegic so that student could attend public school under the ADA law. [img]http://client.ibboards.com/peanutallergy/frown.gif[/img]

Hello, This is Chris,
I would like to hear from anyone who knows about or has an opinion on this case.

Also: We (as a group) need to get organized to deal with this type of issue. This is one of the reasons we started this web site. Please contact me if you want to help us get organized.

Stay safe,

[email]"Chris@PeanutAllergy.Com"[/email]

[Note: This message has been edited by Chris]

[Note: This message has been edited by Chris]

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By FORZACKRY on Thu, 03-04-99, 18:20

Terry
What was the child's suit for?
Thanks,

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By debnjoe on Fri, 03-05-99, 03:39

A peanut anaphylactic child at a day care center needed epi-pen availability & personnel trained in administration. The child had two exposures to peanut at the day care center & the center then refused to take the child because of lack of personnel to monitor the childs dietary intake. A suit was filed under the ADA law. The district court ruled in favor of the day care center. The ruling was appealed,& the court of appeals upheld the district court ruling.

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By FORZACKRY on Fri, 03-05-99, 12:54

Thanks for posting what the suit was for - I can't believe it. The measures that the states go to to ensure public education for children under the ADA is amazing & to exclude pnt allergy is disgusting. The expense to train personnel in a daycare center to use the pen is far less than the full time salary of an aide that needs to accompany a disabled child all day in the public school system - there is literally an aide for every student. Why the daycare center continued to serve pnt products is another issue. Shouldn't there be a law banning peanut products in daycare settings - since the kids there should not have peanuts until they are 3 years old anyway.

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By erik on Fri, 03-05-99, 16:29

Unfortunately, the ADA only protects people in "public" daycares/schools. There is no protection with the ADA in religuous organizations. (separation of church and state thing) Could that be why they ruled in favor of the Baptist Medical Center?

__________________

*Addicted*

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By soy13 on Fri, 03-05-99, 17:07

Life threatening allergies ARE covered under the ADA. The ruling in favor of the church day care HAS to be because of seperation of church and government. The US department of justice, civil rights division has already settled the EpiPen/peanut allergy issue with LaPetite day care. I can only suggest that if your child has a life threatening allergy, stay away from church based day cares.

Good luck to all of us.

Sue in Arizona

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By knoxen3@msn.com on Sun, 03-07-99, 03:55

Please go to the site that Terry gives and read the court's opinion. Baptist Medical Center is NOT a church based center. The Court of Appeals for the Eighth Circuit ruled that the child's peanut allergy is a physical "impairment" as defined by the ADA; however, the court went on to say that the impairment does not "substantially limit one or more of the major life activities" of the child and thus the allergy does not meet the definition of a "disability" under the ADA. The child's mother had argued that the peanut allergy substantially limits the child's major life activities of eating and breathing--the court rejected this argument because the child did not suffer an allergic reaction when she consumed any non-peanut foods and her ability to breathe was generally unrestricted except after ingestion of peanut products. (The district, or lower court, had ruled this same thing. The mom appealed to the Circuit Court and the Circuit Court agreed with the district court).
Please note that the LaPetite Day Care case is NOT the law of the land. It would only be the law of the land if the decision had been handed down by the U.S. Supreme Court or if the federal legislature had enacted legislation which would have codified the court's decision. The federal courts in a circuit (the U.S. is divided into circuits, or regions) are NOT bound by the decisions made in other circuits. Circuit courts will often be presented with the decisions of other circuits in an effort to persuade them to decide one way or another, but they are not required to follow the lead of other circuits. Perhaps the Arkansas case will be appealed to the U.S. Supreme Court--we'll have to wait and see. Keep in mind, that in many parts of the country, protection under the ADA for peanut allergies is NOT a sure thing at ths time. If you have any questions, contact your family's lawyer. Also keep in mind that you may be protected under STATE legislation.

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By on Sun, 03-07-99, 15:42

Here is a link to the U.S. Department of Justice, Civil Rights Division -

"Commonly Asked Questions about Day Care Centers and The Americans with Disabilities Act"

(Note Questions 14, 19 & 26)

[url="http://www.dinf.org/crt/ada/childqanda.htm"]www.dinf.org/crt/ada/childqanda.htm[/url]

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By Jav on Mon, 03-15-99, 00:31

Hi everyone. I'm an attorney and mom of a peanut allergic child. Here's my take on this case. The PIVOTAL question was whether Megan's allergy substantially limited HER ability to eat and breathe. The court went on further to say this is AN INDIVIDUAL AND FACT SPECIFIC INQUIRY. You know what that means? It means that every peanut allergic child is different. It means that YOUR peanut allergic child might have had a different decision on this appeal. The court went further to say that A.D.A. didn't apply to Megan because her physician said the allergy only impacted her life "a little bit". She had no other food allergies either. The dissenting opinion is encouraging, however. Don't let this one opinion dash your hopes of A.D.A. applying to your child. Some peanut allergic children are allergic to other foods as well. Megan wasn't. Some are smell sensitive. Megan wasn't.

If your child is in or planning to enter a private day care or private school, I suggest you see if there's an American's With Disabilities Act coalition in your state, or a similar organization to help citizens understand and uphold the act. There is one in my state, Connecticut. They were one of the first places I turned when I found out my child was food allergic four years ago. They steered me in the right direction.

I posted a lengthy post under "schools" on 504 and IDEA. A day care or private school should be handled in a manner similar to public schools. I recommend you send a formal letter to the daycare detailing your child's food allergy and consequences of exposure. In light of the Land case, it would probably be a good idea to accompany your initial letter with a note from your child's allergist really detailing the severity of the allergy - have him use in his letter the buzz words "substantially affects this child's cardiovascular, respiratory, gastrointestinal and skin systems" or similar language. Tell the day care or private school that your child is disabled under A.D.A. (They may not all be aware of this case. Even if they are, it does not relate to your INDIVIDUAL CHILD). I'm sure not all daycares and private schools are as problematic or insensitive as Baptist was. You may actually be able to enatct a pretty good food allergy management plan for your child, and the daycare or school may be very cooperative.

In the event you run into trouble or they give you problems, you can do one of the following:

1. Try a different daycare or private school which is more sensitive to the issue;

2. Enroll your child in public school if possible (and get the protection afforded under 504 or IDEA, if applicable to your child); or

3. File a complaint against the offending facility. To do this, you should contact the United States Department of Justice in Washington, D.C. Civil Rights Division.

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By Byrd on Sun, 04-11-99, 03:13

I have spoken with someone at the US Department of Justice, Public Access Section, Civil Rights Division (1-800-514-0301). She informed me that ADA does cover private schools and that a child can not be rejected because of peanut allergy. Did she give me the wrong information?

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By Byrd on Sun, 04-11-99, 03:48

Hi LauraP, could you let me know the telephone number of the Connecticut ADA coalition group, Thanks

[This message has been edited by EILEEN (edited June 15, 2001).]

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By Jav on Sun, 04-11-99, 10:46

Hi Eileen -

A.D.A. does cover private schools and peanut allergic children. The phone number for the Americans With Disabilities Act Coalition Of Connecticut (ADACC) is either area code (860) or (203) 269-2700. I also have a phone number for the CT Office for the protection and Advocacy for persons with disabilities (1-800-842-7303). Probably if you contacted the U.S. Dept. of Education, Office for Civil Rights, they should be better able to direct you to appropriate advocacy goups in your state.

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By Byrd on Mon, 04-12-99, 16:17

Hi LauraP, thanks for your reply. I tried all of the numbers but 1-800-842-7303 did not connect to anyone, 860-269-2700 had been disconnected and 203-269-2700 is the Better Business Bureau. Would you check them please?

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By Jav on Tue, 04-13-99, 21:18

Hi Eileen-

Seems like most of these places have changed their phone number.

1. (203) 269-2700 is a link to the B.B.B and dispute resolution with the Americans with Disabilities Act Coalition of Connecticut.

2. The ADACC has changed the number to (860) 566-2102. You can visit their website at
[url="http://www.adaptenv.org/mappage/adaptct.htm#adacc"]http://www.adaptenv.org/mappage/adaptct.htm#adacc[/url]

or write to them at:
ADACC Inc.
P.O. Box 524
Stratford, CT 06497-0524

3. The Office for the Protection and Advocacy For Persons With Disabilities:

60B Weston St.
Hartford, CT 06120-1551
(860) 297-4300

website: [url="http://www.state.ct.us/opapd/"]http://www.state.ct.us/opapd/[/url]

I also found a link to numerous of these types of organizations, and the site does not seem to be confined to just Connecticut. I suggest you check this out, to see if there is something there for your particular state:

[url="http://www.state.ct.us/ctcdd/resource/conn-web.htm"]http://www.state.ct.us/ctcdd/resource/conn-web.htm[/url]

Good Luck!

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By Byrd on Tue, 05-11-99, 04:20

Laura, thanks for all this information.

[This message has been edited by EILEEN (edited June 15, 2001).]

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By Imelda on Wed, 05-12-99, 21:46

I just had an experience with this and my son's preschool. The school has basically asked us to leave and it's a Methodist preschool because they can't accomodate him.

I've checked ADA laws here in Texas and church schools do have the right to not accept your child. ADA too, suggested looking for a public preschool. We are considering the YMCA since they are public.

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By Byrd on Thu, 05-13-99, 00:00

I contacted my state's branch of "Protection and Advocacy for Persons with Disabilites". Unfortunately, the person I spoke to was NOT interested in my woes (peanut-allergic son may not be accepted at private school etc) since he does not have a learning disability.

The representative said she would talk to a lawyer and call me back in 15 minutes. Several hours later she left a message to say I should find out if the school receives Federal funds, if they do the school must make an accomodation due to the ADA and I should file a complaint with the Office of Civil Rights. That's all. I think her information is incorrect. Doesn't the ADA, Title 3 also apply to all private schools even if they are not receiving Federal funds and all complaints go to the Department of Justice. Any thoughts? I now describe my son as a "child at medical risk."

[This message has been edited by EILEEN (edited June 15, 2001).]

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By jolisao on Wed, 05-26-99, 14:36

DOES ANY ONE KNOW HOW TO GET AHOLD OF THE PARENTS IN THIS MARIE LAND CASE? I IS INTERESTING TO ME THAT WE MAY BE RELATED. MY MOTHERS FAMILY NAME IS LAND. PLEASE LET ME KNOW. IF YOU CAN HELP. THANKS LORI

------------------

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By camom on Fri, 06-15-01, 03:12

I am struggling with a similar issue in Biloxi, MS. My ten year old daughter with PA attended a Sea Camp sponsored by the Maritine and Seafood Industry museum. She may have had a mild reaction one day, but she was well prepared, administered her epipen and asked to be taken to the ER. She was and everything was fine. The next day the Executive Director and President of the museum refused to allow her to participate in a day long boat ride and trip to a nearby barrier island, specifically because of her allergy. We had written permission from her allergist and were prepared with extra epipens. They still refused (quite rudely). When I told my daughter she replied, "Now I'm viewed as a freak." I spoke with her allergist and an attorney. Both believed this was a violation of the ADA. I have issued letters to the MS District Attorney, the Mayor of Biloxi and the City Council seekung recourse. Not sure where it will lead, but I'm ready to pursue it until the end. I'm trying to get others with PA experience to express their opinion as well. If you are so inclined, and I hope you are, you can send your comments to the museum at [email]info@maritimemuseum.org[/email]

Good luck to all of you who are dealing with the effects of PA or dealing with the uneducated public. Sometimes it's hard to tell which is worse.

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By soy13 on Thu, 10-25-01, 16:29

This might be of interest to parents that are fighting church daycare/preschools -

Sue in Sunny Arizona

[This message has been edited by Sue (edited January 25, 2002).]

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By soy13 on Fri, 01-25-02, 16:10

This is a good topic for information on a recent question about accomadations in preschool/daycares.

Sue in Sunny arizona

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By soy13 on Tue, 09-24-02, 04:32

just bumping up

Sue in Sunny Arizona

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By Arah1 on Tue, 09-24-02, 12:38

[url="http://www.usdoj.gov/crt/ada/lapetite.htm"]http://www.usdoj.gov/crt/ada/lapetite.htm[/url]

This link will take you to a settlement between a childcare center and the ADA regarding children with life threatening allergies. Interesting, to say the least.

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