Schools - Section 504 and IEP

Posted on: Sat, 02/13/1999 - 2:08pm
Sue's picture
Sue
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I am new to this board so I hope I am doing this correctly: We have had to fight and continue to fight the school for help in keeping our daughter safe at school.

She has life threatening peanut allergies, both ingestion and contact. We have our daughter's peanut allergy and emergency plan documented and covered in her IEP. If she did not have an IEP, we would work to get it covered under a written 504 plan.

Life threatening allergys are covered under the Americans with Disabilities Act. We have made progress with her school and it is such a struggle. We have, also, filed a compaint with the US department of Justice Civil Rights division because of the school.

Please let me know if you have some ideas that have worked for you.

[This message has been edited by Sue (edited May 20, 2001).]

Posted on: Sun, 02/14/1999 - 12:49am
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<p>Sue,</p>
<p>We have also hired a lawyer to get my son's school system deal properly with his allergy. He is not allowed to carry his own epi-pen on school property and has no access to one on the school bus ride. After researching our lawyer tells us that there is substantial doubt whether food allergy is a disability or handicap covered under the ADA. If anyone knows differently please send the exact reference or precedent. We also have an IEP which specifically indicates that he must have his injection immediately after symptoms are noticed. The school system still thinks the bus ride is safe even with no epi-pen available! We will continue to push them. We also hope to use the Section 504 designation which has a broader eligibility requirement than ADA. Please keep updating about how your issue is progressing and any new findings or ideas.</p>

Posted on: Sun, 02/14/1999 - 6:11am
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<p>Our state (MI) also has POHI, coverage for physically or otherwise handicapped individuals. Besides 504, this was another area available for coverage. We didn't really care where the money came for an aide at lunch, as long as it was available. We have also identified the individual in the school administration that is the contact person for children with special needs, or the "medically fragile" child, is the latest buzz word. Is there a school nurse that could be of assistance? What is the policy on asthmatics carring their inhalers? Good Luck.</p>

Posted on: Mon, 02/15/1999 - 5:45am
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<p>Contact Ellie Goldberg, an education rights specialist in Newton Massachusetts. c/o Healthy Kids, 79 Elmore ST. Newton MA 02159-1137. (617)-965-5407. [email]ERG@HK.PN.COM[/email]. Yes, it is a disability. Breathing is a major life function covered under this ADA, and our children will cease to breathe when anaphylaxis occurs. As for the reply with the school bus, there sure seems to be a major about of educating that needs to be done. Will your allergist assist you? Until then, my child would NOT ride the bus. My kids are constantly being given candy at school for rewards. It is ridiculous the amount of candy that flows through our schools. Too risky in my eyes. Good luck.</p>

Posted on: Tue, 02/16/1999 - 11:51am
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<p>I did contact Ms. Goldberg asking for information. I got a two sentence reply stating there was no one way school systems handled this problem. As for the ADA issue everyone uses this law when discussing our children's rights but according to our lawyer there is no precedent for this issue. Perhaps other towns have given in when this issue was mentioned rather than fighting in court. So far our town hasn't backed down. We will keep fighting but we need to know exactly what laws do protect our children and the section 504 designation seems to be the one that actually covers our children at this time. Yes my son does not ride the bus and his allergist has made many calls on our behalf along with medical documentation. Apparently I'm the first parent that has brought these issues to the schools attention. I'm constantly being reminded that my son is not the only one with this problem and no one else has demanded these precautions. Shame on the other parents is my attitude. I refuse to take any unnecessary chances with my sons life just because they don't feel they are necessary. Sorry the reply was so long. Take care, Janet</p>

Posted on: Wed, 02/17/1999 - 1:04am
Mary Catherine's picture
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<p>Hi Janet--I know how you feel. I'm apparently the only parent in our school that has taken such "extreme" precautions, too. I don't understand it. I am haunted by all the tragic stories the FAN reports and I'm going to do what is necessary to protect my son's life. There are so many more children in our school with severe allergies. However, I continue to remind myself who I am here for and I refuse to be intimidated. That doesn't mean there haven't been tears along the way! So far, our school has been very supportive. But I haven't had to deal with bus drivers. Perhaps that would create a more difficult situation. I'll deal with that in six more years. Perhaps you'll have paved the path for the rest of us by then! I'm also disappointed to hear that Ellie Goldberg wasn't more supportive. I spoke to her on the phone two years ago and received quite a bit of guidance and information from her. She set me off on the right foot. I'm baffled.</p>

Posted on: Wed, 02/17/1999 - 3:18pm
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<p>Janet,</p>
<p>I live in Tucson, Arizona and have called around trying to find a lawyer. I have had NO luck. No one I have talked to wants or takes Special Education Civil Rights issues.</p>
<p>As far as your lawyer doing research... You might want to tell him to look at web site : [url="http://www.usdoj.gov/crt/ada/childq&a.htm"]http://www.usdoj.gov/crt/ada/childq&a.htm[/url] </p>
<p>Let's hope I typed that correctly!!</p>
<p>Anyway, I think that site has defined what has to be done for life threatening food allergies not only for preschools but schools also. Questions 14, 19, and 26 in particular. Question 26 certainly covers life threatening allergies under the ADA.</p>
<p>I have chased so much info and provided it to both our daughter's public school and the preschool that they have placed our daughter in. I have found that you can have all the laws you want but if you don't have someone to help take the schools to court it doesn't make any difference because they are not afraid of any law. They just do what they want at the moment. Even after I told the school and preschool that the ADA states that the preschool must keep our daughter's Epipen on hand and administer it to her in an emergency, they refuse to keep it at her preschool. We have filed a compaint with the US department of Justice civil rights division, but the response we received from the US department of justice basically said they got our complaint, they are under staffed, and they will get to it when they can so we should not contact them again.</p>
<p>[Note: This message has been edited by Chris]</p>

Posted on: Fri, 03/05/1999 - 12:15am
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SUE,
WHAT DID YOU MEAN WHEN YOU SAID THEY PLACED YOUR CHILD IN PRESCHOOL? IT SOUNDS LIKE YOU HAVE HAD NO CHOICE IN PRESCHOOLS. MAYBE IF YOUR CHILD IS STILL THAT YOUNG YOU SHOULD THINK ABOUT DOING SOME WORKBOOKS AT HOME TO GET HER READY FOR SCHOOL. IT SEEM LIKE A HUGE RISK TO LEAVE HER THERE WITH OUT A EPI ALTOGETHER. I DON'T KNOW IF YOU WORK BUT THERE HAS TO BE ANOTHER ALTERNITIVE. GOOD LUCK. I'LL BE PRAYING FOR YOU. LORI
------------------
[This message has been edited by Lschubert (edited March 05, 1999).]

Posted on: Fri, 03/05/1999 - 2:35am
Sue's picture
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Lori,
Thanks for your post.
There is always more to a story than we can share on this board [img]http://uumor.pair.com/nutalle2/peanutallergy/smile.gif[/img] Seems that things get so complicated. My point is that the skills she must learn can only be learned in a social setting with upward modeling from her peers.
Our daughter qualifies for early school intervention services. The services are to be provided by the school district. She has an IEP and goes to pre-school because she has "delays". Home schooling would not serve any purpose for her particular needs. She is covered under the ADA and section 501.
Because of the preschools refusal to keep and administer the epipen, we have filed a complaint with the US department of justice and we have an up coming meeting with the state attorney generals office. We cannot and should not have to keep her isolated from school and peers.
Your suggestion of home schooling is very logical but inappropriate for our daughter. Children like our daughter need to enter the social world and be with their peers as early as possible to for so many reasons.
I am a stay at home mom and we have taught her all of the school basics for her age.
She is learning to read. She can't get enough of playing checkers and chess. She loves to have stories read to her and she reads the books to her toys. She is doing well on the concepts of math. O.K. I know.... enough about how bright she is.
We must all fight for the rights of all children to be included and accepted in society.
Thanks so much for taking the time to offer your help.
Sue
[This message has been edited by Sue (edited August 17, 2002).]

Posted on: Fri, 03/05/1999 - 1:02pm
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Sue,
Many kudos to you for a job well done. I too, am facing the social aspect of isolation and this allergy. We are losing my 2-1/2 yr old sons current child care provider who was dedicated to being pb free in her home. She had five other children in her care who my son has grown up with. I cannot find another provider who is dedicated to being pb free. Many people have asked why I don't get someone to come into my home to care for my son, but I so worry about him being isolated from other children at an age when I feel social development so important.
This allergy surely can cause grief!!

Posted on: Sat, 03/13/1999 - 9:33pm
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Joined: 03/10/1999 - 09:00

Hi everybody. I have this message posted on another thread also. Chris asked me to copy it here as well. I'm an attorney and mom of a peanut allergic child. Here's some info which may help those of you dealing with public schools. I'll try to be as concise as possible.
The single most important thing you can do to protect your peanut
allergic child while at school is to formally refer him or her for a
special education evaluation. This will result in your child being
classified as disabled. Don't panic! This is a good thing. There is
no negative impact on your child. In fact, quite the opposite. It's
this classification which will guarantee your child will be afforded
protection under one or more of three Federal Laws which apply to
all public schools in all states. It's these laws which will enable
you to work with your child's school to implement a plan to assure
safety and appropriate medical treatment while at school.
Section 504 of the Rehabilitation Act:
It's this law that most peanut allergic students will fall under. It's
a civil rights statute and it protects your child from preschool
through college. Your child is covered under 504 if two conditions
are met:
1. He or she has a disability as defined by statute: In a nutshell
(no pun intended) 504 defines a disability as a physical or mental
impairment that substantially limits one or more "major life
activities". Peanut allergy affects various body systems -
cardiovascular, digestive, respiratory, and skin. BINGO. Definition
met.
2. In addition to meeting the definition of disabled, your child also
has to have a record of the impairment (at some point during your
child's classification the school will want to see medical
documentation pertaining to the peanut allergy. When you are
asked to provide this, make sure your doctor specifies what it is
your child is allergic to and the life systems which can be affected,
the treatment plan, and specifics as to drugs to be utilized and
dosage).
So. Your child qualifies under 504. What does the school have to
do? They'll come up (with your input) with either a special ed
program (meaning a plan that meets the needs of your child) or in
lieu of that a regular education program with related services.
Under 504 your child has to be permitted to participate in
non-academic activities, which include things like lunch and field
trips.
What can't the school do? They CANNOT deny your child
admittance. They CANNOT deny your child the right to participate
in activities or services. They CANNOT refuse to administer
medication, even if they do not have a full time nurse. You should
check with your state Dept. of Ed. to see if they have detailed
protocols on the administration of medication. My state,
Connecticut, does not. All that the state requires is that someone
has to administer the Epi-pen. The state has no mandates as to
who that someone is. It's worked out on a district to district basis.
In my son's case, the entire staff at his school has been trained in
food allergies, and Epi-pen administrators are his teacher, teachers
aide, school nurse, nurses aide, and principal.
II. The Individuals With Disabilities Education Act (IDEA). This act
covers your child ages 3-21. The requirements for your peanut
allergic child to fall under this statute are more stringent than 504.
Meeting the definition of a disabled child is a problem for the
peanut allergic here. While the allergy falls under the catch-all
"other health impairment" under the statute, the problem is that
having a health impairment, a PURE PHYSICAL CONDITION, is not
enough for a child to be eligible for this statute's protection. The
definition continues to define a child with a disability as one who,
by reason of the disability, needs special education and related
services. Most peanut allergic children do not. However, if your
child had another disability - such as attention deficit disorder, or
a speech language delay, or some other qualifying impairment,
then IDEA would apply in your case.
If your child does fall under the realm of IDEA, an IEP will be
implemented which specifies your child's educational, emotional
and social goals as well as services to be provided for your child.
Note that both IDEA and 504 provide for your child to be educated
in regular education settings with non-disabled peers to the
maximum extent possible.
III. The Americans With Disabilities Act. Another civil rights
statute protecting the disabled from discrimination. It extends the
rights of 504, although I don't think the schools will use it in
classifying your child. This is the statute that is relevant for
children in private schools and daycares, as it covers private
businesses. For more information on this statute anyone interested
can contact the U.S. Dept. of Justice.
Starting Pointers for Approaching Your Child's school:
Find out if the school has a special education consultant. If so
contact either that person or the principal in writing detailing your
child's condition, consequences of exposure and medical treatment.
Include in your letter a statment that peanut allergy is a disability
under Section 504. Not all schools may know this. This letter will
start the ball rolling. The school CANNOT ignore your letter. BY
LAW IN ALL STATES they will be required to evaluate your child
(method of evaluation will vary state to state).
Next, you'll receive some form of "prior written notice" of an
evaluation. The how, where, when, and who will also vary district
to district. In my son's case, present at the evaluation meeting
were the special ed consultant, the principal, the preschool
teacher, the school nurse, the nurses aide, and the school
psychologist. Your child's needs will be discussed in detail and a
plan will be proposed. It's only implemented when you agree to
everything on it. If you disagree, or if there is a dispute, you're
entitled to a Due Process Hearing (the school will provide you with
this information as well).
I could go on forever with this stuff. I hope that helps somewhat. I
consider myself fortunate that my son was the first peanut allergic
child to enter his school. I believe we have a model plan in place.
By proceeding formally, I grabbed the opportunity to lay excellent
peanut policies for not only my son, but future allergic children as
well. I really think every parent should go through the red tape.
It's worth it all around. The schools are very cooperative. You're
not being pushy. Your child has a right to attend public school and
do so in safety. The types of measures you seek really don't cost
anything - it's all a matter of policy changes. Go for it!
[This message has been edited by LauraP (edited March 14, 1999).]

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