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When a School Refuses to Protect a Child with Life-threatening Allergies …

06/12/08
by Pam Wright

The child’s doctor wrote,

“… the Student is extremely allergic to peanuts and tree nuts. These allergies can cause anaphylaxis, which is a life threatening condition. Symptoms from anaphylaxis include itching, hives, difficulty breathing, swelling, closure of the airway, vomiting, diarrhea, drop in blood pressure, and can even result in death, as evidenced by the 500 people per year in the United States who die from allergic reactions to food.”

“The Student’s reactions are so severe that she has developed hives from being kissed on the cheek by someone who ate peanut butter. She has reacted after handling peanut butter cookie dough, even though she didn’t ingest it. She has also reacted after eating cheese from a salad bowl that previously contained a dressing with walnuts in it. I’m sure you are aware of the recent incident involving a Canadian girl with a peanut allergy who died from anaphylaxis after kissing her boyfriend who had eaten peanut butter earlier in the day. Thus, it is important to take these potential reactions seriously.”

Can you imagine the anxiety this child and her family live with, day after day, year after year? Surely, the teachers and administrators at her school will do whatever they can to help.

History

The family requested that the school develop a Section 504 plan to address the child’s allergy related needs and ensure a safe educational environment for her. The laws require that information from all sources is documented and carefully considered when evaluating students to determine their eligibility.

At this child’s eligibility meeting, six school team members – the school principal, the Section 504 chairperson (also the assistant principal), the school counselor, the school nurse, the child’s teacher, and a paraprofessional who worked in the classroom – determined that the child did not have a disability and was not eligible for services and protections under Section 504.

A complaint was filed with the Office for Civil Rights alleging that Gloucester County VA Public Schools discriminated against the child on the basis of her disabilities, denied her a free and appropriate public education that addressed her needs, and failed to ensure a safe educational environment.

“Extraordinary Circumstances” Allow OCR to Investigate

Although the Office for Civil Rights does not usually review individual educational decisions, they may investigate under “extraordinary circumstances.” In the Gloucester County VA Public Schools case, they looked at:

“… the nature and severity of the harm that could result from the school division’s failure to provide a student with a disability with Section 504 services. When a school division’s decision that a student is ineligible for Section 504 services could result in the death or serious illness of the student, there is a basis for finding that the case involves ‘extraordinary circumstances’ that support a substantive OCR review of the decision.”

The Evidence

OCR reviewed the correspondence from the child’s doctor describing the severity of her condition, information that was provided to Gloucester County Public Schools but ignored by the school. OCR expressed concerns that:

… the evidence from the Student’s doctor was not contradicted by any other evidence, and that neither the evaluation team members nor anyone with whom they consulted had qualifications approaching those of the Student’s doctor to diagnose the nature and severity of the Student’s PTA and the likelihood, nature and severity of the harm that could result from the Division’s failure to find the Student eligible for Section 504 services.”

OCR found that Gloucester County Public Schools had their own documentation of the child’s allergies, including:

  • meeting minutes that describe the child has having “a life threatening food allergy” that were signed by signed by six school staff members
  • the child’s “Individualized Health Care Plan” which described the child has having “a severe allergy to peanuts/treenuts which can be life-threatening” signed by two staff members

The Findings

Based on the evidence, “we find that the Division’s decision that the Student is ineligible for Section 504 services could result in death or serious illness of the student, and that this case therefore involves ‘extraordinary circumstances’ that support a substantive OCR review of the result of that decision.”

The Resolution

As a result of this investigation, Gloucester County Public Schools signed a Agreement to reevaluate the Student to determine if she is eligible for services under Section 504 and Title II, and will comply with 504 procedures this time. OCR provided Gloucester County Public Schools with several sample 504 Plans.

The resolution letter concludes with this statement:

“We remind the Division that it may not harass, intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the laws OCR enforces. If any individual is harassed or intimidated because of filing a complaint or participating in any aspect of OCR case resolution, the individual may file a complaint alleging such treatment.”

Read the full text of the Resolution/Closure Letter from OCR to the attorney representing Gloucester County Public Schools:

http://www.wrightslaw.com/law/504/OCR.va.peanut.pdf

Gloucester County Public Schools is fortunate that OCR intervened. If this child, or another child, had a fatal allergic reaction after the school team refused to accommodate her well-documented allergic condition, they would be in very hot water. Consider the probability that a fatal allergic reaction would be witnessed by her classmates.

If you have a child with a peanut and tree allergy (PTA), you may need to educate your school district about the severity and unpredictable nature of these allergies. This OCR Resolution letter should help your district understand their legal responsibilities under Section 504. Learn more about Section 504 of the Rehabilitation Act.

http://www.wrightslaw.com/info/sec504.index.htm

How to File a Discrimination Complaint with the Office for Civil Rights (in English)

Cómo presentar una denuncia por discriminación ante la Oficina de Derechos Civiles

_______________________________________________________________________

Thanks to one of our Wrightslaw subscriber’s for alerting us to this OCR resolution letter.

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34 responses so far ↓

  • 1 Pete Wright 07/14/14 at 10:09 pm

    We have provided many more resources abt legal issues and allergies. Go to: http://www.wrightslaw.com/info/allergy.index.htm.
    Pay close attention to the cases. The legal principles and protections re diabetes, epilepsy, and other cases are the same as the child with allergy. An allergic reaction is an episodic condition which, with the amendments to ADA, establish Section 504 eligibility for the child and college student. Read the Lesley Univ and the Camelot Day Care cases.

  • 2 Mame 07/14/14 at 9:52 pm

    I’m the mother of this child. I burst into tears when I realized the article was about her. I had no idea her case helped others or that anybody had heard of it. I cried for the validation Wrightslaw gave me and from the pain of the year it took to settle. I filed the complaint when she was 6. The school nurse and teachers were supportive, but their hands were tied by the administration. She is now 14, always was out-going, smart, and athletic (so says her proud mama!), and still has life-threatening food allergies and a 504 plan. She is her own advocate, but doesn’t like being singled-out for her food allergies. Most everyone (except one middle school nurse) has been helpful about her food allergies without excluding her. Thank you to all who left positive comments.

  • 3 Joelle 07/02/13 at 3:12 pm

    Would this law apply to a township summer camp that refused to make it safe for my son to attend? The direct actually said, “I’m not going to make my 15 year old counselors responsible for the safety of your child,” and returned our money.

  • 4 C 06/12/13 at 12:20 am

    What do you do when your child’s school and district refuse to include parties in the 504? They are willing to use the word “projects” but are unwilling to use the word “party” or “event,” and these are the times when our child is most at risk!

  • 5 Tee Ruth 06/11/13 at 1:20 pm

    Teach your child what they cant be around or they will get sick or die. 6 cass knowingly put her children in harms way by sending them to school on balloon day. That’s just bad choices, it’s not the schools fault

  • 6 Carolyn 06/11/13 at 11:23 am

    Not only do schools forget these children, but the parents of other children in the school complained to the school district about their children not being able to bring peanut butter of nut products to school. These parents felt their children were being discriminated against when they were told they could not have peanut butter of any nut product at the school. Of course, they felt this ruling also reached into the home as well as school.

    I guess life is not important to them unless it is their child.

  • 7 texasparent 04/23/13 at 4:08 pm

    My son has just been given detention, just because the lunch lady was very rude to him. I have already talked to the principal and the superintendent. But I am getting no where. My son told me that she was rude, slammed his tray down and made him go to the end of the line, just because he did not want something and for that reason he was not feeling good that day. I am thinking the school is just picking on him, because I got another letter yesterday say he has to many excused absences. Is this because my children are in the free lunch program? This is a very small school in texas. What can I do???

  • 8 Shaunda 04/02/13 at 8:47 am

    First, let me say that two of my children have peanut allergies and one has egg allergies. Thankfully, the private school they go to is great about protecting them. However, to all of you with children and severe life threatening allergies who are sending their children to schools that are not supportive, and are in fact, putting their children in danger by refusing to cooperate or recognize the severity of the condition and potential for loss of life………HOMESCHOOL your children!! Especially those parents who are saying that their children are missing so much school (in particular the mother who says her son has skin problems and extreme itching). If you are getting in trouble with the school and they are threatening to arrest you because of so much missed school….HOMESCHOOL them!! That is your alternative option!!

  • 9 Melanie L. 11/02/11 at 1:42 am

    Here’s a related post: http://nutsafeschools.wordpress.com/2011/10/27/section-504-plan-for-food-allergies

  • 10 Virginia 10/20/11 at 1:54 pm

    I have a 16 year old daughter with Pseudotumor cerebri which causes massive headaches, nausea, dizziness, ringing in the year, joint pain to mention a few. She has been home for the last 4 weeks unable to do much of anything. Drs have started her on new medication that is starting to help. I have been dealing with this since she was 10 and had a 504 set up. The superintendant at our school told me last week she would flunk her 1st semester of school due to the abscenses and not keeping up with class work. It is things she does not comprehend and we have not been given any help. For the 1st 5 weeks of school her lowest grade was 98.9. I know she will miss more school and need help. What are my options for keeping her education going?

  • 11 Advocate By Fate 09/22/11 at 8:28 am

    Has there ever been a case where federal financial assistance has been revoked for violation of 504 plan? I know that the threat is present. That if a district is in violation of Section 504, they could lose federal funding. That said, I cannot recall one case where this actually happened (losing funds)!

    Resolution letters are nice but swift actions are better. When a child with a LTA is being discriminated against (sent home so food allergen can be used in school/classroom or made to stay inside so the kids can play outside because staff feared an environmental reaction), what kind of recourse does a parent have!??! Seems like not much considering OCR may not handle individual cases.

  • 12 cass 02/27/10 at 8:38 pm

    help. I have two children allergic to latex. Their school was going to have balloon races and pop them. We called and emailed them of how extreme the allergy was. We were told they would change it. My children were put in a room with a teacher while the fun assembly went on. The balloon popping commenced. Then my daughter had a reaction..asthma wheezing and burnt throat. She wasn’t even in the room. Why did they knowingly and willingly put my girls in danger. My one daughter has type one allergy. What can I do?

  • 13 Shanna 08/28/09 at 11:55 am

    The USDA legally recognizes food anaphylaxis as a disability and schools MUST accommodate for children in the school lunch program. The schools don’t have a choice, it is the law to accommodate for anaphylaxis. I know this. I have fought this battle and even had the USDA’s OCR involved with discrimination issues for my son. School lunch programs funded by USDA can have their funding removed if they discriminate against kids with anaphylaxis. I know this. I fought this battle. There are USDA documents detailing the schools responsibilty to accommodate. I have a copy, and will try to look up its title and post it later. The USDA website is huge but you can try searching for it under the heading of “food allergies.” Comment here if you have any questions about how I fought the school and won!. Shanna

  • 14 Robert 04/28/09 at 8:50 pm

    I am the father of a six year old son with severe food allergies. His Kindergarten teacher has to date heated the lunch I prepare for him. Now however, she has stated she is no longer prepared to do this and a cold lunch should be provided. Is there any legal requirement that his teacher/school provide the means to have a warm meal?

  • 15 stlalohagal 04/20/09 at 1:17 pm

    To date we’re still in our OCR complaint in which our school district removed our daughter’s 504 plan for severe peanut/tree nut allergy. They said she wasn’t severe enough since she can eat and breath just as normal as any other child her age. That despite three extremely strong letters like the one in Gloucester that show she is severe and life threatening. OCR at this time is making the school do the re-evaluation but to date the school has refused and they are delaying the finalized resolution agreement week after week… going on 8 weeks now. People have no idea really how much of a fight this is for their children s rights, and how schools treat them and the parents. To date our daughter has been excluded from a field trip directly involving her allergens and the school lunch program and many more things. It’s unbelievable.

  • 16 bg 03/28/09 at 9:24 am

    I have linked food allergies with vaccinations. Peanut oil, for instance, is commonly used in the vaccine adjuvant. Because it is not an “active” ingredient, it is a protected trade secret and does not have to appear on the package insert. I have linked milk allergy to the cassein in the first vaccination given to babies. And it goes on and on from there. It is important for the law to protect our children after the damage is done but what about full disclosure of all the vaccine ingredients so doctors really know what they are injecting into our children?

  • 17 Geta504 03/20/09 at 8:58 am

    Yessina, please join us on the Schools board at
    allergy.hyperboards.com

    Find out the mandatory school age in Florida. IF he is under that, you cannot be held liable for attendance this year.

    Definitely get a 504 Plan. You must request this formally. You need documentation from the dr. For now, be sure your doctor letter says “life threatening” allergies…see the wrightslaw decision above for the reason.

    Please join us as we can really help you in getting a good plan for your son.

  • 18 Yessenia 03/09/09 at 1:58 am

    My 6 year son has chronic allergies reaction- to peanuts, eggs and certain fruits, latex. His skin constantly flares, he scratches until he bleeds, does not sleep well at night and it’s difficult for him to wake up. I have tried everything his doctors recommend. He is in kinder, first year away from me. never went to day care. My son has missed few days from school because of his flare ups. I have informed his school of his problems prior to admitting him in school and provided a letter from his specialist with details. Now his asst. principal says I can be arrested and my son taken away from me if he continues to miss school. He can also fail kinder. Some days he does not want to go to school because his entire little body itches. Can we both be punished because of his illness? We are located in Miami, FL. We were never given the options to file the 504 plan. Will 504 protect him?

  • 19 Allergic Reactions 12/13/08 at 12:04 am

    This is certainly a good move to make Schools responsible for the pupils’ care. Allergy, a very common phenomenon in most of the children and schools should maintain a separate database for these kids, just to ensure a better care in future, as , a kid spends considerable time at school, in a day.

  • 20 terri 11/14/08 at 11:32 am

    Although i do not have a child with a peanut allergy, i am outraraged about the harassment my friend has had to go through with our school system for the last seven years. two of her four children have severe allergies and although they have done a 504 plan every year they continue to call her in several times a year to try to persuade her to allow them to put peanut products back on thier menu. this year has topped it all. they have decided to put peanut products back on the menu once a month. On those days she will keep her children home. now they have requested her one child to see a school counsler in regards to her fear of peanuts!! Duh!! i am afraid of things that can kill me too… what is wrong with these people??? i would tell more but there is not enough room. i hope to find info on this site and more so i can help my friend.

  • 21 Kristie 09/29/08 at 1:18 pm

    I am in a school district that does not take federal funding. Therefore, I’m told that no 504-s are given. I have an IHP, but no IEP because I’m told that there are no Learning issues involved. I would like a 504 or an IHP because I feel that these carry more weight than what I currently have wrotten in my plan. I’m told that only qualify for an IHP. What are my rights?

  • 22 McCobbre 09/24/08 at 10:43 pm

    I’m not sure how anyone could be “convinced” of any such motives by this letter alone. The fact is, children with a life threatening food allergy are considered disabled. They are protected by law. Other laws, such as FERPA and HIPAA protect students’ privacy–so it should not be known by outsiders to what extent a school provides accommodations for a student. Frankly, it’s none of the other parents’ business (to put it crassly).

    Thank you for the explanation of “in loco parentis.” I think it’s key to understand that here.

    And to respond to one poster, this case was about the denial of FAPE, not about a ban. Just wanted to clarify that, as that’s the really exciting (and useful) thing about this case. I think it’s already done a great deal to help several children with LTFAs–in Virginia and elsewhere. My son, for one.

    Again, wrightslaw.com–THANK YOU!!

  • 23 lois 09/02/08 at 9:04 am

    I am convinced this mother was looking for a reward by exploiting her daughter because that school was going to great lengths to accomidate her and her child without having a 504 plan, My child also has a life threatening food allery to peanuts, tree nuts and eggs, he too has an epi pen and yes we worry about sending him anywhere but at some point you have to realize the people taking care of your child are doing just that.

  • 24 Deb 07/23/08 at 7:46 pm

    We know someone whose son cannot even be in the same room as anything associated with nuts and shellfish may cause as a severe reaction as well. The reaction is so severe just being in the location or classroom of someone who has ingested or handled anything with nuts causes an immediate and severe reaction. Death without question without immediate treatment. Even if a plan could be adopted, given the severity of the allergy, I think I would be leery of being able send him into such a setting. Praying for compliance.

    What would a plan look like developed for someone with such severe reactions?

  • 25 Maurice 07/16/08 at 9:52 pm

    I am a Human Rights Specialist in Ontario Canada, recently I represented a group of 6 students with similar life threatening allergies who took their principal and school administrators to the Ontario Human Rights Commission. They too were denied what we call “reasonable accommodation based on disability” The school board was asked to develop a school wide monitoring program that ensured no foods with allergents were allowed. Policies, programs and education was also implemented.

    As in the the USA case the hardest part was to get everyone to agree that life threatening allergies was a disability and qualified for accommodation rights under law.

    Today we are working with Human Rights Commissions Canada wide and will address their national conference in September to share our story in hopes of enhancing the laws that make it clear what the law requires.

  • 26 DeniedA504ByMySchoolNoLonger 06/25/08 at 11:37 am

    “In Loco Parentis” is very important here.

    School cannot assume that a young, elementary aged child that cannot read labels or fully understand the risks of cross contamination, can “care for oneself” in managing their life threatening food allergies. This young child relies on adults to ensure complete avoidance of their life threatening allergens. One mistake can result in death.

    Reading complex food labels, calling manufacturers about cross contamination, understanding the source of foods presented in class when other parents convince the teacher their cupcakes “nut free” when they in fact not, due to cross contamination from a kitchen were peanut butter is often used; or a bakery that uses many types of nuts. (See Dr. Wood’s website for information on this; children have died from peanut butter residue on knives used to spread frosting on cupcakes).

    Wrightslaw, thank you for providing this documents. It is clear the OCR believes that a 504 is very necessary for children with LTFA, and that an Individual Health Care Plan alone is not enough. Thanks again.

  • 27 Carol 06/25/08 at 7:46 am

    My granddaughter has allergies which are listed in the Middle School computer system. When they ring up her lunch anything she can’t have comes up and they tell her she can’t have it. They are very diligent with this and we are grateful.

  • 28 PASS 06/17/08 at 10:58 am

    I am so thrilled that you all have started a blog! This is the best way for groups to link/feed to your advocacy information.

    Good luck with the blog!

  • 29 Laura 06/16/08 at 3:55 pm

    The doctor’s note has an error, FYI. Though the Canadian teen was at first believed to have died from a kiss by her peanut-eating boyfriend, the coroner later ruled that she died from an asthma attack caused by smoking pot

  • 30 Wrightslaw 06/14/08 at 3:13 pm

    While writing this post about the OCR ruling in this peanut and tree nut allergy case, I spent hours researching these allergies.

    * Prevalence

    Peanut allergy is the most common cause of death from food allergy. (“Anaphylactic deaths in asthmatic patients,” Allergy Proc., 1989). According to the Journal of Allergy and Clinical Immunology, there has been a dramatic increase in the number of cases of peanut allergies in children. Between 1997 and 2002, the prevalence of peanut allergies in children doubled.

    * Treatment

    Even in tiny amounts, peanut protein can cause severe reactions. The severity of the allergic reaction varies among individuals.

    As Maria points out, the only way to “treat” a peanut allergy is teach the allergic person to avoid foods containing the legume and to ensure that they know how to self-administer an injection of epinephrine in case of a severe reaction. She has done a good job educating her son about how to deal with his allergy.

    The fact that the 14 year old girl who died had peanut allergy and asthma that was not well-controlled does not make her case any less tragic. Most teenagers do not want to be different. They are famous for not being open and forthcoming about their medical problems.

    Many individuals cannot avoid contact with peanuts, peanut dust, and peanut oil. Food labels do not always mention the small amounts of peanuts in foods.

    * In loco parentis

    The legal term “in loco parentis” (Latin for “in the place of a parent”) refers to the legal responsibility of a person or organization to take on parental responsibilities. This concept allows schools to act in the best interests of their students. When a child has a severe food allergy, in loco parentis requires school staff to accept responsibility for providing help and protection.

    Six adults employed by Gloucester County VA Public Schools, including the principal, assistant principal, and school nurse, had documentary evidence from the doctor about the severity of the child’s allergy and her need for a 504 Plan. They ignored this medical evidence and refused to find her eligible for a 504 Plan. After OCR determined that the school’s refusal “could result in death or serious illness,” these “extraordinary circumstances” allowed OCR to review and overturn the school’s decision.

    * Good News on the Horizon

    Some kids, usually those with “mild” conditions, may “outgrow” their allergies. Researchers at Mount Sinai are working on a monthly injection for peanut allergies. For more information, search the Mount Sinai website at
    http://www.mountsinai.org/

    To learn more about allergies, including peanut and tree nut allergies, visit the American Academy of Allergy, Asthma & Immunology at http://www.aaaai.org/

  • 31 McCobbre 06/14/08 at 10:44 am

    I am so grateful that you put this information on your site. This OCR ruling is remarkable, and it’s important that families dealing with LTFA know about this when advocating for their children.

    This can be a powerful tool in the 504 eligibility process–powerful for families to show school districts to help them understand that LTFAs can in fact make a child eligible for a Section 504.

    The fact that OCR investigated this case and ruled that the school denied this child FAPE is in itself remarkable. It’s empowering for all of us who are trying to keep our LTFA children safe in school.

    Thank you!

  • 32 Maria 06/13/08 at 4:58 pm

    As a parent with a now teenager son with anaphylaxis to peanuts, peas and some tree nuts, Over the past 16 years I have educated my son with age appropriate information about his allergies, how to self-administer, what to do when eating out, dating, educating his friends, what his allergens look like, reading labels, etc.. He cannot live in a BUBBLE!

    The 14-year old who kissed her boyfriend who ate peanut butter, was asthmatic which was not well-managed, she did not educate nor inform her friends of her allergies, nor that she carried an Epi-Pen in her handbag. The coroner’s report stated that her cause of death was asthmatic. Those individuals who have asthma and allergies, need to realize that your airways will close sooner rather than later and to treat your anaphylaxis FIRST then your asthma.

    EDUCATION is vital for the allergic person and family
    members. Banning an allergen within the schools is not the way to go. How will the allergic individual survive outside?

  • 33 Gina 06/13/08 at 4:52 pm

    Thank you for the links to these documents. I run a local and online support group and I hear time and time again of school nurses and administrators who refuse to prepare a 504 plan for food allergic children–insisting that the EHP or IHP is enough.

    Hopefully this information will shed some light on the fact that children are disabled when a tiny trace of food or food residue can cause a life-threatening reaction. Thank you for shedding some light on this important issue.

  • 34 EB 06/12/08 at 5:20 pm

    First, I would like to thank Wrightslaw for giving this OCR finding such attention via this blog and your website!! It is critical that school districts across the USA *quickly* come to the realization and acceptance that students with LTFA (LIFE THREATENING food allergies) absolutely qualify under Section 504 for accommodations. Nothing less. An IHP or IHCP is NOT “good enough”.

    Second, I would like to thank the hundreds of members of the *FREE* online support community (Food Allergy Support) at the address http://allergy.hyperboards.com for their incredible diligence and perseverance over the years in advocating for and INSISTING on proper protections via 504 for students with LTFA. (One of our members is Wrightslaw’s source for this OCR document!)

    No child LOST to food allergies!! Full protections and accommodations via 504 in the schools.

    Nothing less.

    Thank you again!
    ~e