Allergies / Anaphylaxis
Your school should have an appropriate Food Allergy Management and Prevention Plan in place to promote the health and well-being of children with food allergies. School plans should establish priorities for reducing the risk of exposure to food allergens and establish practices for responding to food allergies.
This page has links to information, articles, caselaw, legal reference files, resources, and free publications relating to allergy, anaphylaxis and more.
At first glance, some of the legal cases, US Dept of Justice settlement letters, and more will seem unrelated to the issue of allergies and anaphylaxis, however the legal principles are the same as those faced with regard to food allergies. As you read them, if the issue relates to diabetes and you mentally substitute allergy as the issue, you will see the relation and how it is applicable.
In June, 2014, FARE (Food Allergy Research & Education) held their Annual Conference in Chicago. On June 22, Pete did a five hour presentation about allergies, anaphylaxis, Section 504 of the Rehabilitation Act, and Title II and III of the revised Americans with Disabilities Act. This included a discussion of many cases, settlements, Federal Court Complaints and rulings issued by the US Dept of Justice and the Office of Civil Rights.
In TF v. Fox Chapel Area School District, on September 12, 2014, the Third Circuit ruled in a food allergy discrimination case finding that the school district was not "deliberately indifferent" to the child's rights.
When a School Refuses to Protect a Child with Life-Threatening Allergies. Office for Civil Rights (OCR) investigates "extraordinary circumstances" of a complaint alleging that Gloucester County VA Public Schools discriminated against a 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.
IDEA and Kids with Special Dietary Needs. The USDA’s nondiscrimination regulation (7 CFR 15b), as well as the regulations governing the National School Lunch Program and School Breakfast Program, make it clear that substitutions to the regular school meal must be made for children who are unable to eat school meals because of their disabilities.
Going to College with Food Allergies, Implications of the Lesley University Settlement, from Food Allergy News (FARE Newsletter), Spring 2013.
Asthma and Allergy Watch. When Law and Duty Collide by Cathy Owens, RN, Lead Nurse, Murietta Valley High School from the School Nurse News, September 2001.
To see a list of those who have passed away due to death by allergy, click on this link - http://nonutsmomsgroup.weebly.com/blog/remembering-those-we-have-lost-to-food-allergies.
Cases, Pleadings, Briefs & Settlements
Amicus brief in T.F. v. Fox Chapel Area School District (May 2014) filed by Food Allergy Research and Education (FARE) and the Council of Parent Attorneys and Advocates (COPAA).
Appeal brief in T.F. v. Fox Chapel Area School District (April 2014), in the Third U.S. Circuit Court of Appeals.
T.F. v. Fox Chapel Area School District (2013) District Court decision on appeal.
OCR Letter of Findings and Resolution - Virginia Beach City Public Schools (2012). Clearly states that general policies and health plans for emergency management are insufficient for FAPE, that 504 is the correct method to address unique needs.
OCR Resolution Agreement - (redacted) County School District. OCR Docket Number 04 -13 -1318 (April 2014). Agreement requires parent participation in a meaningful 504, parent input into 504 determinations, and notice to parents of determinations and procedural safegaurds available in order to enable the student to have full access to programs and activities to the same extent as students without disabilities.
T.L. v. Sherwood Charter School (Oregon), Opinion and Order in discrimination claim (March 2014).
Notification of Docket entry in U.S. v. Northern Illinois Special Recreation Association (June 2014).
Administration of Emergency Seizure Medication Discontinued, in the case of U.S. v. Northern Illinois Special Recreation Association, Law Review Article (July 2013).
U.S. v. Northern Illinois Special Recreation Association (2012), complaint alleging discrimination against individuals by denying access to participate when they refused to administer necessary medication.
Press Release from U.S. Department of Justice (2012) in U.S. v. Northern Illinois Special Recreation Association.
Settlement agreement between U.S. and Lesley University (2012) for violating the ADA by refusing to make reasonable accommodations for a student with food allergies.
Questions and Answers about the Lesley University Settlement Agreement and Potential Implications for Individuals with Food Allergies.
Liebau v. Romeo Community Schools, (2013). State of Michigan Court of Appeals case in which the plaintiff argued that the nut-ban policy deprived her daughter of equal protection under both the state and federal constitutions.
Pace v. Maryland (state court - 2012) Child was told by cafeteria employee to eat peanut butter sandwich. Child objected, ate sandwich, anaphylaxis occurred, emotional trauma. Parent sued school, employees, and State of MD. Issue is Natl School Lunch Program and State's responsibility. State defendants absolved. See page page 17+ and footnote 11.
OCR Resolution Agreement -Memphis City School District (2012) submitted to U.S. DOE, OCR, ensuring compliance with Section 504 and the development of an Individualized Health Care Plan (ICHP).
OCR Resolution/Closure Letter - Gloucester County Public Schools, VA (2007). Investigation of a complaint that Gloucester County Public Schools discriminated against a student on the basis of her disability (food allergy) by denying her FAPE.
J.B. & T.B. v. Manalapan-Englishtown Regional Board of Education (SEA NJ 2007). Administrative Law Judge ordered the school to provide bus transportation to and from school and school-related activities with a trained aide who could monitor the child and administer an epi-pen.
Olympic Airways v. Husain, 2003, allergy case brief, "accidental" airline death.
Settlement agreement under the ADA between US and La Petite Academy (1997) adopted by La Petite as its policy for treating children with severe allergies, including its policy for administering epinephrine through the use of the EpiPen.
Tools and Resources from FARE.
Food Allergy Support. Join the discussion about what it is really like to live with food allergies.
Food Allergy and Anaphylaxis from the National Association of School Nurses.
Ready2Go for people at risk for a life-threatening allergic reaction.
Schools and Allergies Resource Hub from Allergic Living.
Food Allergy News and Research from Kids With Food Allergies.
Food Allergies and Travel from KidsHealth.
Food Allergy, 504 Plans, Title II, and K-12 Schools from AllergicChild.com.
Allergies and Food Sensitivities from the U.S. Department of Agriculture, National Agriculture Library.
Flying with Food Allergies compiled by Laurel Francouer, Esq.
More Resources - Listing of internet resources on allergy / anaphylaxis (pdf format) compiled by Pete Wright for FARE.
Illinois Food Allergy Emergency Action Plan, 2014 amended School Code Section. 5, 22-30.
Guidance on Charter Schools’ legal obligations under the Federal civil rights laws from the U.S. Department of Education, OCR, May 2014.
School Access to Emergency Epinephrine Act (November 2013) will encourage schools to plan for severe asthma attacks and allergic reactions.
Schools’ Obligation to Provide Equal Opportunity to Students with Disabilities to Participate in Extracurricular Athletics [access to sports], OCR Guidance Document, January 25, 2013.
OCR Case Summary (1993), Irvine (CA) Unified Sch. Dist. OCR concluded the district violated 34 CFR 104.4(b)(1)(v) and 28 CFR 35.130(b)(1)(v) by failing to either provide the necessary support services to enable student to participate in the PTA's after-school program or cease providing the significant assistance to the PTA program.
Questions and Answers About the Lesley University Agreement and Potential Implications for Individuals with Food Allergies. US Department of Justice, Civil Rights Division, December 2012.
The Americans with Disabilities Act of 1990 (ADA), including changes made by the ADA Amendments Act of 2008 (P.L. 110-325), which became effective on January 1, 2009. Definition of Disability, p. 7.
Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools from the US Department of Education OCR.
Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008 from the U.S. Equal Employment Opportunity Commission.
Frequently Asked Questions about Section 504 and the Education of Children with Disabilities from the U.S. Department of Education OCR.
Sabrina's Law, an act to prevent anaphylactic pupils, enacted in Canada on June 13, 2005.
Voluntary Guidelines for Managing Food Allergies In Schools and Early Care and Education Programs, Centers for Disease Control and Prevention (CDC) 2013. (Note: This is a very large file, 7.6 mgs in size and may take a minute or two to download.)
Six key pages from the Voluntary Guidelines for Managing Food Allergies In Schools and Early Care and Education Programs, Centers for Disease Control and Prevention (CDC) 2013.
Reducing the Risk of Exposure to Food Allergens. Recommendations about reducing the risk of exposure in the classroom, cafeteria, on buses, field trips, and at PE and recess from the Centers for Disease Control and Prevention (CDC) 2013.
Managing Food Allergies in the School Setting. Guidance for Parents from Food Allergy Research and Education (FARE).
Anaphylaxis Emergency Action Plan from the American Academy of Allergy Asthmas and Immunology.
Safe at School and Ready to Learn: A Comprehensive Policy Guide for Protecting Students with Life-Threatening Allergies (2012) from the National School Boards Association.
Gina Clowes, FARE's Director of Education, shares the must-know facts for establishing a safe and inclusive school environment.
School Guidelines for Managing Students with Food Allergies from FARE and the NSBA lists the responsibilities of the family, school, and student.
Guidelines for Managing Life-Threatening Food Allergies in Schools:
Note: To find your state or district plan, search in your browser for "school allergy action plan + [your state / district name]"
The Food Allergy Book, What School Employees Need to Know (2012) from the National Education Association Health Information Network.
Accommodating Children with Special Dietary Needs in the School Nutrition Programs from the U.S. Department of Agriculture (USDA) Food and Nutrition Service (2001 - currently being updated).
Bullying Among Children and Youth with Disabilities and Special Health Needs. Kids with food allergies may be at higher risk of being bullied. Bullying can include making fun of kids because of their allergies or exposing them to the things they are allergic to. In these cases, bullying is not just serious, it can mean life or death.
9 Ways to Help Your Food-Allergic Child Deal with Bullying from About.com.