Pennsylvania Disability Harrassment Lawsuit

[ajasfolks2]

Fox Chapel district's handling of student's nut allergy prompts lawsuit

Excerpt:

Dissatisfied with Fox Chapel, his parents enrolled T.F. in a private school, according to the lawsuit, which seeks compensatory damage and payment for the student's tuition.
 
According to the lawsuit, T.F. is allergic to tree nuts -- walnuts, almonds, hazelnuts, cashews, pistachios and Brazil nuts -- and "even trace amounts can be enough to cause a severe reaction."
 
He enrolled at Fairview Elementary School in fall 2010, after administrators told his parents that there was a "nut-free table" in the school, according to the lawsuit.
 
There was no nut-free table, according to the lawsuit, and the district's plan to prevent T.F. from coming into contact with tree nuts was not detailed or sufficient.
 
The student twice developed hives, once had an itchy lip and facial swelling, and had a full-blown reaction including vomiting and throat problems after bobbing for apples, according to the lawsuit.
 
The complaint did not say how the Halloween tradition came to involve nuts.

(OK, I'll resist temptation to comment on that last, loaded sentence!)




http://www.post-gazette.com/stories/local/neighborhoods-north/fox-chapel-districts-handling-of-students-nut-allergy-prompts-lawsuit-661753/

[Macabre]

Oh my goodness.  Well, there is precedent for a public school district having to pay private school costs. And I think a few years ago when I was reaearching that I saw that a Virginia SD did that.

[ajasfolks2]

I saw that too in my research some years back -- that a Virginia school had to do that -- but I don't think it was due to LTFA, was it?  (I recall it was some other need . . . and the dad was an attorney?)

It will be interesting to see if the SD will have to pay for the private school . . . though we may never see the settlement if it goes "behind closed doors".

[ajasfolks2]

Another publication about same story:

http://triblive.com/news/2942853-74/district-parents-son-lawsuit-officer-allergy-chapel-claim-discriminated-fox#axzz2C7DGtmW3

[twinturbo]

I really wish there was a way to know in incidences like this whether or not there was any 504 process at any point.

[kindergartenmom]

The student did have a 504 plan but the district refused to put any of the accommodations in writing or say what they would or would not do.

[ajasfolks2]

Nothing like technical compliance by having a 504 designation, but washing hands of the rest of process, eh?

Interesting.

[twinturbo]

Was OCR involved at any point?

[kindergartenmom]

ocr was not involved.  A dept of human relations complaint was filed so ocr could not act until the human relations dept investigation was complete. Dept of human relations was filed because of the joint task force and the issues involved.

[kindergartenmom]

See facebook page

https://www.facebook.com/pages/I-support-TF-from-Fox-Chapel-School-District/132432773572853?ref=ts&fref=ts

[twinturbo]

Cut the rest of the post to highlight the actual decision.

I found the Hearing Officer decision in PDF put out by the ODR. Public record student's name has been redacted.
http://204.186.159.23/odr/HearingOfficerDecisions/2803-11-12.pdf

Ok, not surprisingly the news articles aren't completely accurate. The Pennsylvania Office for Dispute Resolution Hearing Officer's decision on Fox Chapel is that the while the district did provide FAPE adequately it also DID ENGAGE IN RETALIATION in direct relation to the family's pursuit of a 504 by continually using district truancy even though the student was enrolled elsewhere.

On the Hearing Officer's interpretation of what is appropriate management for LTFA, I think he's way off course, and quite frankly I'd want to see some procedure on how he came to those conclusions on what is medically required. I completely understand appealing that decision.

[kindergartenmom]

The district came up with a food allergy policy the first day of court.   The policy I believe was what the hearing officer used to say the district provided fape.  Multiple emails presented to the hearing officer and on record show repeated and ignored request to the district for any policy, procedure or practice related to food allergies.

[twinturbo]

For what it's worth I and I'd say everyone on this site not only believe what you're saying but have experienced something similar. Some here have successfully filed claims with DOE OCR where the school was found to be out of compliance with procedural safeguards.

You have our support on this.

But two things. Firstly, I was interested in what official documents read rather than either news reports or Facebook pages for the contents of the actual decision. Secondly, I follow jurisdiction and process when any case like this makes the news waves. When I see state agencies intervening in the reporting structure between the federal agency and the citizen on federal matters I start wondering why.

A member here won on procedural safeguards through a complaint with DOE OCR. She went directly to them when her child's 504 was blatantly violated along with some retaliation. The similarities are striking both for how closely the violations are mirrored and also that school district is vindictive about the 504 process. I'll find a link to Team Anaphylaxis Google docs on that decision.

The hearing officer in TF's case also has other decisions posted in PDFs on the link above. Might be worth a look at another decision he made on FAPE. It was made a month prior. At the very least compare and contrast perhaps how he states he comes to his decision using what sources.

If no *federal* department or office has actually used to file a complaint it may be worth a call or email to DOE OCR federal. And if the state level Penn Dept of Human Relations told you that you can't file federally until the state investigates it might be worth verifying with the feds.

It would be worrisome if a state through their formations on procedures violated federal procedures, and/or decided to veer from the central tenet of disability law where the most expansive and greatest protections prevail.

[twinturbo]

http://204.186.159.23/odr/HearingOfficerDecisions/2824-11-12.pdf

Feast your eyes on the above link. ^

Same Hearing Officer on the same subject FAPE, different cases. How much stock anyone wants to put into what one poster (me) on a food allergy board has to say about a decision rendered by a practicing attorney (with a PhD, possibly) I don't know but nonetheless, check out the citation by hearing officer below.

WTH with his preference to cite pertinent (in his opinion) federal regulations? That, dear sir, is the name of the game. Here again he names state regulations adopting federal. Again, no expert here but isn't that what Holder went after Arizona for doing? A state mirroring federal law and enforcing their own version of it? And again, the guiding principal in disability law on the federal level is that greater protections prevail because it is expansive rather than restrictive.

On the chance that these decisions haven't been pored over with a fine tooth comb including his citations to what he references, his sourcing, I'd go through both of these FAPE decisions with a keen eye if the decision process is holding to that principal of greater protections prevailing and also if the use of federal vs. state law is appropriate as a preference. Were all procedural safeguards honored? Where are THOSE records? Have they been shared with all parties and VERIFIED as to timeline? With whom were they verified?

It is this hearing officer’s preference to cite to the pertinent federal implementing regulations of Section 504 at 34 C.F.R. §§104.1-104.61. See also 22 PA Code §§15.1- 15.11 wherein Pennsylvania education regulations explicitly adopt the provisions of 34 C.F.R. §§104.1-104.61 for the protection of “protected handicapped students”. 22 PA Code §§15.1, 15.10.
2 34 C.F.R. §§300.1-300.818. See also 22 PA Code §§14.101-14.162.

Thoughts. Useful ones? You'd be crazy to listen to me but smart to force some transparency for timeline and evidence, I think.


Also, I noticed the name "Zirkel" on the appeals panel board on the state PA ODR page where I found these decisions. Would that be the same Perry Zirkel of Pennsylvania in the now well-known letter to Zirkel from DOE OSEP re: "reasonable" standard incorrectly used in public educational situations and that greater protections always prevail rather than lesser? Anyone able to see if this is possibly same individual?

If so, here's the letter to him from OSEP so you can have the straight dope.
http://www.dueprocessillinois.org/zirkel.html

The DOE having to set Pennsylvania straight may not set a good precedent for who you're dealing with. You should also take a look at Mystic Valley appeal and resulting Hearing Officer's decision.

http://www.doe.mass.edu/bsea/decisions/03-3629.pdf

One strikes me as "do I hafta" in contrast to the other's "yeah, don't be stupid it's not an undue burden, nor over the top".

[twinturbo]

https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnx0ZWFtYW5hcGh5bGF4aXN8Z3g6M2I0MDk2NDZhNDcxNmMwYg

Link to DOE OCR findings after it completed an investigation into 504 procedural safeguards violations.