504 -- Breathing as a major life activity (McCobbre) 2008

[ajasfolks2]

McCobbre

Feel free to use this and strengthen it for yourself. 

I start out with the intro to the major life activities:

<<DSName>> is anaphylactically allergic to peanuts. This is a life threatening food allergy, as documented by his doctors, and is a physical impairment that substantially limits several major life activities.  This onset of the reaction can be sudden and fatal within minutes. It must be treated immediately.
According to the Virginia School Health Guidelines (2nd Edition), page 243, the handicapping condition need only substantially limit one major life activity in order for the student to be eligible.  In this document, we identify four:
�   The life system of breathing
�   The ability for self care
�   Eating
�   His social/emotional condition
According to the Virginia School Health Guidelines (2nd Edition), page 243, �A student is eligible so long as he/she meets the definition of qualified handicapped person; i.e., (1) has or (2) has had a physical or mental impairment that substantially limits a major life activity, or (3) is regarded as handicapped by others. It is not required that the handicap adversely affect educational performance or that the student need special education in order to be protected.�

Breathing
The fact that <<DSName>> has had two significant anaphylactic reactions indicates that he is at risk for deterioration and even cessation of this major life activity. In both reactions, his throat swelled and began to close, substantially limiting his ability to breathe.  <<DSName>>�s asthma compounds the risk.   While an EpiPen is used to treat an anaphylactic reaction, the fact that <<DSName>> has access to an EpiPen at school is not a mitigating measure, because an EpiPen does not guarantee that a reaction will not be fatal.  Noted allergist Scott H. Sicherer, MD stated in a recent article:

"It should be noted, however, that prompt therapy with epinephrine is not fool-proof. This was demonstrated by the death of a 16-year-old girl who purposefully ate an unsafe dessert with the expectation that her injector would save her if symptoms became severe." (American Academy of Pediatrics News, Vol. 28 No. 6 June 2007, p. 14)

In XXX v. X Board of Education it was shown that breathing is substantially limited due to the degree of a peanut allergic child�s impairment (i.e., respiratory arrest).  Section 504 does not indicate that the impairment must be continuous or that the life function has to be impaired 100% of the time to be qualified under disability just as one qualifying for a Section 504 does not have to be symptomatic. (http://www.hhs.gov/ocr/aids.html).

BTW--after the four, we closed with this:

Because these four major life activities are substantially limited, <<DSName>> qualifies for accommodations under Section 504 of the Rehabilitation Act of 1973, and we request that the 504 Committee grant him eligibility of a 504 Plan, in accordance with the Virginia School Health Guidelines (2nd Edition).

[ajasfolks2]

Unknown

McC,
This is soooo well thought out.

How did you do this so eloquently with all the pressure and stress that moms face when going through this?

You deserve so much respect for pulling this all together.

ps. Can you share what case is mentioned in the last paragraph?