504 & Epi Self Carry Question

[MamaMia]

Found this concerning.  Someone on another social site said her child's school won't approve self carry Epi accommodation in 504 even w/dr's note.  Then after hiring a lawyer, family got the self carry accommodations in 504 plan but school wrote in that only for current school year and that the student would "need to have an anaphylactic reaction at school" to be able to qualify for self carry next school year!!!    They did not sign.  I'm not sure how much I can divulge b/c I don't know this family and don't want to infringe on their privacy but if it happened to then, it could be any of us.

Thoughts?  Any case law you could recommend? 

[Macabre]

   Glad you posted! I recognize you from the twitterverse. 

Well, if she's in your district, I would think they'd be covered by the new allergy policy. 

The new ADAA covers this and states that  the event doesn't have to be ongoing and medicine is not a mitigating measure.  If this happened to me, I would pull that out and read it to them word for word. 

This is a school without a clue. And she and her attorney can help the school find one. 

[CMdeux]

Off-hand?

No.

There's little that a PARENT, seemingly, can do in these situations other than file a grievance and go through due process.  It's lawyer time when a school starts to pull stunts like defying a physician's order.

Because if the school is following their own "procedure" for 504 elgibility, plans, and accommodations, then OCR will NOT get involved.

Now, the physician may well have a beef here, and that (I have always thought) is probaby the better way to attack this sort of thing.

I'm sorry to say that I've seen stuff like this before with particularly venomous school districts.  In a particular state whose nickname is occasionally pronouned "Misery."

Small wonder, that.  <sigh>

[MamaMia]

  Glad you posted! I recognize you from the twitterverse. 

Well, if she's in your district, I would think they'd be covered by the new allergy policy. 

The new ADAA covers this and states that  the event doesn't have to be ongoing and medicine is not a mitigating measure.  If this happened to me, I would pull that out and read it to them word for word. 

This is a school without a clue. And she and her attorney can help the school find one. 

HIYA!!! 

Not in my school district or I would be all over them 

I thought "no mitigating measures" meant that they couldn't deny her 504 based on the fact that child has antihistamine (for example) & therefore can medicate to avoid rxn.  Like the eye glasses for vision impaired.

[ajasfolks2]

Just wondering, in order for the wheel chair bound student to be allowed to use wheel chair next year,

do they dump the child out on the floor at school and demand he prove he cannot walk?

Is that how they document NEED of this life necessity?

Even better -- do they take child who attends school and happens to be on ventilator to the center court yard, pull the vent, and then command him to prove he cannot breathe . . .
in order to return next year with that vent?

Honestly, if this family has attorney, they should be able to counter these bizarre, harrasment attempts.

Sounds to me like the school admin/decision group is actually attempting to practice medicine without a license:  MUST have had a reaction in past year in order to be authorized to possess an epi-pen?

Surely, they jest.

 

[MamaMia]

Off-hand?

No.

There's little that a PARENT, seemingly, can do in these situations other than file a grievance and go through due process.  It's lawyer time when a school starts to pull stunts like defying a physician's order.

Because if the school is following their own "procedure" for 504 elgibility, plans, and accommodations, then OCR will NOT get involved.

Now, the physician may well have a beef here, and that (I have always thought) is probaby the better way to attack this sort of thing.

I'm sorry to say that I've seen stuff like this before with particularly venomous school districts.  In a particular state whose nickname is occasionally pronouned "Misery."

Small wonder, that.  <sigh>

Thought's on mitigating measures like in the North Royalton, OH case?

http://www.ncld.org/images/stories/Publications/AdvocacyBriefs/UnderstandingADAAA-Section504/UnderstandingADAAA-Section504.pdf

That was my response to the parent also.  OCR not going to help w/individual accommodations so she'll have to bring it back to access. Can the child access school if child does not self carry Epi?  That's the question I think.  I'm not sure how helpful the lawyer is (whether it's a disability/education lawyer or disability/employment lawyer where the two completely different).  She did pass along the following info that said her state allows self carry asthma meds which is why the district agreed that the student can carry Epi but for only this year:

http://www.aanma.org/advocacy/meds-at-school/

[MamaMia]

Just wondering, in order for the wheel chair bound student to be allowed to use wheel chair next year,

do they dump the child out on the floor at school and demand he prove he cannot walk?

Is that how they document NEED of this life necessity?

Even better -- do they take child who attends school and happens to be on ventilator to the center court yard, pull the vent, and then command him to prove he cannot breathe . . .
in order to return next year with that vent?

Honestly, if this family has attorney, they should be able to counter these bizarre, harrasment attempts.

Sounds to me like the school admin/decision group is actually attempting to practice medicine without a license:  MUST have had a reaction in past year in order to be authorized to possess an epi-pen?

Surely, they jest.

 

More like "has to have rxn in school to be approved to self carry the following school year".

I pretty much had same reaction to the comment.  However, our reactions don't help her (but I'll pass along analogies b/c sometimes it does help to see the bigger picture)!  I need to pass along hard data or case law to help.  But yeah, RIDICULOUS! 

[ajasfolks2]

Life-threatening food allergy qualifies as disability under Section 504.

A necessary and appropriate accommodation on the 504 plan would be self-carry the epi-pen AKA

potentially life-saving medication.  Physician letter stating medical need to self-carry and dispelling the happy-horse-sh** as to needing to have reaction in past year in order to PROVE need to self-carry.


Have you seen this?


http://www.wrightslaw.com/blog/?p=58

Read the blog & comments.  Print the OCR Letter to Gloucester (Virginia) as to 504. 

Hope this helps.

[MamaMia]

Life-threatening food allergy qualifies as disability under Section 504.

A necessary and appropriate accommodation on the 504 plan would be self-carry the epi-pen AKA

potentially life-saving medication.  Physician letter stating medical need to self-carry and dispelling the happy-horse-sh** as to needing to have reaction in past year in order to PROVE need to self-carry.


Have you seen this?


http://www.wrightslaw.com/blog/?p=58

Read the blog & comments.  Print the OCR Letter to Gloucester (Virginia) as to 504. 

Hope this helps.

The school doesn't deny 504, just this one accommodation to self carry.  The physician did write a letter that it is necessary AND the lawyer sent letters but the school will not strike the "must have rxn at school to qualify to self carry following year".  Also other issues like exclusion but this seems to be the kicker.

Here's what the parent wrote, "[student] may carry [student] EpiPen Jr and Benadryl with [student] this school year, but may not carry for future school years if [student] does not have an anaphylactic reaction at school before the end of this school year."

I have seen that blog posts from Wrightslaw.  I get their newsletters too.  Love it.  However, not sure how Gloucester can help in this situation.   

[ajasfolks2]

The licensed medical professional for this child has stated written medical necessity for child to self-carry epi-pens.  Additionally, there is much literature (and studies) from medical professionals with clear evidence that epi-pen(s) must be carried (and used! according to orders) AT ALL TIMES by persons diagnosed with life-threatening allergy in order to have better outcome.

The school would need to produce credible medical evidence that the epi-pen would be necessary only under the limiting circumstances and caveats the school is trying to impose:  the school/district would have to get a licensed medical professional who could trump all of the medical necessity documentation provided by family and child's doctor and who would be willing to go on record to support the school's capricious limitation.

On record.  Deposed even:  written statement under oath.

Remind me again why the school believes it can practice medicine?

ETA -- It may be prudent for the family to get a second board-certified allergist to offer second letter as to need to self-carry epi.

[ajasfolks2]

As to Gloucester:

“… 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.”

In the Gloucester situation, OCR becam involved in NOT just the complaint regarding violation of process, but in the details of the accommodations.

The particular accommodation that the school is attempting to remove without basis in medical necessity or fact is the accommodation as to being able to carry the life-saving medicine.  Hence, this accommodation removal could result in death or serious illness of the child.

However, I do know that typically when a family has engaged a private attorney, the attorney often/usually requests that the family NOT go to/through OCR or USDA channels or process -- ONLY wants client to be working with private attorney and no parallel complaints going.

[ajasfolks2]

Have you read this thread in our School Resources area here as well?

See if anything there may be of help.

Unlock the Epipens!
UNLOCK THE EPIPENS!!

[maeve]

Does the state in which this family live have a self-carry law?  I live in a state that has such a law and while the doctor must sign the form each year, if that form is signed and submitted to school, DD can self-carry.

[AllergyMum]

This makes me so sad.  I don't understand why they don't allow all kids who have epi-s to carry them.

Around where I live all kids with allergies are required to self-carry and keep 1 at the office.  It should be that way everywhere!

[MamaMia]

As to Gloucester:

“… 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.”

In the Gloucester situation, OCR becam involved in NOT just the complaint regarding violation of process, but in the details of the accommodations.

The particular accommodation that the school is attempting to remove without basis in medical necessity or fact is the accommodation as to being able to carry the life-saving medicine.  Hence, this accommodation removal could result in death or serious illness of the child.

However, I do know that typically when a family has engaged a private attorney, the attorney often/usually requests that the family NOT go to/through OCR or USDA channels or process -- ONLY wants client to be working with private attorney and no parallel complaints going.

It is unclear whether or not the student has the Epi in the clinic but I am assuming that's the case.  This family just want's their child to carry as an added safety precaution and is getting so much resistance from the district.  I assume that the district feels it's "enough" to have it in the clinic and they are providing the necessary medical access.  Family in Illinois which is kind of shocking considering they were the first state to decide on stock Epipens at schools so one would assume they "get it".  Certainly different behind the scenes. 

Family is going to contact OCR at this point but was searching for more documentation.