Please note this example of how compliance is monitored and enforced by the IDPH in this particular instance:

http://www.idph.state.il.us/healthca/nhregulate.htm

Now JCAHO, those are the real big bastards. If they hold a hoop, we jump through it. There is long lasting residual in effect, not entirely tapering till the next accredidation period.

http://www.jointcommission.org/

I can't help but think how wonderful it would be if DOE held inspections on major holidays....

Quote from: maeve on February 27, 2012, 09:20:29 AM
Ark,
Under NSLA, there is a requirement to monitor compliance.  According to the opinion, the act only requires audits every 5 years.   That's the way the law is written. 

Really, reading this the responsibility lies at the local district.  I think that makes sense.  The local district will be aware of who each of these children are (of course, that's if the children's parents inform the school--but that's another issue entirely).

audits by whom and with what implication(s)? Or aren't there any?

Ark,
Under NSLA, there is a requirement to monitor compliance.  According to the opinion, the act only requires audits every 5 years.  That's the way the law is written. 

Really, reading this the responsibility lies at the local district.  I think that makes sense.  The local district will be aware of who each of these children are (of course, that's if the children's parents inform the school--but that's another issue entirely).

Quote from: maeve on February 24, 2012, 04:41:23 PM
The ruling didn't deal with the accountability of the local school district, which settled the case with the family.  It looks like the family also sought to sue the state board of education/schools superintendent.  According to the article the seven judge panel felt that the USDA regulation requires that state departments of education create training and train local school districts in food allergies but that the statute doesn't require them to assume liability for keeping the child safe (seems that likely rests with the local school district).  It doesn't seem too stunning.  If the court had held that state departments of ed could be held liable, it could stand to reason that the federal DOE could also be held liable; that's just not realistic as those working at those levels are not involved in the care of the child.

Isn't there an obligation for the DOE to monitor compliance with their regulations?  IDPH (Illinois Department of Public Health) routinely inspects facilities and documentation (training, licensure, and proficiency, for example), In person, and without notice, and with regularity.

then again, administration at the federal level has set some precedents to the negative, in that regard. Repealing of requirements to that effect in other areas, but nonetheless, a bad example.

The problem with this type of ruling is that it is going to be taken out of context.  The court made a very specific ruling regarding the NSLA and it was not intended to address the duty to protect the child at the local/state level.

Nonetheless, it will be cited by every school district's lunch program as a way to wiggle out of accountability at the LOCAL level. 

I am not surprised at all.  Just another reason to have a rock solid 504 that includes language that specifies that the student should never be given anything to consume that contains the student's allergen.

one of the most disgusting things i have ever read. that a educational authority should find themselves not responsible for the care of a child is unthinkable.

why would ANYONE trust this school system?

shameful. totally shameful.

Ahhhhhhh....


yes, that makes sense.  You'd HAVE to argue protected class in this instance, I think. 

This suit was first filed in 2006, well before the amended ADA; the plaintiff does not cite the ADA and certainly not the amended ADA in her complaint.  She might have been better able to argue protected class if citing the amended ADA, but that didn't exist when she filed suit.

Quote

We agree with the intermediate appellate court's determination that "the statutes and
regulations upon which [Petitioner] base [her] claim of special duty are simply not phrased

with the sort of specificity that supports the imposition of liability upon the State." 

Page 21 (page 23 in the Acrobat page field) of the ruling is a must read.

CM, It is a state supreme court decision. I'm reading the case right now.  Basically, it boils down to the fact that the National School Lunch Act, which is the plaintiff's basis for the suit against the state defendants, creates a duty to all students and not a specific subset of students.  According to the court document, there are three criteria for a negligence claim:  whether a duty to that specific individual existed, breach of that duty, and injury proximately resulting from that breach.  The courts have determined based on the plaintiff's pleading that NSLA does not create a duty to the plaintiff's child.  Failing to meet that first standard meant the courts were correct to dismiss the appeal. 

In reading the court's reading, I understand where they're coming from.  They cite one case that uses the example of police officers, which have a duty to protect the general public but not a specific individual; therefore, for example, you could not sue the police department if you were say robbed.

The court decision also goes into how the NSLA statute should be read.  The court asserts that the statue simply states that schools must provide alternative lunches not that they must ensure that children with food allergies are not served their allergens.  If you read the statue, that's correct.  Essentially the court is saying, that the state agencies had an obligation under the law to provide guidance on how to implement NSLA to local school districts and ensure that those school districts implemented the NSLA.  The agencies do not, according to the court, have an obligation to ensure that an individual child is served the correct lunch.

Even ADA and 504 wouldn't mandate that the state agencies ensure that a specific child is served the proper lunch. 

Take the time to read the opinion.  It's interesting.  It's also arguing a pretty narrow point of tort law and also arguing that you cannot infer anything from federal regulations that is not expressly written in the statue (with a few very specific exceptions ["("In interpreting federal statutory law, a
court may look beyond the plain language of a statute when: 1) Congress has expressed a clear intent contrary to the statutory text; 2) literal application would frustrate the purpose of the statute; or 3) literal application would 'produce an absurd result.'"", which they note in the opinion).  Page 17 begins the opnion's discussion of NSLA.  The way the part of the statute is written about special dietary needs, Congress did not expressly indicate that state must take action that specific students are not fed their allergen.

Quote8 Although not specifically included in her brief or petition for certiorari, Petitioner
referenced 42 U.S.C. § 1758(a) (2006) during oral argument (and in the intermediate
appellate and trial courts) as establishing a duty owed by the State defendants. That section
reads:
§ 1758. Program requirements
(a) Nutritional requirements
(1) (A) Lunches served by schools participating in the school
lunch program under this chapter [42 U.S.C. §§ 1751-1769]
shall meet minimum nutritional requirements prescribed by the
Secretary on the basis of tested nutritional research, except that
the minimum nutritional requirements –
(i) shall not be construed to prohibit the substitution of
foods to accommodate the medical or other special
dietary needs of individual students; and
(ii) shall, at a minimum, be based on the weekly average
of the nutrient content of school lunches.
As the intermediate appellate court noted in the present case, although this section references
special dietary needs, "it does not mandate that the State take any particular action to ensure
that a child such as Liana is never fed any food containing peanuts." Pace, 195 Md. App.
at 43, 5 A.3d at 1127. We agree with that analysis.

So a child with an allergy isn't... what...

"intended" under the law? 


Oh my goodness, I hardly think so... and really, the USDA can hardly think so, either-- or they wouldn't have a series of documents re: section 504 and food allergy.

Was this a federal ruling?  I'm deeply confused how a state can be found "not responsible" under federal law which obligates them to provide services to the general public. 

How are those with disabilities excluded from those measures??  That's my question.

Because it certainly seems like ADA says otherwise.

Of course, if the child didn't have a 504 plan, then it becomes less clear.

http://mdcourts.gov/opinions/coa/2012/132a10.pdf

This is the most recently decided appeal; the one referenced in the article.

QuoteNicole Pace, as Mother and Next Friend of Liana Pace v. State of Maryland, No. 132,
September Term, 2010, Opinion by Greene, J.
TORT LAW – STATUTORY DUTY – State defendants had no statutory duty under the
National School Lunch Act (NSLA) to ensure that a child with a food allergy was not served
harmful foodstuffs by her local school. Any duties imposed on the State under the statute are
duties to the general public and are therefore not enforceable in tort.

Emphasis mine.

http://www.courts.state.md.us/opinions/cosa/2010/496s08.pdf

This was one of the appeals that was filed in this case.  The suit has been in the court system since 2006.  It seems the mother sued the state and other co-defendants at the same time.  The circuit court dismissed the state defendants.  After the settlement, this appeal was filed.  The mother's suit alleges "that negligence on the part of the State defendants in failing to ensure that Liana's school had an effective program in place to "flag" students with food allergies was a proximate cause of Liana's injuries." 

I'm reading the case right now and this mother had a very strong case of discrimination based on food allergy.  It's unclear whether she had a 504.  The case document is an interesting read.

Wow. On the cafeteria worker giving the peanut butter sandwich (DUMB!  With the rise in PA, this can NOT be a safe substitute lunch!!)

And on Amaya.  So sad. 

So many sad stories recently.  Are we still keeping track of these on the "In Memory" thread?  I also think we should track the severe reactions that make the news.  One place for this is helpful esp as we have school meetings etc. 

carefulmom,
The local school district settled with the family.  The actions of the local school district were not what the case referenced in the article were about.

I certainly agree that the actions of the cafeteria worker were out of line.  If the child didn't want to eat regardless of allergies, it's not for that worker to force a child to eat.  Sometimes kids don't want to eat.