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!!! :o 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?
:bye: 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. :)
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>
Quote from: McCobbre on September 21, 2011, 07:41:48 PM
:bye: 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!!! :bye:
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.
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.
:disappointed:
Quote from: CMdeux on September 21, 2011, 07:44:17 PM
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 (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/ (http://www.aanma.org/advocacy/meds-at-school/)
Quote from: ajasfolks2 on September 21, 2011, 08:37:39 PM
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.
:disappointed:
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! :banghead:
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 (http://www.wrightslaw.com/blog/?p=58)
Read the blog & comments. Print the OCR Letter to Gloucester (Virginia) as to 504.
Hope this helps.
Quote from: ajasfolks2 on September 21, 2011, 09:30:33 PM
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 (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. ???
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.
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.
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!! (http://foodallergysupport.olicentral.com/index.php/topic,3009.0.html)
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.
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!
Quote from: ajasfolks2 on September 22, 2011, 09:01:45 AM
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.
The KEY thing here for that family, I believe, is to make formal request of the school -- in writing -- to document and prove THEIR accommodation as being "necessary and appropriate" by having their school district's qualified physician state and SIGN STATEMENT that, in his/her professional opinion
"There is no basis in fact for [this child] with [this diagnosis -- AKA, peanut allergy] to have need to self-carry Epi-pen while in school next school year 2012-2013, if this child has not had an anaphylactic reaction IN SCHOOL during the school year 2011-2012. There is irrefutable evidence that for food allergic individuals past reaction history predicts future reaction history. [The LAST statement there is patently UNTRUE and they'd have to cite medical evidence of its veracity. To my knowledge there is NONE]"
(Tweak as you see fit.)
(Good luck with that one, school! -- Though one must remember that physician is being paid by school. One would *hope* that does not sway . . . )
Typically, a school district contracts with a physician(s) to review IHCPs and/or to consult on those.
Very important that an IHCP (individual health care plan) has been written by the school nurse and attached to the 504 Plan. Family may need to backtrack here a bit and get their allergist to assist school nurse in developing that plan. Plan should state, unequivocally, "student with qualifying hidden medical disability of {XYZ life-threatening allergy} must self-carry epi-pen at all times" with qualifier as to rare exception -- like PE or sports, possibly -- in which case there must be written directive FROM CHILD'S ALLERGIST/DOC that written accommodations be made such that the adult-in-charge-co-located-at-all-times with child have the medication. There may need to be more detailed explanation from the doctor for each and every scenario to get this through to the school.
Bus = self-carry
Playground = self-carry
Gen Ed Classroom = self-carry
PE = dependent on activity, self-carry -- add more/better details as to specific situation
Cafeteria = self-carry
Hallways = self-carry"
and so on.
Yes, this is leg work.
The school's medical advising team, likely, has not signed off on that school's added self-carry caveat.
I'd consider trying this.
~ ~ ~
Edited for clarity.
Also -- I'd have family read at National Association of School Nurses for additional verbiage and understanding.
http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNPositionStatementsFullView/tabid/462/smid/824/ArticleID/32/Default.aspx (http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNPositionStatementsFullView/tabid/462/smid/824/ArticleID/32/Default.aspx)
http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNIssueBriefsFullView/tabid/445/smid/853/ArticleID/81/Default.aspx (http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNIssueBriefsFullView/tabid/445/smid/853/ArticleID/81/Default.aspx)
and here:
http://www.nasn.org/ToolsResources/FoodAllergyandAnaphylaxis (http://www.nasn.org/ToolsResources/FoodAllergyandAnaphylaxis)
One more thought -- does this school have any of it's district 504 personnel ON BOARD and on record as having approved this accommodation as well?
Were any district personnel at the 504 Accommodation Plan meeting and did they SIGN OFF on this accomodation-with-caveat?
Document. Record.
Decisions based on evidence in fact is what will be necessary to deal with this.
JMHO, and based on personal experience.
Quote from: ajasfolks2 on September 24, 2011, 05:43:45 AM
The KEY thing here for that family, I believe, is to make formal request of the school -- in writing -- to document and prove THEIR accommodation as being "necessary and appropriate" by having their school district's qualified physician state and SIGN STATEMENT that, in his/her professional opinion
"There is no basis in fact for [this child] with [this diagnosis -- AKA, peanut allergy] to have need to self-carry Epi-pen while in school next school year 2012-2013, if this child has not had an anaphylactic reaction IN SCHOOL during the school year 2011-2012. There is irrefutable evidence that for food allergic individuals past reaction history predicts future reaction history." Edited to add:[The LAST statement there is patently UNTRUE and they'd have to cite medical evidence of its veracity. To my knowledge there is NONE]"
(Tweak as you see fit.)
(Good luck with that one, school! -- Though one must remember that physician is being paid by school. One would *hope* that does not sway . . . )
Typically, a school district contracts with a physician(s) to review IHCPs and/or to consult on those.
Very important that an IHCP (individual health care plan) has been written by the school nurse and attached to the 504 Plan. Family may need to backtrack here a bit and get their allergist to assist school nurse in developing that plan. Plan should state, unequivocally, "student with qualifying hidden medical disability of {XYZ life-threatening allergy} must self-carry epi-pen at all times" with qualifier as to rare exception -- like PE or sports, possibly -- in which case there must be written directive FROM CHILD'S ALLERGIST/DOC that written accommodations be made such that the adult-in-charge-co-located-at-all-times with child have the medication. There may need to be more detailed explanation from the doctor for each and every scenario to get this through to the school.
Bus = self-carry
Playground = self-carry
Gen Ed Classroom = self-carry
PE = dependent on activity, self-carry -- add more/better details as to specific situation
Cafeteria = self-carry
Hallways = self-carry"
and so on.
Yes, this is leg work.
The school's medical advising team, likely, has not signed off on that school's added self-carry caveat.
I'd consider trying this.
Hey there. As you know, past history doesn't predict future reactions and severity of reactions. I know families who's child hasn't had a severe reaction since they were babies due to the proactive efforts the parents provide so I would hate to think that just because they, as parents, who are being so careful, would need that kind of false statement, "...There is irrefutable evidence that for food allergic individuals past reaction history predicts future reaction history. [cite evidence]" I know what you're trying to say (that there is no evidence) but I'm afraid that if this school has been jerking them around WITH a lawyer involved, they may actually sign it! Just thinking about the child.
To be clear, I don't know the family personally. I don't even know what district their in. I just read about their scenario and tried to forward info to help. Hopefully they found a resolution but last I saw, they may be contacting the OCR.
BTW, the allergist has written the school to say it is med necessary to self carry. School still resistant for the following year.
~ ~ ~
Edited to correct/address concern. ~e
Quote from: ajasfolks2 on September 24, 2011, 05:47:50 AM
Also -- I'd have family read at National Association of School Nurses for additional verbiage and understanding.
http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNPositionStatementsFullView/tabid/462/smid/824/ArticleID/32/Default.aspx (http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNPositionStatementsFullView/tabid/462/smid/824/ArticleID/32/Default.aspx)
http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNIssueBriefsFullView/tabid/445/smid/853/ArticleID/81/Default.aspx (http://www.nasn.org/PolicyAdvocacy/PositionPapersandReports/NASNIssueBriefsFullView/tabid/445/smid/853/ArticleID/81/Default.aspx)
and here:
http://www.nasn.org/ToolsResources/FoodAllergyandAnaphylaxis (http://www.nasn.org/ToolsResources/FoodAllergyandAnaphylaxis)
Thanks for these links! :thumbsup:
Going in to fix my statement concern that you caught -- you knew what I meant, but I didn't state it with adequate qualifier afterwards.
I should not PWE = Post While Exhausted!!
Happy to help with links . . . :thumbsup:
Quote from: ajasfolks2 on September 26, 2011, 05:17:05 PM
Going in to fix my statement concern that you caught -- you knew what I meant, but I didn't state it with adequate qualifier afterwards.
I should not PWE = Post While Exhausted!!
Happy to help with links . . . :thumbsup:
haha! Gatcha! Thanks for edit!
Quote from: CMdeux on September 21, 2011, 07:44:17 PM
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.
Just noting procedural safeguards for IEP/ohi *are* well defined, consistent, uniform, and not open to modification by school districts, and with more definitive oversight.
That said, the farthest I ever took a grievance was to mediation. It's an option that while I found it effective, was curiosly, not enforceable.
Quote from: Arkadia on September 27, 2011, 03:12:27 AM
Quote from: CMdeux on September 21, 2011, 07:44:17 PM
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.
Just noting procedural safeguards for IEP/ohi *are* well defined, consistent, uniform, and not open to modification by school districts, and with more definitive oversight.
That said, the farthest I ever took a grievance was to mediation. It's an option that while I found it effective, was curiosly, not enforceable.
I was under the impression that mediation is not available for 504 plans, only IEP/IDEA
Mediation is an option-- but both parties have to agree to it.
It can be a diversion step in either an OCR complaint or in due process proceedings.
But, as Ark notes-- it's non-binding anyway. Go figure. ~)
(Which may explain why so few parents opt for mediation.)
Quote from: CMdeux on September 27, 2011, 09:35:57 AM
Mediation is an option-- but both parties have to agree to it.
It can be a diversion step in either an OCR complaint or in due process proceedings.
But, as Ark notes-- it's non-binding anyway. Go figure. ~)
(Which may explain why so few parents opt for mediation.)
Hmmm, lots of loop holes to "get out" of educating the disabled. So not right. :disappointed:
Yeah. They spend more time figuring out how to be ABLE to not accommodate
rather than just removing the barrier to access (in this case the nonsensical "with reax in school" caveat that has NO-basis-in-fact or current best practices for LTFA) . . .
and then accommodating the disabled.
The gyrations are insane.
Quote from: AdvocateByFate on September 27, 2011, 10:32:33 PM
Quote from: CMdeux on September 27, 2011, 09:35:57 AM
Mediation is an option-- but both parties have to agree to it.
It can be a diversion step in either an OCR complaint or in due process proceedings.
But, as Ark notes-- it's non-binding anyway. Go figure. ~)
(Which may explain why so few parents opt for mediation.)
Hmmm, lots of loop holes to "get out" of educating the disabled. So not right. :disappointed:
Oh, it's not a loophole at all. I think it's an act of mercy. I think it's
wise.
a school can't "get out" of anything with it. It's entirely optional and voluntary. Even if a school wants to go to mediation, a parent can steamroll right to due process.
You can go to due process if agreement can't be met in mediation. (from what I understand) <shrug>
I have good things to say about the mediation process.
Number one being it showed good faith on both sides.
Two being it preserved the relationship between the districtl and my
child, as well as that between us and the district.
Three, it was a whole hell of a lot faster, less stigmatized, and operated on the premise that we are not adversaries (which, imho, contributes to more generous, cooperative attitudes on both sides.)
I've yet to read any due process hearing that didn't indicate both sides needed some degree of cooperation, and concession.
Mediation, again, imho, is a much better canvas for such.
The school followed through on four very truly
important (due process worthy) points (big deals, all four of them), but did renig on what was probably the most emotional point of contention (Hot Junk Food Day), and which was in direct opposition to their wellness
guidelines.
I will add, however, it is being remodelled, and probably in a more realistic fashion than I anticipated. Probably to the preservation of my child's relationship in the community and not being known as "the child of the Mom who stole Hot Junk Food Day".
I almost believe they went back on their word for my own good (and the good of my child).
<shrug>
FWIW. It's a whole lot of time, and a good deal of self analysis that has brought me to this point in my journey.
Quote from: maeve on September 22, 2011, 10:02:32 AM
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.
My first thought as well. That and ask them to 'walk through' their reasons in great detail. Why necessitate a reaction? Why ignore the doctor's orders? Why ignore ADA? Why self-carry one year then suddenly decide against next year?
Really, if the state specifies the right for a student to self-carry (without having to prove said student can self-administer) bob's your uncle.
Quote from: twinturbo on September 30, 2011, 01:46:40 PM
Quote from: maeve on September 22, 2011, 10:02:32 AM
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.
My first thought as well. That and ask them to 'walk through' their reasons in great detail. Why necessitate a reaction? Why ignore the doctor's orders? Why ignore ADA? Why self-carry one year then suddenly decide against next year?
Really, if the state specifies the right for a student to self-carry (without having to prove said student can self-administer) bob's your uncle.
Exactly. Many questions need to be asked -- either via written correspondence with written answers
OR
at a face-to-face meeting with recording done.
I'd suggest a script of questions to get them on record.
Cannot recall if I've posted this link in this thread:
http://www.dphilpotlaw.com/html/documentation.html (http://www.dphilpotlaw.com/html/documentation.html)
Suggest reading multiple sections of that SPED attorney (Texas) website.
:thumbsup: