I'm new here. My kindergarten son has known allergies to 5 foods. He has never eaten a peanut, but has reacted systemically to touching a jar of peanuts. All the others he has eaten so they are proven allergies. He is ana to at least 2 foods. He has reacted to touching invisible food residue and has reacted more than 40 minutes after ingestion of an allergen (documented b/c this occurred during a food challenge at the allergist's office). The bus company contracted by our school district will not allow their drivers to administer an epi-pen. The drivers are employees of the bus company, not of the district. Should my son experience anaphylaxis on the bus, the driver will pull over, dial 911 and then do nothing to help him. I have therefore been driving him to/from school. He carries an epi in his backpack. Also, the school is 3 miles away but the bus ride is an absurd 45-60 minutes. My older daughter takes the bus because they go to 2 different schools but the same bus. It drops at his first then goes to hers. My son is begging to take the bus. And I am attempting to return to work, which would make driving/picking him up every day a challenge.
I have asked the district to put an aide who is trained to give the epi on his bus so he could ride the bus safely. They are refusing. I have gone up the chain to the superintendent and he said no. His absurd reasoning was that since his allergies are contact and ingestion, but not inhalation, an aide is not needed. Crazy! The issue has been discussed informally with the board, but has not been discussed formally. I have no reason to think they will provide an answer other than no. When I wrote my letter to the superintendent, he responded by having the nurse prepare a 504 plan. I was not informed when the meeting would take place nor was I invited. It was sent home in his backpack for me to sign, although the nurse did call me to ask questions about his medical history and I was informed that the document was being drafted. It basically just says all the precautions they are already taking in school (which I was already fine with) but it does not address the bus. I am refusing to sign it.
I sent a letter a few days ago to the county superintendent, so hopefully she can get something accomplished. But I really don't know what else to do. I don't care that they don't allow eating on the bus. That doesn't help me when he could have ingested something 40 minutes earlier that causes him to react on the bus! Furthermore, the afternoon bus is sometimes delayed and the school office is closed before my daughter gets off the bus! Twice I have called them when it was 25 minutes past drop off time and she still wasn't home, and received an answering machine. How can I put my child with anaphylactic food allergies on the bus under these circumstances?
The 504 laws are very new to me. I'm having a hard time navigating through all of this. Any suggestions would be much appreciated. I did speak to a non-profit disability rights group in our state who referred me to a pro-bono attorney. She said that I am correct that the district should provide and aide on the bus, but her caseload is full and she can not help us.
Furthermore, I had this insane conversation with the business administrator of the district. When I first called to speak to the superintendent (before I wrote my letter), his secretary wouldn't let me speak to him and instead put me on the phone with the administrator. She said that it's a "parental responsibility" to transport children with food allergies. I told her that that sounded discriminatory. She asked how. I said the district has a legal obligation to transport all the children, including those with disabilities. She said "we can't transport children with disabilities. We don't have a special bus!"
I have provided the district with my son's allergy action plan from his allergist which states that the order is 1. give Epi, 2. call 911, 3. transport to ER. How is the district able to blatantly disregard these instructions by stating that the order the bus driver will follow will be 1. call 911, 2. wait for emergency responders to arrive who will administer epi. Doesn't the district have some sort of responsibility to be sure my child is treated in the manner that his doctor recommends he be treated?
First (((hugs)))
You will get response here. I can respond a little later in my lunch time more fully. I just wanted to let you know right away that you've been heard.
:grouphug:
Thanks! I'll be leaving in an hour and will be out until late this evening, but will check back then. I really need the help...I feel pretty lost with this. I'm usually able to research things and get a good grasp on things, but for some reason, these laws are confusing to me. Oh, and in case it's helpful, he does not have any other disabilities that I'm aware of that would make him qualify for an IEP.
You know scratch what I wrote.
I'm going to backtrack a little. You do have a 504 written up to your satisfaction but for transportation? That there is no adult who would be designated to deliver epinephrine? Eligibility has been confirmed, your 504 is otherwise to your satisfaction? In this particular instance it is the accommodation of an designated aide that is the one stumbling block?
My first inclination is to put the request in writing to the district with your allergist's endorsement if possible, cc'ing all parties. That way to deny it with the reasons they stated verbally would be placed in writing.
Twinturbo. I'll have to look over the 504 more carefully. There isn't anything in there that I disagree with, but there may be some things I'd like to add. But my huge sticking point is the transportation issue. I don't feel I should sign it without that being addressed.
And they did deny it in writing. I sent my request certified with return receipt. The superintendent responded via email denying the aide because the allergies are contact and ingestion, but not inhalation.
What about the statement that they don't transport children with disabilities and transporting FA students is a parental responsibility? The real out there stuff. The direction I'm going in is drafting a letter of understanding with each response the district has given you. Though I have a rough draft in mind I can't dedicate the attention necessary to write it competently right now. Along with that letter would hopefully be an accompanying supporting endorsement from your allergist that a designated adult who can administer epinephrine is necessary during transport. The district must evaluated the sources, not perform their own diagnosis.
It may or may not solve the problem at that local level, but it certainly does set the stage for an escalation via OCR if necessary.
Twinturbo- I'll post an accurate chain of events tonight, but that conversation about not transporting FA children was verbal, so I can't prove that one.
Thank you so much for your help!! I am truly very thankful!
Ooh, hold up. Be careful of identifying information. Anonymize what you can.
Here's my proposal. I'm going to post my draft later when I can. Everyone here knows my style and where my strengths and weaknesses are. I'm aggressive and dry which isn't always the best tool for the job. But I both know they know that and that they will modify, edit, fact-check and/or challenge my draft accordingly. It's what I love about this place - I can
always count on peer review. So wait for a few rounds of edit to kick in.
letter to principal (regards bus aide) (http://foodallergysupport.olicentral.com/index.php/topic,5984.msg54003.html#msg54003)
Riding the bus? (http://foodallergysupport.olicentral.com/index.php/topic,5597.msg45420.html#msg45420)
^Those are two previous thread on the subject. The first outlines an exacting letter from an allergist that epinephrine must be injected immediately by a designated person across all school functions including transportation. The epinephrine cannot be delayed. You may want to consider that the aide wipes down the seat that chid will sit in as a preventative measure. That's letter #1.
Letter #2 from the allergist should be a gold standard letter naming you the expert in negotiating accommodations in crafting accommodations. I'll put that in a spoiler tag click on it to expand.
[spoiler]
QuoteTo Whom It May Concern:
I have been asked by XX XX's parents to provide medical information regarding XX's allergies. I understand that you need specific and current information that will be used to determine whether or not XX meets the criteria for a 504 Designation under Section 504 of the Rehabilitation Act of 1973. I believe XX qualifies for this designation based upon his diagnosis and clinical history of life-threatening (anaphylactic) food allergies.
Anaphylaxis is defined as a systemic allergy reaction and can cause death or permanent disability. Approximately 150 people die each year due to anaphylaxis to foods, most commonly to peanuts. Below, I briefly describe the body systems affected during anaphylaxis:
Systems & Symptoms
Skin and subcutaneous tissues: mouth itching and swelling of the lips, tongue, or mouth, and hives.
Gastrointestinal system: nausea, abdominal cramps, vomiting and/or diarrhea (the vomiting and diarrhea can be severe, leading to intravascular volume depletion and shock).
Respiratory system: throat itching and/or sense of tightness in the throat, hoarseness sue to edema in the larynx with the possibility of closure of the airway, hacking cough, shortness of breath, repetitive coughing, and/or wheezing.
Cardiovascular system: "thready" pulse, decreased cardiac function leading to drop in blood pressure and shock, leading to possible cardiac arrest.
XX has a history of rapidly progressing anaphylaxis involving the gastrointestinal, skin, respiratory, and cardiovascular systems. Due to this reaction history, XX is at elevated risk of a fatal anaphylaxis.
XX was diagnosed with life-threatening food allergies at the age of 1 1/2 years. Since that time, he has also been diagnosed with severe, potentially life-threatening allergies to all tree nuts and eggs. (Test results available upon request). XX has a clinical history of reactivity to ingestion of microscopic quantities of allergens, contact with allergens, and inhalation of allergens.
For the purposes of this letter for a Section 504 designation, I attest that XX's medical condition substantially and significantly affects the life function of caring for one's self, and may also substantially and significantly limit the life functions of breathing, talking, walking, and performing manual tasks.
There is no cure for food anaphylaxis. Unlike other allergies for which there are medications or immunotherapy, there is no medication, immunotherapy, or device which can act as a mitigating measure for those who are anaphylactic to foods. Regular maintenance medications do not eliminate the need to practice avoidance, nor does epinephrine or any other rescue medication or device necessarily resolve anaphylaxis or eliminate the need to seek additional emergent care. Death or permanent disability is a possible outcome any time anaphylaxis is triggered. Peanut is of particular concern since a triggering dose cannot be reliably determined, even for an individual. Total avoidance is imperative.
Avoidance of all contact with food allergens (peanut, egg, and all tree nuts) is the only way to avoid a potentially life-threatening allergic reaction. Such avoidance is a highly complex task, impossible for a child without the ongoing assistance of an adult who is knowledgeable about the condition. Successful avoidance requires a comprehensive written accommodation plan in consultation with parents and physician.
I consider XX,s parents, XX and XX XX, to be knowledgeable about the successful management of their son's medical condition.
Sincerely,
Dr. XXX, M.D.
[/spoiler]
I highly suggest getting these two airtight letters from your allergist. It won't matter at that point what your principal's unqualified medical opinion is at that point because the rules call for considering these sources you are providing. Here's my
biggest concern: they banged out a 504 without even
bringing you into the process. They are supposed to include parents in their variety of sources. Have you seen some sample 504 plans? I'm a little worried it's a bare bones one that hardly incorporates all your child will truly need to access the education peers are receiving.
Read up on procedural safeguards.
[spoiler]
QuotePROCEDURAL SAFEGUARDS
Public elementary and secondary schools must employ procedural safeguards regarding the identification, evaluation, or educational placement of persons who, because of disability, need or are believed to need special instruction or related services.
41. Must a recipient school district obtain parental consent prior to conducting an initial evaluation?
Yes. OCR has interpreted Section 504 to require districts to obtain parental permission for initial evaluations. If a district suspects a student needs or is believed to need special instruction or related services and parental consent is withheld, the IDEA and Section 504 provide that districts may use due process hearing procedures to seek to override the parents' denial of consent for an initial evaluation.
42. If so, in what form is consent required?
Section 504 is silent on the form of parental consent required. OCR has accepted written consent as compliance. IDEA as well as many state laws also require written consent prior to initiating an evaluation.
43. What can a recipient school district do if a parent withholds consent for a student to secure services under Section 504 after a student is determined eligible for services?
Section 504 neither prohibits nor requires a school district to initiate a due process hearing to override a parental refusal to consent with respect to the initial provision of special education and related services. Nonetheless, school districts should consider that IDEA no longer permits school districts to initiate a due process hearing to override a parental refusal to consent to the initial provision of services.
44. What procedural safeguards are required under Section 504?
Recipient school districts are required to establish and implement procedural safeguards that include notice, an opportunity for parents to review relevant records, an impartial hearing with opportunity for participation by the student's parents or guardian, representation by counsel and a review procedure.
45. What is a recipient school district's responsibility under Section 504 to provide information to parents and students about its evaluation and placement process?
Section 504 requires districts to provide notice to parents explaining any evaluation and placement decisions affecting their children and explaining the parents' right to review educational records and appeal any decision regarding evaluation and placement through an impartial hearing.
[/spoiler]
After some thinking I believe the best way to move forward is a short letter that brings you (parent) into the 504 process. Acknowledge that child has been found eligible but that there has been an oversight to include you in the process. You will need a 504 meeting to discuss accommodations. You look forward to that meeting where you will provide new, specific medical sources, and that you can review the 504 together with the 504 team.
QuoteDear Principal,
I have received in writing that [child] has been found eligible for 504. Thank you for that timely response.
Due to some oversight I have not been included in the process. I am requesting a meeting with the 504 team to discuss accommodations together for [child's] 504 plan.
This is of an utmost importance as several answers I've been given by district personnel make no sense such as the "district does not provide transportation to disabled students." I look forward to participating in my child's 504 with the team, and to clarify some of these most assuredly erroneous statements made by personnel.
Eh, too much repetition but it's a start. I like it simple, get back on track with the 504 process as it should go. Nail eligibility, meeting with 504 team, discuss accommodations there. Bring your rock star letters from allergist. Go prepared with all necessary and appropriate accommodations in mind.
The intent, if s/he is a chess player, can decode is
[spoiler]
Quote
Dear Principal,
Hi.
Regulations. We're going to follow them. This is totally happening.
Help yourself to some.
(http://www.preparationh.com/sites/default/files/Preparation_H_Ointment_Main.png)
:smooch:
[/spoiler]
Thank you so much! You're amazing! I can't believe it's taken me 5 years to find these forums.
On a negative note, I don't know how much help his allergist will be and I'm so disappointed about that. I love his allergist. Son has had a number of medical concerns and was falling through the cracks with the pediatrician. This allergist is the one who really took charge and got us the right testing and to the right specialists. He's even called on occasion to ask how son is doing. He asks me to call him after son's specialist appointments to update him on what transpired. After the horrible phone call with business administrator, I called his nurse. I asked if they could put something into writing saying that son needed an adult trained to administer an epi on the bus. I explained the length of the ride. Nurse said he doesn't get involved in issues between parents and school districts and he would not write the letter. I found this completely shocking! I was crying on the phone. It was awful. This was seriously just a few days after his failed food challenge in which the allergist stated to me "wow, he didn't eat much at all before he reacted. You really need to be careful with him." I will write the allergist a letter asking him for the letters you've suggested.
Ok. The basic sequence of events was that we moved into this new district in late summer, so I didn't have much time prior to the start of the school year to iron things out. I spoke to the principal and he informed me of the bus company policy. He said most parents of FA children choose to transport their child due to this policy. I asked if any parents had previously pushed the issue on the basis of it being discriminatory. He said it had been addressed many times before and that the school board has refused to budge. The district will give aid in lieu if you choose to transport.
I spoke to the school nurse, and I felt very comfortable with what she was planning to keep him safe in school. Nut free lunch table but including other children who had screened lunches so he wouldn't be sitting by himself. There is only one other child in his lunch period whose parents have also chosen the nut free table. He sits next to that child and kids with screened lunches sit further down the table so issues with spills are eliminated. This is so he can be safe but not overly excluded. My son doesn't seem to mind. He carries his epi at all times. There are a number of designated employees throughout the school who are trained. His teacher is trained and there are several trained adults in the lunch room including the principal. Classroom is nut free. Kids eat snack in the classroom. No birthday food treats at all. There is one other FA child in the class although I don't know who it is. A letter has already gone home telling the parents no birthday treats and all snacks must be nut free. Teacher wipes off his table before he sits to eat his snack and wipes off all snack tables afterward, increased handwashing, etc. There may be some things we need to tweak as time goes on (darn boxtop contest with pizza and ice cream party reward), but overall I'm very comfortable with all of this.
I called the superintendent's office to discuss transportation concerns. Secretary transferred me to business administrator. Insert discriminating conversation. I wrote letter to superintendent (certified/rr) stating that my son has a disability which restricts major life activities. I outlined his allergies, history of reactions (40 minutes after ingesting, contact, etc) recounted conversation with administrator, stated that I believe his civil rights are being violated, asked for an aide on the bus and said that I hoped we could work together to keep him safe on the bus. I included a copy of his allergy action plan.
Letter was received, school nurse called to say superintendent asked her to draft a 504. A week or so later she called to ask medical history questions, went over the basics of what she was including (basically all the things they're already doing), she said my request for an aide would have to be approved by superintendent. 504 came home in backpack with a note to make changes if I deemed them necessary or to sign if it looked satisfactory. I haven't done anything with it since it doesn't address the only concern I have.
A few weeks go by, no response to my letter. I sent an email to superintendent and copied the principal asking for a direct response to my request. Received his email response a few days later denying the aide. I responded asking if this had been presented to the school board, he said he informally discussed it with some members but it wasn't officially addressed. He said he would contact me after their next closed meeting and that we could address it at the next public meeting. Having never been to one, I wrongly assumed this meant I would have to discuss son's medical info in front of the public so I emailed back. He called and said that would never happen that way and that all medical info would be protected. He said he would present my letter and contact me after closed meeting.
What is considered "placement" under procedural safeguards. Is this the same as the accommodations?
Recipient school districts are required to establish and implement procedural safeguards that include notice, an opportunity for parents to review relevant records, an impartial hearing with opportunity for participation by the student's parents or guardian, representation by counsel and a review procedure.
What constitutes opportunity for parents to review relevant records? Is this supposed to take place prior to the 504 meeting?
Is the impartial hearing for if we disagree with the 504?
Quote from: twinturbo on October 02, 2013, 01:49:16 PM
After some thinking I believe the best way to move forward is a short letter that brings you (parent) into the 504 process. Acknowledge that child has been found eligible but that there has been an oversight to include you in the process. You will need a 504 meeting to discuss accommodations. You look forward to that meeting where you will provide new, specific medical sources, and that you can review the 504 together with the 504 team.
QuoteDear Principal,
I have received in writing that [child] has been found eligible for 504. Thank you for that timely response.
Due to some oversight I have not been included in the process. I am requesting a meeting with the 504 team to discuss accommodations together for [child's] 504 plan.
This is of an utmost importance as several answers I've been given by district personnel make no sense such as the "district does not provide transportation to disabled students." I look forward to participating in my child's 504 with the team, and to clarify some of these most assuredly erroneous statements made by personnel.
Eh, too much repetition but it's a start. I like it simple, get back on track with the 504 process as it should go. Nail eligibility, meeting with 504 team, discuss accommodations there. Bring your rock star letters from allergist. Go prepared with all necessary and appropriate accommodations in mind.
Yes--this would be my tack as well. You have got to be involved in the process.
I do think that calling your OCR office (if it is not shut down---bet it is) could be a good thing. Especially if you live in Virginia or North or South Carolina, because that OCR office has proven time and time again to get this (others not so much, sadly).
http://www2.ed.gov/about/offices/list/ocr/addresses.html (http://www2.ed.gov/about/offices/list/ocr/addresses.html)
Unfortunately, parents are not required to be notified of a 504 meeting, but look at this publication from the Department of Education, :
http://doe.sd.gov/oess/documents/sped_section504_Guidelines.pdf (http://doe.sd.gov/oess/documents/sped_section504_Guidelines.pdf)
QuoteWho makes up a Section 504 Team?
Responsibility for considering and developing a Section 504 Accommodation Plan
consists of a core group that includes the school principal or administrator, referring
and/or general education classroom teacher, school counselor, and parents—virtually
the same as the core members of the Early Intervening Team. In fact, this team in
many cases may also be the school's Section 504 Team. The team must be familiar
with the student in question.
In terms of understanding the law, this is really helpful:
QuoteThree Laws: How They Relate
To understand Section 504, it is helpful to see how it relates to other relevant laws.
ADA—The ADA is federal law which provides civil rights protections to all individuals
with impairments in our society similar to those provided to individuals on the basis of
race, color, sex, national origin, age, and religion. It guarantees equal opportunity for
individuals with disabilities in public accommodations, employment, transportation, State
and local government services, and telecommunications. ADA was recently amended,
please refer to the 2009 ADA amendments.
Section 504—While Congress intended Section 504 to be consistent with the
Individuals with Disabilities Education Act (IDEA), Section 504 is more encompassing.
Section 504 could cover students, parents, employees, and other individuals with
impairments. The Section 504 definition of an impairment is much broader, including
any physical or mental disability that substantially limits one or more major life activities,
including, but not limited to, learning. For public schools, Section 504 covers all
students who meet this definition, even if they do not fall within an IDEA disability 6
category. Students who qualify for Section 504 services do not automatically qualify for
special education under IDEA. The identification for Section 504 services must be
based upon evaluations and conducted by a team of individuals knowledgeable about
the student. Students who qualify for Section 504 may require accommodations through
a Section 504 Accommodations Plan developed by the school's 504 Team.
Individuals with Disabilities Education Act (IDEA)—This law defines eligible
students as those have certain specific types of disabilities and who, because of those
conditions, need special education (specially-designed instruction) and related services
in order to benefit from their education provided through an Individualized Education
Program (IEP).
Check this out on page 28. It's a wonderful summary of your child's rights. Learn this language--it's really helpful.
QuoteProcedure Seven: Parent and Student Rights under Section 504
(34 CFR,104.36)
Sample Notice
The following is a description of some student and parent rights under Section 504 and
other federal laws. The intent of the law is to keep you fully informed concerning
decisions about your child and to inform you of your rights if you disagree with any of
these decisions.
Have your child take part in and receive benefits from public education
programs without discrimination based on a disability.
Receive notice with respect to identification, evaluation, program, or
placement of your child.
Have your child receive a free appropriate public education. This includes
the right to be educated with other students to the maximum extent
appropriate. It also includes the right to have the school make reasonable
accommodations to allow your child an equal opportunity to participate in
school and school-related activities.
Have your child educated in facilities and receive services comparable to
those provided for students without disabilities.
Have evaluation, educational, and placement decisions made based upon
a variety of information sources and by individuals who know the student,
disability, evaluation data, and placement options.
Give your child an equal opportunity to participate in nonacademic and
extracurricular activities offered by the school.
Examine all relevant records relating to decisions regarding your child's
identification, evaluation, educational program, and placement.
File a local grievance with your school if you feel your child is being
discriminated against because of their disability.
Request a due process hearing to help resolve issues with the school.
File a formal complaint with the regional Office for Civil Rights. The office
is part of the U.S. Department of Education. The regional office is located
at 400 Maryland Avenue, SW, Washington, D.C. 20202-1100
QuoteDecisions about Section 504 identification must be documented in the student's Section
504 file. Once a Section 504 Plan is developed, it is reviewed at least yearly or
whenever any member of the 504 Team believes it is necessary. A case manager, who
is often the school's 504 Representative, must be assigned to complete and manage
each Section 504 student file. A student's Section 504 Plan must be provided in the
least restrictive environment, most likely the general education classroom.
Under Section 504, parents or guardians must be provided with notice of any action that
changes the identification, evaluation program, or placement of their child. Written
consent for initial evaluation and initial placement is required. The parents should
be included in the evaluation, identification, and placement process whenever possible.
Parents or guardians have the right to file a grievance, request mediation, ask for a due
process hearing, or file a complaint with the Office for Civil Rights if they disagree with
the school's actions.
—Best Practice—
Parent participation should always be encouraged throughout
the Section 504 process.
Also--go to page 44 of that document for a flow chart.
Wow--I'd never seen this document before. How very helpful.
A few phrases to burn in your brain:
--My child has a right to FAPE, a free and appropriate public education.
--My child has a right to LRE, a least restrictive environment
--my child has a right to the same education (or bus ride) as his nondisabled peers
I have been looking for case precedent or other documents that deal with FAPE and third party bus companies. I did see one about FAPE and a third party (privately owned school--like a charter school--so I think lines can be drawn).
I don't have time to thoroughly go through this, but this case might have some applicability in terms of having separate buses for children with disabilities. (An aside: what is it with Virginia Beach? Do they have some sort of love for OCR complaints?)
http://www.wrightslaw.com/advoc/ltrs/kids_sent_home.htm (http://www.wrightslaw.com/advoc/ltrs/kids_sent_home.htm)
Oooh--this could be helpful:
http://www.stnonline.com/resources/special-needs/federal-laws (http://www.stnonline.com/resources/special-needs/federal-laws)
Quote
Federal Laws PDF Print E-mail
The origin of disability rights in the United States traces back to the "equal protection" clause of the 14th amendment to the United States Constitution. It was a long time though until Section 504 of the Rehabilitation Act of 1973, when Congress began to define and codify these rights into federal law. Section 504 specifically prohibits discrimination against individuals with handicaps by any government program or activity that receives Federal funds.
Two years later, the Education for All Handicapped Children Act of 1975 was enacted. It introduced two new acronyms to school transportation. FAPE or free appropriate public education requires a variety of special education and related services. Transportation to-and-from school was defined as one of the related services. LRE or least restrictive environment requires that students with disabilities be educated with their non-handicapped peers.
Not a case, but this may be helpful: http://www.schools.utah.gov/sars/DOCS/disability/emer504.aspx (http://www.schools.utah.gov/sars/DOCS/disability/emer504.aspx)
Quote
The need must arise from the impairment. "It is clear that it is inconvenient for the parent to bring
the student to school. However, no testimony indicated that he had a medical or other disability which
would require transportation." The student lives within 6 blocks of the school, thus not qualifying for
regular transportation available pursuant to school policy for students outside a 1½-mile radius from the
school. His IEP team at the March 21, 2006 meeting determined that transportation would not be
needed as a related service. The parent did not bring any testimony indicating otherwise. While the
student "has a nebulizer at school for asthma, however, he only used it at the request of the parent
during a short period. He was never observed having difficulty breathing, even after strenuous activity."
No transportation was required as a related service. Lincoln Elementary School District 156, 47 IDELR
57 (SEA IL 2006).
Evaluation data requires an aide on the bus. The student's doctor reported that an EpiPen had to be
administered "expeditiously" following the student's exposure to peanut protein (whether ingested,
touched or inhaled), and that should he have to wait for paramedics to be called and arrive to administer
the EpiPen, "there is absolutely no way" he would survive. The administrative law judge ordered an
aide be placed on the bus, further finding that:
"Peanuts are a common food and people, especially children, who have eaten or contacted peanuts do
not always wash or otherwise completely remove peanut proteins from themselves, and it is almost
impossible to make the school environment completely peanut-free. Therefore, it is probable that J.B.
Jr., whether on a school bus or in class, will probably have some exposure to peanut proteins in his
school day. A school bus driver, driving conscientiously, would not be able also to simultaneously
monitor a severely allergic student and, if the student were to begin to experience an allergic reaction,
expeditiously administer an EpiPen and thereby allow the student to avoid the above-described
problems. J.B. Jr. is too young to be responsible to monitor himself and to administer his own EpiPen.
Therefore, a nurse, aide or other trained adult is required for those purposes." ManalapanEnglishtown Regional Board of Education, 107 LRP 27925 (SEA NJ 2007).
http://www.katiekellylaw.com/apps/documents/categories/show/106111 (http://www.katiekellylaw.com/apps/documents/categories/show/106111)
This is the website of a special ed attorney in Florida, Katie Kelly. Something in her 504 Fact Sheet intrigued me. (emphasis mine)
QuoteSection 504 also applies to a public online high school operated statewide by a public school district via contract with a private entity. The online school was owned and operated by a private entity under a "management services agreement" with the school district. Even though the agreement said the private company was responsible for complying with all applicable laws, the school district violated Section 504 by not ensuring that the online school operated in compliance with Section 504.
It is helpful to actually read Section 504. Go to page 45 of this for a readable version: http://doe.sd.gov/oess/documents/sped_section504_Guidelines.pdf (http://doe.sd.gov/oess/documents/sped_section504_Guidelines.pdf)
Here are parts (emphasis mine):
Appendix A
Section 504 of the Rehabilitation Act of 1973—
Regulations
34 CFR Chapter 1, Section 104.31
Subpart D—Preschool, Elementary, and Secondary Education
(December 13, 2000)
§ 104.31 Application of this subpart.
Subpart D applies to preschool, elementary, secondary, and adult education programs or
activities that receive Federal financial assistance and to recipients that operate, or that
receive Federal financial assistance for the operation of, such programs or activities.
§ 104.32 Location and notification.
A recipient that operates a public elementary or secondary education program or activity
shall annually:
(a) Undertake to identify and locate every qualified handicapped person residing in the
recipient's jurisdiction who is not receiving a public education; and
(b) Take appropriate steps to notify handicapped persons and their parents or guardians
of the recipient's duty under this subpart.
§ 104.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or secondary education
program or activity shall provide a free appropriate public education to each qualified
handicapped person who is in the recipient's jurisdiction, regardless of the nature or
severity of the person's handicap.
(b) Appropriate education. (1) For the purpose of this subpart, the provision of an
appropriate education is the provision of regular or special education and related aids
and services that (i) are designed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped persons are met and (ii) are
based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35,
and 104.36.
(2) Transportation. If a recipient places a handicapped person or refers such person for
aid, benefits, or services not operated or provided by the recipient as its means of
carrying out the requirements of this subpart, the recipient shall ensure that adequate
transportation to and from the aid, benefits, or services is provided at no greater cost than
would be incurred by the person or his or her parents or guardian if the person were
placed in the aid, benefits, or services operated by the recipient.
§ 104.37 Nonacademic services.
(a) General. (1) A recipient to which this subpart applies shall provide non-academic and
extracurricular services and activities in such manner as is necessary to afford
handicapped students an equal opportunity for participation in such services and
activities.
(2) Nonacademic and extracurricular services and activities may include counseling
services, physical recreational athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the recipients, referrals to
agencies which provide assistance to handicapped persons, and employment of
students, including both employment by the recipient and assistance in making available
outside employment.
(b) Counseling services. A recipient to which this subpart applies that provides personal,
academic, or vocational counseling, guidance, or placement services to its students shall
provide these services without discrimination on the basis of handicap. The recipient shall
ensure that qualified handicapped students are not counseled toward more restrictive
career objectives than are nonhandicapped students with similar interests and abilities.
(c) Physical education and athletics. (1) In providing physical education courses and
athletics and similar aid, benefits, or services to any of its students, a recipient to which
this subpart applies may not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors interscholastic, club, or
intramural athletics shall provide to qualified handicapped students an equal opportunity
for participation.
(2) A recipient may offer to handicapped students physical education and athletic
activities that are separate or different from those offered to nonhandicapped students
only if separation or differentiation is consistent with the requirements of §104.34 and
only if no qualified handicapped student is denied the opportunity to compete for teams or
to participate in courses that are not separate or different.
The allergist is correct, we don't want him to get involved with the schools. Which is what you can point out writing a letter that names you as the expert will do.
This is how I would approach it. Call to schedule a consult appointment on the emergency action plan and review records, HIPAA paperwork. You have some very specific questions that need some face time beyond a simple question over the phone. The nurse is stuck in reject mode. I'm going to hold off judging the allergist because maybe he's been burned in the past, and in a sense I agree with him. He's a doctor, not a lawyer. He can only provide medical services to his patient.
Bring your drafted letters both in hard copy and some electronic form. It could be a thumb drive but I prefer to save as PDF mailed to myself that I can forward to the allergist. Present the first letter as the required way to ensure that the school district does not try to involve him, and that you have already taken the necessary steps in the front office (HIPAA) to make sure the school can't access the patient's medical information on their own. Reassure him that you fully agree he should not be negotiating with the school and that this letter will formalize that. Also point out that while you and allergist know he should not be called by the school during an instance of anaphylaxis, so the letters will shore up the patient's prescribed emergency action plan as well.
Remind allergist that if it is accurate and provides patient support for an already prescribed emergency action plan (inject as stated, no waiting), then properly framed it is not about you or him, it is about the patient.
Regarding HIPAA, I'm not super sure on how to form that. A letter stating that the school may not call or in any communication interact with the allergist directly or access patient information.
You know, if the school district ends up having to pay for aides for EVERY child with LTFA (life-threatening food allergy) who rides a bus, I'm thinking the district will be shopping for new company that provides bus drivers . . . or will mandate that the company train all drivers in epi admin in order to get the next contract. . . .
There was case in Michigan in past 2 - 3 years where something similar was going on as to bus driver refusing to administer epi . . . and child not being able to ride . . . I'll see if I can find some of the news stories and the outcome (positive for the child & family, I believe) . . .
I found this - it's part of IDEA, but should be applicable here also:
QuoteThe "Non-Academic Services" section, under the Free Appropriate Public Education component of IDEA requires the public agency to "provide non-academic and extracurricular services and activities in such manner necessary to afford children with disabilities an equal opportunity for participation in those services." One of those non-academic services is transportation. This continues the emphasis to integrate children with disabilities as much as possible with children without disabilities.
Here's a link to an OCR investigation re: transportation http://www2.ed.gov/about/offices/list/ocr/docs/investigations/05105001.html (http://www2.ed.gov/about/offices/list/ocr/docs/investigations/05105001.html)
Also, if you go to ED.gov and search 504 transportation, you'll find several other things to look at.
I faxed the allergist a letter this morning. That was before I read the suggestion to schedule an appointment. I mentioned that I am aware of his policy and I am not asking him to get directly involved. However, his qualified medical opinion is the one that holds weight. I am asking him to write a letter to the school outlining DS's diagnosis, history of reactions and emergency treatment plan tweaked to make it applicable to school. I stated that I am not asking him to recommend any specific accommodations. I asked that he also state in the letter that he considers us, as DS's parents to be knowledgeable as to the management of DS's medical condition. I mentioned our concerns with transportation. I mentioned his history of delayed reactions after ingestion and of skin contact reactions. I thanked him for the level of care and concern he has always shown for DS and asked him to please contact me with a response. I attached a sample letter he could use (basically the one that was posted but tweaked to make it fit DS's situation) for him to use if he found it helpful. I made sure the letter specifically mentioned transportation. I did not ask for two separate letters. Maybe that's a mistake but I'm thinking I'll be lucky to get one letter, never mind two.
Thank you all for the various cases to look over. Here's what stumps me. Our state has a guide for schools for management of food allergies. It's very specific until it gets to the part about transportation, and then it all falls apart.
The district or nonpublic school should consider the needs of students with life-threatening allergies while being transported to and from school and to school-sponsored activities.
a)
Advise bus drivers of the students that have food allergies, symptoms associated with food-allergic reactions, and how to respond appropriately.
b)
Assess the emergency communications systems on buses.
c)
Consider assigned bus seating i.e., students with food allergies can sit at the front of the bus or can be paired with a "bus buddy."
d)
Assess existing policies regarding food on buses.
It doesn't specifically address Epi-pen administration. Here's where I think the district has found it's loophole.
Furthermore, since the district isn't refusing to transport him (other than that one crazy conversation) how do the transportation rules for FAPE apply? They're willing to transport him, they're not willing to administer Epi on the bus. Where transportation and FAPE are mentioned, does this specifically mean that he must be transported in accordance with his allergy action plan as written by his doctor (Epi, 911, ER)?
And yes, I do think if the district looks to hire a new bus company at contract renewal time, the bus company will change it's tune. I have asked in several other local districts and their bus companies allow the drivers to administer. And if the driver refuses, the school provides and aide.
What you did is great. You already have the emergency plan so the essential is there.
I don't know if others would agree but I'm not sure you have to contest district policy so much as maintain that the EAP (plan) must be implemented across any school activity, FAPE covers anything on the receiving end of federal financial assistance. Unless the SD is going on record to defy the EAP's clear directives, suggesting it is picking and choosing when to provide an accommodation that affects a major life activity.
One more thing. Do you think there's a way to successfully argue that the bus ride is too long based on his medical needs, even with a trained aide? I'm trying to think of an angle.....
On another note, I'm getting really proficient at spelling "allergy" backwards!
My DS' ride was that long or longer.
Btw he had an bus aide for several years.
They may offer to set up a "special needs" bus for your child . . . be prepared for some possible offers/negotiations . . . take notes.
I'll be back later to elaborate.
I have much the same issue and have never pursued it. We just drive him. We were thinking about letting him ride bus this year....
drivers from what I understand - would pull over and radio into a dispatcher - they don't have cell phones
I've been gearing up for this fight and/or gathering calmness to let him ride now that he's in 5th grade and could handle himself and tell us if there was food on the bus...etc - and then I would fight or revert to driving - but then he choose the Cello and you have to sign something that says that you will provide xport on those days due to the size of the cello....
I wish I could help.
One important logistical point to insert here based on the bus company's policy to dial 911 and await EMS.
Pediatric epinephrine administration is not regulated federally. This will be greatly affected by your state laws, county and city EMS regulation, and what routes your child would travel. I'll elaborate using my change of state residence as an example.
The state I reside in now allows all EMS personnel to administer pediatric epinephrine from paramedic down to EMT basic.
The state I moved from only allowed full paramedics to administer pediatric epinephrine. Some of the cities mandated that all EMS trucks in their limits to have one paramedic per responding ambulance. The county did not. I'm not sure what happened in other cities or in unincorporated areas or privately run ambulances.
Check your state laws (don't write your state here). If all EMTs may administer pediatric epinephrine that's good in general terms. If it is unevenly distributed amongst EMS personnel dependent on grade (basic, intermediate, advanced, paramedic) then go to your local FD and politely inquire how it works if an ambulance is called to administer pediatric epinephrine.
It *may* be flawed assumption from the very start that if the bus calls for an ambulance that any responding personnel are even allowed to administer epinephrine. Our school at the time gasped a collective oh crap when they were informed. They erroneously (and dangerously) assumed an EpiPen delivery was just a phone call away.
Keep us updated.
Update
I got the letter from the allergist!!! Yay!!!!! I was seriously jumping around the room! The only loophole which the school district may try to wiggle through is that it says "Epipen must be administered immediately followed by Benadryl. DS needs to be taken to the nearest Emergency Room. Additional administration of the Epipen every 10-15 minutes may be required if symptoms recur or progress. DS's Epipen and Benadryl must be present with DS at all times (school activities, field trips, transportation to and from school)."
It doesn't specifically say that an adult must be present on the bus to administer it, although it's obviously inferred. Do you think that's enough? It does say previously in the letter that in the case of an allergic reaction, an adult must be available to administer his Epipen.
I'll be sending this certified to the school district.
Also, I called our state's disability rights group again last week. I had initially called them in August and they put me in touch with a non-profit attorney who told me that I am correct, but she wasn't available to take our case. So I called the disability rights group back and a supervisor will be getting back to me to tell me if there's anything they can do. Initially when I called them (before they referred us to the attorney) they said they would write a letter to the school asking them to put an aide on the bus.
Also, I had called the superintendent prior to posting here (and getting such awesome advice) and asked him if they're not willing to put the aide on the bus, would they be willing to adjust the bus route so DS would be on the bus for less than 15 minutes. He called me back last week and said they couldn't change the bus route, but they've looked into it and decided that I could drive my kids to the other end of the road (1.5 miles) and get them on the bus there and the bus ride would be 5 minutes. I drove down and the road is so narrow down there. There's no shoulder or spot to park my car. I'd have to park smack in the middle of the lane, or in someone's driveway. Not a safe option at all. And he said on the way home, my kids are the second stop so the ride is short. I said "no, we're the second to last stop." He said "I have the route right in front of me. You're the second stop. And I said "Well, maybe they're driving it wrong because we're the second stop in the morning and the second to last stop in the afternoon. My daughter is on the bus for an hour each direction." He said he would call me back this week. I handed them a huge win with that compromise and they still wouldn't take it.
The school board meeting is next week. I'm supposed to be on the agenda to discuss this in executive session. I just don't see that that's appropriate but I'm doing it anyway because I would like to get them on the official record as refusing. When I disagreed with the 504, the school district should have informed us of our rights to due process, correct? The school board has no part in that as the school board dictates policy, not 504 accommodations. However, I do think it makes for a stronger OCR complaint if the school board says no and the district has also not informed me of due process. Nor did they inform me in writing that they were evaluating DS for a 504 (they did so verbally) and they also did not give me opportunity to review records. It's a tiny district in a rural area and I think it's just not something that they deal with all that often so they're rusty on the procedural safeguards.
Oh, and thank you for mentioning the basic vs advanced EMT thing. Turns out that's true for our state. I have an email into the local rescue squad asking about response times for EMS vs advance life support EMS. I tried to call their non-emergency line but no one answered. Umm, ok?? Hopefully the emergency calls are being answered!
Don't call dispatch even the non-emergency. Not that calling non-emergency is a bad thing in itself it's just not the FD. I'd talk to some EMTs directly. They have that field experience of knowing what actually happens and who is manning the trucks. One thought is look at your community college course descriptions. There's almost always an EMT basic course taught. Most likely there is an instructor listed for that class by email and name. It's probably paramedic or EMT advanced but one open to inquiries as an instructor. That might be a good shortcut to save you some time driving and talking to guys and gals on duty. Personalities vary.
Well, the superintendent just called and stated that he discussed my concerns with the board during their closed meeting last night and the board feels they have done everything they could do and are not willing to put an aide on the bus. I told him I have a letter from DS's allergist and asked if I should send it to the principal. He asked what it said, and I said "it says he needs an adult on the school bus to give him an epipen." He said, "there's no eating allowed on the bus." I said "he's had delayed reactions 45 minutes after ingestion. he could eat something before getting on the bus and have a reaction while on the bus." He said (try not to fall off your chairs) "the schools are really diligent so there shouldn't be an issue at the end of the day. And as far as the morning, we're not responsible if you accidentally give him something and he has a reaction on the bus."
What next? And does it seem to anyone else that they're intentionally trying to keep this "off the record?" The school board has discussed this twice in closed committee meetings. They have yet to put it on the agenda to discuss at a regular meeting. And the superintendent has been responding to me via phone rather than email, except for the first denial which was via email.
LOU requesting the decision including the variety of sources they used in making the decision and what criteria. Formally request the decision that contradicts your doctor's medical opinion/prescription and ask for clarification about how it would be parental 'fault' if he has a reaction on the bus. This makes no sense to you or your doctor.
I wasn't really sure about the epi rules in your state, city and county but if EMTs are regulated differently, you can show that the arrival of epinephrine for children is not guaranteed.
I'm not expecting them to buckle but it would be wise to start handling this as if you are case building. The attorney you get may know more about the SD attorney. It would be good to know if it's a single person or a practice on contract.
Also, check your state code (laws) to see that laws are regarding transportation. There's no Federal requirement that schools provide transportation and, likewise, many states don't have laws requiring transportation. However, most states do require that school districts provide transportation for disabled students. That might be your angle because under the American with Disabilities Act Amended food allergies are considered a disability.
The other way... and I'm not advocating it more following a line of thought. Only one department can investigate per complaint in this case a bus service for public schools. The school district points to the bus service saying it's outside of their control. They're also claiming it's not part to 504. The bus is getting money from SD but shelve that for a moment.
Go after the bus company to provide an aide. The standard outside of Title II and 504 *is* lesser (Title III) but it would be under the jurisdiction of the Dept of Justice rather than Ed and DOJ has much more effective enforcement.
You could
possibly go with a tactic that takes this off the school's plate, finalize your 504, then file a complaint against the bus service. The DOJ's settlement with La Petite, a private montessori school, shares similar factors with your current situation. Their policy was to dial 911 for EMS to deliver epinephrine, and if I remember correctly were hit with a monetary concession as part of the settlement as well as train employees to use EpiPens.
Now, if you have evidence that their policy is not only discriminatory but is
incorrect that emergency squad is not a guarantee of pediatric epinephrine administration, I think they would be VERY up the creek.
Two things:
* Under no circumstances call in the DOT. I've read ADA itself and DOT is largely exempt.
* Fixing the bus company doesn't fix the issue of what to do on field trips but you could always come back to that in the 504 once you get it finalized. Just a thought because it is possible to add that later.
Here's a link to La Petite Academy settlement agreement with DOJ. http://www.ada.gov/lapetite.htm (http://www.ada.gov/lapetite.htm)
I quoted the most relevant parts but save and print the whole document.
QuoteThe Jester, Bownds, and Carrabine Complaints allege that La Petite discriminated against children with severe allergies and their families by maintaining a policy of not administering the EpiPen, Jr. (a disposable device used to administer a pre-measured dose of epinephrine to children with severe allergies) to children in their custody who suffered severe allergic reactions. La Petite's policy at that time was to call 911 and request that Emergency Medical Services personnel be dispatched to administer the EpiPen, Jr.
11. La Petite hereby agrees that the document entitled "La Petite Academy, Inc. Policy for Administering Emergency Treatment to Children with Severe Allergies," attached hereto as Attachment A, has been adopted by La Petite as its policy for treating children with severe allergies, including its policy for administering epinephrine through the use of the EpiPen, Jr. La Petite further agrees not to modify the policy without the prior written consent of the Department.
12. La Petite hereby agrees to pay a total of Fifty-Five Thousand and 00/100 Dollars ($55,000.00) as full and final settlement of the Complaints set forth in paragraphs 6, 7, and 8 above
If you happen to be in Virginia and would find it helpful to know of a city that did have a bus aide as an accommodation--and for an older child, PM me. :)
I agree that an LOU is your next step. Be dispassionate in it. Describe the date of your most recent conversation and what your interpretation of it is. Ask for clarification on any points that you may be misunderstanding. And give them a date by which to clarify.
In this letter, I would also make a written case for this accommodation. You're documenting. And this is probably your last chance to spell things out for them in black and white. I would include:
--a description of your doctor's recommendation (and also a copy of the letter)
--a statement that your child needs an adult to administer epinephrine
--a statement that pediatric epinephrine is not necessarily carried in your county (I think I read that correctly). And if you have a written policy indicating that, include a copy of it
--some statement about the critical nature of receiving epinephrine immediately. I would site the AAAAI recommendations. I'm going to give you links to some deaths that occurred as a result of not having epinephrine early enough at the bottom of this. During a reaction, your child can't wait until EMTs arrive--even if they do carry it.
--copy the part of Section 504 that I detailed above that mentions transportation -- give them the law basically. Spell it out for them.
--refer to the attached OCR cases that are applicable (and then I would attach one I think RebekahC mentioned).
--refer to any state law, if it exists, regarding the transport of children with disabilities
--remind them that your child is guaranteed FAPE, just as his non-disabled peers are.
I might not keep hammering the delayed reaction line. Even if there is no food allowed on the bus, your child can have a reaction from peanut protein that is brought onto the bus from students riding it.
Okay--children who died because they did not get epinephrine soon enough. It's heartbreaking to read these accounts. It really is. But the fact is--in the event of anaphylaxis, not getting epinephrine in time can cost your child his life.
Jharell Dillard
http://www.gadailynews.com/news/71833-teen-jharell-dillard-dies-after-eating-cookie-containing-peanut.html (http://www.gadailynews.com/news/71833-teen-jharell-dillard-dies-after-eating-cookie-containing-peanut.html)
Tyler Cody Davis
http://wsbtv.com/news/news/gbi-says-student-died-from-allergic-reaction/nDrXg/ (http://wsbtv.com/news/news/gbi-says-student-died-from-allergic-reaction/nDrXg/)
Emily Vonder Muelen
http://www.today.com/id/21471171/ns/today-today_health/t/threat-peanut-allergy-very-real/#.UkM9E8ZwqSo (http://www.today.com/id/21471171/ns/today-today_health/t/threat-peanut-allergy-very-real/#.UkM9E8ZwqSo)
Ammaria Johnson She died at school
http://www.cnn.com/2012/01/04/health/virginia-allergy-death/index.html (http://www.cnn.com/2012/01/04/health/virginia-allergy-death/index.html)
Does LOU stand for letter of understanding? It's my only guess.... As far as the attorney, it's a practice on contract. Also, in this letter, should I also say that the district has failed in following procedural safeguards (I was notified verbally rather than in writing that my child was being evaluated, I was not given opportunity to review relevant records, and I have not been notified of my rights to due process). I have literally received nothing in writing from the school district except for the 504 itself and that one email from the superintendent.
I heard back from EMS. I emailed the captain and he sent me a very detailed response. But basically, all their EMTs are certified for Epi except for new recruits which have a bit of a gap before they're certified. Currently, there are 6 new recruits not certified but currently taking the course. It is unlikely but possible that the only EMTs to arrive on the ambulance would not be certified. IN THAT CASE, he would not get the Epi until he arrived at the ER. Response times aren't fabulous either. The call comes in, depending on the cell phone tower that it bounces off of, it may have to be transferred one or more times. Then the EMTs need to be called in. They usually arrive at the EMS building in 4-8 minutes. I didn't realize this. I just assumed they'd be already at the building. Then the ambulance has to get to the bus...my best guess is it would be a 5-8 minute ride. He said the best case scenario for total response time would be 6 minutes but likely would be longer and could be substantially longer. And if there are no Epi trained EMTs, there would be the additional drive time to the ER. My guess would be 8 minutes, plus the time to load him onto the ambulance. I feel sick.
I know. You're amongst people that know. :console: Don't give up this is far from over.
Try to get as close to Macabre's list of what to assemble. That record will work well for the school, your attorney, and OCR if it comes to that. For your attorney it'll be handing it to him or her on a platter.
I would stay away from direct statements mentioning safeguards. What I would do is what Macabre wrote which is the same thing but outlines exactly what actions they should have taken but didn't. Feel free to post a draft letter here with personal information left out.
BTW, that's a terrific captain.
Here is the resolution letter for the OCR case rebekahc mentioned:
http://www2.ed.gov/about/offices/list/ocr/docs/investigations/05105001-a.pdf (http://www2.ed.gov/about/offices/list/ocr/docs/investigations/05105001-a.pdf)
Wow. What you got from EMS was really good (and very scary) information. There's no way the school can find that acceptable.
Here's another term to be aware of and use where appropriate:
in loco parentis For an explanation, see this: http://www.wrightslaw.com/blog/?p=58 (http://www.wrightslaw.com/blog/?p=58)
Ok. I finished the letter but I'd rather not post it. It seems that this may turn into a lawsuit and I don't want my posts here to be found. I should probably edit some for the sake of making them more anonymous.
I'll be sending my letter certified/rr. Should I CC anyone? Principal? County Superintendent? I wrote a letter to the county superintendent last week. I haven't heard anything back.
Yeah, not posting it seems like a wise idea under the circumstances.
I would cc the superintendent.
Ok. Letter is sent with a cc to the principal and county super. I'll let ya'll know if I get a response. I will not be accepting any phone calls from them about this matter. I alternate between thinking they're idiots and being really pissed off at them. I don't know if they just don't know any better or if they know better but are being sneaky. I wonder if they've intentionally not allowed this to be addressed in the public meeting because then I will have exhausted all my steps within the district. As it is now, if I file an OCR complaint, they could say "the school board has never formally addressed this" and skirt by unscathed. I made sure my letter said that "as per our conversation, the school board's final decision is x."
My post is the first one TT linked. It sounds like you're past this, but just for anyone else in the same boat, here's our allergist's letter:
____ has multiple food allergies to milk, eggs, peanuts, tree nuts, and mustard seed with a history of anaphylaxis. If he has an unintentional exposure to any of his allergens, it is medically necessary that he receive his EpiPen injection immediately and not wait, as there is a significant risk of life threatening anaphylaxis. This plan applies to all school settings including the school bus, field trips, and sports activities. Thank you for your consideration and attention.
Sincerely,
Awesome allergist
Once we got this, we had no issue with the district being willing to provide an aide. With that said, we have run into issues staffing the position. My son's school runs on the latest schedule of all the schools in the district- which means that no aide who works at any other building can do it in the morning since their school day has already begun when we'd need one. The district posted the position in multiple locations, the special ed secretary contacted every bus aide they've used in the last ten years, they spoke with cafeteria staff and the police department re their crossing guard staff. No one. So we drive him in the am, and he rides the bus with an aide in the afternoon. It's not perfect, but they truly have tried to fill it (and continue to do so) so I can't get too worked up about it.
I don't think OCR would expect the school board to have dealt with this. I am frankly very surprised that there was talk of your school board dealing with it.
You have exhausted every possibility. I hope this one works!
We hired an attorney. I feel very confident with her abilities. She knows her stuff off the top of her head. She sent a letter today to the school's attorney. Hopefully we'll get a response soon because she faxed it as well as mailed it. I really hope the school's attorney knows the laws and will advise the district to put an aide on the bus ASAP.
The superintendent completely ignored my letter. No response at all. I requested that he respond by letter within 10 days with the requested clarifications and sources/criteria for the district's decision. So I casually mentioned to the principal that we were hiring an attorney and very quickly received an email from the superintendent's secretary that he is working on a solution and will be in touch next week. It was all I could do not to respond and tell him to shove it, but I ignored it. I doubt his solution is an aide on the bus. I suspect he's coming back with a re-routed, shorter bus ride which we will decline. I'm really angry at this point. I suspect he knows he's ignoring the law but just assumed I would go away after the final no. Otherwise, he wouldn't be "working on a solution" when he caught wind of an attorney being hired.
BTW, the attorney was very impressed with my letter. I told her I had some help!! She was also shocked at the district's incompetence in crafting DS's 504.
Would there be anything to gain by filing an OCR complaint even if the district backs down and puts the aide on the bus? Or will OCR just dismiss it because it's been resolved. I'm just very, very upset at the lack of concern they have shown for my son's safety.
I'd give the attorney-to-attorney negotiation some time before taking the next step. Any complaint won't resolve instantly, plus get the download from your attorney what opposing counsel is like/has to say so you can get a sense of their strategy. Information is power. If I remember correctly you know it to be a practice on contract so they may have a reputation. Also remember when you file a complaint you may not have resolution in your favor so... you know. It may work better as a resort to continually apply pressure to themselves.
A neutral way to mention the attorney is saying she's going to "help you with X, Y, Z" if you want less escalation--not that I'm insinuating there's a problem with anything but sometimes people get panicky. Does your attorney have trial experience? Some don't go to trial if you need it. Again, not saying you will just musing as I look around and evaluate lawyers for myself. I've interviewed a couple haven't had good luck.
Good luck, daisy. Keeping it :luck: for your family.
You are rocking this.
I would go through the process with the attorney. If the school still fails, then maybe file with OCR, but go through this process first.
In the meantime, I would find out how your OCR has ruled in food allergy cases. I will tell you that regional offices some are notoriously better than others. For instance, when we were looking to move a couple of years ago, DH was contacted by an org in Missouri for an interview. I said NO WAY--based on several members' experiences with schools and FAs in that state--and two members' dealings with that OCR.
Living in Virginia, I had a pretty high confidence in that OCR, based on their rulings and in one of my two conversations (the other one not so much).
I think it's good to have a. Idea of the lay of the land with your OCR. Not that if you were in Missouri (or a place where they had not made rulings in favor of the FA complainant) you would avoid filing a complaint. but to know what you've got.
I never even thought about what would happen if OCR ruled against us. Very good point. Our attorney does have trial experience, but is trying to resolve things quietly right now. She actually suggested that we wait to hear back from the superintendent before having her send a letter since it may be unnecessary, but I felt that I had mentioned the attorney to the district and I needed to follow through. I'm not one to make idle threats and I want them to know that. We're 1 month into Kindergarten here. If I don't show the district that I mean business, they're likely to walk all over me for the next 12 years. She exclusively practices special ed law with a focus on FA. She ended up with this focus because she has a child with severe allergies and struggled with her school district. She also is the founder of a FA support group. She really, truly gets it.
Macabre - we're not Missouri or VA. I will dig a bit and see if I can find more info about our local OCR. I sent you a message with the office.
I just struck gold. I found an Administrative Law decision in our state against a school district for the exact same thing. The judge ordered the district to put an aide on the bus. Too bad I hadn't found that in time to include with my certified letter. But at least I know now. It would require a due process hearing to get a ruling that way, though.
My son came home from school today with candy in his backpack that he is allergic to. It was given to him at his class party. I'm a room mom and was at the party, but I left early to attend my daughter's parade. I just sent an email to the principal stating that if he had taken the bus, he could have eaten that candy on the bus, causing a life threatening reaction. I don't think this was the fault of his teacher. The room moms had a number of things to give out to the kids. The room moms were told by his teacher that any treats given out either in the classroom or to be taken home must be non-food items only. Some of the parents who attended the party brought in items to give out. I think this is what happened with the candy. His teacher has been EXCELLENT with his allergies....I really hope this doesn't alienate her. I know she would have never given him candy. I think it was handed out with the other treat bags and she didn't notice. The party was pretty chaotic with many parents there. But, had he not been given the candy and all the rest of the kids were given candy, that would have been upsetting too.
Documented.
Most importantly, SOOOOO glad he is safe and sound.
Hang in there! :grouphug:
Oh my goodness.
Is this kind of thing (bus aside) covered in the 504 plan they developed? That has yet to be signed?
About that--while the bus thing has yet to be resolved, I wonder if there is such a thing as provisionally signing the 504--maybe noting that you have also requested the district provide a bus aide. That way very thing else is in place for your kiddo.
Quote from: Macabre on October 31, 2013, 04:18:57 PM
Oh my goodness.
Is this kind of thing (bus aside) covered in the 504 plan they developed? That has yet to be signed?
About that--while the bus thing has yet to be resolved, I wonder if there is such a thing as provisionally signing the 504--maybe noting that you have also requested the district provide a bus aide. That way very thing else is in place for your kiddo.
Yes, it's specifically stated in his 504 that all celebration treats will be non food items only. As per the principal, my signature on the 504 isn't necessary to make it binding for the district. I had asked him in passing about signing it while continuing to disagree about transportation.
There aren't any signatures on it, at least not on the one they sent home for me to sign. Nor are there any names. The copy of the one from the 504 file that I had asked for doesn't have any signatures either.
Liability for transportation costs. Unsure of application. Found looking for other things. http://www.leagle.com/decision/19986392FSupp2d637_1558 (http://www.leagle.com/decision/19986392FSupp2d637_1558) The decision did find for a failure to deliver FAPE and held local BOE responsible for transportation costs.
Thanks for the link.