Preschool and 504s

[looking for info]

Okay, I'm a member how is going as a guest for this just in case.  I just need to touch base and make sure I'm in the right here before I pursue this further.  I have an older elementary kiddo who is on a 504 for FAs so I'm no stranger to them.  My youngest is going to be entering our public school's integrated preschool program as a peer model.  He does have an IEP for speech.  He will be attending two mornings a week. He has allergies to both milk and eggs- his egg reaction was a contact reaction, while milk was an ingestion that resulted in systemic hives.  He has never experienced anaphylaxis, but has an Epi.

I put in a request for a 504 evaluation for him.  I got a call from the school's contact person basically saying that, yes she sees where I'd be concerned, but that given the "universal design" of the classroom- hand washing, no food in lesson plans, no food sharing, no food served by the teachers- he is able to fully access the curriculum and so wouldn't qualify for a 504.

My understanding- and she sounded so sure that she's making me question myself, to be honest- is that since he has a food allergy that is viewed as potentially life threatening and that it affects his ability to eat, care for himself, and potentially to breathe (three of the seven major life areas), he qualifies, regardless of whether those issues impact his ability to access the curriculum. She said she is aware that learning doesn't have to be affected, but that given the circumstances, he doesn't qualify, but that he may when he is having a longer school day, cafeteria, etc.   I asked the question that, if these precautions are policy, why is there pushback on documenting them in a 504 and was told that he basically doesn't qualify.  We talked and it was left unresolved- that I'd look into it and contact her back.

My oldest was more clear cut as he has a history of anaphylaxis and we were dealing with cafeterias, field trips, etc.  We received zero push back and have been thrilled with how his needs have been accommodated at the district, school, and classroom level.  However, the 504 Coordinator is not the same person for the younger kids and so we're getting some pushback. 

My concerns-
1. no history of anaphylaxis.  From what I've read, he should qualify regardless, but the case may be weaker.  The worst we've had thus far is systemic hives.
2. is she right re the accessing the curriculum.  I don't think so
3. I am aware that it's pretty illegal that she just made the decision that he doesn't/wouldn't qualify

Thanks for any input.

[twinturbo]

Call OCR. No matter what we tell you here you'll need to send a wake up call. Call OSEP if necessary. 504 is OCR but OSEP has some oversight for sped students as well but more for IDEA.

504 goes with the child not the school.
Child Find mandate still exists.
Request in writing or it never happened. Ignore her and send a request in writing ASAP.

Being in the sped system myself (and no stranger to it) I'm going in with a hand-picked lawyer I'm Wrightslaw grooming for milk allergic child. The USDA programs might be the hardest to contend with for milk and eggs, FYI. Much different scenario than for my peanut allergic child.

[twinturbo]

I should explain why I'm more hardcore when sped is already involved for stuff unrelated to anaphylaxis and allergies. Because they have the attitude that they're already sped so they're in charge and have it covered. I'll tell you why you need the 504 beyond typically developing peers: communication. Your child has comparatively less ability to communicate symptoms or avoid his allergens due to communication delays. That needs to be documented for all caregivers, especially student teachers if present, subs, anyone. Even compared to a peer that has LTFA but typically developing speech and communication, the child with delayed speech and LTFA needs individually tailored accommodations that will go with him should he go to another program.

[twinturbo]

OP, find the FARE amicus brief if you haven't read it yet. It might be of some use.

[looking for info]

Thanks so much for your help, TT.   The FARE brief looks like it will have good info.   You're right that his speech adds an additional layer as he won't be able to report symptoms the way a typically developing three year old would.

I'm trying to pin down one piece of it and will definitely contact OCR for guidance, but figured I'd throw it out here, as well.  Her logic (setting aside her illegal eligibility determination) is that he is currently able to access the curriculum without any modifications or accommodations and THAT's why he doesn't qualify. 

Along the same lines, this document: www2.ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.pdf (Questions and Answers Regarding the ADA Amendments) talks in questions 11 and 13 about people with disabilities and the districts needing to evaluate if they need special education or related services.  They even use the example of someone with a peanut allergy in Q13.  It's very clear that the person has a disability, but they then go on to talk about special education and related services.  504 Plans can consist of accommodations only (heck, my oldest has one of those), but this document implies otherwise.  What am I missing?  Or is there clear documentation somewhere that accommodations alone merit a 504?

This is one of the lines that seems to imply the need for services beyond accommodations: 
"If, because of the peanut allergy, the student has a disability and needs or is believed to need special education or related services, she has a right to an evaluation, placement, and procedural safeguards."  It  implies that if she does not need special education or related services, then she does not have the right to the eval, placement or safeguards.  Does that make sense?

Thank you so much!

[twinturbo]

Policies can change at any time and are locked down to a location.

504 is a plan for the student, it follows the student to another program. Policy is nice it can also disappear in an instant, or change radically with a personnel change. This should be the easiest 504 they've ever done since they're so sure all the accommodations are already in place. I'm mentally pretty wired into some other stuff right now though my mental rolodex is still pinging Macabre's thread in school resources on eligible doesn't equate need. 504 is about eligible not based on need. I think she would be my go-to on this one. Does your state allow both IEP and 504 or do they require only one?

I feel your pain with sped and FAs. Truly.

Oh, one thing. Tell them you need it codified for the next program since 504 goes with the student. You're planning ahead for the entry into kindergarten this way you can roll the 504 accommodations for FA under an OHI in the IEP. They don't seem averse to accommodations and in my eyes that's an advantage. I think they think it's redundant rather than know child is not eligible and not entitled to one. I know you know that but they need that kick start to open their eyes.

Could be Gloucester I'm thinking of, too.  GLOUCESTER - OCR Case: *** Section 504 Plan ***
Take a look at that plan. I flat out do not see how child will not need a 504. Plans are more than "don't feed allergens and wash hands" you can see about 2 way communication devices and other items there.

[lakeswimr]

504 qualification does not have to do with accommodations already in place.  It has to do with your child's disability.  Qualification decisions can only be made by the 504 committee which is made up of the 504 coordinator, usually an administrator, the school nurse, and the child's parents/guardians.  The person who spoke to you can not decide if your child is qualified or if the school does 504s for FA or not.  Only the committee, of which you will be a part, can decide this.  You must put your request for a 504 in writing and give it to the 504 coordinator. 

systemic hives ARE considered anaphylaxis and reason to epi on many FA plans.  Anaphylaxis is considered a systemic reaction, fully body.  It is common to have minor contact hives but fully body hives indicate a systemic reaction.  So, if you have not yet told the school your child has not had ana, I would not tell them that.  Your child has had a serious, systemic reaction and is at risk of a LT reaction.  That's true.  Even people who have had only just minor hives from ingestion are at risk of ana per Dr. Wood and other experts.

Get a letter from your allergist or pediatrician stating your child is at risk of a LT reaction that could impact breathing and self care.  It doesn't matter which one writes the letter.

Even though they have good accommodations in place, you might want additional ones so comb through some sample 504s and make a bulleted list of accommodations you want.  And even if they already do certain things, add those as well because the plan will follow your child even if things change or you change schools in the district.

504 designation is helpful through college and you won't be able to get it easily in college if you don't have it before then.  You want 504 for now and for all the way through college!

I would print out info about the 2008 Amendment to the ADA that explains it was written to help make clear that the intention is that more students qualify.  FAs are spelled out as a qualifying condition.  I would also print out info about I think it is Mystic school district that did not want to give a 504 and was taken to court and lost.  Maybe someone here can give links to this court case or other similar ones.  There are several.

Good luck!

This is something to take one step at a time.  It is work you won't have to repeat, hopefully, so like money in the bank.  No matter what the school tells you, you can keep educating, working for what you want and you can get it.  I got my son's district to do many things they initially refused by educating, asking them questions when they refused accommodations "what will you do if x happens?" etc.  Just because you are told no now doesn't mean that much. You haven't even had a 504 meeting yet!

[daisy madness]

The way I see it is that the curriculum doesn't determine whether the child is eligible for 504. The key question is "does this child have a disability that substantially limits one or more major life activities?"  If so, they are protected by 504.  Isn't the fact that your child will have an epipen at school an accommodation?  If the school is already making an accommodation for your child, their argument bears no weight.  And whether or not any additional accommodations are needed should be determined by the team of persons knowledgeable about the student and the meaning of the evaluation data. 

Push back.  Nicely, of course.  And in writing. 

[Looking for info]

Thanks so much for the info.  I did request the meeting in writing, but that was supposedly lost, so I was told to do it via email due to the timing with the end of the year.  I'll put another formal request in tomorrow.  I know that I can make the case for the disability with the systemic hives.  The mere fact that he has an Epi shows that his allergist considers him to be at risk of a life threatening reaction.  I have a good list of accommodations from my older child's plan, plus some others that need to be in place given my youngest's age.

I found this fabulous resource: doe.sd.gov/oess/documents/sped_section504_Guidelines.pdf that gives a very step by step process for determining eligibility (think the IEP flowchart, but a text version).  My husband is printing it off and I'll make sure to highlight the pertinent parts throughout so they're right at hand. It is very clear cut and shows what I already knew- that my little guy should qualify.

Thanks again!

[ajasfolks2]

Email it and also print the email out and hand deliver tomorrow. 

See the documentation link I love so much, if you're rusty:

http://www.dphilpotlaw.com/html/documentation.html

[ajasfolks2]

May have missed someone else with this -- but if have epipen Rx, then generally regarded to have anaplylaxis, even if have not had reaction officially diagnosed as such . . . yet.

"Generally regarded" to have the disabling condition = having the condition so far as 504 / disability.

[Looking for info]

I got our letter from the allergist today so am set to go with my email, as well as (another) letter requesting an eval that I attached to the email and will also drop off at the school.  Any feedback before I send it?  The email I copied below states that the admin I spoke with told me he doesn't qualify because I want that documented somewhere in case I need the ammo, while the official letter simply requests the meeting with the supporting quote from the DOE guidelines.  Thanks so much!


Thank you for speaking to me last week regarding my son, (name).  As you know, (son) will be entering the preschool program this fall two mornings a week and is allergic to both milk and eggs. 

You stated on the phone that he does not qualify for a 504 Plan; I have done additional research, however, and continue to believe that (son) does qualify.  According to the Department of Education's Guidelines for Educators and Administrators for Implementing Section 504 of the Rehabilitation Act of 1973- Subpart D, "A student is entitled to a Section 504 Accommodation Plan if they have been identified and the evaluation shows that the individual has a mental or physical impairment that substantially limits one or more major life activities"  (doe.sd.gov/oess/documents/sped_section504_Guidelines.pdf).  (Son)'s allergies substantially limit him in the life activities of eating, caring for himself, and, potentially, breathing.  As such, we feel he meets the criteria for a Section 504 Accommodation Plan and are requesting a meeting with the 504 Team to make a formal eligibility determination.

I am attaching my letter requesting a meeting to formally determine his eligibility.  I will also be dropping a copy of that letter off at *** School.  Thank you for your time, and I look forward to meeting with you.

[bugbee]

You've gotten some great feedback already, but I'm new here so I thought I'd jump in...

Regarding your initial three concerns:

--As others have confirmed, no history of anaphylaxis is required.

--The administrator is correct that the purpose of 504 is to provide necessary accommodations and modifications so that a child with a disability is able to access the curriculum to the same extent as peers.  It is to "level the playing field," so to speak.  The part that seems to have escaped her notice is that without certain accommodations in place, a child with food allergies will not be able to access the curriculum.  It sounds like they have some great universal procedures already, but your son may need something else, something more, in his plan than what they routinely do in the classroom for everyone.  Further, as others pointed out, it is a good idea to document the universal procedures as well, because things could change, you could attend another school within the district, or you could move to a different district entirely that doesn't have those procedures in place already.

--She cannot unilaterally make a determination about eligibility for 504.  You are absolutely correct to request a 504 evaluation in writing at this point, and your letter sounds good!  You should next be provided a consent form to sign, indicating your consent for the 504 team to begin the evaluation process, and you should also be given a copy of your procedural safeguards, explaining your rights. 

Eligibility for Section 504 is based upon two factors:
1) Does the person have a "mental or physical impairment" (food allergy fits here),
2) And does the impairment substantially limit a major life activity (of which there are actually 18: bending, breathing, caring for oneself, communicating, concentrating, eating, hearing, learning, lifting, performing manual tasks, reading, seeing, sleeping, speaking, standing, thinking, walking, working). 

The evaluation process can conclude one of three things:
1)   The person does not have a mental or physical impairment; thus, is not eligible under 504.
2)   The person has an impairment, but major life activity is only limited to a negligible, mild, or moderate extent; thus, is not be eligible under 504. 
3)   The person has an impairment which substantially limits major life activity; thus IS considered to have a disability under 504.

As there is already documentation of your son's allergies, it is clear that the team will have to conclude that he has an impairment. 
It is extremely difficult to believe that they would try to claim that eating is not substantially limited on a daily basis, let alone caring for oneself and breathing in the event of a reaction.  And if they did try to claim that, they'd be wrong.   

All of that being said, your child is already considered a child with a disability under IDEA due to his speech or language impairment, so he is automatically protected under section 504 as well.  It is unnecessary  to create another document to address the accommodations necessary for his food allergies.  The team should comment somewhere in the present levels section about his food allergies and the substantial limitation of his major life activities, then all accommodations can go directly into the SDI (specially designed instruction) section of his IEP. 

Good luck!

[ajasfolks2]

Waving hello and saying "welcome" to bugbee!

[bugbee]

Thanks for the welcome ajasfolks2!     I'm happy to be here!