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Discussion Boards => Schools and Food Allergies => Topic started by: MomTo3 on April 19, 2012, 07:51:40 PM

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Title: ***UPDATE*** ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 19, 2012, 07:51:40 PM
Hello.  This is my first post and I think the subject says it all :)

I am starting the school paperwork for my child and it says something like "our staff is not legally obligated to administer medications (including dpi pens) and can not be held liable."

So is that true?  Are they not legally responsible?
Thanks!

*******UPDATE*******

So I emailed the woman I was "discussing" this with today.  She informed me that they have changed the paperwork and it should be available Aug. 1.  So I HOPE this is good news but we'll have to see till I get a copy of the paperwork.  Fingers crossed that this bad paperwork has been changed!
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Carefulmom on April 19, 2012, 08:45:11 PM
Ooooh, so not true.  The good news for you is that the school was stupid enough to put it in writing.  That is excellent for you.  Is the public school or private?  Preschool or elementary school?  We can guide you through what to do.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 19, 2012, 08:58:38 PM
Thank you.  Can I quote the entire thing here?

"I, who are the parent of X request that consumption of an oral drug by my child or the administration of a drug through the use of an epipen be supervised in accordance with the instruction of out Dr. We understand said drug will be administered under the supervision of school staff.

"Further, we understand that the school personnel are not legally obligated to administer an oral drug to any child, or to administer a drug through the use of the Epi-Pen Jr. Kits, and, therefore, we agree to hold the school district and it's employees free from andy and all responsibility for the results of such drug or the manner in which it is administered and to indemnify each of them against loss by reason of any civil judgment arising out of these arrangements which may be rendered against them"


**Bolding was mine**

So they are saying they will BUT they aren't obligated?  Seems like the first and second paragraphs are not jiving with each other. Or am I reading this wrong?

Thanks so much!
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Lisa on April 19, 2012, 09:09:57 PM
 :o

You have got to be kidding me!!!!!!  Is this a private school?  If so, I would NOT send my child there, they have already demonstrated their ignorance with the seriousness of Life Threatening food allergy!
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: ajasfolks2 on April 19, 2012, 09:16:01 PM
Sounds like this is public school?

(I see word "district" in the verbiage.)

Should not be that they can deny life-saving meds to pub school student.

At minimum your child needs to go thru eligibility for 504 and have plan that has all NECESSARY AND APPROPRIATE accommodations -- one of which would be that there are a certain number (usually minimum of *3*) of trained staff on property at ALL times (to include along on field trips and extracurricular events) on Epipen and in anaphylaxis recognition.

~ ~ ~

FYI -- I'm going to move this post to the SCHOOLS board for best fit & members' attention who deal with school related issues regularly.

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 19, 2012, 09:16:01 PM
Sorry, forgot the other questions.

1) Public school

2) This is the district paperwork for K-12.

So I am not insane to not want to sign this, right? Cause when I called them they made me feel like I was crazy and told me I was the first person to ever question this.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: ajasfolks2 on April 19, 2012, 09:18:32 PM
Consider crossing out those lines of the form AND get with your child's allergist to do STRONG letter (see our suggestions in the SCHOOL RESOURCES area) . . .

Not looking at your forms, but it is possible that the allergist (if brave enough and willing) can also line through that garbage and initial . . .


Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: ajasfolks2 on April 19, 2012, 09:19:50 PM
P S -- Do NOT under any circumstances give the school "carte blanche" so far as corresponding with your child's allergist . . . line through that as well.

You want to protect your child's medical privacy as much as possible and not be ALWAYS in the "info loop" with allergist and school.

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 19, 2012, 09:35:49 PM

FYI -- I'm going to move this post to the SCHOOLS board for best fit & members' attention who deal with school related issues regularly.

Thanks.  I realized after I posted that I thought I was in the school portion but wasn't.

Again, you are all making me feel better that it isn't just me that this rubs the wrong way.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Momcat on April 19, 2012, 10:05:49 PM
La Petite Academy settlement

http://www.ada.gov/lapetite.htm
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Momcat on April 19, 2012, 10:10:46 PM
Rationale is this:

Life-threatening food allergy is a disability under the ADA/ADAA/Section 504.  Refusing to administer rescue medication is equivalent to denying the disabled child access to school and is therefore discriminating on the basis of a disability.  That is against federal law.  If they don't believe you, have them contact the Dept. of Education Office for Civil Rights for technical assistance.

http://www2.ed.gov/about/offices/list/ocr/504faq.html
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Momcat on April 19, 2012, 10:16:04 PM
" Q: Our center has a policy that we will not give medication to any child. Can I refuse to give medication to a child with a disability?

A: No. In some circumstances, it may be necessary to give medication to a child with a disability in order to make a program accessible to that child. While some state laws may differ, generally speaking, as long as reasonable care is used in following the doctors' and parents' or guardians written instructions about administering medication, centers should not be held liable for any resulting problems. Providers, parents, and guardians are urged to consult professionals in their state whenever liability questions arise.

Q: What about children who have severe, sometimes life-threatening allergies to bee stings or certain foods? Do we have to take them?

A: Generally, yes. Children cannot be excluded on the sole basis that they have been identified as having severe allergies to bee stings or certain foods. A center needs to be prepared to take appropriate steps in the event of an allergic reaction, such as administering a medicine called "epinephrine" that will be provided in advance by the child's parents or guardians.

The Department of Justice's settlement agreement with La Petite Academy addresses this issue and others (see question 26)."

http://www.ada.gov//childq%26a.htm
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Momcat on April 19, 2012, 10:18:55 PM
"We understand said drug will be administered under the supervision of school staff."

This is code for "Your child will have to self-administer".  NOT OKAY  :rant:
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Carefulmom on April 20, 2012, 10:22:22 AM
What state are you in?  If by any chance you are in California, pm me and I can tell you who to call.  Also, what grade is your child?  Starting kindergarten?

I find the phrase that I am the first one to bring something up very irritating.  I always have to bite my tongue not to say, "oh so I am the first one who has read this who has a brain?"  To me the phrase that I am the first one to bring it up is code for they don`t want to deal with the issue.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: CMdeux on April 20, 2012, 10:31:52 AM
Yes.  (To both of the two previous posts.) 

"The first?  Wow.  Really?  I've heard this before.  I seem to just notice things.  Perhaps I'm more curious than most people?  It's not clear to me how this is relevant to the current situation, though.  How is my being first important here?"   :thumbsup:


NO NO NO to waivers.  No way.  Unless, of course, they also admit that they won't necessarily offer any medical aid to unaffected peers, as well.  Do ALL parents sign a waiver that says that the school isn't obliged to offer reasonable medical assistance in an emergency? 

No?  I thought not.   ;)

The bottom line is that they probably won't hold any weight legally anyway, given that the rights being waived aren't YOURS to begin with-- they are your child's. 

DOJ told me once (and OCR did on another occasion) that I probably cannot waive those rights, even if I wanted to do so as a means of compromise.

NO access to your child's physician but through you.   
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 20, 2012, 10:59:39 AM
We are in Ohio.  My child is going into K in the fall (we'll see where when all this shakes out).

I have a friend who is a lawyer look at it. She said it isn't something I need to roll over and sign which made me feel less crazy.  I asked to have the district lawyer call and explain it to me and was asked "Are you going to pay for that?"  which I should have responded "I do, I pay taxes in this city!"  but was so angry at the time I couldn't think.  I did get a phone call four days later saying they were sending the paperwork to the lawyers to look at.  I took that to mean a) they see there is an issue or b) they are trying too pacify me which I don't really see as the amount of attitude I was getting.


I was trying to avoid a 504 but it looks like this may be necessary.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: CMdeux on April 20, 2012, 11:16:55 AM
LOL-- I have a different take on that particular strategy.  I think that the district was (probably?) trying to intimidate you by invoking "lawyers."  Glad that you aren't biting!   :thumbsup:

Just curious-- why were you trying to avoid a 504 plan?

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 20, 2012, 11:42:21 AM
Just curious-- why were you trying to avoid a 504 plan?

This being my first kid in school and having to work with the district for the next 14 years, I was really going to try and work with them and from what I see, most districts see a 504 plan as a PITA.  So I was going to try and avoid it but if I am having this much trouble just getting them to correctly word a district wide form I am loosing faith fast that it can be avoided.

Plus I have no clue what to ask for (even though I have read many of them from other allergy parents! lol)
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Momcat on April 20, 2012, 12:56:31 PM
I think it's more that they view providing special accommodations to anybody a PITA.  And in my experience, they love to make parents who insist on more than lip-service feel like narcissistic-whiny-helicopter-Munchausen's-by-proxy parents. <\rant>
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: CMdeux on April 20, 2012, 02:28:11 PM
Yes.  Truly-- they may be making you FEEL as though you're being "aggressive" or "unpleasant" by insisting on doing things the legally correct way, but really, you are doing them a favor by doing things this way.   :yes:

They just won't thank you for it NOW.  They may, believe it or not, in the future, when they see how much BETTER it is to have everyone's responsibilities spelled out and on paper in black-and-white.

It may actually be illegal for them to provide accommodations to a child who is qualified as disabled under ADA/ADAA without formal identification.  The reason?  They have an obligation to evaluate and identify those children formally under the law.

They also cannot provide accommodations to EVERYONE just for the asking, right?  Or they shouldn't-- particularly modifications to policies, practices, and procedures, or curricular modifications which impact other students and families.  That said, the only really defensible thing for those practices is to note that those students have needs X, Y, and Z which are obligations to the school under federal law A, assuming that student B is covered as a disabled student under that law.

Does this make sense?  They aren't obliged to do ANYTHING for student B that they don't/won't already do for ANY student (with or without any particular condition, I mean), so if your child needs any considerations beyond what other children do in order to safely access the learning environment of the school?  Yeah, that means that s/he is a person who ought to be evaluated under Section 504.

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Momcat on April 20, 2012, 06:10:23 PM
I think the term they used for me was "adversarial".   :misspeak:
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Carefulmom on April 20, 2012, 10:03:30 PM
LOL-- I have a different take on that particular strategy.  I think that the district was (probably?) trying to intimidate you by invoking "lawyers."  Glad that you aren't biting!   :thumbsup:

I was also thinking they are trying to intimidate you.  If it were me, I would not talk to them.  They are looking after the best interest of the school district.  You are looking after the best interest of your child.  Totally different priorities there.  BTW, I had our school tell me that the district lawyer said that the school did not have to provide an epi trained adult for field trips.  I knew that wasn`t true.  I called my state Office of Educational Equity Compliance, who then called the school and told them they could not do that.  So either the school said the school district attorney said something and lied about it, or else the school district attorney didn`t know the first thing about disability law.  So whatever they tell you that their attorney says, it may or may not be true, and it may or may not be legally correct.  Don`t get sucked in to that.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Carefulmom on April 20, 2012, 10:09:51 PM
Just curious-- why were you trying to avoid a 504 plan?

This being my first kid in school and having to work with the district for the next 14 years, I was really going to try and work with them and from what I see, most districts see a 504 plan as a PITA.  So I was going to try and avoid it but if I am having this much trouble just getting them to correctly word a district wide form I am loosing faith fast that it can be avoided.

Plus I have no clue what to ask for (even though I have read many of them from other allergy parents! lol)

I`d cut to the chase and get the 504 designation now.  You have to assume that even with the best of intentions, things are going to come up over the next 14 years and you will need your child identified in order to get accomodations which are enforcable.  Of course, the school sees it as a PITA.  It holds them accountable and is inconvenient for them.  Again, they are looking after their own best interest.  You are looking after your child`s best interest.  Most schools don`t like granting 504 accomodations because it holds them accountable.  But your goal isn`t to keep the school from being inconvenienced; your goal is to do what is best for your child.  I personally think it becomes adversarial if it is done after conflict.  If it is done simply because your child will be going to school and your child is legally disabled, then I don`t think it needs to be adversarial.  You have to know what they are legally able or not able to do, though.  So feel free to come here and ask us.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: lakeswimr on April 22, 2012, 04:52:31 PM
At the time my son started school the ADA amendment had not occurred yet.  That amendment makes it very clear that food allergies can qualify for 504 and that the purpose of the law is to make things as inclusive as possible, not to keep kids out of 504.  Our state requires all kids with food allergies to have IHCPs and I got everything I wanted but one or two smaller things on my son's IHCP.  I was happy with an IHCP.  But the thing is, my son does qualify for a 504 so after years of people pushing me to get one I finally did.  I'm glad because it will follow my son to college if he still has FAs then, which I predict he will.  Did it make any difference in the *content* of my son's plan?  No, not at all.  But I like having it and there is no reason not to unless it would really put you on the outs with the district, which it should not if they understand the 2008 ADA amendment (and you can explain that to them.)

I'd put my 504 request in writing and I'd do as others suggested.  I'd get a letter from your allergist backing you up.  I would NOT sign anything like that waiver.  You are doing them a favor. someone else could come and report them to the DOJ or sue them and you can even point this out politely, "i'd hate for you to get in trouble one day." 
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Carefulmom on April 22, 2012, 05:00:37 PM
At the time my son started school the ADA amendment had not occurred yet.  That amendment makes it very clear that food allergies can qualify for 504 and that the purpose of the law is to make things as inclusive as possible, not to keep kids out of 504.  Our state requires all kids with food allergies to have IHCPs and I got everything I wanted but one or two smaller things on my son's IHCP.  I was happy with an IHCP.  But the thing is, my son does qualify for a 504 so after years of people pushing me to get one I finally did.  I'm glad because it will follow my son to college if he still has FAs then, which I predict he will.

Good point.  It is almost impossible to get a 504 for the first time in high school.  You will be met with "Doesn`t he know what he can and cannot eat?"  Yes, I know, totally uninformed as to all the reasons for a 504 and all the circumstances under which a severe reaction can occur.  Foods are recalled due to mistakes all the time.  Anyhow, for that reason in addition to everything else, I would get it now.  Our school tried to take away necessary accomodations in high school using that line about doesn`t dd know....If she had not already had a 504, it would have been a huge fight to get one in high school.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: ajasfolks2 on April 22, 2012, 06:29:37 PM
I think the term they used for me was "adversarial".   :misspeak:

Name calling is typically what they resort to when they are gripped with sudden realization that you've got their number, so to speak.   ;D



Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 23, 2012, 10:51:16 AM
I think the term they used for me was "adversarial".   :misspeak:

Name calling is typically what they resort to when they are gripped with sudden realization that you've got their number, so to speak.   ;D

That made me lol :)  Thanks!

I called my Dr. for a 504 letter to get things going.  The office said it didn't have any idea what that was.  I am scared now.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: CMdeux on April 23, 2012, 11:15:08 AM
Don't worry-- many physicians do not know much about ADA.  They're doctors, not lawyers, right?

You might want to prepare a short dossier of information from the Department of Justice and from other organizations which specifically explain how the limitations associated with food allergy are qualifying.  Also provide a highlighted copy of the section of ADAA(2008) which lists food allergy quite specifically. 

Be sure to review letters here, and maybe take a look at what is typically in a 504 plan.

The difference between a "healthcare plan" and a "504 plan" may appear to only be the name.  In some (good) cases that may even be true.  But the legal difference is that the latter is intended to protect a child's access to the same/equivalent educational opportunities as his/her peers, and the former is intended to MANAGE THE HEALTH CONDITION.  Naturally, the 504 plan concerns itself with ways to be INCLUSIVE, and the IHCP doesn't necessarily do that.

This means that with a healthcare plan (no 504), it would be perfectly acceptable to send the allergic child to the principal's office while the rest of the class enjoys a party, special reward, etc.  After all, the child is SAFE under that scenario.  But I think that most parents can see why that isn't an okay thing to do week after week, year after year. 
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: TabiCat on April 23, 2012, 11:22:31 AM
We are in Ohio.  My child is going into K in the fall (we'll see where when all this shakes out).

..... snipped for space..........

I was trying to avoid a 504 but it looks like this may be necessary.

I would like to encourage you not to think of seeking a 504 as a negative step. It is a very useful document that simply outlines the plan for meeting your child's needs. I recomend a 504 rather the relationship with the schoolis solid or not.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Carefulmom on April 23, 2012, 02:33:56 PM
We are in Ohio.  My child is going into K in the fall (we'll see where when all this shakes out).

..... snipped for space..........

I was trying to avoid a 504 but it looks like this may be necessary.

I would like to encourage you not to think of seeking a 504 as a negative step. It is a very useful document that simply outlines the plan for meeting your child's needs. I recomend a 504 rather the relationship with the schoolis solid or not.

I completely agree with this.  Also, to add on to what CM Deux said the difference between a 504 and an ICHP with the same accomodations but without a 504 is that a 504 is enforcable.  The school can lose federal funding if they violate it.  That is why they don`t want to do it.  If you have an ICHP without a 504, you are relying on their good intentions to follow it.  There can be staff changes, pressure from non food allergy cupcake queens...anything can happen and you have no recourse.  With a 504, you have recourse if they do not follow it.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: ajasfolks2 on April 23, 2012, 02:45:25 PM
If you haven't read some of the great threads in the SCHOOL RESOURCES board, this is link to great one to get you going:

504 Links and Tips


NOT having a 504 for the child does everyone a disservice.  (eternal thanks to GailW for setting many of us on that path some years back . . . )

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 23, 2012, 08:08:54 PM
Do you think having 2 letters from 2 Dr's for 2 different conditions would be better? He has multiple FAs and Celiac. 
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: rainbow on April 23, 2012, 09:16:12 PM
It is much better (and easier) to get the 504 Plan BEFORE your child starts Kindergarten, than after.  Good job being proactive.  We can help you through the process.  Stay calm, confident, and direct. If they say things to you that sound manipulative or incorrect, say things like "Really? Can I get that in writing?" or "Let me get back to you on that" or "Why would you think that?" etc.

Remember, a Kindergartener is too young to care for him/herself, read labels, self-administer medication, make judgments about safe food, and negotiate for his/her inclusion.  The purpose of the 504 is to keep your child safe and included at school.  The ADA Amendment made it clear that life threatening food allergies are covered by Section 504 and the ADA.  The law is on your side. Their paperwork is out of date and illegal, and their lawyers will tell them that as soon as they look into it.  Good job not signing. :thumbsup:
 
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 24, 2012, 07:13:15 PM
So what do I ask for?  I have been reading and reading but am not finding XYZ. Maybe my head is just swimming and in overdrive but I am not finding what I need.

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: CMdeux on April 24, 2012, 10:48:23 PM
So what do I ask for?  I have been reading and reading but am not finding XYZ. Maybe my head is just swimming and in overdrive but I am not finding what I need.

It's enough to make anyone's head spin initially.  It is pretty overwhelming to dive in and start reading.  We've all been there, and with time, it will all start to make more sense.  What are you seeking, more specifically?

XYZ doesn't spell it out enough for me to know exactly what you are hoping to locate.  We can definitely help you to narrow things down and find resources, but you may need to share what you do know in order for us to know what you DO NOT yet know.  Does that make sense?

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: rebekahc on April 25, 2012, 09:07:31 AM
Also, if you're asking what do you ask for in your child's 504 plan, the reason you're not finding it spelled out is that plans are individual and tailored to each child's needs in their school.

Some of the basics to think about would be:

1.  Food brought into the classroom by parents/teachers/others.
2.  Food used as part of classroom instruction - even if it's not to be consumed.
3.  Birthdays/holidays/celebrations.
4.  Food rewards for the entire class/grade/school.
5.  Lunch and snack logistics.
6.  Substitute teachers.
7.  Field trips.
8.  Accessibility of medication and trained personnel.
9.  School bus.
10.  Specials classes.
11.  Use of the child's classroom outside of normal school hours (by community groups, tutoring after school, etc.).
12.  Use of the child's desk by others.
13.  Classroom and lunchroom cleaning procedures.
14.  Hand washing to prevent contamination of surfaces.
15.  Special activities need to be inclusive (bake sales, science night, field day, school carnival, etc.)

ETA:  As for what to ask for from your doctors - you need the letter to state the condition in terms that would cover it under the ADAA.  Food allergies aren't covered, but life-threatening food allergies are.  (I'm not sure, but Celiac may not be a qualifying condition.)  Also, the letter should list the ways your child is impaired - eating, breathing, self-care, etc.  I know there are good examples of dr letters here for you to look at.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 25, 2012, 11:15:31 AM
Thanks CM and rebekahc.

CM, what rebekah listed was what I was looking for.  I just am wondering what other people ask for in terms of the accommodations.    I am just swimming in all this along with other issues at the moment and can't seem to focus on anything :(  I still haven't heard from the allergist.  Wondering when I should call back for a progress report on that.  I am also going to call our GI Doc if I can get to it today.  I think I need to send samples to them of what I need because it doesn't sound like they know what I am asking for. 

rebekah, Celiac is covered. I only know this because of a conference on the subject.  That's why I am wondering if I would have less trouble with the school if I get letters from both. 

Again, thank you so much for all your help so far.  I wish there were just a form to fill out, ya know?  I keep looking at the one document with Parts A-Z plus wondering if I need to do all that (explaining what an allergy/Celiac is down to what I would like as for accommodations). 

Never a good time for extra stress but this is just a really hard time in life here and this is not making it any easier!


Truly, thanks of all your help!!
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: CMdeux on April 25, 2012, 02:25:43 PM
If it's possible, I'd address both the LTFA and the celiac.  Both conditions are qualifying, and both require related/similar accommodations of their own. 

The access portion of things is going to look very very similar for both conditions (that is, not using recycled containers in art/science, not sharing mouthpieces in music/specials, etc.)... but the HEALTHCARE piece of things (emergency management) will obviously be different.

Much in the way of specifics depends upon your school's layout and normal procedures (is there a dedicated cafeteria? a school nurse?  etc.), and also to a large degree on your child's particular allergens, personality and reaction history.  It really does need to be highly individual so as not to be too limiting beyond what the child in question actually needs.   :yes:
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 27, 2012, 02:07:22 PM
I have calls into our allergist and GI docs.  Allergist said this was new to him so I emailed him some info.  Said I'll have something by Tuesday! Yeah!


So back to the original question.  Are schools legally required to give epi pen's to students?
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: twinturbo on April 27, 2012, 04:20:07 PM
The absolute answer is yes, but with qualifiers. With respect to that waiver they want you to sign, no, that isn't legal no matter what their internal school policies are. They can't overwrite federal disability law, as La Petite montessori found out. The settlement in no uncertain terms is that the epis must be kept on site for administration as needed and that a caregiver must provide emergency medications.

Sounds good, right? Well, what is not spelled out is where stored, under what circumstances, and who will have access at what point to the epinephrine auto-injectors. Unless your state has specific law allowing a child to self-carry and that child is old enough to self-carry or is mature enough, many times the epinephrine is kept under lock and key accessible only by a school nurse. This is not a medically recommended storage.

This also fails to address many other issues such as field trips, substitute teachers, epinephrine injection training, school buses, field trips, how the administration of medications is done according to the emergency action plan for indicated symptoms, how the child will get to the rescue medication if a reaction is suspected (alone, or nurse comes to child), how far away the medication is or does it travel with the child to all locations, classes... saying nothing of PREVENTION of a reaction.

What you will probably want is the La Petite letter for precedence. The Department of Justice is both the resource and has jurisdiction for Title II and Title III of ADA, they will be your enforcers here. I will provide a link to the La Petite settlement for you to read through. It will have the decision, the federal codes (which I can find later to read if given enough time), and has named representatives from the Department of Justice.

You will want to read that through a few times to understand the whole of what is required because it will name what the parent must provide and what medical information must be provided. It is also a voluntary document that La Petite came up with in order to settle the matter (Agreement points 9-11) more to avoid the DOJ coming down on them. Essentially, they decided to change the policy before it was decided for them. That is worth noting.

This was the complaint.

Quote
The 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.

This was the agreement by La Petite.

Quote
9. La Petite does not admit that any action it has taken violates title III of the ADA. This Agreement shall not be construed as an admission of liability by La Petite.

10. To avoid unnecessary and costly litigation, the parties hereby agree to the provisions set forth in paragraphs 11 and 12 below.

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.

What you will further want to capitalize on is public schools fall under the jurisdiction of overlapping disability laws that extend where overlapping rather than limit. So Title III applies, further extended by Title II and then Section 504 (seated within the Dept of Education federal regulations and overseen by the Office of Civil Rights). Also check your state codes for two items (1) that a child may self-carry (2) what EMTs may administer pediatric epinephrine and which rescue trucks carry such level of EMT and the pediatric epinephrine itself. Why does that matter? If the school would like to call for a rescue truck to do it and most EMTs either aren't allowed to administer pediatric epinephrine that could matter.

Side note to myself, I gotta get my hands on  42 U.S.C. § 12188(b)(1)(B) because that was some juicy statement about the Attorney General filing a civil suit in federal court for a pattern or practice of discrimination.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on April 27, 2012, 07:18:56 PM
Twinturbo, Thank you!  This is exactly what I need!  I have a baby who hates to sleep so my brain power is limited at best! lol

You are an amazing group here and thank you all for all the help, encouragement and tips!  I hope to get the Drs letters next week and submit my 504 request at that time.  Hopefully they will hear from the lawyers before that on the other issues.

I also wanted to ask, do you need to reapply for a 504 yearly?
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: Carefulmom on April 27, 2012, 07:34:12 PM
I just want to clarify.  There was no La Petite decision.  The parties agreed to settle.  So it was not a "decision in no uncertain terms".  The case was never tried and a decision was never made.  Still you can use this to your advantage.  It is unlikely that your school will research the La Petite case to such a great degree.  When dd was in preschool I used the La Petitie settlement to get the director to stop acting like she did me a huge favor by accepting dd with her epipen.  I copied the La Petite Settlement (it is public record), got a highlighter, highlighted the dollar amount (somewhere around $55,000) and gave it to her.  That was enough to make her realize that the law is on the side of the disabled child.  Nevertheless if they really research it they will find that no decision was made.
Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: notnutty on April 28, 2012, 01:57:48 AM
Another good link for a sample 504 is

http://www.foodallergyadvocate.com/504Plan.htm

(sorry if this has already been posted, but this article was so helpful to me early in our process)

Title: Re: Does the ADA/other Federal laws require the administration of Epi-pens?
Post by: twinturbo on April 28, 2012, 06:45:45 AM
Yes, I incorrectly interchanged decision with settlement at a couple points even though the portion I highlighted I put under agreement. To underscore from earlier La Petite admitted no wrong doing and submitted its own policy changes under the settlement.

Edited for correction in a couple spots, will get the other(s) post-caffeine.
Title: Re: ***UPDATE*** ADA/other Federal laws require the administration of Epi-pens?
Post by: MomTo3 on July 02, 2012, 05:14:50 PM
Bumping

As I updated in the first post, I called today. They ARE redoing the forums!  I HOPE they will be acceptable this time.  August 1 will tell ;)

Thanks again everyone!
Title: Re: ***UPDATE*** ADA/other Federal laws require the administration of Epi-pens?
Post by: CMdeux on July 02, 2012, 05:32:36 PM
Good job!!   :thumbsup: