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A case involving a kindergarten student with a tree nut allergy has the potential to set a precedent for food-allergy-related accommodations in a federal appellate
court. FARE, joined by the Council of Parent Attorneys and Advocates, recently filed an amicus (friend of the court) brief in the civil rights case, T.F. vs. Fox Chapel Area School District, in the Third U.S. Circuit Court of Appeals.
MDLC is Maryland’s designated Protection & Advocacy (P&A) agency and a member of the National Disability Rights Network. - See more at: [url]http://www.mdlclaw.org/about-us/brief-history-funding/#sthash.Meu5c8Mv.dpuf[/url]
Although the Third Circuit adopted a reasonable accommodation standard in Ridley Sch. Dist., 680 F.3d at 280, OCR has clarified that Section 504 FAPE does not contain a “reasonable accommodation” standard or other similar limitation. “If a school district is meeting the needs of children without disabilities to a greater extent than it is meeting the needs of children with disabilities, discrimination is occurring.” OCR Policy Letter to Zirkel, 20 IDELR 134, 8/23/93. While Section 504 FAPE does not contain a “reasonable accommodation” limitation, Fox Chapel fails to meet even this standard.
See id. Pursuant to a delegation by the U.S. Attorney General, OCR is the principal agency for administering and enforcing Section 504. OCR’s policy letters have persuasive authority, meaning that courts defer to its interpretations of the regulations. See 29 U.S.C. § 794(a), (b).
Links, you deserve a raise. You know why.
Under the deliberate indifference standard, intentional discrimination can be inferred from a defendant school district’s “(1) knowledge that a federally protected right is substantially likely to be violated...and (2) a failure to act despite that knowledge.”
Deliberate indifference does not mean that a school district acted with “personal ill will or animosity toward the disabled person.” “It does, however, require a ‘deliberate choice, rather than negligence or bureaucratic inaction.’
For instance, a school district’s deliberate choice to decline to modify its conduct after learning what constitutes appropriate accommodations constitutes a deliberate choice...violating Section 504 with deliberate indifference where it “simply ignores the needs of [disabled] students.
Approximately 16-18% of school-age children with food allergies have had an allergic reaction while in school.27 Schools are a particularly hazardous setting for students who with food allergies. Incidental and unintended contact often occurs with food allergens in several ways, such as other students sharing or spilling food from their snacks or lunches; snacks being handed out in class or at school events; food allergens being used in classroom crafts or experiments; and children with unwashed hands containing trace allergens.
Schools are Required to Develop Individualized § 504 Plans to ensure a FAPE for Students with Disabilities
Prior to the passage of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, Congress found that discrimination on the basis of disability was “most often the product, not of invidious animus, but rather of thoughtlessness and indifference—of benign neglect” or “apathetic attitudes.” Alexander v. Choate, 469 U.S. 287, 295 (1985). For some students with the hidden disability of a severe food allergy, schools have shown such apathy and thoughtlessness.
It also must ensure that a student with a disability can participate to the “maximum extent possible” within an educational setting. 34 C.F.R. § 104.34(b); Ridley Sch. Dist., 680 F.3d at 280. An educational setting includes both academics and nonacademic “extracurricular services and activities,” such as meals and recess. 34 C.F.R. § 104.34(b).
This is true regardless of whether a school has other plans that address the student’s medical needs.29 IHP and § 504 Plans at 272 (citing U.S. Department of Education’s Office on Civil Rights findings of noncompliance for schools providing only Individualized Health Plans for students with the disability of diabetes because evaluation under § 504 was also required).Such a requirement ensures that schools will consider the individual medical needs of students with a disability and any further modifications that may be necessary to provide a FAPE under § 504.QuoteFor example, schools may create an Individualized Health Plan (IHP) that “fulfills administrative and clinical purposes, including management of healthcare conditions to promote learning; facilitating communication, coordination, and continuity of care among service providers; and evaluation/revision of care provided.” IHP and § 504 Plans at 272.
While schools are allowed some latitude in providing a FAPE, an individualized § 504 Plan that sufficiently addresses the individual needs of a student with the hidden disability of severe food allergy should include two key components. First, it should include all individualized accommodations designed to ensure students with the hidden disability of a severe food allergy have meaningful participation in and access to educational benefits within academic and nonacademic settings. Second, it should include an individualized Emergency Care Plan that details how to recognize and treat an allergic reaction and prevent anaphylaxis. This latter requirement is essential to properly address a food allergy, which affects students with the disability in unique and unpredictable ways.
As detailed further in Appendix A, a sufficient individualized 504 Plan also would take into account each of the following factors: (1) a student’s medical history; (2) the type of allergy and level of sensitivity to the allergen; (3) the number of allergies, if applicable; (4) the presence of atopic conditions, such as eczema or asthma; (5) the mental health, age and maturity level of the student; (6) any developmental disorders or learning disabilities, if applicable; (7) past bullying or harassment; (8) the presence or absence of a school nurse; and (9) transportation needs. Greater detail would be included in the final plan regarding who, what, where, when, and how this policy would unfold. Section 504 Plans that lack these details could not be properly executed or enforced during times of emergency and thus leave students with the hidden disability of a severe food allergy at significant risk of anaphylaxis and death. Such considerations ensure schools are providing a FAPE to students with the hidden disability of a severe food allergy.
For anyone reading this on here who would not know I've been tracking this case and Ridley for a while. The Circuit court decision to deny TF's right to FAPE and harassment from the SD in retaliation was enormously harmful. This is happening--now. OCR is there in the Dept of Ed but this is different, federal court. Our inclusion in the public education system is at stake.
TF vs Fox Chapel Appeal
FARE amicus brief
Under the deliberate indifference standard, intentional discrimination can be inferred from a defendant school district’s “(1) knowledge that a federally protected right is substantially likely to be violated...and (2) a failure to act despite that knowledge.”
Deliberate indifference does not mean that a school district acted with “personal ill will or animosity toward the disabled person.” “It does, however, require a ‘deliberate choice, rather than negligence or bureaucratic inaction.’
For instance, a school district’s deliberate choice to decline to modify its conduct after learning what constitutes appropriate accommodations constitutes a deliberate choice...violating Section 504 with deliberate indifference where it “simply ignores the needs of [disabled] students.
An increasing number of children report having food allergies. Parents are becoming more demanding in their “requests” for accommodations for food allergies. It is no longer uncommon for parents to demand that life threatening allergens be banned from the entire school or that one-to-one aide be assigned to a student with a life threatening food allergy. Given the prevalence of severe allergies among children, it is likely that most school board will face issue related to allergies at some point. This presentation addresses the legal issues surrounding the accommodation of allergies and focuses on the question: Just how far must a school go to accommodate a student’s allergies?
Holding. The court held that the district did not violate Section 504. The court found that the district had attempted to work with T.F. and his parents for several months and had proposed four (4) separate 504 Plans. Citing a recent Third Circuit case, the court held that “to offer an ‘appropriate education’ under the Rehabilitation Act, a school district must reasonable accommodate the needs of the handicapped child so as to ensure meaningful participation in educational activities and meaningful access to education benefits.” The district took “reasonable steps to accommodate T.F.’s disabilities and include him in all class activities; it was not required to grant the specific accommodations requested by Parents or otherwise make substantial modifications to the programs that were used for all other students.”
[url]http://ohmahdeehness.wordpress.com/2014/05/10/a-brief-in-semi-brief-understanding-the-amicus-brief-of-fare-and-copaa-in-t-f-vs-fox-chapel-area-school-district/[/url]
I spoke with her on twitter (briefly :) ) and she seemed so nice.
The link has been updated!
https://www.dropbox.com/s/z9dvfwp1mwzy8pb/Brief2014.pdf
@EDcivilrights (Dept of Ed Civil Rights)
@usedgov (US Dept of Ed)
@CivilRights (US DOJ Civil Rights)
@ArneDuncan
@wrightslaw
@NDRNadvocates (Disability Rights NDRN)
@FoodAllergy (FARE)
@AllergicLiving
@TheAllergistMom
@faactnews
...bloggers, anyone who can spread the word, trend the tags, blog, rally the support, read what's happening, know what's at stake.
#WeAreTF #inclusion #educationcivilright
For anyone reading this on here who would not know I've been tracking this case and Ridley for a while. The Circuit court decision to deny TF's right to FAPE and harassment from the SD in retaliation was enormously harmful. This is happening--now. OCR is there in the Dept of Ed but this is different, federal court. Our inclusion in the public education system is at stake.
TF vs Fox Chapel Appeal
FARE amicus brief
Take the time to email FARE to thank them for taking such an important advocate's stance legally and publicly on our behalf. Take the time to point this out to Ed Civil Rights, Arne Duncan, the US Dept of Ed. Let them know these kids need the schools to engage them meaningfully to be fully included in their education SAFELY. This is being fought hard and this is our fight. Throw any and all support you can behind this. The outcome will matter. The argument of a safe and inclusive education coming to the attention of Dept of Ed, Dept of Justice Civil Rights as fully as possible will matter.
Can someone please explain what this case is about? The original link in this thread is apparently Facebook which many of us don`t do. Thank you.