Section 504 Primer

SECTION 504 PRIMER FOR PARENTS & EDUCATORS OF CHILDREN WITH FOOD ALLERGY AND ASTHMA

ARTICLE OVERVIEW

“What are Section 504 and IDEA exactly and how might they pertain to my child with food allergy and asthma”? These are the questions I asked myself over a decade ago. These are my personal thoughts on the issue, and this article is not advice. This article is my understanding of how the law works based on my research, telephone conversations with various state and government agencies.  I am not a doctor or a lawyer; I am a certified public school teacher and the parent of a child with severe peanut allergy. Please note that no 504 Plan can ensure the safety of your child, and only you, your physician and your school district can work together to create a 504 Plan that is appropriate for your child. This information is not intended to replace the medical advice, prescriptions or treatments prescribed by your doctor.

Note

This analysis pertains to schools that receive federal financial assistance (FFA) from the federal government.

WHAT IS SECTION 504?

Section 504 is the abbreviation for Title 34 Section 504 of the Rehabilitation Act of 1973. It is a civil rights law that prohibits discrimination on the basis of disability. It applies to all institutions, including public schools, which receive financial assistance from the federal government. In the public school context, children with disabilities may be protected under Section 504, IDEA or both. Parents and educators may view the full original text of Section 504, Subpart D – Preschool, Elementary and Secondary Education, Regulations 104.31-104.39 at the U.S. Office for Civil Rights web site.

(Office for Civil Right Home Page, “Title 34—Education, Subtitle B – Regulations of the Offices of the Department of Education, Chapter 1, Office for Civil Rights, Part 104, Non Discrimination on the Basis of Handicap in Programs or Activities Receive Federal Financial Assistance.” <http://www.ed.gov/offices/OCR/regs/34cfr104.html>.)

WHO IS ELIGIBLE FOR PROTECTION UNDER SECTION 504?

“The ED [U.S. Department of Education] Section 504 regulation defines an ‘individual with handicaps’ as any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

The regulation further defines a physical or mental impairment as

(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or

(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The definition does not set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list…”

(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973.” January 1, 1995. < http://www.ed.gov/offices/OCR >. Keywords: hidden disabilities.)

WHAT IS THE KEY FACTOR THAT DETERMINES WHO IS ELIGIBLE FOR PROTECTION UNDER SECTION 504?

“The key factor in determining whether a person is considered an ‘individual with handicaps’ covered by Section 504 is whether the physical or mental impairment results in a substantial limitation of one or more major life activities. Major life activities, as defined in the regulation, include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973.”)

HOW IS A CHILD WITH FOOD ALLERGY ELIGIBLE?

Children protected under Section 504 are commonly those with ADD, ADHD, OCD, Diabetes, AIDS, Asthma (that does not affect educational performance) and allergy just name a few. The criteria by which a child with severe food allergy is eligible for protection under Section 504 is that the physiological condition / disorder of food allergy affects the respiratory, digestive, cardiovascular and skin body systems. The physical impairment of food allergy could substantially limit breathing during an anaphylactic reaction. In addition, the U.S. Office for Civil Rights U.S., Department of Education formally recognizes “allergy” as a “hidden disability.”

(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973.”)

WHAT ARE HIDDEN DISABILITIES?

“Hidden disabilities are physical or mental impairments that are not readily apparent to others. They include such conditions and diseases as specific learning disabilities, diabetes, epilepsy, and allergy. A disability such as a limp, paralysis, total blindness or deafness is usually obvious to others. But hidden disabilities such as low vision, poor hearing, heart disease, or chronic illness may not be obvious. A chronic illness involves a recurring and long-term disability such as diabetes, heart disease, kidney and liver disease, high blood pressure, or ulcers.”

(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 19743.”)

HOW DOES SECTION 504 HELP A CHILD WITH SEVERE FOOD ALLERGIES?

The legislators who wrote Section 504 purposely used broad and relatively non- prescriptive language so that the law would encompass a wide range of disabilities. Schools must give children protected under Section 504 an “individualized educational program” with “accommodations.” This program usually takes the form of a 504 Plan. The 504 Plan lists and explains the formal accommodations and modifications that will be made to the public school environment to ensure the least restrictive learning environment (LRE). The LRE must provide equal opportunities for children protected under Section 504 to the maximum extent possible as their non-disabled peers. A 504 Plan for a children with food allergy should have many components to address important food allergy issues so affected children have the best possible chance of staying safe.

(e.g., Amy is contact allergic to peanuts, one accommodation to the learning environment might be: All children in Amy’s class will wipe their hands with wipes upon entering the classroom.)

DOES THE WORD “REASONABLE” APPLY TO SECTION 504 “ACCOMMODATIONS” IN ELEMENTARY AND SECONDARY EDUCATION?

“The clear and unequivocal answer to that is no.” (OCR Policy Letter to Zirkel, 20 IDELR 134, 8/23/93.)

Dr. Perry A. Zirkel is a professor of education and law at Lehigh University. Dr. Zirkel is a “nationally recognized authority on special education law in general, and Section 504 in particular. [He] wrote the federal Office for Civil Rights for an interpretation” (Reed Martin) of whether or not the “reasonable” limitation applies to elementary and secondary students the same way it applies to employees or postsecondary/vocational students. The U.S. Office for Civil Rights responded to Zirkel’s letter, and it was signed by the chief officer for civil rights in the U.S. Department of Education.

Below are key excerpts from OCR’s “Letter to Zirkel.”

“This is in response to your letter of June 28, 1993, in which you expressed concern regarding the policy of the Office for Civil Rights (OCR) with regard to school districts’ substantive obligations under Section 504 of the Rehabilitation Act of 1973 (Section 504). The questions you pose focus on the Department of Education (Department) regulation implementing Section 504, specifically 34 C.F.R. § 104.33(a):

“(a) General. A recipient that operates a public elementary or secondary education program 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.

The key question in your letter is whether OCR reads into that Section 504 regulatory requirement for a free appropriate public education (FAPE) a “reasonable accommodation” standard, or other similar limitation. The clear and unequivocal answer to that is no. Section 104.33(a) guarantees all qualified individuals with disabilities FAPE, which consists of regular or special education and related aids and services that are de signed to meet the individual education needs of qualified per sons with disabilities as adequately as the individual education needs of other persons are met and that are designed and delivered in accordance with the Department’s regulation. 34 C.F.R.§ 104.33(b)(1).

The Section 504 regulation was originally promulgated by the Department of Health, Education, and Welfare (HEW) and received thorough public scrutiny, with opportunities for written comment as well as for participation in 22 public meetings, prior to publication in the Federal Register on May 4, 1977. The regulation became effective on June 3, 1977, following congressional review that failed to elicit any bjections. The regulation was adopted without change by the newly created Department of Education end published in the Federal Register on May 9, 1980. Thus, I believe that the FAPE requirement in the Section 504 regulation does reflect congressional intent.

Since that time there have been no actions by the Congress, the Federal courts, or the agencies and administrative tribunals of the executive branch that would require OCR to modify § 104.33, or its interpretation thereof, to allow for some limitation of the FAPE guarantee.

We conclude therefore that the regulation writers intended to create a different standard for elementary and secondary students than for employees or postsecondary/vocational students.”

(OCR Policy Letter to Zirkel, 20 IDELR 134, 8/23/93.)

WHAT IS THE DIFFERENCE BETWEEN SECTION 504 AND IDEA?

From 1975 through 1997, the U.S. Congress passed a number of acts, amendments and inclusion of appendices to the original disability legislation that has culminated into the present day law known as the IDEA. IDEA is the abbreviation for the Individuals with Disabilities Education Act.

(The Policymaker Partnership for Implementing IDEA Homepage. “The History of IDEA.” < http://www.ideapolicy.org/Relaunch/history.pdf >.)

There are thirteen disabilities covered under IDEA in its current form:

  1. Autism
  2. Deaf-blindness
  3. Deafness
  4. Emotional disturbance
  5. Hearing impairment
  6. Mental retardation
  7. Multiple disabilities
  8. Orthopedic impairment
  9. Other health impairment
  10. Specific learning disability
  11. Speech or language impairment
  12. Traumatic brain injury
  13. Visual impairment including blindness

(IDEA Practices Homepage. “Section 3.007 Child with a Disability.” < http://www.ideapractices.org/law/regulations/index.php >.)

ASTHMA AND SEVERE FOOD ALLERGIES

Some disabilities clearly fall under Section 504, while others clearly fall under IDEA. Since many children who have food allergies also have asthma, we need to take a look at asthma disability protection under the law. There are certain disabilities that schools analyze along a continuum of acuteness like Attention Deficit Disorder (ADD), Attention Deficit Hyperactivity Disorder (ADHD), and Asthma to determine if they fall under Section 504 or IDEA. If we were looking along a horizontal line, Section 504 would be on the far left, and IDEA would be on the far right. If a particular disability does not affects a child’s educational performance and meets all the eligibility criteria, then it falls on the Section 504 end of the continuum. If a particular disability does affect a child’s education performance and meets all the eligibility criteria, then it falls on the IDEA end of the continuum.

Acute Asthma falls under Other Health Impaired in the IDEA rules and regulations [#9 above]. “…Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that – (i) Is due to chronic or acute health problems such as asthma…(ii) Adversely affects a child’s educational performance…”

(IDEA Practices Homepage. “Section 3.007 Child with a Disability.”

http://www.ideapractices.org/law/regulations/index.php>.)

Many children with food allergies may actually have asthma that affects their learning and may be protected under IDEA as well as Section 504. These children may be eligible Individual Educational Plans / Programs (I.E.P.s). IDEA requires schools to make accommodations and modifications to the learning environment as well as to provide additional special education instruction while maintaining the least restrictive learning environment.

If the child has acute asthma and or some other disability that falls within the thirteen categories, then the child might be eligible for protection under IDEA. The way that it would work is this: If the child is ill often due to asthma, and misses school as a result, then the parents may request protection for the child under IDEA and the creation of an I.E.P. This program takes the form of an I.E.P. under IDEA.

(e.g., As an accommodation in the child’s I.E.P., the parents could request that the child be provided an in-home tutor if he or she is too ill due to asthma to attend school.)

POSSIBLE SCENARIOS OF PROTECTION

  • If the child has severe food allergy alone, and no other qualifying disability, then the child would be protected under Section 504 alone. Securing the disability designation for food allergy under 504 lends itself to a top-down approach: Section 504 uses language that specifically applies to anaphylaxis (i.e., the life system of breathing is affected).
  • If the child has asthma that does affect educational performance AND severe food allergy, the parent theoretically could have a Section 504 Plan to address food allergy issues, and an IDEA I.E.P. to address asthma that affects educational performance.
  • If the child has severe food allergy AND asthma that does not affect educational performance, the child could have a Section 504 Plan that should address BOTH the food allergy and asthma issues.
  • Some parents have obtained protection for their children with severe food allergy under IDEA, Other Health Impaired (OHI) by demonstrating that food allergy affects their children’s educational performance. (Martin, Reed, Personal Communication, March 11, 2002.)
  • There also exist IDEA I.E.P.s for children who have food allergy and one or more of the other IDEA disabilities. In these I.E.P.s, children receive accommodations and modifications to the classroom environment for the food allergy issues and special education accommodations and modifications for other disability issues.

WHAT ARE THE ADIMINISTRATION DIFFERENCES BETWEEN SECTION 504 AND IDEA?

Below is an analysis of the differences and similarities between Section 504 and IDEA on an administration level. Parents and educators need to fully understand the rights of children, parents and schools and the administrative procedures of Section 504. It is important to keep the disability designations of Section 504 and IDEA separate under circumstances where the child is protected under Section 504 for food allergy and IDEA for acute asthma. The administration of each law is distinct, and the rights of children and their parents under each are different as well.

THE DIFFERENCES & SIMILARITIES

Federal Law Section 504 IDEA
Title Section 504:  Rehabilitation Act of 1973. Individuals with Disabilities Education Act (IDEA) Amendments of 1997.
Purpose Civil rights law to protect rights of individuals with disabilities in programs and activities that receive federal financial assistance. Federal statute to provide financial assistance to states to ensure appropriate services for students with disabilities.
Funding Local and state level. Local, state and Federal levels.
Responsible Agency in Local School District Section 504 Coordinator. Special Education.
Eligibility Criteria Students must be qualified individuals with a disability, defined as someone who now has, previously had, or is regarded as having a physical or mental impairment which substantially limits one or more major life activities.Major life activities include caring for self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. Student identified within specific disability categories:  mental retardation; impairments in hearing, speech or language, vision or orthopedics; other health impairment; serious emotional disturbance; autism; traumatic brain injury; specific learning disability; deaf-blindness; or multiple disabilities.
Service Mechanism Section 504 Plan for necessary accommodations and/or services. Individualized Educational Program [IEP].  Mandates specific members of IEP Team.
Evaluation Requires parental notice for evaluation.  Requires district to:  establish standards and procedures to ensure that test and other evaluation materials are validated; tailor tests to assess specific educational needs; and properly select and administer test to reflect student’s aptitude and not the level of impairment.  Requires “periodic” re-evaluations. Requires parental consent for initial evaluation.  Provides right to request independent educational evaluation.  Requires re-evaluations at least once every three years.
Free Appropriate Public Education [FAPE] Defined as regular or special education related aids and services that meet the individual needs of students with disabilities as adequately as the needs of students who do not have disabilities. Defined as special education and related services for a program designed to provide “educational benefit.”
Procedural Safeguards Requires notice to parent regarding identification, evaluation, or placement. Requires notice only for “significant” change in placement. Requires written notice to parent regarding identification, evaluation or placement. Required written notice for any change in placement.
Due Process Requirements Requires impartial hearings for parents who disagree about identification, evaluation, or placement. Requires impartial hearings for parents who disagree about identification, evaluation, or placement.
Grievance Procedure Requires district to designate one individual to ensure compliance and to provide grievance procedure. No required grievance procedure or compliance officer.
Enforcement Monitored by the U.S. Dept. of Education, Office for Civil Rights [OCR] Monitored by U.S. Department of Education, Office of Special Education and Rehabilitative Services [OSERS]

(Maternal and Child Health Bureau, Healthy and Ready to Work Home Page, Policy Papers, Understanding the 504 Statute:  The Role of State Title V Programs and Healthcare Providers.”  April 2000.

http://www.mchbhrtw.org/PolicyPaperForms/understandingform.htm >.)

“The creation, production, and dissemination of these documents/materials is supported through a Cooperative Agreement from the US/DHHS Maternal and Child Health Bureau, Integrated Services Branch to the Center for Policy and Partnerships at the Institute for Child Health Policy (U93MC00133).”

WHO IS THE SECTION 504 COORDINATOR?

By law, each school district is required to designate a Section 504 Coordinator. Many school districts have an administrator with the title Director of Pupil Personnel. The director is often both the Special Education Coordinator / Supervisor and the Section 504 Coordinator. The 504 Coordinator for the school district is the first person parents should make contact with on the telephone and more importantly in writing well in advance of enrolling the child in public school. His or her office is usually located in Central Office. Central Office or Board of Education Office is the physical location of the upper level administrators, including the Superintendent of Schools and Director of Pupil Personnel.

WHAT IF PARENTS DO NOT AGREE WITH THE IDENTIFICATION, EVALUATION OR PLACEMENT OF A CHILD?

Should parents disagree with the identification, evaluation or placement of the child, public school districts are required under Section 504 to employ the services of an impartial hearing officer. School districts usually hire hearing officers on a case-by-case basis. Parents should understand the ramifications fully of the outcomes of an impartial hearing, and prepare carefully before embarking on the process.

(Martin, Reed. “Due Process Hearing Manual.”

http://www.reedmartin.com/dueprocesshearingmanual.htm >.)

WHO IS THE SCHOOL DISTRICT’S SECTION 504 COMPLIANCE OFFICER?

By law, the school district must designate a 504 Compliance Officer. The 504 Compliance Officer addresses issues of compliance of 504 Plans in regular education. The Compliance Officer may or may not be the Section 504 Coordinator. The Compliance Officer should be someone who has the authority to address compliance issues with the 504 Plan in the learning environment. While the law does not specify any particular individual, the most logical person for the position would be the school building principal where the child with food allergies attends school. The reason for this is that the responsibility for carrying out a 504 Plan on a daily basis is that of the regular classroom teacher. Remember, the responsible agency for carrying out a Section 504 Plan is Regular Education – not Special Education. In addition, it is not uncommon for a Section 504 Coordinator to have his or her office in a completely separate building from the child’s school. This issue of location may make it challenging for a 504 Compliance Officers to address issues of compliance on a daily basis. The school building principal is the person who possesses the most direct contractual authority over and access to a regular education classroom teacher on a daily basis.

Should the school nurse be the Compliance Officer? The school nurse plays an instrumental role in training staff, promoting awareness, providing emergency response and writing the 504 Plan. It is questionable whether or not school nurses possess the contractual authority over regular classroom teachers to ensure compliance with a Section 504 Plan. It is usually the school principal who has the contractual authority over school staff to ensure compliance.

DO SCHOOLS RECEIVE MONEY FROM THE FEDERAL GOVERNMENT TO FUND A CHILD’S SECTION 504 PLAN?

School districts do not receive any money from the federal government to fund Section 504 programs. However, schools cannot use lack of funds as an excuse not to provide a child a 504 Plan with appropriate accommodations and modifications. Furthermore, schools do receive money from the federal government for IDEA, lunch and other school programs. This money is called Federal Financial Assistance (FFA). The fact that schools receive FFA is significant for parents whose child is protected under Section 504. For a school to be eligible for FFA, schools must be in compliance with Section 504 regulations.

WHAT IF A SCHOOL DISTRICT DOES NOT COMPLY WITH SECTION 504?

When a school has not established appropriate procedures and documentation and protection for individuals with disabilities protected under Section 504 as required by federal law, the school district could have their federal financial assistance suspended.

Common Terms
vs.
Formal Section 504 Language
School District Local Educational Agency (LEA)
State Department of Education State Educational Agency (SEA)
Department of Education Federal Level U.S. Department of Education (USDOE)

To be eligible for federal funding, school districts sign and submit legal documents yearly and cyclically to their State Department of Education and the U.S. Department of Education. Any individual, including parents, may request copies of a school district’s public records at any time. Individuals may request copies of these documents from the State Department of Education as well. If a parent believes that the school is not complying with regulations stipulated in Section 504, the parent may decide to request Section 504 compliance documentation. The parent may choose to request the documentation from the school that the district submits on the federal level. High level administrators in the school district sign this documentation attesting to the district’s compliance with Section 504 regulations, and that it is not discriminating against individuals with disabilities.

Parents can request copies of these documents (public records) and other public records, under the Freedom of Information Act (FOIA). Parents also have the right to obtain copies of any minutes of any 504 Meetings when minutes are taken. Each state in the U.S. has an agency that addresses Freedom of Information issues, and each state has its own guidelines for response timeframes from the school.

(University of Missouri – Columbia Homepage, Freedom of Information Center. “FOI Statutes by State.” <http://www.missouri.edu/~foiwww/citelist.html >.)

In Connecticut, for example, the Freedom of Information Commission states, “an agency is required to provide ‘prompt’ access to public records.” The Freedom of Information Act does not state that a school must create a document upon a request, however the school must either produce a copy of the document for the individual, or tell the individual that the document does not exist. Additionally, schools can charge money for each page of documentation. In Connecticut, the law states that “Municipal agencies may charge a maximum of fifty cents per page and state agencies may charge a maximum of twenty-five cents per page. Other fees may be charged for certified copies of public records or for transcriptions, printouts or records on electronic media.”

(Connecticut Freedom of Information Commission Home Page. “Highlights of the CT Freedom of Information Act.” < http://www.state.ct.us/foi/>.)

There are over a dozen documents that parents may request from schools that pertain to Section 504 compliance issues. Below are four examples of those documents. C.F.R. in the text below refers to the US Code of Federal Regulations.

Example #1 Statement Letter of Compliance with Section 504 Document. This letter states that the School District is in compliance with Section 504, was submitted to the federal government and states that the School District is eligible to receive federal funds. [34 C.F.R. 104.7 (b) and 104.8]

Example #2 Self-Evaluation Document. It is also known as the Elementary and Secondary Civil Rights Compliance Report and is conducted approximately every two years. This evaluation is performed to meet Section 504 OCR requirements [34 C.F.R. 104.6 (c)]. The most recent Self-Evaluation was due to OCR on February 23, 2001 for some school districts.

Example #3 Names and Titles Document. This document lists the names and titles of the individuals who participated and were consulted in the most recent Self-Evaluation for the School District. [34 C.F.R. 104.6 (c)(i)(ii).]

Example #4 Areas Examined, Problems Identified, and Corrective Steps Taken Document. This document discusses the school’s self evaluation of special education (IDEA) and Section 504 issues. It documents the most recent Self-Evaluation that is necessary to meet Section 504 OCR requirements for the School District. [34 C.F.R. 104.6 (c)(i)(iii).]

(Martin, Reed. “Section 504, How You Can Use It to Get Your Child What They Need,” 2001 Mathews Media. < http://www.reedmartin.com>.)

Reed Martin JD’s legal work in the areas of IDEA and Section 504 is exceptional. He produces vital resources for any parent whose child is protected under Section 504, ADA or IDEA.

WHEN WOULD PARENTS REQUEST COMPLIANCE DOCUMENTATION?

There are various opinions as to when a parent should request these documents that render a school district eligible to receive FFA. Some individuals in our community believe that parents should request 504 compliance documentation as part of the initial 504 process. They believe that parents should make the school district aware that the parents know exactly what their rights are under the law. Other individuals in the community feel that requesting these documents may create an adversarial relationship between the district and the parent. Parents must make their own decision as to what route to take based on the way the schools meet parents’ requests and the way the child’s food allergy needs are managed in the school context.

WHAT IF A CHILD WITH FOOD ALLERGY IS DENIED A SECTION 504 PLAN?

If parents request protection for their child under Section 504 in writing, and they are denied a 504 Plan, they have a number of options. The parents have the right to a hearing with the school district by an impartial hearing officer. They may request this hearing through the 504 Coordinator or Superintendent of Schools for the district. Parents also have the right to contact the Office for Civil Rights at any time and ask for assistance. Parents have the right to hire an independent lawyer and sue the school district on the basis of discrimination. Parents also have “right to request attorney fees related to securing [their] rights under Section 504.”

(Connecticut State Department of Education Home Page. Sergi, Theodore, S. “Section 504 of the Rehabilitation Act of 1973: Procedural Safeguards.” Letter. November 3, 2000. < http://www.state.ct.us/sde/circ/circ00-01/c-9.pdf>.)

WHAT ARE THE RIGHTS OF PARENTS UNDER SECITON 504?

While OCR has no standard parental rights statement, each school district in every state is suppose to inform parents of their rights under Section 504. Here is an example of the Parental Rights Statement the Connecticut Commissioner of Education, Theodore Sergi, distributed to all the Superintendents of Schools in Connecticut.

SECTION 504 PARENTAL RIGHTS STATEMENT [Example]

“Section 504 of the Rehabilitation Act provides services for students identified as having a disability as defined by the Act, which substantially limits a major life activity. You have the following rights:

  1. The right to be informed of your rights under Section 504 of the Rehabilitation Act.
  2. The right for your child to have equal opportunities to participate in academic, nonacademic and extracurricular activities in your school.
  3. The right to be notified about referral, evaluation and programs for your child.
  4. The right for your child to be evaluated fairly.
  5. The right, if eligible for services under Section 504, for your child to receive accommodations, modifications, and related services that will meet the child’s needs as well as the needs of students without disabilities are met.
  6. The right for your child to be educated with peers who do not have disabilities as much as possible.
  7. The right to an impartial hearing if you disagree with the school regarding your child’s educational program.
  8. The right to review and obtain copies of your child’s records.
  9. The right to request attorney’s fees related to securing your rights under section 504.
  10. The right to request changes in the educational program of your child.”

(Sergi, Theodore, S. “Section 504 of the Rehabilitation Act of 1973: Procedural Safeguards.” Letter. November 3, 2000.)

HOW IMPORTANT IS DOCUMENTATION IN THE SCHOOL CONTEXT?

Documentation about decisions and occurrences regarding a child’s 504 Plan is extremely important in the school context. Parents should formalize in writing all the decisions and conversations made between themselves and the school regarding their child’s 504 Plan. Additionally, parents may want to document when the school meets or denies a request. Parents may accomplish this using “Letters of Understanding” to any school personnel managing the child’s food allergy in the educational environment. “A letter of understanding becomes especially important when verbal communication does not seem to be working. Parents should develop the habit of documenting important conversations, and this letter is an important tool in the advocacy toolbox.”

(Bonnell, Judy. Special Needs & Special Gifts Home Page. “Letters of Understanding.”

http://www.geocities.com/Athens/Oracle/1580/letters.html >.)

(Wright, Pam. Wrightslaw Home Page. “The Art of Writing Letters.”

http://www.wrightslaw.com/advoc/articles/DRAFT_Letters.html >.)

DO SCHOOLS HAVE TO PUT A 504 PLAN IN WRITING?

Legally a Section 504 Plan does not have to be in writing, but parents may pursue the right to tape record any 504 Meeting should the need arise. The 504 regulations specify that school districts must have 504 Plans for those children who are eligible. IDEA regulations do required I.E.P.s be documented writing. Furthermore, Section 34 Code of Federal Regulations 104.33(b)(2) states “implementation of an individualized educational program developed in accordance with the IDEA is one means of meeting that standard [for 504 Plans]” (Reed Martin). This means that schools can fulfill their legal obligations under Section 504 by putting 504 Plans in writing. School districts should realize that written documentation of a 504 Plan has at least three advantages. First, in the event of litigation, the 504 Plan document provides proof on behalf of the school that a 504 Plan does exist. Furthermore, this document shows that the school was not unconstitutional discriminating against an individual with a disability (Reed Martin). Second, 504 Plans for children with severe food allergy are detailed and complex in nature; the accommodations and modifications often focus on increasing awareness, staff training, preventing an allergic reaction, and steps to follow in the event of an emergency. Formalizing these plans in writing provides a road map for all school personnel to follow when managing the special needs of children with food allergy while in school. Third, parents may request to tape-record any 504 or PPT meeting. Should a district decide not to create, provide and maintain written documentation of the 504 Plan, parents might make a case that tape recording the 504 Meetings is the only way to document the 504 Plan’s existence. A tape recording of the 504 Plan will provide an exact record of the conversations within the 504 Team, and of the agreed upon accommodations and modifications. It is important to note that having a tape recorder in a meeting may also create an atmosphere that is less conducive to a free and open exchange of ideas among the all the 504 Team members. Only individual parents can decide whether or not to pursue the right to tape record a meeting. If a district will not put the 504 Plan in writing, a tape recording may be the only record that the parent has that a 504 Plan exists.

DO PARENTS HAVE THE RIGHT TO TAPE RECORD MEETINGS & CONFERENCES?

“The subject of whether or not a parent has the right to tape record IEP meetings frequently arises. Based upon recent guidance contained in appendix A to the 1999 IDEA regulations, it appears that the answer is: “It depends.” In order to understand whether an enforceable right to tape an IEP conference exists in a particular situation, one must reference both state and federal law on this issue…Parents wishing to use audio or video recording devices at IEP meetings should consult state or local policies for further guidance…There is no law or regulation that specifically allows or prohibits the taping of IEP conferences. Thus, under its general powers, a school board could, under state law, adopt reasonable rules and regulations sustaining a general prohibition against taping, provided that exceptions were allowed. However, our overall sense of this issue is that a parent could pretty easily establish the need to tape record an IEP conference based upon the vague language contained in the appendix, [Appendix A to the 1999 IDEA regulations] and a court reviewing this issue would likely give deference to the guidance provided by the Untied States Department of Education on this issue.”

(Attorneys Sweet, Stevens, Tucker & Katz, LLP Home Page. “Tape Recording of IEP Conferences.” < http://www.sweetstevens.com/FSL5CS/special education/special education64.asp >.)

DO SCHOOLS UNDERSTAND FULLY HOW FOOD ALLERGY PERTAINS TO SECTION 504?

There exists anecdotal evidence that some public school districts do understand how Section 504 pertains to children with severe food allergies, while others do not. There are exemplary school districts that have worked diligently to provide accommodations and modifications for children who are eligible. And we must commend those schools and districts. However, other school districts around the country have not been providing accommodations and modifications. The reasons for this vary, but the most common reasons seem to be inexperience with managing food allergies and misinformation about how a child with severe food allergy qualifies for protection under Section 504.

(Papkee, Chris. PeanutAllergy.Com Home Page. “Schools Discussion Board.” < http://www.peanutallergy.com >.)

ARE SCHOOLS READY TO MANAGE CHILDREN’S FOOD ALLERGY IN THE SCHOOL CONTEXT?

Until recently, there was no quantitative data that provided information about the readiness of schools to manage children’s food allergies. While parents have shared their personal stories (qualitative data) about their experiences in public schools within the food allergy community, there was a lack of hard numbers (quantitative data) identifying the schools’ need to better manage children’s food allergies.

In February of 2001, Grace S. Rhim, MD and Marc S. McMorris, MD conducted and published the first formal study on the readiness of schools to manage and prevent food allergic reactions. They chose Michigan state elementary schools as the focus group. Dr. Rhim and Dr. McMorris tried to identify school education, prevention and treatment policies for children with food allergy. They created and distributed a questionnaire assessing food allergy awareness, avoidance and treatment strategies. They distributed it to a random sample of 273 public elementary school principals.

“One hundred four responses representing 109 schools were collected. From school estimates of 66,598 children, there was a 1.7% self-reported prevalence of food allergy. The most common allergens were milk and peanut, followed by tree nuts, shellfish, egg, and wheat. Affected children were identified primarily through office records, with few reporting individual emergency plans or designated classrooms, teachers, or lunch tables. Methods of food allergy education included parents of students and in-services. Avoidance strategies, food substitution, and “no-sharing” policies were common, whereas other measures such as food-label-teaching were uncommon. A minority of schools had epinephrine immediately accessible, either in the student’s classroom, carried by the student, or passed by teachers. Principals, nurses, and teachers were most often trained to administer epinephrine.”

Conclusions

As a result of the study, the researchers concluded that “there appears to be a need for schools to formally educate staff on food allergy, provide information on prevention measures such as reading of food labels, establish immediate accessibility to emergency epinephrine, and train staff for appropriate epinephrine use.”

(McMorris, Marc, S. and Rhim, Grace, S. “School Readiness for Children with Food Allergies.” Annals of Allergy, Asthma, & Immunology, February 2001; Vol. 86: 172-176.)

WHAT ARE SOME OF THE OBSTICLES PARENTS & EDUCATORS FACE?

Administrators, teachers and other school personnel are relatively new to understanding food allergy and how to manage it effectively in school. While disability support organizations and school personnel have lists of accommodations and modifications for children with disabilities such as Diabetes and ADHD, no such lists exist for children with severe food allergies until recently. The main reasons for this seem to be the recent prevalence of food allergy disability and that each child’s needs are unique based on his or her sensitivity.

Additionally, there is no nationwide codified protocol for training school staff in awareness, prevention, emergency response or creating accommodations and modifications to effectively manage severe food allergy in school. Since “a recent study from the journal Archives of Pediatrics and Adolescent Medicine states that food allergies may affect up to 6% of school-aged children (Arch Pediatr Adolesc Med. 2001;155;790-795) and that 1 in 5 food-allergic children will have a reaction while in school,” educators need to begin addressing this issue in a more systematic fashion.

(American Academy of Asthma & Immunology Home Page. “September 2001: Back to School with Food Allergies.” September 4, 2001. <http://www.aaaai.org/patients/topicofthemonth/0901/default.stm >.)

HOW CAN PARENTS & EDUCATORS MEET THESE CHALLENGES?

To remedy this, there needs to be a national effort at the State Department of Education level to address food allergy management issues. The focus of this effort should address three areas of need. First, schools should make use of one their most valuable resources: their school nurses. School nurses should become the in-house expert on food allergy management in school with the assistance experts. School nurses can offer annual in-service training about food allergy awareness, allergic reaction prevention, emergency response protocol and accommodation plan creation and implementation. All the tools that school nurses need currently exist. The next task for them is to incorporate the best materials available into a codified training program. Second, districts should provide teachers and administrators professional development opportunities outside of school such as attending food allergy conferences. Additionally, teachers should be encouraged to include food allergy management as part of their cyclical professional development goals. Third, schools should include peer awareness learning activities (perhaps as part of the health curriculum when appropriate) to promote empathy, understanding and support among children. The content offered in these learning activities should be age appropriate and build sequentially on children’s previous exposure and knowledge.

WHAT RESOURCES ARE AVAILABLE TO EDUCATORS & PARENTS

The Section 504 Plan Outline for Children with Severe Food Allergy from Allergy Support is a compilation of 504 Plan components based off of actual 504 Plans from around the country for severe food allergy and asthma. Since there are a variety of food allergies and varying degrees of sensitivity, the 504 Plan Outline categorically poses a set of questions about food allergy management in general. This list is by no means all-inclusive, yet it offers educators and parents new to this challenge a solid place to begin their efforts. Additionally, Allergy Support offers a comprehensive list of articles, web sites and resource links about food allergy issues in the school context.

(Riggott Stevens, Rhonda and Stevens, Michael E. Allergy Support Home Page. http://www.allergysupport.org/ >.)

In the Fall of 2002, the Massachusetts Department of Education released a extraordinary publication tilted, Managing Life Threatening Food Allergies in School. This eighty- page guide is the most comprehensive public school effort in the nation to address the many complexities of managing severe food allergy in schools. “To assist schools in developing and implementing policies and comprehensive protocols for the care of students with life-threatening food allergies, the Massachusetts Department of Education led a task force to develop this publication…The task force included recognized professionals in the area of food allergies, school physicians, school administration, school nutrition/food service directors, school nurses, teachers and department staff. [The task force]…worked diligently to over the past year to create a document that provides background information and practical application regarding life-threatening food allergy in schools.”

(Massachusetts State Department of Education Driscoll, David P. “Dear Superintendents and Other Interested Parties.” Letter. Fall 2002. <http://www.doe.mass.edu/cnp/2002/news/allergy.pdf >.)

The Food Allergy and Anaphylaxis Network (FAAN) creates support Products for Sale and Free School Program Materials that can assist educators and parents in managing severe food allergies at school. “FAAN publishes several newsletters, and has dozens of books, booklets, videos, and other products designed to educate about food allergy” (FAAN Home Page). These resources have been instrumental in increasing awareness about the life threatening nature of severe food allergy among school staff and students. FAAN also offers School Guidelines for Managing Students with Food Allergy.

(Food Allergy and Anaphylaxis Network Home Page. < http://www.foodallergy.org/ >.)

Another important resource for educators is Lisa Cipriano Collins’ book, Caring for Your Child with Severe Food Allergies. “With compassion and insight, Lisa Cipriano Collins blends her own experiences raising a child with severe peanut and tree-nut allergies with practical observations, interviews with parents, and data from recent medical studies” (Lisa Cipriano Collins Home Page). It is an insightful resource that explains the daily challenges and stressors any caregiver, including educators, faces when learning to balance “physical safety and social normalcy” (Cipriano Collins). It would be a valuable addition to any school’s professional educational library.

(Cipriano Collins, Lisa. Food Allergy Matters Home Page. < http://www.foodallergymatters.com/index.html>.)

In 2001, Marianne Barber published the book titled, The Parent’s Guide to Food Allergies: Clear and Complete Advice from the Experts on Raising Your Child with Food Allergy. Barber along with Maryanne Bartoszek Scott, M.D. and Elinor Greenberg, Ph.D. offer a “comprehensive and authoritative resource” on the issue of raising a child with severe food allergy. “The team of authors behind this invaluable book – the mother of a food-allergic child, a board – certified allergist and a psychologist – will take you through every step of life with a food-allergic child. Written under the direction of Hugh A. Sampson, M.D., [it is] one of the world’s leading clinicians and researchers on food allergies…” (Barber). The book is well organized and indexed therefore it is easy to locate specific information of interest. It includes discussions on important issues such as food allergy testing, diagnosing and treating anaphylaxis, eight most common food allergies, label reading advice, food allergies, ways to cope with “stress and strain on relationships caused by food allergy,” asthma and environmental allergies.

(Barber, Marianne S. The Parent’s Guide to Food Allergies: Clear and Complete Advice from the Experts on Raising Your Child with Food Allergy. New York, New York: Henry Holt and Company, 2001.)

Copyright © 2001-2002 Rhonda Riggott Stevens
All Rights Reserved
Reprint with Permission Only
Rhonda Riggott Stevens, MA
Version 6, Revised: 11-22-02