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MANAGING FOOD ALLERGIES IN SCHOOL: Legal and Practical Considerations. By: Regan K. Dahle. What Is a Food Allergy?. An interaction between food and the immune system.

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MANAGING FOOD ALLERGIES IN SCHOOL:Legal and Practical Considerations

By: Regan K. Dahle


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What Is a Food Allergy?

  • An interaction between food and the immune system.

  • An allergic reaction occurs when an individual’s immune system recognizes a particular food protein as a foreign invader by releasing histamine and other chemicals.


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Peanuts

Fish

Tree Nuts

Milk

Eggs

Soy

Wheat

Shellfish

Most Common Food Allergens

  • Sesame allergies are on the rise.


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Hives

Swelling

Cramps

Nausea

Vomiting

Diarrhea

Itchy, watery eyes

Shortness of breath

Coughing

Wheezing

Runny Nose

Reduced Blood Pressure

Fainting

Shock

Feeling of Impending Doom

Typical Allergy Symptoms


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Anaphylaxis

  • A sudden, severe allergic reaction that involves various areas of the body simultaneously or causes difficulty breathing with swelling of the throat and tongue.

  • In extreme cases, it can cause death. Also called a general reaction or allergic shock.


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Why Should Schools Be Concerned?

  • According to a recent study in the Journal of School Nursing, 84% of children with food allergies will have a reaction at school, and 25% of children have their first reaction at school.

  • As little as a milligram of an offending food can cause a life-threatening allergic reaction.


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Why Should Schools Be Concerned?

  • Anaphylactic reactions can result in death if untreated or under-treated.

  • Anaphylactic symptoms can develop in minutes after eating an offending food.

  • Some researchers now believe that even minute exposures to the allergen that may not cause a reaction can caused increase sensitivity.


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Why Should Schools Be Concerned?

  • Fatalities from anaphylaxis most often are associated with either not using epinephrine or delay in the use of epinephrine.

  • There is no cure or preventative medication for food allergies.

  • Avoidance is the only way to prevent a reaction from occurring.




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Section 504

  • Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability.

  • Applies to institutions receiving financial assistance from the federal government, including public schools.

  • Ensures that qualified students with disabilities receive a free and appropriate public education.

    34 CFR §104.33


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What Is a Disability?

  • A physical or mental impairment that substantially limits one or more of an individual’s major life activities.

  • Having a record of such an impairment.

  • Being regarded as having such an impairment.

    34 CFR §104.3(j)


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Is a Life-Threatening Food Allergy a Disability?

  • Under the Section 504 definition, food anaphylaxis should be considered a physical impairment since it is a physiological condition that affects multiple body systems. 34 CFR §104.3(j)


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Is a Life-Threatening Food Allergy a Disability?

  • Breathing and eating are major life activities.

  • 34 CFR 104.3(j)

    Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001)


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Is a Life-Threatening Food Allergy a Disability?

  • No Michigan court has addressed whether an individual with life-threatening food allergies is substantially limited in any major life activity.


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Is a Life-Threatening Food Allergy a Disability?

  • In a case involving an individual with diabetes who, like an individual with life-threatening food allergies also had significant restrictions on his ability to eat, the Seventh Circuit articulated well why the issue of substantial limitation would be, at the very least, a jury question:


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“Mr. Lawson's physician characterized the measures he must take to manage his disease as "a perpetual, multi-faceted and demanding treatment regime" requiring "continued vigilance.“ If Mr. Lawson fails to adhere strictly to this demanding regimen, the consequences could be dire: he could experience debilitating, and potentially life-threatening, symptoms. This evidence is sufficient for a jury to find that Mr. Lawson is substantially limited with respect to the major life activity of eating.

Lawson v. CSX Transp., Inc., 245 F.3d 916, 924 (7th Cir. Ind. 2001)


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Federal Government Acknowledges Allergies as Disability take to manage his disease as "

  • Allergies may be considered a “hidden disability” similar to diabetes and epilepsy.

    U.S. Dept. of Ed. Office of Civil Rights, Pamphlet: The Civil Rights of Students with Hidden Disabilities under Section 504 of the Rehabilitation Act of 1973


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Federal Government Acknowledges Allergies as Disability take to manage his disease as "

  • The Department of Agriculture has identified students with life-threatening food allergies as “disabled” under Section 504 of the Rehabilitation Act.

    USDA Guidance for School Food Service Staff: Accommodating Children with Special Dietary Needs in the School Nutrition Program


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What Does it Mean to Provide a Free and Appropriate Education?

  • Parents cannot be charged for services necessary for the education of the disabled child, unless other students are also charged. 34 CFR §104.33

  • Unless it can be demonstrated that the child cannot receive a satisfactory education, disabled students must be educated with non-disabled students.34 CFR § 104.34


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What Does it Mean to Provide a Free and Appropriate Education?

  • Disabled students must have equal access to educational opportunities and extracurricular activities to the maximum extent appropriate. Id.

  • Students with food allergies should not be excluded from the cafeteria.


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What Does it Mean to Provide a Free and Appropriate Education to a Student with Food Allergies?

  • They generally should not be denied access to the school bus or on field trips.

  • Accommodations may need to be made in classroom, lunchroom, during recess, etc., so the student can safely be educated with non-disabled students.


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504 Enforcement Mechanisms Education to a Student with Food Allergies?

  • Individuals may file a complaint with the Dep’t. of Ed. Office of Civil Rights. 34 CFR § 100.7

  • Failure to comply could result in suspension of federal funds or legal proceedings brought by the Dep’t of Justice.34 CFR §100.8


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504 Enforcement Mechanisms Education to a Student with Food Allergies?

  • Violations of Section 504 can result in private civil actions against District. 29 U.S.C. §794(a)

  • Eleventh Amendment immunity does not apply. 42 U.S.C. § 2000d-7


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504 Plans Education to a Student with Food Allergies?

  • Written agreement developed for a particular student that specifies the aids the school will provide to that student so that the student gets equal and safe access to educational opportunities and extracurricular activities.


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504 Plan Should Address . . . Education to a Student with Food Allergies?

  • School bus

  • Classroom

  • Substitutes

  • “Special” classes

  • Lunchroom

  • Recess


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504 Plan Should Address Education to a Student with Food Allergies?

  • Medication storage

  • Parent volunteers

  • Bathrooms

  • Playground

  • Drinking fountain

  • Assemblies

  • Field Trips


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IDEA Education to a Student with Food Allergies?

  • Individuals with Disabilities Education Act, 20 USC §1400 et seq.

  • Generally supports students whose disabilities affect their ability to learn.


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IDEA Education to a Student with Food Allergies?

  • Qualified students are entitled to an Individualized Education Program that addresses the special services to be provided to the student.

  • Less common that a food allergy would be covered by IDEA since the student’s ability to learn is not typically affected, but possible if the restrictions on the student’s activities are extensive enough or if the child has other impairments.


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ADA - Americans with Disabilities Act Education to a Student with Food Allergies?

  • Ensures that no qualified individual with a disability shall be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

    42 USC § 12132


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Americans with Disabilities Act Education to a Student with Food Allergies?

  • School must provide reasonable modifications to rules, policies or practices and auxiliary aids and services to ensure that the disabled student is not excluded, denied services, segregated or otherwise treated differently than a non-disabled student.

    28 CFR § 35.104


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Americans with Disabilities Act Education to a Student with Food Allergies?

  • No Eleventh Amendment immunity from ADA claims. 42 USC § 12202

  • Violation of the ADA can result in a private civil action, administrative agency complaints, as well as the loss of federal funding. 42 USC § 12133


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Harassment Concerns Education to a Student with Food Allergies?

  • Both federal and state laws prohibit harassment of individuals who exercise their rights under these statutes.

  • Required accommodations can often be unpopular with staff, students and other families.

  • Staff should be cautioned against conduct that could be considered threatening, harassing or discriminatory against a student or the student’s family.

  • Staff should be advised to monitor for and report any teasing or bullying of the food-allergy student.


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Food Service Education to a Student with Food Allergies?

  • USDA, National School Lunch Program and School Breakfast Program regulations require that schools make substitutions to regular meals when a student cannot eat the regular meal because of a disability.

  • Substitutions or modifications must be based on a valid prescription.

  • Substitutions or modifications must be at no extra cost to the student.

    7 CFR § 15b


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Michigan Legislation Education to a Student with Food Allergies?


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Public School’s Duty to Education to a Student with Food Allergies?Provide a Safe Environment

  • The public schools of this state serve the needs of the pupils by cooperating with the pupil’s parents and legal guardians to develop the pupil’s intellectual capabilities and vocational skills in a safe and positive environment.

    MCL §380.10


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Revised School Code Section 1179 Education to a Student with Food Allergies?

  • Students may possess and use epinephrine at school or school-sponsored event under the following conditions:

    • Student has written approval from both physician and parent/guardian

    • The principal has received a copy of the written approvals

    • Student has an Emergency Care Plan on file.


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Emergency Care Plan Education to a Student with Food Allergies?

  • Contains specific instructions on student’s needs.

  • Prepared by a physician in collaboration with the student and parent/guardian.

  • Updated as necessary for changing circumstances.


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Food Allergy Action Plan Education to a Student with Food Allergies?


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Food Allergy Action Plan Education to a Student with Food Allergies?


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Revised School Code, Section 1178 Education to a Student with Food Allergies?

  • A designated school employee who, in good faith, administers medication to a student in a life-threatening, emergency situation, is not liable in a criminal action or for civil damages, except in the event of gross negligence or willful or wanton misconduct.


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Gross Negligence Education to a Student with Food Allergies?

  • Conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.


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Willful or Wanton Misconduct Education to a Student with Food Allergies?

  • Where there is an intent to harm or, in circumstances in which injury is probable, there is such indifference to whether harm will result.


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Governmental Immunity Education to a Student with Food Allergies?

  • Immunity may be available for tort liability if the employee reasonably believes he or she is acting within the scope of his or her authority; the district is engaged in the exercise or discharge of a governmental function; and the employee's conduct does not amount to gross negligence that is the proximate cause of the injury or damage.

    MCL § 691.1407


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Persons with Disabilities Civil Rights Act Education to a Student with Food Allergies?

  • Prohibits discrimination by educational institutions. MCL § 37.1402

  • Follows similar analysis as ADA claims.

  • Affords aggrieved individuals a private cause of action as well as administrative remedies. MCL § 37.1605


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Proposed Legislation Education to a Student with Food Allergies?

  • Both federal and Michigan legislators have introduced bills into their respective houses regarding managing food allergies in school.

  • Current proposed amendments to the ADA may also affect analysis of food allergy issues.


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Food Allergy and Anaphylaxis Management Act Education to a Student with Food Allergies?

  • Versions in both the United States House and Senate.

  • Currently in House and Senate Committees.

  • H.R. 2063 and S.1232


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Food Allergy and Anaphylaxis Management Act Education to a Student with Food Allergies?

Would require the U.S. Secretary of Health and Human Services to develop a voluntary policy to manage food allergies and anaphylaxis in schools and make it available to local educational agencies.


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State of Michigan House Bill 5052 Education to a Student with Food Allergies?

  • Sponsored by Representative Fran Amos.

  • Introduced on July 24, 2007.

  • Currently before Committee on Education.


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House Bill 5052 Education to a Student with Food Allergies?

  • Would require the Department of Education, in conjunction with the Departments of Agriculture and Community Health, to do the following:

    • Review and revise as necessary all guidelines and policies published by the Department of Education and other state agencies involving life-threatening food, insect sting, latex or other substance allergies and asthma.

    • Provide school districts a model local policy concerning the management of these allergies and asthma.


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House Bill 5052 Education to a Student with Food Allergies?

  • Model Policy would address the following:

    • Training

    • Storage of medication

    • Standardized Emergency Care Plans

    • Individual Health Care Plans for students with life-threatening allergies



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Parents

  • Notify the school. If possible, for a new student, the year before the student starts.

  • Provide medical documentation.

  • Coordinate preparation of the Food Allergy Action Plan with the student’s doctor, the school nurse, administration and the teacher.


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Parents

  • Provide appropriate medication and enough of it. Monitor expiration dates of medication and replace when necessary.

  • Provide safe food for the student.

  • Educate and advocate.

  • Provide current emergency contact information.


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Teachers

  • Know the symptoms of an allergic reaction.

  • Keep information about the student readily accessible to substitutes.

  • Ensure that lesson plans involving food are safe.

  • Limit the use of food as rewards or for celebrating special events.


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Teachers

  • Know how to administer epinephrine.

  • Avoid cross contact or contamination in the classroom.

  • Teach tolerance in the classroom.

  • Create class awareness.


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School Nurse

  • Educate everyone with whom the student will come in contact.

  • Develop an emergency treatment plan for treatment at the school.

  • Create an emergency plan of action in the event 911 needs to be called.


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School Nurse

  • Check medication for expiration dates.

  • Meet with parents.

  • Meet with the student.

  • Develop the Individualized Health Plan or 504 Plan where appropriate.


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Principal

  • Create a food allergy management plan for your school.

  • Educate staff.

  • Set the tone that this is a significant health issue that will be taken seriously.

  • Develop and support policy limiting the use of food as rewards or for celebration.


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How is Michigan Doing?

  • Study found that Michigan public schools lacked structured, school-wide approach to managing food allergies.

  • Avoidance strategies were deficient.

  • Lack of Emergency Action Plans.

  • Epinephrine not easily accessible.

    Annals of Allergy, Asthma and Immunology, Vol. 86, 172-176


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We Never Had to Do This Before, So Why Now?

  • Prevalence of allergies is increasing at an alarming rate, and specifically life-threatening allergies.

  • Data suggests that even minute exposures to allergens can increase sensitivity and the risk of a life-threatening reaction.

  • As research and advocacy progress, treatment and avoidance techniques are developed and refined.

  • Power in numbers. Families are no longer afraid to advocate for the rights of their children.


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Questions?

Regan K. Dahle

Butzel Long

[email protected]


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