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I was excited to see that FARE (Food Allergy Research and Education) posted their Amicus Brief recently filed in TF and DF and TSF v. Fox Chapel Area School District for download on their blog. Speaking with other allergy advocates, many had seen the brief go up but had not had time to read through. I found it to be a great overview of food allergy accommodations in federally funded schools and had the idea to try to distill the brief into a post in honor of Food Allergy Awareness Week (starting tomorrow, May 11, 2014) here in the United States. I tried to also cover some questions people may have, like what an Amicus Brief is, and why there are citations to cases as well as parts of the US Code in the brief.
Remember that briefs and settlements are not binding precedent (I see some people cite the Lesley University settlement as binding in other cases) and analysis of food allergies as a disability are a very individualized thing even if we can all agree that food allergies are a disability. For example, in a private daycare, you could use the Americans With Disabilities Act to seek accommodations for your child but the factors and balancing at play could very well leave you having to look elsewhere for services. With federal money involved, however, your chances get significantly better.
Generic policy does not meet the requirements for a free, appropriate public education under the law. The major theme is individualized planning, from inputs to process, to outcome. As an aside, for most lawyers there are three answers to any question: Yes, No, and It Depends – individualized case by case planning falls in the third category. As a parent of a child with multiple food allergies and also one aware of the co-existence of other issues unique to each child, I think the brief is a great resource.
Amicus Brief re: TF and DF and TSF v. Fox Chapel Area School District (download the original brief here)
From the caption we can tell the case was initiated by a minor and his parents against a school district. It is on appeal by the parents & child so we can guess that there was an unfavorable aspect of the decision below. From the FARE Blog:
A federal judge previously ruled that the school district did not discriminate against the child in violation of Section 504 of the Rehabilitation Act, and that the school offered reasonable accommodations, and had not retaliated against the student’s parents when it filed a truancy petition after the parents withdrew their child from school. Among the accommodations that the school offered was special lunch seating at a nut-free table that was actually a single desk in the cafeteria.
An “Amicus Brief” is one filed in a case not by anyone that is a party to the dispute but usually by organizations that have a vested interest in the outcome of the case. They can highlight unique impacts on their organization depending on the outcome of the case or just show support. Here, we have FARE (Food Allergy Research and Education) joining with the Council of Parent Attorneys and Advocates to support TF, DF, and TSF.
Table of Contents and Other Introductory Material
If you’ve had experience with your local court system, you may notice the greater formality in a federal brief. Ideally, we should all be well organized in our writing (headings, etc.) but you simply don’t always have time to draft the perfect document in regular motion practice. In other words, don’t hold your divorce attorney to the standard you see when you’re reading a brief like this.
Relevant Statutes and Regulations
They start off with 29 USC (s) 794. This citation tells you the title of the United States Code and the section where the provision quoted is located. The ellipses let you know portions that were perhaps not relevant have been removed. This provision of the US Code states that if you otherwise qualify (so subject to any exceptions that may apply from other laws), if you have a disability in the US, you can’t only because of your disability be excluded from, denied benefits of, or be discriminated against by/through a program or activity that receives federal financial assistance. It goes on to define what a program or activity would be, including educational agencies or a school system. Note that it specifically says in this provision that they have to receive Federal financial assistance. If you’re looking at this brief to apply broadly then you’re out of luck because a private school system would require you to find a different provision, if one exists, to apply to your circumstances.
Many times, the key here is knowing how the court gets jurisdiction on an issue, that is, how do they have the “right to speak” on the topic and bind the parties that come before them. For things to hit Federal Court, one great way is for an issue to be one of Federal Law.
Next up is 34 CFR (s) 104.33. We see that under Title 34 of the Code of Federal Regulations, Section 104.33 we can find the provision cited. Title 34 of the CFR is titled “Education” so that would also clue you in that you could look under that title for related subjects.
When laws are passed, they often set into motion a framework to make rules to apply those laws. So these are rules that are also binding under the law. This particular portion of the CFR states that a recipient of federal assistance operating an education program has to provide “free appropriate public education to each qualified handicapped person” in their area, “regardless of the nature or severity of the person’s handicap.” So we see from this that a school getting federal money can’t turn away a student even if they are handicapped and the accommodation for that handicap may be great. This is different than the American’s With Disabilities Act provision that a private entity that is classed as a “public accommodation,” such as a daycare, won’t have to accommodate a disabled individual if, among other things, it would be unduly burdensome or change the nature of the service they offer. Here, if you’ve got a school that is getting federal assistance they have to take a student on and figure out how to make it work so that their education is still free to the family and appropriate.
A subsection goes on to point out that “appropriate education” is defined to include any special services and aids to meet the person’s needs “as adequately as…” the needs of people non-handicapped person. There are more provisions about how to determine the placement procedures for a handicapped individual.
Title 34 of the Code of Federal Regulations, section 104.36 is an additional rule that provides for procedural safeguards, notice, opportunity for parents to examine records, a review procedure, and an impartial hearing with participation of the child’s parents.
Statements of Interest
This section details the resume of FARE and their focus on research and allergy education and is interested in the case because of a belief that “students with the disability of a severe food allergy have the right to individualized plans that ensures their access to education and safety while in schools.”
The Council of Parent Attorneys and Advocates is described as a nonprofit organization for parents of children with disability and those that advocate for them. They assist counsel for families on disability law.
The Importance of Protecting Students with the Hidden Disability of a Severe Food Allergy
Pretty much general statistics here, ones advocates are all too familiar with. Some that were new to me:
– Over 160 foods can cause severe food allergy reactions
– The Food Allergen Labeling and Consumer Protection Act also requires federal agencies like the CDC to monitor and research “the growing prevalence of food allergy.”
– Peanuts and Tree Nuts account for 50-62% of reactions and 15-30% of the fatal/near fatal reactions in emergency rooms.
Schools are Required to Develop Individualized (s) 504 Plans to Ensure a FAPE for Students with Disabilities
Before section 504 of the Rehabilitation Act of 1973, discrimination regarding disability was viewed by Congress as careless, not intentional. Now, under a section 504 claim, a student has to prove:
“(1) he is ‘disabled’ under the meaning of this Act;
(2) he is ‘otherwise qualified’ to participate in school activities;
(3) the school or the board of education receives federal financial assistance; and
(4) he was excluded from participation in, denied the benefits of, or subject to discrimination at, the school.”
Ridgewood Bd. Of Educ. v. N.E. ex rel., 172 F.3d 238, 253 (3rd Cir. 1999).
FAPE, or “free appropriate public education” (and individualized needs) to students with a disability so that they can participate in education. The protections of section 504 are procedural and include extracurricular activities as well with a mind to meaningfulness for the student with a disability.
The two procedural safeguards are that a person that is “knowledgeable about the child” to be part of the group evaluating their placement and that guardians have notice and opportunity to see the records informing decisions about placement.
An IEP may be needed, or a 504 plan, depending on the circumstances and even if other provisions are in place for the student.
The Court Should Require Schools to Develop Individualized 504 Plans for Students With the Hidden Disability of a Severe Food Allergy
A school can’t simply decide on a policy for all students with food allergy, they have to adjust to each unique circumstance with parental and expert involvement.
In 2011 the Food Allergy & Anaphylaxis Management Act (FAAMA) was passed by Congress to require national guidelines to assist implementation of plans for individuals to manage food allergy and anaphylaxis risks in schools. The individualized mandate appears again and again.
The brief is requesting that the court rule that 504 and IEP plans be individualized based on the regulations, case law, and United States Code. Schools can’t bypass families and administer a generalized policy if the court rules that individualization is the “minimal bright line rule.”
Components would include individualized accommodation for meaningful participation at school as well as an emergency care plan specific to the student. The factors requested for consideration are (1) medical history, (2) type and severity of allergy, (3) number of allergies, (4) atopic conditions, (5) mental health, age, and maturity, (6) any developmental or learning disabilities, (7) past bullying and harassment, (8) school nurse presence or absence, and (9) transportation needs.
Special thanks to Laurel Francoeur and Kim Pebley for the encouragement to drive this post forward. I hope it is of use. Special thanks also to my daughter’s teacher and her school, she is wrapping up her kindergarten year in the next month and we are truly lucky for the support and compassion of the staff, students, and other families when it comes to keeping her safe.
Also, check out our latest post over at FABlogCon.com, our Mother’s Day gift/Food Allergy Awareness Week contribution of a video session from last year’s conference entitled “Facing Adversity With a Smile.” I make a teary appearance but to those that know me that isn’t a surprise. I can argue cases just fine but when it comes to food allergies I get very emotional!