by Hollie Reedy | Dec 20, 2019 | Special Education
If it seems like there are more food allergies today, there are. Today, about 8% of all children have food allergies, an increase of 50% in ten years. This translates into 1 in 13 children, or about 2 per classroom. Individualized plans for the safety of each student with an allergy should be made to avoid exposure and reactions.
Students with food allergies may be eligible for special education supports and protections. For instance, a student could be IDEA- eligible as “other health impaired” if the allergies adversely affect learning or the student needs special education/related services due to the allergies. More commonly, students with food allergies may be eligible for a 504 plan if they have a physical impairment that substantially limits one or more major life activities. In the case of allergies, this could include breathing, immune system function, respiratory function, or learning. Districts may not discriminate against a student with a disability or deny them participation in school programs or activities. Schools IEP and 504 teams should discuss how allergies will be handled for students according to their particular allergy and its severity.
Individualized plans for the safety of each student should be developed to avoid exposure and reactions. The chosen accommodations must be implemented during all aspects of the school district’s activities and operations.
To determine if a student is eligible under 504 for a food allergy, district must screen out the use of medications or other measures to control the allergy. It is important to note that schools do not have to provide a risk-free environment, only a reasonably safe environment.
It is probably not surprising to you that the issue of accommodation of children with food allergies in schools has been the subject of special education hearings and litigation. Districts sometimes have to contend with diverse perspectives and demands, which they must reconcile on a daily basis. Here is a short summary of some 504 cases that may sound familiar to you.
In one case, a high school denied a student participation in a culinary arts program due to concerns about the student’s severe allergies to peanuts, dairy, egg, kiwi and crab. The student did not have a 504 plan at the time, but did have an emergency health plan to address exposure and response to a reaction. The student’s allergist had filed a letter stating the student could participate as long as he did not eat any of the foods prepared with ingredients to which he was allergic, and that he wore gloves when handling peanuts. The District attempted to contact the allergist one time, and did not contact him after that prior to making the decision to exclude the student. The student filed a complaint with the Office for Civil Rights, alleging disability discrimination. OCR found that the district had treated the student as a student with a disability even though it had not qualified him as one by excluding him from the program. They went on to find that the district had violated Section 504 procedurally, as it did not make a decision about the student’s exclusion with persons knowledgeable about the issues. (Bethlehem (NY) Central Sch. Dist. Office for Civil Rights, Eastern Division, NY, 52 IDELR 169, 109 LRP 30964)
Another case dealt with a student on an IEP whose allergy to peanuts and tree nuts was a life-threatening, airborne allergy. Initially, the District agreed that the student should be educated at a smaller private school that put into place significant protocols and regulations to ensure the student’s safety. The District proposed in a new IEP to change his placement to a public school on the basis that the student could be safely accommodated. This student also had autism with communication deficits, such that he would be unable to communicate his physical distress if he were having an allergic reaction. The parents rejected the proposed IEP and filed for due process. In a detailed decision concerning the peanut-free accommodations provided by the private school and the proposed peanut-restricted accommodations of the public school, the hearing officer found that the proposed IEP met the requirements of the law, which require only a reasonably safe environment, and plans in the IEP to ensure the student’s safety were adequate to prevent exposure and deal with a reaction if it did occur. (In Re: Student with a Disability Kentucky State Educational Agency 1213-16, 114 LRP 19510)
Finally, there was the Michigan case of a mother who refused to comply with the peanut free school building to accommodate another child who had a life-threatening, airborne peanut allergy. She wrote to the school, stating “I will not be cooperating not participating in the School’s 504 plan to another student. My child and I are not subject to, nor bound by, the provisions of the Rehabilitation Act….to meet my child’s needs, I will provide my child with the proper nutrition in her school lunch that I, in my sole discretion, deem appropriate.”
She filed a lawsuit seeking to enjoin the district from implementing the school-wide ban on nut products and requested money damages. She also alleged that her rights to equal protection and due process under the state and federal constitution were violated, and her child experienced unlawful search and seizure because her lunches were checked and when peanut items were found, replaced with appropriate alternatives.
The court of appeals rejected all her claims, finding that she lacked standing to challenge the 504 plan, that the school district’s peanut-free school policy was rationally related to a legitimate government interest, defeating the equal protection and due process claims. As to the unlawful search and seizure, the court stated that the school only looked for and removed banned items based on the parent’s notice to the school that they would not comply with the reasonable restrictions. (61 IDELR 231)
Practical takeaways
The most common food allergies are peanut and tree nuts, shellfish, milk, eggs, fish, wheat and soy. Some allergies are very severe, such as students who could have a life-threatening reaction to airborne particles of peanuts.
There are good resources for school professionals on ensuring a reasonably safe environment for students who have these allergies, and developing plans and emergency plans to accommodate the allergy to prevent a reaction, and to deal with a reaction if it occurs. The Centers for Disease Control has some great resources all gathered on one page, at https://www.cdc.gov/healthyschools/foodallergies/index.htm, including Food Allergy Guidelines FAQ and Voluntary Guidelines for Managing Allergies. Both of these resources and many others, including information for school nurses and more, may be found on the CDC page.
Food allergy management is increasingly a common issue. Staff training on preventing exposure, recognizing signs of a reaction, responding with medication or the use of an Epi-pen, including environmental management in terms of cleaning surfaces and other items used in instruction, transportation staff and substitute teacher/aide training are all aspects of food allergy management that require ongoing attention. School staff, including IEP and 504 teams, should discuss food allergies and take appropriate steps to ensure students with allergies are properly accommodated.
Parent, staff and community education is likewise an ongoing effort in the management of food allergies in schools, involving education on watching ingredients in school snacks, lunches and the cafeteria, providing ingredient lists, and more. If you have an IDEA or 504 plan issue involving a food allergy, the EB special education team can assist in ensuring your team’s compliance with procedural and substantive requirements.
“Food Allergen Icons” by Milos Radojevic is licensed under CC BY-NC-ND 4.0
by Jeremy Neff | Dec 17, 2018 | Board Policy & Representation, Special Education
School districts frequently ask how to balance the rights of a person who brings a service animal onto school grounds against the rights of others. For example, if one child in a classroom is allergic to pet dander, but another child demands to bring her service dog to school, whose rights prevail? These concerns are not limited only to the rights of students but also can easily arise with an employee’s request for accommodations under the Americans with Disabilities Act. In other scenarios, members of the public, including parents or spectators at a sporting event, could also be covered.
A court decision this month out of New York gives one example of conflicting rights of different members of the school community. The parents of a student with asthma and severe allergies filed a wide-ranging lawsuit in the U.S. District Court for the Southern District of New York, arguing that a school district violated their child’s rights by not having a policy prohibiting service animals and by allowing a service animal on the school grounds several times in violation of their child’s 504 plan.
In this case, the parent of a different student required the use of a service animal and brought the animal to multiple school events in which the student with the allergy participated. The student with the allergy had a 504 plan that required the school to, among other things, ensure no animals come within 30 feet of the student, keep the student out of contact with service animals, implement a cleaning protocol after animals are within the school building, and communicate in advance with her parents when a service animal was anticipated to be within the school building.
Additionally, the parents had requested other accommodations that are not discussed in the court decision and had also requested a blanket policy banning service animals from school. The school district rejected the latter request, explaining that it had an obligation under federal disability law to allow service animals within the building.
The court dismissed most of the claims but will allow the disability discrimination claim to proceed. This relates to alleged violations of the 504 plan. The court recognized that the school is required under federal law to allow service animals but noted that this does not excuse a school district from fulfilling its obligations under a 504 plan to protect a student against allergies. This case shows how distinct legal rights can come into direct conflict.
While the public court filings do not provide sufficient detail to determine what, if anything, the school might reasonably have done differently (or even if it did, in fact, violate the student’s rights), one lesson is that in allowing a student, staff member, or school visitor to exercise her right to use a service animal, a school district must consider whether accommodations are necessary to ensure that the rights of students with allergies are protected. This is a difficult balance that will depend very much on the individual facts of each case.
– Doe v. United States, 118 LRP 49416 (S.D.N.Y. 2018).
by Pamela Leist | Nov 6, 2018 | Special Education
In October, a flight from Charlotte to Cleveland was delayed when a woman carrying what she characterized as an emotional support animal refused to deplane from the aircraft. Although the airline permits air travel for emotional support animals, the passenger failed to tell employees that her support animal was a squirrel. The airline does not allow rodents of any kind – including squirrels – aboard their aircraft, so the passenger was asked to deplane prior to takeoff. When the woman refused to deplane, all other passengers were forced to do so until the woman and the squirrel could be removed.
Would an Ohio public school district be required to permit the squirrel to accompany an individual onto school property? The answer to this question is no, because the animal does not meet the definition of a service animal under state or federal law.
Although public school districts are not regulated by the same rules as airlines, they are generally required to permit service animals to accompany individuals with disabilities on school premises and at school-related functions. Emotional support animals may be treated differently, as discussed below. It is important for school district staff to know how state and federal law define the term service animal and also to understand when an animal may and may not accompany an individual.
What is a service animal under the law?
Under federal law, a service animal is defined as a dog that is trained to do work or perform tasks for the benefit of an individual with a disability. Although the definition restricts the meaning of “service animal” to only a dog, federal law also permits a miniature horse to accompany an individual with disabilities under limited circumstances.
To determine whether a miniature horse must be permitted to accompany an individual with a disability, a public entity may consider four factors:
- The type, size, and weight of the horse and whether the facility can accommodate based on these factors
- Whether the handler has sufficient control of the horse
- Whether the horse is housebroken
- Whether the presence of the horse compromises legitimate safety requirements that are necessary for safe operations
It is important to note that an emotional support animal is not defined as a service animal under federal law. Emotional support animals provide comfort by being with a person rather than being trained to perform a specific task for an individual with a disability. A public entity may therefore not be required to treat an emotional support animal in the same fashion.
Also understand that other species of animals, whether wild or domestic, trained or untrained, are not defined as service animals either.
State laws may also apply to service animals. Ohio further classifies dogs into four groups (R.C. 955.011):
- Assistance dog – a guide dog, hearing dog, or service dog that has been trained by a nonprofit special agency
- Guide dog – a dog that has been trained or is in training to assist a blind person
- Hearing dog – a dog that has been trained or is in training to assist a deaf or hearing-impaired person
- Service dog – a dog that has been trained or is in training to assist a mobility-impaired person
When may a school district exclude a service animal?
A school district may exclude a service animal in a few circumstances. For instance, if the presence of the animal would require the district to modify policies, practices, or procedures in a way that would “fundamentally alter” the district’s services, programs, or activities, it may be excluded. This is a very high threshold to meet. A district may also be able to exclude animals that present legitimate safety concerns, are not housebroken, or do not remain under effective control of the handler.
What about individuals who might be allergic to the service animal?
A school district is expected to carefully consider the risks to all parties involved, including those with a service animal and those who are allergic to one. A district should thoroughly explore ways to reasonably accommodate the needs of all individuals involved before it considers excluding a service animal because of an allergy.
Can a district restrict the animal’s access to certain areas?
Generally, a service animal must be permitted to accompany an individual in all areas where the public is permitted to go. This includes access to facilities and to all school-sponsored activities and events, even if they occur after hours, unless a legitimate reason for a restriction or exclusion applies (see above).
A school district’s obligation to permit service animals applies not only to students but also to parents and visitors. Generally, public entities must allow individuals with disabilities to be accompanied by service animals in all areas that are open to the public. You should contact your district’s legal counsel if you have questions about service animals in your school facilities and programs.
by Erin Wessendorf-Wortman | Feb 21, 2018 | Special Education
As many in education are aware, on March 22, 2017, the U.S. Supreme Court published an opinion in a significant special education case: Endrew F. v. Douglas County School District RE–1, 580 U.S. ___ (2017). This decision clarified the standard for a free appropriate public education (FAPE) for students with disabilities:
To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
This decision confirmed that the standard of “merely more than the minimum” was too low. Essentially, the Court established two standards:
| Supreme Court Decision |
Student Circumstances |
FAPE Standard |
| Rowley |
Student who is fully integrated in the regular classroom and able to achieve on grade level |
IEP must be reasonably calculated to enable the student to receive passing marks and advance from grade to grade |
| Endrew F. |
Student who is not fully integrated and not able to achieve on grade level |
IEP must be appropriately ambitious / reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances |
However, when the U.S. Supreme Court issued its decision on March 22, the case was not finished. The case was remanded back down to the lower courts to apply the new standard and determine whether Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school.
On February 12, 2018, in relying on the new standard from the Supreme Court, Judge Babcock of the United States District Court for the District of Colorado held that Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school. The judge decided that the IEP did not satisfy the Court’s revised FAPE standard. Minor changes in Endrew’s IEP were noted throughout the years – including updating and making minor or slight increases in the objectives, carrying over the same goals from year to year, or abandoning goals if they could not be met – but these minor changes were unacceptable as they provided the basic floor of opportunity, not progress appropriate in light of Endrew’s circumstances. (Note: Prior to the Supreme Court’s Endrew F. decision, these same IEP changes were found to meet the FAPE standard in Colorado by the same judge.)
Additionally, the judge determined that the school district could not hide behind the fact that the student’s severe behavioral problems prevented him from making appropriate progress because the school district failed to conduct a functional behavior assessment; to implement appropriate positive behavioral interventions, supports, or strategies; or to develop an appropriate behavior intervention plan. This failure on the school district’s part to appropriately address Endrew’s behaviors “cuts against the reasonableness of [his] IEP.” The court held that Endrew could have made greater progress had the school district implemented appropriate behavioral supports.
Although following Endrew F. back through the court system allows us to see how courts around the country will apply this new legal standard, the legal standard applied by the Sixth Circuit Court of Appeals (controlling in Ohio) of “meaningful benefit” has not changed and is similar to “progress appropriate in light of the child’s circumstances.” Ohio school districts should likely not see a significant change in their IEPs and services.
Ohio school districts should, however, take away additional learning opportunities from this recent Endrew F. decision:
- Review IEPs to ensure that each is reasonably calculated to enable the student to make appropriate progress in light of the student’s circumstances.
- IEPs should change from year to year as the student changes, learns and grows.
- IEPs should be specifically tailored to the student’s needs and geared for progress.
- Goals should be measurable annually, reflecting appropriate achievements for the student given his/her unique situation.
- IEP teams should be reminded that that behavior management can play an incredibly important role in providing FAPE to students.
- When a student’s behaviors are so severe that they impede progress toward IEP goals, the behaviors should be addressed through timely functional behavior assessments, behavior intervention plans, and, when appropriate, behavior goals.
Endrew F. v. Douglas Cty. Sch. Dist. RE-1, No. 12-cv-2620, 2018 WL 828019 (D. Colo. Feb. 12, 2018).
by Jeremy Neff | Jan 23, 2018 | Special Education
During Ennis Britton’s October 2017 Special Education Symposium, participants around the state were given the opportunity to submit questions on note cards. Because of time constraints and the large response, our Special Education Team was not able to address all of these questions during the presentations. In the coming months we will address some of these questions through blog posts and a new feature called “Special Education Spotlight” in the School Law Review newsletter.
One participant asked how to respond to a parent who asks for her child to be evaluated under the Individuals with Disabilities Education Act (IDEA) when the district does not suspect a disability but the parent has a private evaluation that concludes the student has a disability.
This scenario brings at least two parts of IDEA into play. The first is the issue of child find. A district has an obligation to “find,” or identify, all children within its territory that are potentially eligible under IDEA or Section 504. This is an affirmative obligation, meaning that each district must take active steps to identify such children – it is not enough to wait for parents to ask for an evaluation. That said, a parent certainly has a right to ask for an evaluation. In such a case, the district should respond in writing to the request using a Prior Written Notice form (PR01), either agreeing to proceed with an evaluation or refusing to do so.
A district should be cautious about refusing to evaluate a child when, as is the case in this scenario, an outside evaluator has identified the child as having a disability. Even when a school has not observed anything to suggest that a child has a disability, it is possible that he or she does. For example, a child might have ADHD but not exhibit characteristics at school due to effective medication. Such a child may still be eligible under Section 504 because the law requires districts to factor out mitigating measures such as medication in making eligibility determinations.
Second, assuming the district in this scenario proposes to evaluate the child, the parent consents, and the evaluation is completed, the IEP team may need to consider the private evaluation shared by the parent as part of the evaluation process. This is required whenever a parent acquires an independent educational evaluation (IEE) that meets a district’s reasonable criteria (credentials of the evaluator, validity of the evaluations, etc.). The good news is that in this scenario, absent an order from a court or hearing officer, the district is not required to pay for the IEE because the parent did not disagree with a district evaluation at the time the IEE was acquired.
Even when an IEE meets a district’s reasonable criteria, the law does not require absolute deference by the IEP team to the opinions of an outside expert. In fact, the law gives the IEP team the ultimate discretion as to how much weight to give to the IEE. The specific regulatory language requires the IEP team to “consider” the IEE. This means that the team reviews the information, holds it up against other information the team has about the child, and engages in meaningful discussion of the information. It does not mean that the team adopts all findings or directions of an outside evaluator because he or she is an “expert” or holds some sort of advanced degree. Remember, while outside opinions can be helpful, in most circumstances the outside evaluator will have spent at most a few hours with the child in a clinical setting. The IEP team will typically have weeks, if not months or years, of experiences with the child in an authentic setting. School personnel should neither be intimidated nor diminish their own expertise when presented with an IEE.
In the end, if a parent has sought an outside evaluation before asking the school to conduct an evaluation, and the school does not suspect a disability, this may be a sign of further disputes to follow. An early conversation with a member of Ennis Britton’s Special Education Team may be beneficial as you respond to scenarios such as this.
by Giselle Spencer | Mar 29, 2017 | Special Education
Endrew F. v. Douglas County School District
On March 22 the U.S. Supreme Court published an opinion in a significant special education case. Issuing out of the Tenth Circuit Court of Appeals in Colorado, Endrew v. Douglas poses the question of what level of educational benefit public schools must provide to students with disabilities in order to satisfy the requirement of a free appropriate public education (FAPE) according to the Individuals with Disabilities Education Act (IDEA).
The Supreme Court last heard arguments on this topic in the 1982 case Board of Education v. Rowley, in which the Court determined that an individualized education program (IEP) must be “reasonably calculated to enable the child to receive educational benefits.” Since that time, federal courts across the country have issued differing opinions on the level of educational benefits that students must receive, with the majority of circuits requiring “merely more than de minimis” or “some benefit” (including the Tenth Circuit, where this case originated from). Only three circuits (one of which is the Sixth Circuit, which includes Ohio) have held to a higher standard – “meaningful benefit.”
The Supreme Court’s March 22 opinion expands upon the FAPE standard set forth in Rowley:
To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated
to enable a child to make progress appropriate in light of the child’s circumstances.
The U.S. Department of Education had suggested in a court brief that school districts offer a program “aimed at significant educational progress in light of the child’s circumstances.” While the Supreme Court adopted “appropriate” instead of “significant” as the standard, its unanimous decision confirms that a standard requiring nothing more than a minimal educational benefit is too low.
The Court’s holding does not overrule the Rowley decision. Instead, in clearly rejecting other, higher standards, and declining the low standard adopted by the lower court, the High Court underscored Rowley’s emphasis on individualized benefits based on each child’s potential progress. Although the family sought imposition of a standard that was “substantially equal to the opportunities afforded children without disabilities,” such as attaining self-sufficiency and contributing to society in equal ways, the Court rejected that idea as “entirely unworkable” and noted that it would be “plainly at odds” with Rowley. The 1982 Rowley case also considered but rejected similar language regarding reaching the maximum potential of each student. Higher standards such as this would significantly increase costs to districts for the more than six million students with disabilities.
Although “progress appropriate in light of the child’s circumstances” is worded differently from the Sixth Circuit’s standard of a “meaningful benefit,” in practice it should be similar. As our circuit has held the highest standard throughout the country, districts that have held to this standard in their IEPs will likely not see a significant change in their IEPs and services. The Supreme Court’s decision may have a greater effect on special education programs in circuits whose standard has previously been lower, such as the Tenth Circuit’s standard of merely more than the minimum.
Even with the Supreme Court’s decision, this is not the end of the saga for Endrew F. Now the case goes back to the Tenth Circuit Court of Appeals to issue a ruling consistent with the Supreme Court’s decision to reject the previous, lower standard that the circuit had used.
