MANAGING FOOD MANAGING FOOD ALLERGIES IN ALLERGIES IN

SCHOOL:SCHOOL: Legal and Practical Legal and Practical

ConsiderationsConsiderationsBy: Regan K. DahleBy: Regan K. Dahle

What Is a Food Allergy?What Is a Food Allergy?

An interaction between food and the An interaction between food and the immune system. immune system.

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

Most Common Food Most Common Food AllergensAllergens

PeanutsPeanuts

Fish Fish

Tree NutsTree Nuts

MilkMilk

Eggs Eggs

SoySoy

WheatWheat

ShellfishShellfish

•Sesame allergies are on the rise.

Typical Allergy Symptoms Typical Allergy Symptoms

HivesHives SwellingSwelling CrampsCramps NauseaNausea VomitingVomiting DiarrheaDiarrhea Itchy, watery eyesItchy, watery eyes

Shortness of breathShortness of breath

CoughingCoughing Wheezing Wheezing Runny NoseRunny Nose Reduced Blood Reduced Blood

PressurePressure FaintingFainting ShockShock Feeling of Feeling of

Impending DoomImpending Doom

AnaphylaxisAnaphylaxis

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

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

Why Should Schools Be Why Should Schools Be Concerned?Concerned?

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

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

Why Should Schools Be Why Should Schools Be Concerned?Concerned?

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

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

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

Why Should Schools Be Why Should Schools Be Concerned?Concerned?

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

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

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

Legal FrameworkLegal Framework

Federal LegislationFederal Legislation

Section 504Section 504

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

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

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

34 CFR 34 CFR §§104.33104.33

What Is a Disability?What Is a Disability?

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

Having a record of such an impairment.Having a record of such an impairment. Being regarded as having such an Being regarded as having such an

impairment. impairment.

34 CFR 34 CFR §104.3(j)§104.3(j)

Is a Life-Threatening Food Is a Life-Threatening Food Allergy a Disability?Allergy a Disability?

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

Is a Life-Threatening Food Is a Life-Threatening Food Allergy a Disability?Allergy a Disability?

Breathing and eating are major life Breathing and eating are major life activities.activities.

34 CFR 104.3(j)34 CFR 104.3(j)

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

Is a Life-Threatening Food Is a Life-Threatening Food Allergy a Disability?Allergy a Disability?

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

Is a Life-Threatening Food Is a Life-Threatening Food Allergy a Disability?Allergy a Disability?

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

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

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

Federal Government Federal Government Acknowledges Allergies as Acknowledges Allergies as

DisabilityDisability

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

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

Federal Government Federal Government Acknowledges Allergies as Acknowledges Allergies as

DisabilityDisability

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

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

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

Education?Education? Parents cannot be charged for services Parents cannot be charged for services

necessary for the education of the necessary for the education of the disabled child, unless other students are disabled child, unless other students are also charged. also charged. 34 CFR 34 CFR §§104.33104.33

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

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

Education?Education?

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

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

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

to a Student with Food to a Student with Food Allergies?Allergies?

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

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

504 Enforcement 504 Enforcement MechanismsMechanisms

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

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

504 Enforcement 504 Enforcement MechanismsMechanisms

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

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

504 Plans504 Plans

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

504 Plan Should Address . . . 504 Plan Should Address . . .

School bus School bus Classroom Classroom Substitutes Substitutes ““Special” classesSpecial” classes LunchroomLunchroom RecessRecess

504 Plan Should Address504 Plan Should Address

Medication storageMedication storage Parent volunteersParent volunteers BathroomsBathrooms PlaygroundPlayground Drinking fountainDrinking fountain AssembliesAssemblies Field TripsField Trips

IDEAIDEA

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

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

IDEAIDEA Qualified students are entitled to an Qualified students are entitled to an

Individualized Education Program that Individualized Education Program that addresses the special services to be addresses the special services to be provided to the student.provided to the student.

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

ADA - Americans with ADA - Americans with Disabilities ActDisabilities Act

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

42 USC 42 USC §§ 12132 12132

Americans with Disabilities Americans with Disabilities ActAct

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

28 CFR 28 CFR §§ 35.104 35.104

Americans with Disabilities Americans with Disabilities ActAct

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

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

Harassment ConcernsHarassment Concerns Both federal and state laws prohibit harassment Both federal and state laws prohibit harassment

of individuals who exercise their rights under of individuals who exercise their rights under these statutes.these statutes.

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

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

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

Food ServiceFood Service

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

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

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

7 CFR 7 CFR §§ 15b 15b

Michigan Legislation Michigan Legislation

Public School’s Duty to Public School’s Duty to Provide a Safe EnvironmentProvide a Safe Environment

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

MCL §380.10MCL §380.10

Revised School Code Revised School Code Section 1179Section 1179

Students may possess and use Students may possess and use epinephrine at school or school-epinephrine at school or school-sponsored event under the following sponsored event under the following conditions:conditions:– Student has written approval from both Student has written approval from both

physician and parent/guardianphysician and parent/guardian– The principal has received a copy of the The principal has received a copy of the

written approvalswritten approvals– Student has an Student has an Emergency Care PlanEmergency Care Plan on on

file.file.

Emergency Care PlanEmergency Care Plan

Contains specific instructions on Contains specific instructions on student’s needs.student’s needs.

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

Updated as necessary for changing Updated as necessary for changing circumstances.circumstances.

Food

Alle

rgy A

ction

Pla

nFo

od

Alle

rgy A

ction

Pla

n

Food

Alle

rgy A

ction

Pla

nFo

od

Alle

rgy A

ction

Pla

n

Revised School Code, Revised School Code, Section 1178Section 1178

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

Gross NegligenceGross Negligence

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

Willful or Wanton Willful or Wanton MisconductMisconduct

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

Governmental ImmunityGovernmental Immunity

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

MCL § 691.1407 MCL § 691.1407

Persons with Disabilities Persons with Disabilities Civil Rights ActCivil Rights Act

Prohibits discrimination by Prohibits discrimination by educational institutions. educational institutions. MCL § 37.1402MCL § 37.1402

Follows similar analysis as ADA Follows similar analysis as ADA claims.claims.

Affords aggrieved individuals a Affords aggrieved individuals a private cause of action as well as private cause of action as well as administrative remedies. administrative remedies. MCL § MCL § 37.160537.1605

Proposed LegislationProposed Legislation

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

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

Food Allergy and Food Allergy and Anaphylaxis Management Anaphylaxis Management

ActAct Versions in both the United States Versions in both the United States

House and Senate.House and Senate.

Currently in House and Senate Currently in House and Senate Committees.Committees.

H.R. 2063 and S.1232H.R. 2063 and S.1232

Food Allergy and Food Allergy and Anaphylaxis Management Anaphylaxis Management

ActAct

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

State of Michigan House Bill State of Michigan House Bill 5052 5052

Sponsored by Representative Fran Sponsored by Representative Fran Amos.Amos.

Introduced on July 24, 2007.Introduced on July 24, 2007.

Currently before Committee on Currently before Committee on Education.Education.

House Bill 5052House Bill 5052

Would require the Department of Would require the Department of Education, in conjunction with the Education, in conjunction with the Departments of Agriculture and Departments of Agriculture and Community Health, to do the following:Community Health, to do the following:– Review and revise as necessary all Review and revise as necessary all

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

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

House Bill 5052House Bill 5052

Model Policy would address the Model Policy would address the following:following:

– TrainingTraining– Storage of medicationStorage of medication– Standardized Emergency Care PlansStandardized Emergency Care Plans– Individual Health Care Plans for students Individual Health Care Plans for students

with life-threatening allergieswith life-threatening allergies

Creating a Safe Creating a Safe Environment for Environment for

Students with Food Students with Food Allergies Allergies

Requires a Team Requires a Team ApproachApproach

ParentsParents Notify the school. If possible, for a Notify the school. If possible, for a

new student, the year before the new student, the year before the student starts.student starts.

Provide medical documentation.Provide medical documentation. Coordinate preparation of the Food Coordinate preparation of the Food

Allergy Action Plan with the Allergy Action Plan with the student’s doctor, the school nurse, student’s doctor, the school nurse, administration and the teacher.administration and the teacher.

ParentsParents

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

Provide safe food for the student.Provide safe food for the student.

Educate and advocate.Educate and advocate.

Provide current emergency contact Provide current emergency contact information.information.

TeachersTeachers

Know the symptoms of an allergic Know the symptoms of an allergic reaction.reaction.

Keep information about the student Keep information about the student readily accessible to substitutes.readily accessible to substitutes.

Ensure that lesson plans involving Ensure that lesson plans involving food are safe.food are safe.

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

TeachersTeachers

Know how to administer epinephrine.Know how to administer epinephrine.

Avoid cross contact or contamination Avoid cross contact or contamination in the classroom. in the classroom.

Teach tolerance in the classroom.Teach tolerance in the classroom.

Create class awareness.Create class awareness.

School NurseSchool Nurse

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

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

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

School NurseSchool Nurse

Check medication for expiration dates.Check medication for expiration dates.

Meet with parents.Meet with parents.

Meet with the student.Meet with the student.

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

PrincipalPrincipal• Create a food allergy management plan Create a food allergy management plan

for your school.for your school.

• Educate staff.Educate staff.

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

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

How is Michigan Doing?How is Michigan Doing?

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

Avoidance strategies were deficient.Avoidance strategies were deficient. Lack of Emergency Action Plans.Lack of Emergency Action Plans. Epinephrine not easily accessible.Epinephrine not easily accessible.

Annals of Allergy, Asthma and Immunology, Vol. 86, 172-Annals of Allergy, Asthma and Immunology, Vol. 86, 172-176176

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

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

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

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

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

Questions?Questions?Regan K. DahleRegan K. Dahle

Butzel LongButzel Long

dahle@butzel.comdahle@butzel.com