The child’s doctor wrote,“… the Student is extremely allergic to peanuts and tree nuts. These allergies can cause anaphylaxis, which is a life threatening condition. Symptoms from anaphylaxis include itching, hives, difficulty breathing, swelling, closure of the airway, vomiting, diarrhea, drop in blood pressure, and can even result in death, as evidenced by the 500 people per year in the United States who die from allergic reactions to food.”“The Student’s reactions are so severe that she has developed hives from being kissed on the cheek by someone who ate peanut butter. She has reacted after handling peanut butter cookie dough, even though she didn’t ingest it. She has also reacted after eating cheese from a salad bowl that previously contained a dressing with walnuts in it. I’m sure you are aware of the recent incident involving a Canadian girl with a peanut allergy who died from anaphylaxis after kissing her boyfriend who had eaten peanut butter earlier in the day. Thus, it is important to take these potential reactions seriously.”
Can you imagine the anxiety this child and her family live with, day after day, year after year? Surely, the teachers and administrators at her school will do whatever they can to help.
The family requested that the school develop a Section 504 plan to address the child’s allergy related needs and ensure a safe educational environment for her. The laws require that information from all sources is documented and carefully considered when evaluating students to determine their eligibility.
At this child’s eligibility meeting, six school team members – the school principal, the Section 504 chairperson (also the assistant principal), the school counselor, the school nurse, the child’s teacher, and a paraprofessional who worked in the classroom – determined that the child did not have a disability and was not eligible for services and protections under Section 504.
A complaint was filed with the Office of Civil Rights alleging that Gloucester County VA Public Schools discriminated against the child on the basis of her disabilities, denied her a free and appropriate public education that addressed her needs, and failed to ensure a safe educational environment.
“Extraordinary Circumstances” Allow OCR to Investigate
Although the Office of Civil Rights does not usually review individual educational decisions, they may investigate under “extraordinary circumstances.” In the Gloucester County VA Public Schools case, they looked at:
“… the nature and severity of the harm that could result from the school division’s failure to provide a student with a disability with Section 504 services. When a school division’s decision that a student is ineligible for Section 504 services could result in the death or serious illness of the student, there is a basis for finding that the case involves ‘extraordinary circumstances’ that support a substantive OCR review of the decision.”
OCR reviewed the correspondence from the child’s doctor describing the severity of her condition, information that was provided to Gloucester County Public Schools but ignored by the school. OCR expressed concerns that:
“… the evidence from the Student’s doctor was not contradicted by any other evidence, and that neither the evaluation team members nor anyone with whom they consulted had qualifications approaching those of the Student’s doctor to diagnose the nature and severity of the Student’s PTA and the likelihood, nature and severity of the harm that could result from the Division’s failure to find the Student eligible for Section 504 services.”
OCR found that Gloucester County Public Schools had their own documentation of the child’s allergies, including:
- meeting minutes that describe the child has having “a life threatening food allergy” that were signed by signed by six school staff members
- the child’s “Individualized Health Care Plan” which described the child has having “a severe allergy to peanuts/treenuts which can be life-threatening” signed by two staff members
Based on the evidence, “we find that the Division’s decision that the Student is ineligible for Section 504 services could result in death or serious illness of the student, and that this case therefore involves ‘extraordinary circumstances’ that support a substantive OCR review of the result of that decision.”
As a result of this investigation, Gloucester County Public Schools signed a Agreement to reevaluate the Student to determine if she is eligible for services under Section 504 and Title II, and will comply with 504 procedures this time. OCR provided Gloucester County Public Schools with several sample 504 Plans.
The resolution letter concludes with this statement:
“We remind the Division that it may not harass, intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the laws OCR enforces. If any individual is harassed or intimidated because of filing a complaint or participating in any aspect of OCR case resolution, the individual may file a complaint alleging such treatment.”
Read the full text of the Resolution/Closure Letter from OCR to the attorney representing Gloucester County Public Schools:
Gloucester County Public Schools is fortunate that OCR intervened. If this child, or another child, had a fatal allergic reaction after the school team refused to accommodate her well-documented allergic condition, they would be in very hot water. Consider the probability that a fatal allergic reaction would be witnessed by her classmates.
If you have a child with a peanut and tree allergy (PTA), you may need to educate your school district about the severity and unpredictable nature of these allergies. This OCR Resolution letter should help your district understand their legal responsibilities under Section 504. Learn more about Section 504 of the Rehabilitation Act.- See more at: http://www.wrightslaw.com/blog/?p=58#sthash.M7IkKEMG.dpuf