Section 504 and Allergies

[anu]

Description – Section 504 is the abbreviation for Title 34 section 504 of the Rehabilitation Act of 1973. It is a civil rights law that prohibits discrimination on the basis of disability. It applies to all institutions, including public schools which receive financial assistance from federal government.

The U.S. Office of Civil Rights (OCR), U.S. Department of Education formally recognizes allergy as a hidden disability. To be covered under Section 504, a student must be "qualified" (which roughly equates to being between 3 and 22 years of age. Impairment as used in Section 504 may include any disability, long-term illness, or various disorders that "substantially" reduces or lessens a student's ability to access learning in the educational setting because of a learning, behavior-, or health-related condition. OCR has 12 enforcement offices nationwide and a headquarters office in Washington, D.C.

Parents can work with physicians and school authorities to make a plan which is most suitable for the student to protect and ensure safety. Example: Kids with severe nut allergies may have all classmates wipe their hands with wipes upon entering classroom.

The American Disability Association Amendment Act (ADAAA) amendment will be effective in January 2009. The amended law explicitly rejects the narrow standards used by the court to determine who has a disability. After implementation of this Act children would be entitled to reasonable accommodation under section 504. For example, one school district argued that because a 6yo with a life-threatening nut allergy could care for himself about as well as other 6yos, and because he could breathe just fine when not suffering from anaphylaxis, he wasn't substantially limited and didn't have a disability under 504. Other 504 situations involved children with disabilities who are unable to obtain 504 plans with appropriate behavioral supports and access to appropriately challenging school work.

In addition to Section 504, OCR enforces two other federal civil rights laws. Title II of the Americans with Disabilities Act of 1990 prohibits discrimination on the basis of disability by public entities. The Boy Scouts of America Equal Access Act applies to public elementary schools, public secondary schools, state educational agencies, and local educational agencies that receive federal financial assistance from the Department of Education and that provide an opportunity for one or more outside youth or community groups to meet on school premises before or after school hours. These schools and agencies may not deny equal access or a fair opportunity to meet to, or may not discriminate against, the Boy Scouts and certain other patriotic youth groups

Allergy symptoms that qualify:
chronic asthma
severe allergies
digestive disorder

Section 504 does not a guarantee a student to be classified right on referral.

Section 504 process is a joint effort between parents and school official. Parents or doctors can send a student for consideration however the school district must also have a reason to believe that the child is in need of services under Section 504 due to allergies. Parents referral is not mandatory. A school district can classify a student under Section 504 even without parent involvement, however the school district must give written notice to parents. This determination is made on a case-by-case basis.

Will my child still be in the regular classroom or will he/she be in a "special class"?

A Section 504 eligible child will always be in the regular classroom unless (according to federal regulations): "... the student with a disability is so disruptive in a regular classroom that the education of other students is significantly impaired, then the needs of the student with a disability cannot be met in that environment. Therefore, regular placement would not be appropriate to his or her needs and would not be required by §104.34" (34 C.F.R. §104.34, Appendix A, #24).


Will my child still be able to participate in non-academic services?

Yes. Districts must provide equal opportunity in areas such as counseling, physical education and/or athletics, transportation, health services, recreational activities, and special interest groups or clubs. However, the "no pass, no play" standard used for students in most states also applies to students under Section 504 (34 C.F.R. §104.37).

Are All Students with Food Allergies Eligible For 504 Plans?

Likely not. In order to be considered eligible for a 504 Plan, a student must have a condition that "substantially limits one or more major life activities," which are then defined further within the law. In order to determine eligibility, students are evaluated by the school district prior to creating the 504 Plan (if students are denied 504 Plan protection, parents have the option to appeal the ruling).

Examples where Section 504 and Title II does not apply:

If a student has an egg allergy, and the only limitation associated with this impairment is a mild skin reaction, then that student’s egg allergy would not make the student an “individual with a disability,” because the impairment does not substantially limit a major life activity.

A kindergarten student with an anaphylactic peanut allergy who cannot yet read would almost certainly be considered eligible under the terms of the law; a high school student of normal intelligence with a milk allergy whose major symptom is rhinitis likely would not.

Once the evaluation is done there is extensive process that one has to take care of for a student to qualify under Section 504.

Please do not substitute this information for independent and individual legal advice. Such advice should be sought from a licensed, qualified attorney in the field of Section 504 disabilities. Every situation is different, and a good assessment of the risks involved in your particular situation can only be determined by consulting with your attorney and providing him or her with all of the relevant factual data. Sometimes just one "minor" detail can make a material difference in the outcome of a case.