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May 20, 2006
Section 504 Primer and Child Food Allergies
NOTE: This entry is for your information only. ChildFoodAllergy.com recommends seeking the advice of a competent legal professional with regard to ADA and Section 504 matters.
Our friends at foodallergyadvocate.com published this primer on Section 504 that dives into the details of the law and its protections.
SECTION 504 PRIMER FOR PARENTS & EDUCATORS OF CHILDREN WITH FOOD ALLERGY AND ASTHMA
Overview
"What are Section 504 and IDEA exactly and how might they pertain to my child with food allergy and asthma"? These are the questions I asked myself two years ago. These are my personal thoughts on the issue, and this article is not advice. This article is my understanding of how the law works based on my research, telephone conversations with my State Department of Education in Connecticut, and my many telephone conversations and e-mails with agents at the U.S. Office for Civil Rights in Boston, Massachusetts. I am not a doctor or a lawyer; I am a certified public school teacher and the parent of a child with severe peanut allergy. Please note that no 504 Plan can ensure the safety of your child, and only you, your physician and your school district can work together to create a 504 Plan that is appropriate for your child. This information is not intended to replace the medical advice, prescriptions or treatments prescribed by your doctor.
Note: This analysis pertains to schools that receive federal financial assistance (FFA) from the federal government.
WHAT IS SECTION 504?
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 the federal government. In the public school context, children with disabilities may be protected under Section 504, IDEA or both. Parents and educators may view the full original text of Section 504, Subpart D – Preschool, Elementary and Secondary Education, Regulations 104.31-104.39 at the U.S. Office for Civil Rights web site.
(Office for Civil Right Home Page, “Title 34—Education, Subtitle B – Regulations of the Offices of the Department of Education, Chapter 1, Office for Civil Rights, Part 104, Non Discrimination on the Basis of Handicap in Programs or Activities Receive Federal Financial Assistance.” < http://www.ed.gov/offices/OCR/regs/34cfr104.html>.)
WHO IS ELIGIBLE FOR PROTECTION UNDER SECTION 504?
“The ED [U.S. Department of Education] Section 504 regulation defines an ‘individual with handicaps’ as any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.
The regulation further defines a physical or mental impairment as
(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The definition does not set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list…”
(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973.” January 1, 1995. < http://www.ed.gov/offices/OCR >. Keywords: hidden disabilities.)
WHAT IS THE KEY FACTOR THAT DETERMINES WHO IS ELIGIBLE FOR PROTECTION UNDER SECTION 504?
“The key factor in determining whether a person is considered an ‘individual with handicaps’ covered by Section 504 is whether the physical or mental impairment results in a substantial limitation of one or more major life activities. Major life activities, as defined in the regulation, include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973.”)
HOW IS A CHILD WITH FOOD ALLERGY ELIGIBLE?
Children protected under Section 504 are commonly those with ADD, ADHD, OCD, Diabetes, AIDS, Asthma (that does not affect educational performance) and allergy just name a few. The criteria by which a child with severe food allergy is eligible for protection under Section 504 is that the physiological condition / disorder of food allergy affects the respiratory, digestive, cardiovascular and skin body systems. The physical impairment of food allergy could substantially limit breathing during an anaphylactic reaction. In addition, the U.S. Office for Civil Rights U.S., Department of Education formally recognizes “allergy” as a “hidden disability.”
(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973.”)
WHAT ARE HIDDEN DISABILITIES?
“Hidden disabilities are physical or mental impairments that are not readily apparent to others. They include such conditions and diseases as specific learning disabilities, diabetes, epilepsy, and allergy. A disability such as a limp, paralysis, total blindness or deafness is usually obvious to others. But hidden disabilities such as low vision, poor hearing, heart disease, or chronic illness may not be obvious. A chronic illness involves a recurring and long-term disability such as diabetes, heart disease, kidney and liver disease, high blood pressure, or ulcers."
(“The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 19743.”)
HOW DOES SECTION 504 HELP A CHILD WITH SEVERE FOOD ALLERGIES?
The legislators who wrote Section 504 purposely used broad and relatively non- prescriptive language so that the law would encompass a wide range of disabilities. Schools must give children protected under Section 504 an “individualized educational program” with “accommodations.” This program usually takes the form of a 504 Plan. The 504 Plan lists and explains the formal accommodations and modifications that will be made to the public school environment to ensure the least restrictive learning environment (LRE). The LRE must provide equal opportunities for children protected under Section 504 to the maximum extent possible as their non-disabled peers. A 504 Plan for a children with food allergy should have many components to address important food allergy issues so affected children have the best possible chance of staying safe.
(e.g., Amy is contact allergic to peanuts, one accommodation to the learning environment might be: All children in Amy’s class will wipe their hands with wipes upon entering the classroom.)
DOES THE WORD “REASONABLE” APPLY TO SECTION 504 “ACCOMMODATIONS” IN ELEMENTARY AND SECONDARY EDUCATION?
“The clear and unequivocal answer to that is no.” (OCR Policy Letter to Zirkel, 20 IDELR 134, 8/23/93.)
Dr. Perry A. Zirkel is a professor of education and law at Lehigh University. Dr. Zirkel is a “nationally recognized authority on special education law in general, and Section 504 in particular. [He] wrote the federal Office for Civil Rights for an interpretation” (Reed Martin) of whether or not the “reasonable” limitation applies to elementary and secondary students the same way it applies to employees or postsecondary/vocational students. The U.S. Office for Civil Rights responded to Zirkel’s letter, and it was signed by the chief officer for civil rights in the U.S. Department of Education.
Posted by David at May 20, 2006 5:12 PM