By Kim Middleton**
The most stressful time of year for parents of food allergic children is upon us. If you are on Facebook, you are deluged by back to school articles offering useful advice on sending children with food allergies to school, negotiating a 504 plan, and tips about great allergy friendly products. The food allergic community does an amazing job of sharing information and educating one another. I will be forever grateful to those who guided me when we began our public school journey several years ago.
However, finding information on what to do when you believe your child’s rights are being violated is harder to come by. For this reason, I’d like to share our family’s recent experience filing a complaint with the Office For Civil Rights (OCR). In doing so, I hope to offer other parents encouragement and demystify OCR.
- Once your child has been found eligible for a 504 Plan (Severe food allergies are considered a disability by the Americans with Disabilities Act Amendment Act, or ADAAA), you should document any violations that occur. It is common for parents to wait to accumulate a laundry list of violations before considering filing a complaint in order to avoid appearing petty or adversarial. The problem with this is that OCR generally will not accept complaints about incidents older than 180 days. If you do not file before then, you lose your ability to use the documentation you so diligently collected. It won’t matter that your child was excluded from class celebrations twenty times if a complaint is not filed within 180 days; it will be as if it never happened.
- Consider tape recording 504 meetings. It provides indisputable documentation of what transpired. I believe it is the reason OCR ruled in our favor. Inquire about your district’s policy before doing so, some require advance notice.
Filing a complaint with OCR is a simple and painless procedure. It requires completing an online complaint form or mailing in a PDF. An OCR representative will contact you to follow up on your complaint. In our case, we filed in late November 2011. Our case was accepted and OCR began an official investigation in January 2012. An OCR attorney interviewed us by phone a few times and we received a ruling in late May 2012. (NOTE: OCR can resolve allegations quickly after opening an investigation using Early Complaint Resolution (ECR) if both parties agree to the approach. In our case, we were only interested in receiving a ruling.)
What we can learn from our OCR ruling:
1. Districts should be offering Section 504 eligibility evaluations for food allergies when students have identified themselves as having a disability (Similar to what OCR Memphis, TN has ruled).
2. When accommodations are requested by parents but denied, the district is required to collaborate with the entire 504 team and document reasons against providing accommodations.
3. Districts are required to provide parents access to student’s educational file so that they can review the documentation used to make placement decision (denial of accommodations).
4. District must provide notice of Due Process Rights when an agreement cannot be reached on placement.
5. OCR does not take a position on allergen free classrooms. Their view is that Due Process is the proper forum for this decision.
6. Schools should not wait until school has already started to hold 504 meetings. Students with life threatening allergies may be put at risk.
7. OCR may require school district to create a Section 504 Handbook and receive training to establish district wide compliance with the provisions of section 504.
In addition to 504 plan violations, parents should know they can file complaints with OCR for violating procedural safeguards one through four outlined above.
When the school district denied our repeated requests for a milk free classroom, we just kept asking. In response, they kept saying they felt “comfortable” with the accommodations they were offering. On tape we asked, “What if we don’t agree?” At no time did they offer us Due Process as required by the provisions of Section 504.
Food allergic children in the United States are entitled to receive a Free and Appropriate Public School Education (FAPE) in the Least Restrictive Environment (LRE). If we have non-compliance in our schools and wish to see change, we must all utilize the agencies tasked to protecting their civil rights (OCR).
To read our OCR ruling, click here -> OCR Ruling
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** Kim Middleton is a Team Anaphylaxis Member and the Founder of the Inland Empire Food Allergy Support Coalition.