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.
Strategic tips:
- 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
* If you found this post helpful, I would love for you to use the “Sharing Is Caring” bar (below) to share this post via Facebook or Twitter. If you’re reading this as an e-mail message, you need to jump over to my blog first by clicking here.
** Kim Middleton is a Team Anaphylaxis Member and the Founder of the Inland Empire Food Allergy Support Coalition.
I have to agree with Gail. One of the reasons we decided to home school was because we didn’t believe our district was competent to manage our child’s condition. We chose to terminate the services of public school as they failed us. That’s why we requested a ruling only. When it comes to anaphylaxis, there are no “do-overs.” We were unwilling to sacrifice our child’s quality of life and safety with further violations in which OCR would just say “try again.” I realize that not every parent can, or desires to home school their child, but, I’d suggest parents advocate for their child ultimately keeping in mind how far they’re personally willing to go to escalate matters, up to and including pursuing alternate educational options.
This really resonates: “But that said, I agree that it is important to the greater community of our kids with LTFAs that OCR receive complaints showing them and validating the nationwide problem that our schools do not know how Section 504 applies to children with LTFAs.”
OCR needs to hear from us. LOUDLY.
Goodluck Stacey! I’m glad you found this helpful!
I requested a 504 last year and the Principal (504 site coordinator) informed me that 504’s are not for food allergies and that my child needs a medical plan. I was livid!
Not truly knowing my rights, I decided to allow them to call it whatever they wanted, I just wanted my child’s needs met. Well…..things fell throught the cracks and I never felt confident that they were taking it seriously.
Finally, this summer I emailed the superintendent directly informing her of what had happened and telling her she needs to follow this through to its completion. Needless to say, tomorrow we are having a Preliminary 504 meeting with the Principal and the Director of Pupil Services.
Gathering my paperwork and ready to be the advocate my child needs me to be.
Thank you for this blog. Never knew about OCR! Will document it all and ask to record the 504 meeting.
I think Paula is conveying that you might not want to expect the same results from your regional office that Kim received from her regional office. And Regional Offices are not required to use the findings from other Regional Offices. So you can show them favorable findings from other PA cases without any effect. In general, OCR focuses on the whether of not the District followed the procedures properly. If OCR determines that the District has not, then (in Paula’s case) they have simply asked the District to do it again. The District might make their changes very slowly–over 4 years in Paula’s case. Rarely it seems has OCR made determinations as to whether or not the decisions made by a District are correct– they focus on the loops (procedural safeguards) the District is required to jump through, and if a hoop is missed, then OCR is likely to simply ask them to try again.
It can be very frustrating. And it may not be worth that frustration. But that said, I agree that it is important to the greater community of our kids with LTFAs that OCR receive complaints showing them and validating the nationwide problem that our schools do not know how Section 504 applies to children with LTFAs.
(Just MHO, if your District is violating procedural safeguards, I’d try to get that documented in writing via email. If you end up filing a complaint with OCR, you will need proof of the violation and often your account of what a staff member said verbally is easily refuted by the District. Document, document, document.)
I have heard that some regional OCR offices are much better than others, both in responsiveness and in understanding how food allergies qualify as a disability. We worked with the San Francisco office, and for us it was a smooth process. It distresses me to hear that not all OCR offices are performing up to par.
I know of others who have had success filing with the USDA. That’s good advice for those who might be dealing with an ineffective or unhelpful OCR regional office.
As far as a 504 Plan being portable, this is what OCR says:
15. Once a student is identified as eligible for services under Section 504, is that student always entitled to such services?
Yes, as long as the student remains eligible. The protections of Section 504 extend only to individuals who meet the regulatory definition of a person with a disability. If a recipient school district re-evaluates a student in accordance with the Section 504 regulatory provision at 34 C.F.R. 104.35 and determines that the student’s mental or physical impairment no longer substantially limits his/her ability to learn or any other major life activity, the student is no longer eligible for services under Section 504.
I’d just like to share with everyone that we have been battling our school district for 4+ years for a 504 designation for our child. We have filed OCR complaints with both the USDA OCR and the Dept of ED OCR. However the Ed OCR is a much slower process and allows for the school district to enter into a Voluntary Agreement if you don’t go the route of Early Complaint Resolution (which I don’t recommend if you want the backing of the Federal authority). The Ed OCR has allowed the District in our case to drag out the process for 3+ years continually not complying with the voluntary agreement deadlines time after time. We have had to gain the help of our US Senators and Representative to light a fire,.. well the spark of a fire anyway — we’re still awaiting the fire — under them. On the USDA side the agency through advisement under the Department of Justice issued a Decision which our district has refused to comply with. Ordering the immediate reinstatement of our child’s 504 plan. Needless to say that the USDA will likely now go back to the US Dept of Justice for enforcement if they continue to refuse compliance
At the Ed OCR it’s VERY VERY (did I say VERY) difficult to get responses. KEEP ON THEM LIKE GLUE — don’t be afraid to get constituent help from your US Congressmen. Keep in their face and climbing up their ladder to the DC office is of no help unfortunately. They almost never return calls, letter, emails at least not from our regional office. But I refuse to give up.
At the USDA OCR — which has it in their Federal Guidance for schools (Accommodating Children With Special Dietary Needs) if they receive federal funding — which often times includes private education facilities as they only funds for lunch programs. They’re still required to follow the federal laws then under Section 504. The USDA is better at getting back with you, keep on the regional director, and then don’t be afraid to contact Washington and keep climbing up the ladder.
Don’t ever give up the rights for your child. Know that you are in the right in fighting for their disability rights under Section 504. I am not an attorney and I offer my advice as a parent who has been there doing that and still doing it and will continue to do it till it’s done right.
I’d love to know if anyone else has had any of the same experiences. I’m excited when I read posts and articles when schools ‘get it’ and children get the protections under Section 504.
Also,.. earlier there was a post that stated the 504 carried over from one school district to the next — not true. One school to another within the same district yes. As a new student enrolling within a new district they are still held to the Child Find Mandate and the rules and regulations under Section 504 which requires them to evaluate your child again under 504. However previously having a designation under 504 makes it an almost ‘win’ but the motions have to be gone through.
Thanks.
Thank you for all of your help Kim! I am having a hard time getting someone from OCR to call me back. I left messages with the regional OCR and on the OCR hotline. I will request a copy of their 504 procedures and policies at our meeting on Thursday morning. I wanted to have my ducks in a row before then, but if no one will call me back from OCR, that’s not going to happen.
Hi Rachel, you don’t want the LA state Dept. Of Education, you want The Office for Civil Rights. This is who she/you needs to receive assistance from:
Office For Civil Rights
Arkansas, Louisiana, Mississippi, Texas
Office for Civil Rights,
Dallas Office
U.S. Department of Education
1999 Bryan Street, Suite 1620
Dallas, TX 75201-6810
Telephone: (214) 661-9600
Facsimile: (214) 661-9587
Email: OCR.Dallas@ed.gov
I would make a phone call Monday morning and let them know that your school is refusing your child a 504 Plan to accommodate a life threatening medical disability. That is a violation of Section 504 procedural safeguards.
Here’s an article that might be helpful to anyone in a similar situation being denied a 504 plan for food allergies.
http://www.wrightslaw.com/blog/?p=58
Hi Janna, I don’t think you need legal counsel. However, it would be wise to ask for their 504 policy in writing because that is going to provide solid proof to OCR that they are out of compliance. I think OCR is going to help you straighten out this mess. Glad you are following through!
Update: I, too, have hit a roadblock. The 504 Supervisor for our school says a medical plan should be sufficient. We are waiting to hear what she finds out when she contacts our state department. We are in Louisiana.
Just sharing an update on our situation. I talked with the 504 coordinator this morning and she also swears that is how they handle 504s (with the point system classroom eval). She said they “used to do it like your previous school, but “”they”” changed the procedure in the past couple of years”. I’m not sure who they is yet or why there were procedural changes. I called FAAN and they told me to get a copy of “their” procedures and then to call OCR. He also suggested that I look into getting some legal counsel. I called The Dept. of Education OCR in my region and left a message with them to call me back. That’s where we’re sitting at the moment. This is all so unnecessary and frustrating. Thank you so much for your help and guidance!
Once a student has been found eligible for a 504 Plan, he does NOT need to re-qualify each year. A 504 Plan carries over from year to year. 504 Plans are portable and accompany a new student to a new school/district.
That said, 504 teams should meet to do an annual review to determine if any changes need to be made. It is a dynamic document and can be modified at any time during the school year (with mutual agreement) by requesting a 504 team meeting.
A school in a different district should meet to review the 504 Plan a new student already has and make mutually agreed upon additions, or modifications to address the unique respects of their school site if necessary. The school should not remove any accommodations unless there is a change in the student’s disability meriting such removal.
If the new school refuses parent requested accommodations, or removes them without mutual consent, they must do actions #2 and #3 detailed in the article. If they don’t, they have violated procedural safeguards and the parent can file a complaint with OCR.
Are you kidding me!!! They told me “I don’t know how his previous school did it, but this is how this district does it”. His previous school, we met with the teacher and the principal, filled out some forms and we had our 504. I KNEW it didn’t sound right. I can’t wait to stick it to these uncooperative people and this is a big step in the right direction for that to happen. They are so resistant to keeping him safe. Thank you SO MUCH!
Janna, yes, you could file a complaint with OCR, they are violating the procedural safeguards under Section 504. Perhaps they are confusing an IEP with a 504 Plan. There is no performance assessment whatsoever involved with 504 Plan. It has nothing to do with intellectual ability or any kind of point system. The only criteria that should be considered in evaluating a food allergic child for a 504 plan is a medical diagnosis of a severe food allergy or potential for anaphylaxis from your physican. In other words, a letter stating that your child has a severe food allergy for which epinephrine has been prescribed.
I would suggest the 504 Coordinator at your school place a call to OCR and ask for “technical assistance” for guidance, or let them know you’d be glad to do so on their behalf.
My son’s school is refusing to have a 504 meeting before school starts because they want to assess his disability (food allergy) based on his performance in school using a point system in his classes done by his teachers. Can I file an OCR complaint on that?
Thank you! Very helpful info. Starting kindergarten is scary so this will help me to be better prepared
I just finished sending an email to the school’s principal and the grade-level teachers. I referenced this blog and the recommendation to meet prior to the start of the school year. I have requested that a meeting be scheduled before Michael’s first full day of classes (Aug 14). Praying for a positive response! Thank you for your help.
Thank you Gina! I hope the article encourages even one parent that they can do it. Just having a 504 isn’t good enough. We all have to make sure that it’s being enforced. Until we really hold schools accountable, I believe nothing will change.
Rachel, I understand from your post you don’t have a school nurse, but what about a district nurse? If it were me, I would literally show up at the principal’s office and sit there until I was granted a meeting to discuss how school staff plans to ensure my child’s safety and address his/her unique needs in order to satisfy his/her right to a Free and Appropriate Public School Education. If you haven’t already, make sure that you request a 504 eligibility evaluation in writing. The clock starts ticking with that action and they only have so much time to respond. Please feel free to contact me directly if I can help with the particulars of your situation going forward. My email is kim_iefas@rocketmail.com or through my support group page on Facebook: Inland Empire Food Allergy Support Coalition
Thank you for your post! I am a basketcase! My oldest is starting Kindergarten this year. Kids start back Aug 8th. I took the school our paperwork from the doctor on July 10th, but nothing has been done with it. I was told that the school nurse quit and that a medical plan could not be written until a new one was hired, which may or may not be before school starts. Kindergarteners report for their first full day of class Aug 15th. I am hoping we will have SOMETHING in writing before then!
Thanks for sharing your experience Kim! I also appreciate the fact that you had the courage to stand up for your child’s rights. By standing up, you have made it easier for the rest of us to fight for our children’s rights, if needed, by creating another precendent. Excellent article!