COVID-19 and Civil Rights Advocacy Efforts

The COVID-19 Pandemic has effected every aspect of our lives, including the rights of individuals with food allergies. FAACT\'s Civil Rights Division has been and is still actively monitoring and researching the impact of COVID-19, related directives and guidelines, school closures, and the impact of the CARES Act on the rights of individuals with food allergies. Additionally, we have been compiling data regarding issues reported to us via email and social media. This article will provide an overview of the issues that FAACT has identified, the efforts of FAACT to advocate on a large scale for individuals with food allergies, and suggestions for parents of students with food allergies on how to begin preparing for the return to in-person education.

FOOD ALLERGIES AS A DISABILITY

The U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice have determined that food allergies may be deemed a disability that requires accommodations under federal disability laws and regulations such as Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act, and the Americans with Disabilities Act, and the ADA Amendments Act of 2008. Students with food allergies, a protected disability that affects one or more major life activity including, but not limited to, eating, breathing and the major bodily functions of the immune, digestive, respiratory, and circulatory systems, are at a great risk of an allergic reaction when their allergens are present in the classroom. The CDC’s own “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Educational Programs” (on which Eleanor Garrow-Holding, FAACT’s President and CEO, served as an expert panelist for the development of) recognizes that the implementation of said guidelines “must be implemented consistent with applicable federal and state laws and policies.” Additionally, on April 27, 2020 the U.S. Secretary of Education, Betsy DeVos, announced that she would not seek any waivers under the CARES Act of students’ rights afforded under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act. Instead Secretary DeVos held that schools must continue to accommodate students with disabilities, including providing a free and appropriate public education (“FAPE”) in the least restrictive environment.

ALLERGENS IN THE CLASSROOM

While prohibiting the consumption of allergens in the classroom would seem like an easy mitigation of this risk, this approach is not a universally accepted approach. Since FAACT’s launch in January 2014, FAACT’s Civil Rights Advocacy Division has assisted over 4,000 families, many of whose main concern was a school refusal to prohibit a student’s allergens from being consumed in the student’s classroom. Through FAACT’s advocacy and assistance, many of these families who were facing the challenge of schools failing to exclude their student’s allergens from the classroom were able to receive accommodations requiring food items to be consumed outside of the classroom. FAACT, along with these families as well as others in the food allergy community, were concerned that COVID-19 guidance documents for schools that propose the alternative of consuming meals in classrooms could possibly undermine these accommodations. 

CDC GUIDANCE

In March of 2020, the Center for Disease Control and Prevention (“CDC”) released an early version of a school guidance document titled “Interim Guidance for Administrators of U.S. K-12 Schools and Child Care Programs to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19)”.  On page 9 of this guidance document, it is recommended “[w]hen there is minimal to moderate community transmission” schools “[a]void mixing students in common areas. For example, allow students to eat lunch and breakfast in their classrooms rather than mixing in the cafeteria.” The guidance document goes on to set out recommendations on how to limit mingling of students if it is not possible to suspend the use of common areas. Understandably so, the food allergy community is greatly concerned about the consumptions of meals in the classroom. It has been the position of FAACT since its inception that food-free classrooms are ideal and that prohibiting the allergens of a food-allergic student from their classroom is an essential disability accommodation for many students with food allergies.

FAACT sent a letter to Dr. Robert Redfield, the CDC Director, on May 6, 2020 outlining our concerns about the CDC’s recommendation to consume meals in classrooms. The letter outlined the different Federal disability laws that could possibly be violated by restricting the consumption of meals to classrooms. The letter went on to outline the potential issues consuming meals in classrooms could pose for students with food allergies, specifically (1) an increased risk of allergen exposure and reactions, (2) increased risk of anxiety in a student with food allergies, and (3) the risk of students with food allergies fixation on the allergens in the classroom instead of being able to pay attention to the educational instruction taking place in the classroom.  All these scenarios can lead to the denial of a “Free and Appropriate Public Education” (FAPE). FAACT requested that the CDC revise the “Interim Guidance” document to address the concerns and safety of students with food allergies in light of the recommendation to consume meals in the classroom. One specific request was that the CDC include a provision specifically recognizing that classrooms that contain a child with a known food allergy, especially those receiving accommodations through a 504 plan, IEP, or other accommodation plan, be specifically listed as a specific incidence where it is “not possible to suspend use of common areas”, at least for certain portions of the school’s population (i.e. certain classroom bodies of students). This letter to Dr. Redfield was disseminated to FAACT’s email subscribers, our physician database, and was posted on our social media accounts and included in the Civil Rights Advocacy section of FAACT’s website.  The letter and an accompanying email were also sent to the USDA, school administrators, school nurses, and state officials.

On May 19, 2020, the CDC updated its COVID guidance to schools and addressed the concerns FAACT expressed in our May 6, 2020 letter to CDC Director, Dr. Robert Redfield. The CDC’s new “Considerations for Schools" and the May 2020 CDC Activities and Initiatives Supporting the COVID-19 Response and the President\'s Plan for Opening America Up Again include instructions on how to safely use communal areas such as cafeterias, specifically the guidance to “stagger use and clean and disinfect between use”, and the guidance to “ensure the safety of children with food allergies” with a hyperlink to the CDC’s “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs.” The inclusion of this new attention to students with food allergies addresses the concerns FAACT raised in our May 6, 2020 letter to the CDC, specifically the risk of schools denying students the right to accommodations prohibiting the consumption of allergens in the classroom or requiring the consumption of food items outside of the classroom (accommodations encouraged in the CDC’s Food Allergy Voluntary Guidelines), it does not do so in plain and concise language.  

While this update can and should be considered a victory for the food allergy community, FAACT is concerned that the CDC does not specifically and concisely set out the manner in which schools should “ensure the safety” of students with food allergies and instead only includes a link to a 103-page document. Being mindful of the unprecedented burden on school officials and to address the overwhelming concerns of the food allergy community, FAACT sent a follow-up letter to Director Redfield on May 20, 2020 requesting that, in addition to the inclusion of the hyperlink to the CDC’s Voluntary Food Allergy Guidelines, specific language be used in the CDC’s guidance to specifically address students with food allergies in a manner equivalent to students with other disabilities such as asthma.

In “Considerations for Schools”, the CDC addresses “Ventilation” under “Maintaining Healthy Environments” by giving the specific example of “opening windows and doors”. This guidance goes on to instruct “[d]o not open windows and doors if doing so poses a safety or health risk (e.g., risk of falling, triggering asthma symptoms) to children using the facility.” FAACT respectfully requests that the CDC amend the language addressing “Food Services” under the same “Maintaining Healthy Environments” provisions. Sample language was included in the follow-up letter to Director Redfield.

While these revised CDC guidance documents are not as explicit as FAACT would like them to be regarding students with food allergies, they do provide for the arguments that students with food allergies should be provided with a safe learning environment.  Additionally, it is important to note that the CDC guidance documents are VOLUNTARY. The “Considerations for Schools” document starts out by saying “[s]chools can determine, in collaboration with state and local health officials to the extent possible, whether and how to implement these considerations while adjusting to meet the unique needs and circumstances of how to implement these considerations while adjusting to meet the unique needs and circumstances of the local community. Implementation should be guided by what is feasible, practical, acceptable, and tailored to the needs of each community.”

It is important to remember that the CDC’s guidance documents are voluntary. The CDC even states in its guidance documents that approaches will vary due to the different environments and logistical circumstances of individual states, counties, school districts, school buildings and school populations. Also, these documents are still being developed and are subject to many revisions before most schools actually open. New information about COVID is being released daily, and FAACT continues to advocate for students with food allergies.

The most important thing you as a parent of a student with food allergies while waiting to see how these recommendations shake out and while schools are trying to figure out their COVID guidelines and policies is to begin thinking about your individual student’s needs and his or her individual school environment. Disability laws focus on the rights of the individual. It is important for parents or caregivers of students with food allergies to focus on the individual needs of their student. Has your child’s school successfully allowed food in your student’s classroom to your satisfaction previously? Is your student a high schooler who has shown a level of maturity and an ability to safely manage their allergies in environments where his or her allergens are present? Is your student’s only food allergen shellfish? If so, there may not be an urgent need for your child’s class to avoid eating in the classroom (unless shellfish is a common lunch item in your student’s school). This does not mean that these students will not need a 504 Plan.  The student may have asthma that can be triggered by certain cleaning products, by wearing a mask, by having the classroom window open. This student might need accommodations addressing his or her classroom cleaning, allowing him or her to wear a face shield instead of a mask or to forgo a face covering all together, or prohibiting the classroom windows from being opened for ventilation. The student may have anxiety issues that make it too stressful for the student to learn in the in-person setting or may be at high risk for complications from COVID and needs the ability to elect to continue distance learning.

Areas to consider for COVID-related accommodations:

• Meal consumption in the classroom and alternate locations.
• Allergens in the classroom.
• If food is going to be consumed in the classroom, is enhanced cleaning, a larger room where students are going to be spaced further apart, or enhanced prohibition of food sharing needed.
• Enhanced handwashing.
• Face coverings for students with asthma.
• Cleaning protocols and cleaning products for students with asthma and/or allergies to cleaning products.
• Option to elect to utilize distance learning even when other students are participating in in-person education.

If your student does not have a 504 plan in place, but you foresee possibly needing accommodations when in-person education returns, you can refer your student for a 504 plan evaluation now. Once you make the referral or if your student already has a 504 plan, begin brainstorming the accommodations your student might need. In addition to the COVID-related area of concerns above, a list of sample accommodations can be found in FAACT’s Civil Rights Advocacy Resource Center. And remember, FAACT offers complimentary one-on-one communication with FAACT’s Civil Rights Advocacy staff.

CONCERNS REGARDING ACCESS TO USDA SCHOOL NUTRITION PROGRAMS

FAACT has been in communication with the Civil Rights Officers with the USDA regarding the effect of COVID on the guidelines and requirements set out in “Accommodating Children with Disabilities in the School Meals Programs: Guidance for School Food Service Professionals”.  After being assured that SFAs are still currently required to provide necessary meal modifications if they are providing meals under a USDA program during the pandemic, FAACT sent a letter to the USDA on May 11, 2020 addressing three areas of concern: the availability of meal substitutions under current meal distribution models, the distribution of unsafe foods to students under current meal distribution models, and the responsibility to provide students with a “safe environment to consume the meal” once schools reopen.  

Under current meal distribution models, including “grab and go” meals, families are unsure of how to request and ensure modified meals for students who had approved meal modifications prior to school closures due to the pandemic. School districts across the country do not seem to have a consistent approach, if they have an approach at all, regarding contacting families of students who were receiving modified meals prior to the pandemic (1) to determine if the student needs meals during pandemic school closures and (2) to inform these families how to go about requesting or receiving said modified meals. Additionally, families across the country are struggling with food insecurity at increased rates during the pandemic. Families who elected to provide meals themselves for their children with special dietary needs may now need to access school nutrition programs due to the financial effects of COVID-19. There is no consistent guidance being offered to these families as to how to request and receive approval for new meal modifications, nor is there a consistent approach by school districts to identify these students who may not have previously participated in the school nutrition program. Furthermore, parents are concerned about utilizing meal services under the current distribution models due to fears that the food items contained in these meals may contain their student’s allergens. One example of this is a school district who included dyed, hard-boiled eggs in their “grab and go” meals at Easter. This would not be appropriate for student who is allergic to eggs, one of the “Top 8” food allergens.  

Additionally, “Accommodating Children with Disabilities in the School Meal Programs; Guidance for School Food Service Professionals” instructs SFAs to provide students with a “safe environment to consume the meal”. FAACT then set forth it’s position that requiring the consuming meals in classrooms that contain a student with known food allergies as suggested by the CDC guidance could deprive these students of the required safe environment to consume their meals and is in contradiction to protections afforded them by Federal disability laws.

There are going to be few, if any, perfect solutions during the COVID Pandemic. It is important to maintain a collaborative approach with your school in order to reach an agreement that works for both your student and the school. School administrators are in uncharted waters and new things about COVID are learned every day. During this time when everything is extremely fluid, FAACT remains dedicated to advocating for the rights of individuals with food allergies. We have ongoing advocacy efforts directed at various agencies, organizations, and entities. Be on the lookout for future updates.

We ask that anyone who has concerns or experiences disability discrimination during these trying times, contact FAACT’s Vice President of Civil Rights Advocacy at: Amelia.Smith@FoodAllergyAwareness.org.

Additionally, FAACT\'s Civil Rights Advocacy staff remains available for complimentary, one-on-one support with all Civil Rights Advocacy issues, including those related to Section 504 of the Rehabilitation Act of 1973, the IDEA, the ADA, or school nutrition programs. To schedule a conversation, please email Amelia Smith, JD.