Civil Rights Advocacy
Section 504 Plans
Section 504 of the Rehabilitation Act of 1973 prohibits programs and activities that receive federal financial assistance, such as public schools, from discriminating against and/or excluding individuals with disabilities solely on the basis of their disability. Public school districts, institutes of higher learning, some early childcare education centers, and other state and local educational agencies are types of institutes that receive federal funding and thus must comply with Section 504.
The most common educational application of Section 504 occurs in public, K-12 schools, where Section 504 requires a school district to provide a “free and appropriate public education” (FAPE) to each qualified, disabled student, regardless of the nature or severity of that student’s disability. To be a qualified student with a disability under Section 504, the student must fall into one of three categories: (1) the student must have a physical or mental impairment that substantially limits one or more major life activities, (2) the student must have a record of such impairment, or (3) the student must be regarded as having such an impairment. The regulatory provisions for Section 504 specifically define a “physical or mental impairment” and “major life activities,” the definition of which was expanded by the Americans with Disabilities Act (ADA) Amendments Act of 2008. Under the current law, “major life activities” can include caring for oneself, performing manual tasks, walking, seeing, hearing, eating, speaking, breathing, learning, working, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Additionally, Congress defined “major bodily functions” such as immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions as “major life activities.” It is important to note that these were merely examples given by Congress and were not intended to be an exclusive list of “major life activities.”
Individualized Education Program
What Is an Individualized Education Program (IEP)?
Public schools receive federal special education funding through the Individuals with Disabilities Education Act (IDEA) of 1975. Under IDEA, each qualified student may receive special education and related services documented in an Individualized Education Program (IEP). A qualified student is a student who has been identified with 1 of 13 categories of disability specifically set forth in IDEA:
- Emotional Disturbance
- Hearing Impairment
- Intellectual Disability
- Multiple Disabilities
- Orthopedic Impairment
- Other Health Impairment
- Specific Learning Disability
- Speech or Language Impairment
- Traumatic Brain Injury
- Visual Impairment
Students found eligible under IDEA are also protected under Section 504 of the Rehabilitation Act. A separate 504 plan is not required for a student identified under IDEA to qualify for an IEP. If a student with a food allergy has been identified under IDEA as qualified for an IEP, the student’s accommodations relating to their food allergies may be included in the student’s IEP. Additionally, a separate Individualized Health Plan (IHP)/Individualized Health Care Plan (IHCP) may be warranted to detail the health management of the food-allergic student.
Discussions about accommodations and placement should take place during meetings, and all accommodations should be documented in the IEP. Discussions about accommodations and placement made outside the meeting environment are ineffective, especially if not written in a plan.
As with accommodations under Section 504, accommodations relating to food allergies included in an IEP are not intended to give preferential treatment to a student with food allergies. The student should be accommodated to the maximum extent necessary to ensure access to education equal to that of his or her non-disabled peers. Visit our Civil Rights Resource Center for a sample list of common accommodations.
What Is the Significance of Section 504 to a Student with Food Allergies?
Students with food allergies are at risk for anaphylaxis, a life-threatening condition that can significantly impact the “major life activity” of breathing. Food allergies may also significantly limit other major life activities such as digestion and eating. As such, students with food allergies may be entitled to accommodations under Section 504, typically referred to as a “504 plan.”
Accommodations under Section 504 are meant to provide a student with a disability access to education equal to that of his non-disabled peers. In other words, accommodations under Section 504 do not give preferential access. Instead, they are intended to level the playing field for the student with a disability – in this case, a food allergy. It is likely that the food-allergic student enters the school environment already at a disadvantage due to an unsafe environment that promotes exclusion or a lack of food allergy education among school educators. Section 504 provides a written plan to safely include the student in all programs and activities provided or sponsored by the school. When the school provides a safe, inclusive environment, the food-allergic student has the opportunity to access education and activities on equal footing with his or her non-disabled peers.
Individualized Health Plans and Individualized Health Care Plans
Individualized Health Plans (IHPs), also referred to as an Individualized Health Care Plans (IHCPs), are formal written agreements between school administrators and parents that address medical concerns that do not affect a student’s ability to learn.
Such plans document students’ health needs, including accommodations necessary to keep food-allergic students safe at school and during school-sponsored activities and events, and instructions for treating an allergic reaction. An IHP also outlines the different responsibilities of the student, parent(s), and specific school staff members. IHPs are not governed by federal law, and it is unlikely that they are afforded any protection under state law.
According to the Centers for Disease Control and Prevention (CDC), the prevalence of food allergies rose 50 percent between 1997 and 2011. It is important that students with food allergies are provided the appropriate accommodations to ensure the safety and inclusion necessary for them to have equal access to education.
Referrals and Eligibility
School districts should identify students with health impairments and notify their parents of the right to be evaluated for a Section 504 plan. These students may be identified by reviewing students who have current Individual Health Plans (IHPs), identifying students who are currently developing IHPs, or by sending a mass message describing eligibility requirements for those with specific health impairments (e.g., diabetes, food allergies, etc.) and the process of eligibility. The school district should decide what is the best form of identifying students.
Parents may also refer their child for a Section 504 evaluation. The referral should be made in writing, with the date included, to the school administrator, giving permission for the evaluation and testing. Once the school receives the referral, this starts a timeline. School districts may have different timeline procedures. However, schools generally have a certain number of days to respond to the parent or legal guardian after a referral has been made. Another meeting may be scheduled to determine appropriate accommodations. Discussions about accommodations should take place during meetings, and all accommodations should be documented in the 504 plan. Discussions about accommodations made outside the meeting environment are ineffective, especially if not written in a plan.
USDA Guidelines for “Accommodating Children with Disabilities in the School Meal Programs: Guidance for School Food Service Professionals”
The USDA Guidelines for Accommodating Children with Disabilities in the School Meal Programs: Guidance for School Food Service Professionals governs how school districts that participate in the National School Lunch Program (NSLP) and School Breakfast Program (SBP) accommodate children with special dietary needs. It also governs participants in the Fresh Fruit and Vegetable Program (FFVP), the Special Milk Program (SMP), the afterschool snack component of the NSLP, and the Seamless Summer Options (SSO).
USDA Regulation 7 CFR Part 15b requires schools who participate in the above listed programs to provide substitutions or modifications to school meals when a student’s disability limits or restricts his or her diet. Such special meals must be provided at no additional costs to a student whose disability restricts his or her diet.
Additionally, the USDA Guidance document and SP 59-2016 specifically emphasized “the main focus for SFAs (school food authorities) should be working collaboratively with families so that children with disabilities have an equal opportunity to participate in and benefit from the NSLP and SBP.” It goes on to state “SFAs and local educational agencies (LEAs) should not be engaged in weighing medical evidence against legal requirements in order to determine if a medical or physical condition meets the definition of a disability. After the passage of the ADA Amendments Act, most physical and mental impairments constitute a disability.” The guidance further notes that while SFAs are specifically responsible for providing the necessary meal modifications for children participating in the meal programs, the ultimate responsibility for accommodating children with disabilities is on the school district. Furthermore, state agencies are responsible for ensuring that LEAs comply with the requirements of disability laws.
USDA Guidance Regarding Food Allergies
The current, revised USDA guidelines address food allergies very strongly. The guidelines instruct that when a modification request is made, said request applies to any food items and ingredients that are offered to the student. The guidelines specifically state “[w]hen accommodating a child’s food allergy, no food item offered to the child may contain traces of substances that may trigger an allergic reaction.” The guidelines require SFAs to check food labels and specifications of food items to ensure they do not contain the student’s allergens and recommend providing the student’s parent or guardian with copies of all breakfast and lunch menus to allow them to address potential concerns. They further state that in situations where the food label does not adequately provide information regarding ingredients and possible cross-contact or trace allergen protein, it is the responsibility of the school food service to obtain the necessary information by contacting the manufacturer, the State agency, or other private organizations for assistance.
The guidelines also require the SFA to provide “a safe environment to consume the meal” and to ensure proper storage, preparation, and cleaning techniques. They further state that it is “best practice” for schools to educate students of the importance of avoiding food sharing with their peers and encourage schools to add food allergy education to other coursework, such as health and wellness lessons.
Additionally, the guidelines offer information on food labeling and how to recognize an allergic reaction.
Requirements for Meal Modifications
For a SFAs to receive Federal reimbursement for meal modifications that do not meet the USDA Program meal requirements, SFAs must require a written statement from a State licensed healthcare professional (such as a doctor, nurse practitioner, or a physician’s assistant) supporting the student’s need for substitutions. The physician’s statement must contain: information about the child’s physical or mental impairment that is sufficient to allow the SFA to understand how it restricts the child’s diet, an explanation of what must be done to accommodate the child’s disability, and the food or foods to be omitted and recommended alternatives. Additional information may be required in specific circumstances, such as when a student requires an elemental formula. SFAs may elect to request a similar written statement in support of a modification request that is within the USDA Program meal pattern, but such written statement is not required by the USDA. Additionally, if the student’s 504 Plan or IEP includes the information required in the medical statement or if written medical verification is obtained by the SFA during the 504/IEP accommodation plan process, a separate medical statement is not required by the USDA.
Previous USDA Guidelines
The USDA updated this guidance document in May 2017 to “better align with Congressional intent” and the Americans with Disabilities Act (ADA) Amendments Act of 2008 and to conform to USDA Policy Memorandums SP 59-2016 and SP 59-2017. The previous USDA guidelines were written in 2001 and did not reflect the changes to disability laws that have occurred since 2001, including the Americans with Disabilities Amendments Act of 2008, under which the U.S. Department of Education, Office of Civil Rights, and the U.S. Department of Justice determined that food allergies may be deemed a disability which would require accommodation when the food allergy limits a major life activity, such as eating, breathing, and the process of digestion.
FAACT appreciates the USDA’s efforts in revising these guidelines, and in particular, their attention to the needs of students with food allergies.
Do 504 Plans Create Antagonism Between School Staff and Parents?
A common argument for not seeking a 504 plan is that doing so will create an antagonistic situation with the school district staff and/or the parents of non-disabled peers in simply making the request. This is not true.
Accommodations under Section 504 are not intended to give preferential treatment. Under Section 504, disabled students are to be accommodated to the maximum extent necessary to be safely included and allowed access alongside their non-disabled peers. Furthermore, educators want the best for their students and are happy to know how to manage a student’s health and well-being. Section 504 plans set out specific instructions and plans to ensure a disabled student’s well-being and safety. They are a tool for educators to use to assist them in supervising our children when they are in the educators’ care. There is nothing inherently antagonistic about that.
Animosity and antagonism can be felt due to projected or perceived emotions. In all communications and dealings with school personnel, it is important to remember this and remain calm and factual. Visit our Civil Rights Resource Center for a sample list of common accommodations.
Did you know that even if the health impairment is not active, a student may still be considered “disabled” under ADA Amendments Act if the impairment substantially limits a major life activity when active? For example, a food-allergic student does not constantly experience anaphylaxis. However because anaphylaxis substantially limits major life activities (such as breathing) when it is active, the food-allergic student is considered disabled and qualify for accommodations under Section 504 of the Rehabilitation Act.
For further civil rights advocacy assistance, contact Amelia.Smith@FoodAllergyAwareness.org.