IDEA and Kids with Special Dietary Needs

IDEA and Kids with Special Dietary Needs

IDEA and Kids with Special Dietary Needs

04/19/10
by Wrightslaw

Our doctor has recommended that my daughter, on an IEP, be gluten and dairy free.  The school is giving me a hard time, though I know they are providing a special lunch for at least one other student.

You’ll need to do some research (and so did we).

The U.S. Department of Agriculture’s (USDA) nondiscrimination regulation (7 CFR 15b), as well as the regulations governing the National School Lunch Program and School Breakfast Program, make it clear that substitutions to the regular school meal must be made for children who are unable to eat school meals because of their disabilities.

These regulations require substitutions or modifications in school meals for children whose disabilities restrict their diets.

USDA has a Guidance Manual “Accommodating Children with Special Dietary Needs in the School Nutrition Programs”.  It explains the school food service role in providing meals to students with special dietary needs. The Guidance Manual can be found at http://www.fns.usda.gov/cnd/Guidance/acccommodating_children.doc

Nutrition Services under an IEP

The guidance addresses IDEA 2004 and the ADA and makes it clear that if a student has a documented disability that restricts their diet, the school food service department must make the substitutions as listed by a licensed physician on a medical statement form.

The physician’s statement must identify:

• the child’s disability
• an explanation of why the disability restricts the child’s diet
• the major life activity affected by the disability
• the food or foods to be omitted from the child’s diet, and the food or choice of foods that must be substituted

If your child’s IEP includes a nutrition component, the school is required to offer special meals, at no additional cost, if your child’s disability restricts her diet. When nutrition services are required under a child’s IEP, school officials need to make sure that school food service staff is involved early on in decisions regarding special meals.  It would be wise to include food service staff on the IEP Team.

Nutrition Services under a Health Care Plan

Some states supplement the IEP with a written statement specifically designed to address a student’s nutritional needs. Other states employ a “Health Care Plan” to address the nutritional needs of their students.

Nutrition Services in Cases of Food Allergies

If you request food substitutions for your child who does not have a documented disability (as defined under either Section 504 or IDEA), the school food service department may make the substitutions listed on the medical statement, but is not required to, make food substitutions for her.

However, when a doctor states that  food allergies may result in severe, life-threatening (anaphylactic) reactions, the child’s condition would meet the definition of “disability,” then the substitutions prescribed by the licensed physician must be made.

Under no circumstances are school food service staff to revise or change a diet prescription or medical order.

If your child has “life threatening” food allergies that are part of his disability you should read When a School Refuses to Protect a Child with Life Threatening Allergies at http://www.wrightslaw.com/blog/?p=58

Other Special Dietary Needs

USDA Guidelines define a person with special dietary needs as someone who” may have a food allergy or intolerance (for example, lactose intolerance) but does not have life-threatening (anaphylactic) reactions when exposed to food(s) to which he/she is allergic.”

At the very least, the  Guidelines strongly encourage “food substitutions or modifications for children without disabilities with medically certified special dietary needs who are unable to eat  regular meals as prepared.”

State Regulations

Be sure to check your state regulations as well as your local district policy regarding  school nutrition programs.

USDA Guidance and Resources

http://www.fns.usda.gov/cnd/guidance/default.htm

- See more at: http://www.wrightslaw.com/blog/?p=2831#sthash.iple1asO.dpuf

When a School Refuses to Protect a Child with Life-threatening Allergies …

When a School Refuses to Protect a Child with Life-threatening Allergies …

The child’s doctor wrote,

“… the Student is extremely allergic to peanuts and tree nuts. These allergies can cause anaphylaxis, which is a life threatening condition. Symptoms from anaphylaxis include itching, hives, difficulty breathing, swelling, closure of the airway, vomiting, diarrhea, drop in blood pressure, and can even result in death, as evidenced by the 500 people per year in the United States who die from allergic reactions to food.”

“The Student’s reactions are so severe that she has developed hives from being kissed on the cheek by someone who ate peanut butter. She has reacted after handling peanut butter cookie dough, even though she didn’t ingest it. She has also reacted after eating cheese from a salad bowl that previously contained a dressing with walnuts in it. I’m sure you are aware of the recent incident involving a Canadian girl with a peanut allergy who died from anaphylaxis after kissing her boyfriend who had eaten peanut butter earlier in the day. Thus, it is important to take these potential reactions seriously.”

Can you imagine the anxiety this child and her family live with, day after day, year after year? Surely, the teachers and administrators at her school will do whatever they can to help.

History

The family requested that the school develop a Section 504 plan to address the child’s allergy related needs and ensure a safe educational environment for her. The laws require that information from all sources is documented and carefully considered when evaluating students to determine their eligibility.

At this child’s eligibility meeting, six school team members – the school principal, the Section 504 chairperson (also the assistant principal), the school counselor, the school nurse, the child’s teacher, and a paraprofessional who worked in the classroom – determined that the child did not have a disability and was not eligible for services and protections under Section 504.

A complaint was filed with the Office of Civil Rights alleging that Gloucester County VA Public Schools discriminated against the child on the basis of her disabilities, denied her a free and appropriate public education that addressed her needs, and failed to ensure a safe educational environment.

“Extraordinary Circumstances” Allow OCR to Investigate

Although the Office of Civil Rights does not usually review individual educational decisions, they may investigate under “extraordinary circumstances.” In the Gloucester County VA Public Schools case, they looked at:

“… the nature and severity of the harm that could result from the school division’s failure to provide a student with a disability with Section 504 services. When a school division’s decision that a student is ineligible for Section 504 services could result in the death or serious illness of the student, there is a basis for finding that the case involves ‘extraordinary circumstances’ that support a substantive OCR review of the decision.”

The Evidence

OCR reviewed the correspondence from the child’s doctor describing the severity of her condition, information that was provided to Gloucester County Public Schools but ignored by the school. OCR expressed concerns that:

“… the evidence from the Student’s doctor was not contradicted by any other evidence, and that neither the evaluation team members nor anyone with whom they consulted had qualifications approaching those of the Student’s doctor to diagnose the nature and severity of the Student’s PTA and the likelihood, nature and severity of the harm that could result from the Division’s failure to find the Student eligible for Section 504 services.”

OCR found that Gloucester County Public Schools had their own documentation of the child’s allergies, including:

• meeting minutes that describe the child has having “a life threatening food allergy” that were signed by signed by six school staff members

• the child’s “Individualized Health Care Plan” which described the child has having “a severe allergy to peanuts/treenuts which can be life-threatening” signed by two staff members

The Findings

Based on the evidence, “we find that the Division’s decision that the Student is ineligible for Section 504 services could result in death or serious illness of the student, and that this case therefore involves ‘extraordinary circumstances’ that support a substantive OCR review of the result of that decision.”

The Resolution

As a result of this investigation, Gloucester County Public Schools signed a Agreement to reevaluate the Student to determine if she is eligible for services under Section 504 and Title II, and will comply with 504 procedures this time. OCR provided Gloucester County Public Schools with several sample 504 Plans.

The resolution letter concludes with this statement:

“We remind the Division that it may not harass, intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the laws OCR enforces. If any individual is harassed or intimidated because of filing a complaint or participating in any aspect of OCR case resolution, the individual may file a complaint alleging such treatment.”

Read the full text of the Resolution/Closure Letter from OCR to the attorney representing Gloucester County Public Schools:

http://www.wrightslaw.com/law/504/OCR.va.peanut.pdf

Gloucester County Public Schools is fortunate that OCR intervened. If this child, or another child, had a fatal allergic reaction after the school team refused to accommodate her well-documented allergic condition, they would be in very hot water. Consider the probability that a fatal allergic reaction would be witnessed by her classmates.

If you have a child with a peanut and tree allergy (PTA), you may need to educate your school district about the severity and unpredictable nature of these allergies. This OCR Resolution letter should help your district understand their legal responsibilities under Section 504. Learn more about Section 504 of the Rehabilitation Act.

http://www.wrightslaw.com/info/sec504.index.htm

How to File a Discrimination Complaint with the Office for Civil Rights (in English)

Cómo presentar una denuncia por discriminación ante la Oficina de Derechos Civiles

- See more at: http://www.wrightslaw.com/blog/?p=58#sthash.M7IkKEMG.dpuf

Keeping All Students Safe Act (H.R. 1893) - GovTrack.us

Keeping All Students Safe Act (H.R. 1893) - GovTrack.us

In Decade's Time, Childhood Disabilities Rise 16 Percent - Disability Scoop

In Decade's Time, Childhood Disabilities Rise 16 Percent - Disability Scoop

In Decade’s Time, Childhood Disabilities Rise 16 Percent

By SHAUN HEASLEY

May 6, 2013Text Size  A  A

Significantly more children have disabilities today as compared to a decade ago, largely due to increased diagnosis of neurodevelopmental and mental health conditions, researchers say.

The prevalence of disability in children grew more than 16 percent in 10 years, according to findings presented Sunday at the Pediatric Academic Societies annual meeting, a gathering of four leading pediatric organizations held in Washington, D.C.

It’s unclear what’s behind the rise in disability prevalence, though greater diagnosis of autism could be at least partly responsible, said Amy Houtrow of the Children’s Hospital of Pittsburgh and the University of Pittsburgh School of Medicine who is lead author of the study.

Researchers looked at data from the National Health Interview Survey — a poll of more than 100,000 parents of children up to age 17 conducted by the U.S. Centers for Disease Control and Prevention — comparing responses from 2009-2010 to those collected in 2001-2002.

As part of the survey, parents were asked whether their children had any limitations and, if so, what type of condition their deficits were attributable to. Children who were reported to have a limitation were divided into three groups: physical disabilities, neurodevelopmental or mental health conditions and other.

Ultimately, researchers found that six million children had a disability in 2009-2010, an increase of one million over the previous sampling. At the same time, the prevalence of physical disabilities declined while neurodevelopmental and mental health conditions rose.

Most strikingly, the study found that the rate of neurodevelopmental disabilities nearly doubled for children under age 6.

While kids living in poverty had the highest rates of disability in both time periods studied, the largest increase in childhood disability rates was seen in kids from households with higher incomes.

“The survey did not break out autism, but we suspect that some of the increase in neurodevelopmental disabilities is due to the rising incidence or recognition of autism spectrum disorders,” said Houtrow, adding that more research is needed to fully assess what’s behind the growth in disability prevalence.

Feds To Move Away From DSM - Disability Scoop

Feds To Move Away From DSM - Disability Scoop

Feds To Move Away From DSM

By MICHELLE DIAMENT

May 6, 2013Text Size  A  A

(Updated: May 7, 2013 at 10:07 AM CT)

Just weeks before a new version of the Diagnostic and Statistical Manual of Mental Disorders is scheduled for release, the head of the National Institute of Mental Health says it’s time to change how mental conditions are categorized.

The agency will be redirecting its research focus away from the symptom-based diagnostic criteria of the DSM toward more scientifically verifiable standards, the mental health agency’s director, Thomas Insel, wrote in a recent blog post.

By shifting away from thinking about mental disorders as they are currently classified in the DSM, Insel says researchers will be able to establish a new diagnostic system based on emerging science.

“Unlike our definitions of ischemic heart disease, lymphoma or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure,” Insel wrote. “Patients with mental disorders deserve better.”

Accordingly, Insel says the NIMH is launching a new project known as Research Domain Criteria designed to collect the data needed for a new classification system by using genetics, imaging, cognitive science and other techniques and supporting studies that overlap currently existing categories.

Insel calls this new approach a “research framework” and acknowledges that it will be a long time before it can be applied as a clinical tool but he says it’s a valuable first step toward a more exact diagnostic method.

The comments come as the first new version of the DSM in more than a decade is slated for release in less than two weeks. The fifth edition of the manual — often considered the bible of psychiatry — will be unveiled at the American Psychiatric Association’s annual meeting beginning May 18 in San Francisco.

While officials at the psychiatric organization agreed that they would like to see biomarkers to pinpoint mental disorders with greater accuracy, David Kupfer, chair of the group’s DSM-5 Task Force, said in a statement that such discoveries remain “disappointingly distant.”

“Efforts like the National Institute of Mental Health’s Research Domain Criteria (RDoC) are vital to the continued progress of our collective understanding of mental disorders. But they cannot serve us in the here and now, and they cannot supplant DSM-5,” Kupfer said. “In the meantime, should we merely hand patients another promissory note that something may happen sometime?”

The DSM update has been met with significant controversy, particularly surrounding changes to the definition of autism. The new version is expected to eliminate Asperger’s syndrome and fold it as well as childhood disintegrative disorder and pervasive developmental disorder, not otherwise specified under a broader diagnosis of “autism spectrum disorder.”

Separately, the new manual is also expected to replace “mental retardation” with the more commonly accepted term “intellectual disability.” What’s more, the definition of the disorder is being tweaked to put less emphasis on IQ score and allow more consideration for clinical assessment.

The DSM is relied on by mental health professionals, researchers, insurers and others to determine what symptoms merit a clinical diagnosis. The current edition was originally released in 1994 and was updated in 2000.

Fox C-6 Watchdogs: Dear Colleague Letter On Retaliation Law from the U.S. Department of Education's Office for Civil Rights

Fox C-6 Watchdogs: Dear Colleague Letter On Retaliation Law from the U.S. Department of Education's Office for Civil Rights

Dedicated to providing Transparency and Facts to the parents and patrons of the Fox C-6 School District in Arnold, MO. I've been told that our superintendent reads my blog. She says a lot of what I write is not true. I highly disagree. I strive for accuracy and the truth. Blanket statements such as hers are no longer being accepted by our community. Please provide specifics as to what is not true on this blog so that I may correct them right away. So, far I only hear crickets chirping!

Thursday, May 2, 2013

Dear Colleague Letter On Retaliation Law from the U.S. Department of Education's Office for Civil Rights

A friend and parent who has had similar issues dealing with their school district pointed out to me today that the United States Department of Education's Office for Civil Rights (ED OCR) recently posted a Dear Colleague Letter on their website regarding Retaliation. I find it funny that the Dear Colleague letter was posted one day before ED OCR sent out a monitoring letter to our school district that had been delayed for nearly 9 months. ED OCR will occasionally post Dear Colleague letters when they see a preponderance of problems in school districts, colleges and universities that fall under their jurisdiction. This Dear Colleague letter is significant in the fact that our school district has taken the stance over the last 5 years that they have been doing things properly according to what they have been told by the district attorneys. However, as documented in several monitoring letters sent to our school district from ED OCR, Fox C-6 HAS NOT been properly following the law. More significant is the fact that because of our efforts in asking our school district and school board to do the right thing and properly follow the law, my family and I have been the target of numerous and continued retaliatory actions by our school district. I'm sure our Superintendent will deny that. I'll just go ahead and present the facts for everyone and that way you can decide for yourself. I'm sure that that the retaliation has been done in order to keep us from pursuing the issue with the federal agencies and hoping that we would eventually give up. It's worked for our school district in the past. So why quit now?

I believe our Superintendent and school district attorneys are probably disappointed with the fact that we haven't stopped our efforts to get our school district to do the right thing. I'm sure they thought I would have given up after receiving a "Cease and Desist" letter from the latest district attorney (#3) handling the case that was sent in August 2012. Well maybe the attorneys didn't want us to stop because they get paid to make things go away. Our Superintendent has to be asking herself why I haven't given up after reading all of the defamatory and slanderous remarks made against me and my family in online forums by supporters of our superintendent and school board members. She must really be perplexed. It could have something to do with the fact that I know our school district is in the wrong and that I will make sure that the truth comes out. Eventually my efforts will help a lot of other students and parents and keep them from having to go through the same thing. I'm certainly not going to allow our Superintendent to continue to make false and misleading statements about me and what the district is doing. I will always choose to take the high road and do what is right.

So,  what are some examples of retaliation? Well, one of the first occurrences of retaliation from our school district after we filed a complaint with ED OCR was when our school Superintendent Dianne Brown (now Critchlow) refused to let me speak with our school board during closed session in 2008. I had already been speaking with then board president Wes Griffith and board secretary Debby Davis prior to the start of that night's meeting. School board members Dan Smith, Ruth Ann Newman and Assistant Superintendent Dan Baker were also there. I was talking to Wes Griffith and Debby Davis about being put onto the next month's closed session agenda after Wes Griffith had forgotten to put me on that night's agenda. I had spoken with him earlier that afternoon on the phone and he had agreed to allow me to speak to the board that night per board policy. Our board secretary had already checked the schedule for the next month's meeting and had already informed our board president and I that I could be on next month's agenda when Superintendent Dianne Brown arrived at the meeting. She immediately informed me that the school board had already discussed my issues and that they had decided that they were not going to meet with me. It sounded to me like it was our Superintendent's decision and NOT our school board's decision that they weren't going to meet with me. Why wouldn't our school board president and school board secretary know that they had already decided not to me with when they told me that they would put me on next month's agenda? How difficult is it for our Superintendent to tell the truth? Needless to say, I didn't get my chance to speak with the board at the next month's meeting after our Superintendent made her decision for the board. That is a problem for both our school board and our community.

In speaking with attorneys from the Kansas City Office for Civil Rights at a seminar a couple of years ago, they informed me that our Superintendent's actions in 2008 sounded like retaliation to them. I must point out that the KC ED OCR attorneys at the seminar weren't the same attorneys that have been handling our complaint since August of 2008. It was good to know that some ED OCR attorneys considered it retaliation when our Superintendent blocked me from speaking with our school board. That's how she has been running our district and our board has done nothing to stop it.

The retaliation has only gotten worse since then. I also know that this has happened to another parent in our district that filed a complaint with ED OCR and MO DESE. But, since it was the husband of the teacher that made the retaliatory comments towards that parent, ED OCR didn't consider it to be retaliation from the school district. I would have to say that the Kansas City ED OCR Office has been walking a thin line for quite some time on what IS or IS NOT retaliation. Hopefully the Dear Colleague letter from Washington D.C. will bring about some changes in the Kansas City ED OCR office. I know that teachers and staff in our school district are afraid to speak up and say anything for fear of retaliation from our Superintendent and Central Office Administrators. School board members Linda Nash, Cheryl Hermann and John Laughlin all acted as if they were unaware that school employees were afraid to speak up and point out problems in our district at a meeting held before the March school board meeting with two recipients of "Cease and Desist" letters from our Superintendent. Cheryl Hermann admitted at that meeting that she wasn't even aware of the fact that "Cease and Desist" letters prior to the issue being brought out in the open. It seems that our Superintendent has a problem with informing our school board members about issues in our school district.

The Cease and Desist letter that I received in August 2012 from the school district attorney informed me that if I continued to speak with people in our community and current and former teachers and administrators that the district would take legal action against me. The district didn't want me talking about the complaints that we had filed with ED OCR and other issues in our school district. I guess I should say thank you to our Superintendent for formally documenting the district's retaliation towards me and my family for filing OCR complaints against our school district. I had no intentions of filing an OCR complaint against Fox until I was told that I should file a complaint in 2008 by a MO DESE Compliance Officer. He told me that he thought our school district wasn't following the law and I should file a complaint. If ED OCR didn't think my complaint was valid it would be dismissed.

Well, our complaint with the district wasn't dismissed and our Superintendent wasn't happy with the fact that I filed a complaint. So much so that she had Vern Sullivan a former Fox C-6 School Board Member and former employee and Friends of Fox political action committee representative call my father into her office.  She told my father to tell me to stop pursuing things with the district. My father had worked for the school district for 42 years and was an assistant superintendent for more than 20 years. My father has also been the target of several online posts that have been made on the Topix online forum. Sometimes the online posts contain information that is not public information and only select administrators would or should know that information. That is why I fully believe that some of those posters are school administrators, their spouses, or their family and friends. Many of the retaliatory online comments made against me and my family directly reference complaints filed against our district with ED OCR. The general public doesn't know or care about our issues and concerns with the school district. But, our Superintendent certainly does. She only wants the public to know that Fox is a National District of Character and that our district is in the Top 10 of something in our state.

I hope our current school board and our former school board members take the time to read the Dear Colleague Letter from the U.S. Department of Education's Office for Civil Rights. This Dear Colleague letter points out how the U.S. Department of Justice (DOJ) gets involved with cases and how federal monies can be terminated from the Department to the recipient. The letter states why the USDA Office for Civil Rights (USDA OCR) referred our USDA case to the U.S. Department of Justice. Fox C-6 refused to comply with their Final Agency Decision that was sent to the school district in August 2011. The USDA's referral to the DOJ was not made due to retaliation from the district or supporters of the district. But, now that the Department of Justice has our case, they now have the ability to investigate any retaliation that has been occurring ever since our complaints were filed with ED OCR and USDA OCR. The Dear Colleague letter which applies to both ED OCR and USDA OCR states that, "The enforcement actions available to OCR include initiating administrative proceedings to suspend, terminate, or refuse to grant or continue financial assistance made available through the Department to the recipient; or referring the case to the U.S. Department of Justice for judicial proceedings." This language is in the ED and USDA's Case Processing Manuals. It is being spelled out in this letter as a reminder to school districts, colleges and universities due to recent cases and DOJ rulings.

ED OCR, or at least the Kansas City ED OCR Office that we have been dealing with seems to have difficulty recognizing retaliation. The KC ED OCR Office also doesn't seem to put much effort towards enforcing the law based upon the fact that they continue to issue new deadlines each time our school district fails to meet the deadlines set by ED OCR. If ED OCR were to follow their guidelines of trying to close cases out in 180 days rather than allowing things to continue for nearly 5 years, I believe that their office could save the taxpayers quite a bit of money. With attorneys at ED OCR making over $100,000 per year, it adds up when there are a couple of attorneys assigned to a case. I know there a lot of other cases that have been in "monitoring" status for many years. In fact, the attorneys working our case laughed about the fact that ED OCR has some cases that have been in monitoring for more than 10 years. It seems that their might be a management issue that needs to be addressed at ED OCR so cases can get resolved in a more timely manner.

You can find U.S. Department of Education's Office for Civil Rights Dear Colleague letter online at the following URL:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html

I have also posted a copy of the letter below:

After Flight Diverted, Teen With Special Needs Goes Missing - Disability Scoop

After Flight Diverted, Teen With Special Needs Goes Missing - Disability Scoop

After Flight Diverted, Teen With Special Needs Goes Missing

By MICHELLE DIAMENT

May 7, 2013Text Size  A  A

While flying from Idaho to Florida, a teen with an Asperger’s-like condition found his plane unexpectedly diverted to an unfamiliar city and wound up wandering the streets all alone.

Joshua Arvin, 15, was on his way home from his boarding school when his flight to Fort Lauderdale, Fla. instead stopped in Tampa. Rather than follow the rest of the passengers to a bus for the remainder of the journey, the teen attempted to make his own way.

Arvin’s mother, Tracy, frantically called the airline and airport police with no luck tracking down her son. She later learned that the teen tried to charter a bus before taking a cab to a local bus station. He was ultimately found on a downtown street corner after 11 p.m by a good Samaritan who called police.

The airline — US Airways — says it does not accept responsibility for unaccompanied minors on connecting flights, reports WTSP, the Tampa CBS affiliate.