Food Allergies in Schools: Keeping Students Safe and Healthy New Mexico Public Education Department Back to School Conference Fall 2019

Federal Laws Americans with Disabilities Act (ADA) ADA Amendments Act of 2008 Section 504 of the Rehabilitation Act of 1973 Individuals with Disabilities Education Act (IDEA)

ADA ADA – See 42 USC §§ 12101 et seq., Title II Regulations, Part 35 Prohibits discrimination against persons with disabilities in employment, public accommodations, and other areas of public life, including schools. Discrimination prohibited against any: qualified individual with a disability, qualified = having any “physical or mental impairment that substantially limits one or more major life activities”; by any “covered entity” which includes schools.

Major Life Activities NOTE: To change images on this slide, select a picture and delete it. Then click the Insert Picture icon in the placeholder to insert your own image.

ADA Enforced by the U.S. Department of Education, Office of Civil Rights (OCR) In 2008, the ADA was amended (ADAAA of 2008).  The definitions and scope of the terms “disability” and “major life activity” were expanded/broadened.

ADAAA of 2008 Still Includes... Seeing, hearing Walking Speaking, learning, reading Eating Breathing

ADAAA of 2008 Also Includes… Major Bodily Functions Digestive Immune system Respiratory Circulatory Neurological/Brain And more….

ADAAA of 2008 Revises “Substantially Limits” Need not prevent, or severely/significantly restrict a major life activity Individualized assessment Without regard to ameliorative effects of mitigating measures May include an impairment that is episodic or in remission if it would substantially limit a major life activity when active The new USDA memo is sure to make this clear.

ADA Amendments Act (ADAAA) of 2008 Did NOT change the expectation to provide a reasonable modification Very clear that the emphasis must be on providing the reasonable modification, and the disabled person does not carry a high burden of proving he or she has a disability

Section 504 of the Rehabilitation Act of 1973 Regulations are at 45 CFR, Part 84 Administered by the Department of Health and Human Services. More narrow than ADA, applies only to organizations that receive federal financial assistance, including schools. Discrimination prohibited against any: qualified individual with a disability, qualified = having any physical or mental impairment that substantially limits one or more major life activities; by any “covered entity” i.e. any entity receiving federal funds, which includes schools.

Please note… Even one dollar of Federal money brings the entire scope of the operations within the jurisdiction of Section 504, even where the requested modification is not related to the part of the operations that receives Federal money.

Examples of Disability Discrimination Discrimination because of the disability Denying benefits or opportunity to participate Segregating individuals with disabilities Aiding, perpetuating or contracting with others that discriminate Failure to provide a reasonable modification Ineffective Communication Inaccessible Facilities The main purpose of these laws is to prevent discrimination and to provide equal opportunities to individuals with disabilities

“The central concern for SFAs should be ensuring equal opportunity to participate in or benefit from the program.” - USDA, Memo Code: SP 59-2016 https://www.healthiergeneration.org/ image credit

Individuals with Disabilities Education Act (IDEA) IDEA – See 20 USC 1400 et seq., Title 34 of CFR, Section 300 Provides that all qualified students have a right to receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). Requires development of Individualized Educational Program (IEP) for the qualified student, designed to meet the unique needs of the student.

IDEA The IDEA requires that all qualified students have access to a FAPE, which means each qualified student must have: an IEP providing education and related services at public expense (i.e. “free”); that is reasonably calculated to enable the child to receive “meaningful educational benefit.”  Board of Education v. Rowley, 458 US 176 (1982), defining “appropriate public education.”

Individualized Education Program (IEP) What is an Individualized Education Program (IEP)? The ‘cornerstone’ of special education services Details all the special education and related services needed for a student to receive FAPE Lists the child’s strengths, needs, team recommendations, the annual goals and how they are to be measured Describes how and when services are to be delivered. If the disability affects the student’s diet, the IEP should describe the area of need and the services to be provided. Contains a schedule for reviewing and evaluating student progress

Individualized Healthcare Plan What is an Individualized Healthcare Plan (IHP)? Student health history/assessment Nursing diagnoses Goals of care (nursing, student, parent and physician) Nursing interventions (may include dietary interventions if appropriate) Expected outcomes Evaluation of outcomes The IHP is written by the licensed NM Public Education Department school nurse. It should be reviewed and signed by the parents. The IHP describes the patient health history and helps guide the delivery of nursing services to the student. This plan may also discuss dietary needs and interventions if student’s health condition affects diet.

Accommodating Students with Disabilities in the School Meal Program Today I am going to provide you with a brief overview of the requirements to accommodate students with disabilities in the school meal program. In September of last year, USDA released an updated memorandum regarding special dietary needs. I plan to review the new guidance that is available. Some of the content in my slides is being used, with permission, from the USDA webinar presentation “Modifications to Accommodate Disabilities in School Meal Programs”

UPDATED GUIDANCE SP 59-2016 “Modifications to Accommodate Disabilities in the School Meal Program” Date Signed: September 27, 2016 Covers School Meal Programs (NSLP, SBP, SMP, & FFVP) Copy available on FNS website at: http://www.fns.usda.gov/policy-memorandum-modifications-accommodate-disabilities-school-meal-programs

Children with Disabilities Focus should be on providing reasonable modification. USDA states whether a child has a disability should no longer require extensive analysis. Case-by-case basis- Does the physical or mental impairment constitutes a disability? A physical or mental impairment need not be life threatening to constitute a disability. Examples: Lactose intolerance or non-life threatening food allergies….need not cause severe distress to be a disability General preferences are not disabilities and do not require accommodation. “The central concern for SFA’s should be ensuring equal opportunity to participate in or benefit from the program.”

Reasonable Modifications “SFA’s must make reasonable modifications to the meal, including providing special meals at no extra charge, to accommodate disabilities which restrict a child’s diet.” USDA, Memo Code: SP 59-2016 Meals should be planned within the Meal Pattern requirements. Some students may require accommodations outside of the Meal Pattern. If accommodations are outside of the Meal Pattern requirements, SFAs must have a medical statement in order to seek reimbursement.

Reasonable Modifications Related to the disability or limitations caused by the disability Duty to negotiate over modification. Simply saying “no” is almost never appropriate. May choose the most cost effective option as long as need is accommodated.The modification requested does not have to be the modification provided. REMEMBER: PROVIDING THE APPROPRIATE MODIFICATION SHOULD BE THE PRIMARY FOCUS. Per USDA, the modification may require a change or alteration in policies, practices, and procedures to accommodate the disability.

Reasonable Modifications Modifications should be made on a case-by-case basis. One size does not fit all. Meal accommodations do not need to mirror the meal or meal item substituted. Example: Pizza Friday “Lifestyle” choices (e.g. vegetarian) are not considered disabilities and need not be accommodated unless related to an underlying disability. Exception: Modifications are not required that would fundamentally alter the nature of the program. Providers are advised to consult with FNS before relying on this exception. This situation is rarely the case.

Requiring a Medical Statement “Program regulations require SFAs to provide modifications for children with disabilities on a case-by-case basis only when requests are supported by a written statement from a State licensed healthcare professional.” USDA, Memo Code: 59-2016 In New Mexico these healthcare professionals include: Medical Doctor (MD) Doctor of Osteopathy (DO) Nurse Practitioners (CNP) Nurse Midwives (CNM) Physician Assistants (PA) Rural Anesthetists Nurse Specialists Doctors of Oriental Medicine (DOM) Chiropractors (DC) https://nmhealth.org/publication/view/guide/4317/

Requiring a Medical Statement Medical Statement should include: Description of child’s impairment and how it restricts the child’s diet. Diagnoses are not required and should not be requested. Explanation of needed accommodation If food allergy, what item(s) should be omitted and recommended substitutions. Any other pertinent details: USDA example: If the child has a caloric restriction or requires a liquid nutritive formula. These details would need to be included as well so that the accommodation could be provided appropriately.

Requiring a Medical Statement If a medical statement is unclear, SFAs must seek clarification in order to provide a safe and appropriate meal. NOTE: Clarification should not unnecessarily delay modification – it may be characterized as harassment/denial. SFAs may choose to accommodate requests related to a disability that are not supported by a medical statement if the requested modification can be accomplished within the Meal Pattern requirements.

Flowchart courtesy of USDA/FNS

Reimbursement Reimbursement for modified meals is at the appropriate rate based on the child’s eligibility for free, reduced, or paid meals, regardless of the modification. Per USDA Memo 59-2016, if a child has an IEP which indicates a specific dietary need, Part B of IDEA funds may be utilized for the purpose of providing meal modifications.

Implementation and Compliance Develop procedures for parents/guardians to request reasonable modifications Train school and food service staff on reasonable modification procedures and legal requirements Appoint a 504 Coordinator to ensure compliance *Assemble a Team to implement guidelines and render decisions on modification requests *Recommended

Procedural Safeguards Provide Notice of – Process for requesting modification Decision Procedural rights Opportunity to examine the record and file a grievance; An impartial hearing with parental participation and legal representation (if desired); and A review procedure (avenue for appeal). These processes should already be in place and available either in a student handbook or registration packet. No need to reinvent the wheel.

A little more on food allergies...

4% of students are affected by food allergy 4% of students are affected by food allergy. In a cafeteria of 100 students, at least 4 students are likely to be affected by food allergies. About 20% of students with food allergies (1 of 5) will have a reaction while at school. 25% of severe food allergy reactions (1 of 4) at school happen to students with no previous known food allergy. NOTE: To change images on this slide, select a picture and delete it. Then click the Insert Picture icon in the placeholder to insert your own image. Did you know?

Most Common Allergens Source: https://www.cdc.gov/healthyschools/foodallergies/pdf/nutrition_508_tagged.pdf

CDC Guidelines (2013) The guidelines can help schools manage the risk of food allergies and severe allergic reactions in students. Managing food allergies requires a partnership between families, health care providers, and schools. NARRATIVE In 2013, CDC published the Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs, to help schools manage the risk of food allergies and severe allergic reactions in students. Managing food allergies can be accomplished through a partnership between families, health care providers, and schools. All members of the school community need to know how to help students with food allergies be safe and supported at school. This presentation will give you information schools need for managing food allergies and responding to food allergy emergencies.

CDC: Five Priority Areas Ensure the daily management of food allergies in individual children. Prepare for food allergy emergencies. Provide professional development on food allergies for staff members. Educate children and family members about food allergies. Create and maintain a healthy and safe educational environment. https://www.cdc.gov/healthyschools/foodallergies/index.htm Each school’s food allergy management and prevention plan should address the following five priorities:

Professional development on food allergies for staff members Get trained and help manage food allergies at your school. Participate in school-based training Learn about recognizing the signs and symptoms of food allergies and how to respond in an emergency Ask the school nurse or school administrator for information on current school district policies and practices Become familiar and be aware of which students have food allergies Help communicate appropriate actions to all food service staff on how to avoid allergic reactions and respond to food allergy emergencies https://www.cdc.gov/healthyschools/foodallergies/pdf/nutrition_508_tagged.pdf

Help ensure a healthy and safe school environment Work ahead of time with teachers to plan safe field trip meals and snacks for students with food allergies. Provide food allergy education to students and parents. Make sure that food allergy policies and practices address all food served at school. Report all cases of bullying to the school administrator. https://www.cdc.gov/healthyschools/foodallergies/index.htm NARRATIVE You can help ensure a healthy and safe school environment. Work ahead of time with teachers to plan safe field trip meals and snacks for students with food allergies. Provide food allergy education to students and parents. Make sure that food allergy policies and practices address competitive foods, including foods sold in vending machines and other venues and served at times other than meal-times. Report all cases of bullying and harassment against students, including those with food allergies, to the school administrator, school nurse or school counselor. As always when dealing with student information, it is important to be mindful of the federal and state laws that protect the privacy or confidentiality of student information and other legal rights of students with food allergies. More information about federal laws can be found in the guidelines document.

A Child’s Perspective: Living with Food Allergies Why all of this matters. . . . https://youtu.be/pOcQsnMonHs https://m.youtube.com/watch?v=pOcQsnMonHs Not every disability is a food allergy, but students with food allergies make up a large portion of meal modification requests.

For keeping our students safe, healthy, and ready to learn

Contact Information Ashley Garcia Medicaid/Health Services Coordinator Coordinated School Health and Wellness Bureau NM Public Education Department Ashley.Garcia@state.nm.us