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

2. 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)

3. 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.

4. Major Life Activities
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5. 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.

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

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

8. 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.

9. 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

10. 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.

11. 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.

12. 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

13. “The central concern for SFAs should be ensuring equal opportunity to participate in or benefit from the program.” - USDA, Memo Code: SP
image credit

14. 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.

15. 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.”

16. 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

17. 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.

18. 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”

19. UPDATED GUIDANCE
SP “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:

20. 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.”

21. 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
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.

22. 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.

23. 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.

24. 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:
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)

25. 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.

26. 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.

27. Flowchart courtesy of USDA/FNS

28. 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 , 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.

29. 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

30. 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.

31. A little more on food allergies...

32. 4% of students are affected by food allergy
4% of students are affected by food allergy. In a cafeteria of 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.
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Did you know?

33. Most Common Allergens
Source:

34. 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.

35. 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.
Each school’s food allergy management and prevention plan should address the following five priorities:

36. 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

37. 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.
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.

38. A Child’s Perspective: Living with Food Allergies
Why all of this matters
Not every disability is a food allergy, but students with food allergies make up a large portion of meal modification requests.

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

40. Contact Information
Ashley Garcia
Medicaid/Health Services Coordinator
Coordinated School Health and Wellness Bureau
NM Public Education Department