Serving up Safety: Educating Students with
Food Allergies in Compliance with State
Law and Section 504
Janet Little Horton
Thompson & Horton LLP
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
jhorton@thompsonhorton.com
713-554-6746
What is a food allergy?
• Abnormal response to a food.
• Triggered by the body’s immune system.
• Symptoms may be mild to life-
threatening.
• Reactions vary from person to person
• Severity of the allergic reaction is not
predictable.
• 18% increase 1997 to 2007 (Centers for
Disease Control and Prevention).
• Current estimate: 1/13 to 1/25 children
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now affected.
And 40% report history of severe reaction.
No cure for food allergies.
Reaction within a few minutes to a few
hours.
90% of reactions caused by milk, eggs,
peanuts, tree nuts, fish, shellfish, soy,
and/or wheat.
But any food has the potential to cause a
reaction.
Food allergy v. food intolerance
• Food allergy – medical history, lab work,
and other diagnostic tests = medical
diagnosis by a licensed health care
provider.
vs.
• Food intolerance – does not involve
immune system; not life-threatening.
Concerns in the school context
• Concerns with food served.
• Concerns with food brought by others.
• Concerns with school supplies.
• Concerns with cross contamination.
• Strict avoidance and early recognition and
management of symptoms are critical.
What is anaphylaxis?
• Serious allergic reaction.
• Rapid in onset (several minutes to a few
hours).
• Wide range of symptoms.
• May cause death.
• Treatment – epinephrine.
• May involve mouth, throat, nose, ears,
eyes, lungs, stomach, skin, heart.
• Resources on anaphylaxis in children available
from the Food Allergy and Anaphylaxis
Network (FAAN):
http://www.foodallergy.org/page/how-a-childmight-describe-a-reaction1
• After epinephrine administration, transport
to hospital.
What does Texas law
require concerning
the management of
food allergies in the
school setting?
TEC § 38.0151 – Policies for Care of
Certain Students at Risk for
Anaphylaxis
Requires each school district and open-enrollment
charter school to adopt and administer a policy for
the care of students with a diagnosed food allergy
at risk for anaphylaxis based on guidelines
developed by the commissioner of state health
services in consultation with an ad hoc committee
appointed by the commissioner of state health
services.
Guidelines may not:
 Require school to purchase prescription
medication.
 Require expenditure that would result in
negative fiscal impact.
 Require personnel to administer
anaphylaxis medication unless it is
prescribed for the student.
TEC § 38.0151 does not:
 Waive any liability or immunity of district or
its officers or employees.
 Create liability or a cause of action against
district, its officers or employees.
Guidelines for the Care of Students with
Food Allergies At-Risk for Anaphylaxis To
Implement Senate Bill 27
published here:
http://www.dshs.state.tx.us/WorkArea/Dow
nloadAsset.aspx?id=8589966589.
The guidelines include sample forms.
Requirements of the Guidelines
1. Identification of students with food allergies at-risk
for anaphylaxis.
2. Development, implementation, communication
and monitoring of emergency care plans and/or
individualized health care plans.
3. Reducing the risk of exposure through
environmental controls.
4. Training for school staff on food allergies,
anaphylaxis and emergency response.
5. Post anaphylaxis reaction review of policy and
procedures.
District-wide coordination:
• Appointment of Superintendent designee
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(“May”).
Central point of contact.
Convene multi-disciplinary team.
Receive ongoing training on food allergy
management and the administration of
epinephrine.
Work with the School Health Advisory
Council (TEC § 28.004).
Campus coordination:
• Food Allergy Management Team (“May”).
• Implement, coordinate, and monitor food
allergy management on campus.
1. Identification:
Upon enrollment of a child in public school,
the district shall request that the parent
disclose whether the child has a food
allergy or a severe food allergy, specify the
food(s) to which the child is allergic, and
the nature of the reaction.
Tex. Educ. Code § 25.0022
2. Development, implementation, communication and monitoring of emergency care
plans and/or individualized health care
plans.
When there is a medical diagnosis of a food
allergy, a Food Allergy Action Plan and
Emergency Action Plan (FAAP/EAP) may be
developed by health care provider and parent.
The student’s FAAP/EAP plan should
include:
 Student’s name.
 Date of birth.
 Grade level.
 Photograph.
 List of foods to which child is allergic.
 Indication of whether student has asthma.
 Description of past allergic reactions.
 Clear instructions on what symptoms
require use of epinephrine immediately.
 Clear instructions on how to administer
epinephrine, what to do once epinephrine
is administered, and specifics on any other
emergency medication for the child.
 Contact information for parents and other
emergency contacts.
 Signature and date for parent, healthcare
provider, and school representative.
 Student, parents, school nurse, campus
food allergy management team meet to
review, get all consents signed – prior to
the student attending school.
 School nurse may develop Individual
Health Plan (IHP).
3. Reducing the risk of exposure through
environmental controls.
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The Guidelines include a list of
considerations, including:
Identifying high-risk areas.
Limiting or eliminating food from learning
environments.
Notifying and educating the school
community.
Developing procedures for parent-provided
snacks.
• Cleaning protocols.
• Training to food service.
• Educate students – no swapping or sharing
• FAAN has a good curriculum developed for this
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purpose (http://www.foodallergy.org/section/bea-pal-program).
Hand washing.
Staff trained to administer epinephrine.
Ready access to epinephrine.
Risk reduction – bus, extracurriculars.
No bullying.
4. Training for school staff on food allergies,
anaphylaxis and emergency response.
 Training needs to include school staff
responsible for the care of individual
students, the food allergy management
team, and substitute staff.
 Training needs to be comprehensive and
is one of the areas where OCR has been
the most critical of schools.
• Under state law, this training
needs to include staff training on
food allergies, signs and
symptoms of anaphylaxis, and
emergency response.
5. Post anaphylaxis reaction review of policy
and procedures.
 Review of the policies and procedures
should happen at least annually.
 Review should also happen after a student
experiences an allergic reaction at school
(even if the reaction is not anaphylaxis) in
order to promote the student’s safe return
to school – are changes needed?
Education Code § 22.052 makes it clear
that school district employees are immune
from liability for administering medication if
the school district has received a written
request to administer the medication from
the parent; and the medication is in its
properly labeled original container – the only
exception is gross negligence.
Other Texas Laws Involved in the
Education of Students with Food
Allergies
 A student who meets certain criteria is allowed to
possess and self-administer medication for asthma
or anaphylaxis.
 Must possess the skill and knowledge to selfadminister (school staff should still be trained to
administer epinephrine in an emergency).
 Must have a written authorization from parent.
 Must have a written authorization from physician.
Tex. Educ. Code § 38.015
Student health records must be kept confidential.
Tex. Educ. Code § 38.009.
(a) A school administrator, nurse, or teacher is
entitled to access to a student's medical records
maintained by the school district for reasons
determined by district policy.
(b) A school administrator, nurse, or teacher who
views medical records under this section shall
maintain the confidentiality of those medical
records.
(c) This section does not authorize a school
administrator, nurse, or teacher to require a
student to be tested to determine the student's
medical condition or status.
Are students with food
allergies, including
those at-risk for
anaphylaxis, covered
by Section 504?
Does the student have
a physical or mental
impairment that
substantially limits a
major life activity?
Section 504 Rules of
Construction:
1. Construe eligibility broadly – more
inclusive.
2. “Substantially limits” is not a high
standard.
3. Episodic conditions or those in remission –
consider as if full-blown.
4. Mitigating measures may not be
considered (except eyeglasses and
contacts).
• Mitigating measures include medication,
assistive technology, reasonable
accommodations, auxiliary aids and
services.
5. A person need only be impaired in 1 major
life activity to be covered by Section 504.
Substantial impairment in learning is not
required.
Major Life Activities
(include, but are not limited to)
• Caring for one’s self, performing manual
tasks, seeing, hearing, speaking,
breathing, learning, working, eating,
sleeping, walking, standing, lifting,
bending, reading, concentrating, thinking,
and communicating.
Major Life Activities also include
Major Bodily Functions
• Immune system, normal cell growth,
digestive, bowel function, bladder function,
neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.
Student with a food allergy at-risk
for anaphylaxis
• Physical impairment.
• Substantially limits immune system.
• Consider as if full-blown.
• May implicate digestion, breathing, etc.
• Disregard mitigating measures such as
epinephrine, IHP, FAAP/EAP.
Evaluation for 504 Eligibility
• District cannot refuse Section 504
evaluation because food allergy does not
affect major life activity of learning.
• North Royalton (OH) City School District,
52 IDELR 203 (OCR 2009) (student with
food allergy).
• Tyler ISD, 56 IDELR 24 (OCR 2010)
(student with diabetes).
• Prevail Academy, 109 LRP 32521 (OCR
2009) (student with food allergy).
Evaluation must meet Section 504
Requirements
 Evaluation materials validated and tailored
to assess specific areas of educational
need.
 Information from a variety of sources.
 Information is documented and carefully
considered.
 Placement decisions made by persons
knowledgeable about student, meaning of
evaluation data and placement options.
Saluda (SC) School District One
47 IDELR 22 (OCR 2006) – OCR
describes what should be in written
plans to respond to food allergy:
1. Adequate policies, procedures and/or protocols
governing the student’s allergy risk management
in each type of school program and activity,
including the student’s classroom and common
use rooms (e.g. the cafeteria, library, computer
labs, gymnasium, and art and music rooms), and
during recess periods, bus transportation, field
trips, and extracurricular, school-sponsored
activities.
2. Sufficient emergency response policies,
procedures and/or protocols covering all
school programs and activities to address
instances in which the student is
suspected of having an allergic reaction.
These procedures should address the
proper handling and administration of
epinephrine in the event of anaphylactic or
other serious allergy-related reaction, and
will identify the staff responsible for
emergency responses.
3. A provision that all district staff responsible
for the immediate custodial supervision or
care of the student (including substitutes)
will receive comprehensive training on the
student’s allergy and the implementation of
the student’s plan. The plan should
establish when, how often, for how long,
and by whom the training is conducted, as
well as the content of this training.
4. A provision requiring that at least one staff
person fully trained in the student’s allergy
be at the school during all regular school
hours and at all school-related activities
attended by the student who can
administer epinephrine consistent with the
district’s allergy-related policies, etc.
5. Provisions setting out all of the allergyrelated responsibilities of parents and
students in all school programs and
activities and an effective process for
communicating
their
allergy-related
responsibilities to them, and what
sanctions are applicable to individuals who
harass students with allergies because of
those allergies.
FAPE under 504
 Provision of regular or special education and
related aids and services designed to meet
unique needs of student with a disability as
adequately as the needs of non-disabled students
are met
 “As the vast majority of District students without
disabilities do not face a significant possibility of
experiencing
serious
and
life-threatening
reactions to their environment while they attend
District schools, Section 504 and Title II require
that the District provide the Student with an
environment in which he also does not face such
a significant possibility.” Saluda (SC) School
District One, 47 IDELR 22 (OCR 2006).
Dracut (MA) Public Schools, 110 LRP 48748
(OCR 2012)
 Does impairment substantially limit one or
more major life activities?
 Does it limit student’s access to
educational services and activities?
 If so, what services are needed to provide
FAPE – access to classroom and all other
school services and activities?
Examples of accommodations/
modifications acceptable to OCR and based
on the student’s individual needs:
• An “allergen-free” or “food-free” classroom;
• Cleaning areas potentially contaminated with
allergen in a special way (e.g. mopping with water
that is not used to mop other classrooms);
• Appropriate training;
• Sending a letter to parents of other students in the
class explaining that there is a student in the class
with a food allergy, and asking parents not to send
foods containing the allergen;
• Not using food as a reward in the class; alternate
treats;
• Offering educational seminars regarding food
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allergies to the class or to the school’s parents;
Providing an aide to monitor the student at school
and on the bus trained to administer epinephrine,
if needed;
Allowing the student to keep a cell phone with him
or her;
Allowing the student to keep epinephrine;
An allergen-safe area in the cafeteria, which is
cleaned using special procedures;
Allowing the student to sit separately in the
lunchroom with a friend whose parents have
agreed to avoid the student’s allergen;
• The use of wipes to clean an area before the
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student uses/sits in it in the classroom, cafeteria,
bus, and on field trips;
An adult-to-adult transfer plan to ensure that the
student’s epinephrine is always close at hand,
coupled with training for those adults;
Daily vacuuming of the classroom carpet; daily
washing of the desks in the classroom;
Daily hand washing by everyone when they enter
the classroom for the first time and after snack,
recess, and lunch break;
Newsletters at holiday times reminding other
students’ parents of the classroom’s food policies;
Notifying the student’s parents before birthday
parties and celebrations involving food.
Cutoosa County (GA) School District, 57
IDELR 141 (OCR 2011)
 Student’s parents explained severity of
student’s allergy to peanuts.
 Sale of peanut products from vending
machines continued for 9 more months.
 Principal tried to eliminate products –
finally removed vending machines.
 Failure to remove products earlier was
harassment.
 It was sufficiently severe, pervasive or
persistent to create a hostile environment.
 Actions to correct the problem were
neither prompt nor effective.
Plumas (CA) Unified School Dist., 55 IDELR
265 (OCR 2010)
• District denied parent’s request for peanutfree school.
• District did not make a record of any of the
information gathered, nor did they discuss
with the parents at the 504 meeting the
reasons behind denying the parent’s
request for a peanut-free school.
• A request for such an accommodation
cannot be categorically rejected.
 The parents were also not provided the
appropriate notice of Section 504
procedural safeguards, including “notice of
the action, an opportunity to examine
relevant records, an impartial hearing with
opportunity for participation by parents or
guardians and representation by counsel,
and a review procedure.”
• The parents must be able to challenge the
plan and must be given, by the District, the
information on how to challenge the Plan
with which they disagree.
Does the District have to provide special
food for students with food allergies?
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Maybe.
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For students eligible for free or reduced lunch,
the USDA says, “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
meal must be made for children who are
unable to eat school meals because of their
disabilities, when that need is certified by a
licensed physician.”
See FNS Instruction 783-2, Revision 2, Meal
Substitutions for Medical or Other Special
Dietary
Reasons;
see
also
http://www.fns.usda.gov/cnd/guidance/special
_dietary_needs.pdf
This publication also discusses potential
funding sources in the event the meal
preparation for a particular student is much
more costly.
• For a student with life-threatening, “severe”
food allergies who receives free or reduced
lunch, the District should plan to make
substitutions and other changes.
• For other students who require dietaryrelated accommodations, whether the
student should be provided with special
food or given a place to store special food is
based on the student’s needs and the
determination of the appropriate personnel
(Food Allergy Management Team, 504
Committee, ARD Committee, etc.).
Training of School Staff Under 504
Saluda (SC) School District One, 47 IDELR 22
(OCR 2006) - training for District staff regarding
a student with a peanut/tree nut allergy (PTA)
should include “topics such as the following:”
1. Recognizing the symptoms of a PTA
emergency;
2. Common causes of PTA emergencies;
3. Understanding and properly implementing
food allergy plans;
4. The contents of the food allergy plans of
the students with PTAs for whom each
district staff person has immediate
custodial or care responsibilities;
5. Properly and safely handling,
administering and storing antihistamines
and epinephrine; and
6. Detailed instruction on district PTA policy,
procedures, protocols, and practices.
• Presumably, these requirements can be
generalized to all students with food
allergies, and adjusted based on the
student’s individual needs.
• Districts must be careful that even
substitutes receive this training.
State guidelines only add to this that staff
should also be trained in:
• Identifying students at-risk and planning
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for students who do not have epinephrine
at school.
Development of IHPs/504 Plans.
Environmental controls.
Working with local EMS.
Post anaphylaxis debriefing and
monitoring of food allergy management
plans.
Pine-Richard (PA) School District, 53 IDELR
200 (OCR 2009)
• OCR found problems where a school
nurse had a 2nd grader with life-threatening
food allergies stand up in front of her class
and discuss her allergies.
• The nurse had not obtained parental
consent.
• The discussion involved language such as
“she could die.”
Homebound instruction – for a food
allergy
General Education - EEH (Local)
• Student confined a minimum of 4 weeks to
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home/hospital.
For medical reasons.
Documented by a licensed physician.
Transitory – meant to facilitate the
student’s return to school.
Done by campus placement committee.
Can a student with a
food allergy at-risk for
anaphylaxis qualify
under IDEA?
Maybe . . .
• Other Health Impairment (OHI) – limited
strength, vitality or alertness that is due to
a chronic or acute health problem and that
adversely affects the student’s educational
performance and who, because of the
condition, needs special education and
related services. Reg. 300.8(c)(9)
• Any decision would be made on a case-
by-case basis by the ARD Committee
based on a full individual evaluation.
If the student with a severe food allergy
qualifies as an IDEA student:
• Full continuum of alternative placements
must be available (Reg. 300.115).
• Home instruction would be a possibility if
the risk of exposure at school could not be
reduced to an acceptable level.
Homebound placement based solely on
parent preference is not appropriate:
• Gwinnett County Sch. Dist., 56 IDELR 118
(SEA
GA
2010)
(parent
wanted
homebound to administer nonprescription
nutritional supplements during the school
day).
• Poway Unified School District, 53 IDELR
208 (SEA CA 2009) (parent wanted
homebound, in part, because of “leaky gut
syndrome” and fears about safety at
school).
Nothing in IDEA requires a district to provide
a full day of instruction to homebound
student, or to provide same amount of
special education instruction student would
have received at school.
• Georgetown Indep. Sch. Dist., 45 IDELR
116 (SEA TX 2005);
• Greenville Indep. Sch. Dist., 102 LRP
12471 (SEA TX 2002);
• Renton Sch. Dist., 111 LRP 72136 (SEA
WA 2011).
But homebound is not “one size fits all.” If it
is not individualized, it may fail to provide
FAPE.
• Trico County Unit. Sch. Dist. 176, 108 LRP
42817 (SEA IL 2008);
• Torrance Unified Sch. Dist., 111 LRP
19380 (SEA CA 2011).
To Sum Up….
1. Districts must have policies and
regulations in place to seek information
from parents about food allergies and
respond to food allergies with appropriate
plans.
2. District policies and regulations should
comply with the Guidelines.
3. Students with a food allergy at-risk for
anaphylaxis will most likely be covered by
Section 504, although IDEA eligibility may
be appropriate in some cases.
4. All Section 504 procedures should be
followed for evaluation, placement and
the development of a Section 504 plan.
5. The FAAP/EAP/Individual Health Plan
may be the only Section 504 plan the
student requires.
6. Food allergy diagnoses are increasing.
These conditions must be taken seriously
by school staff.
7. Training of staff is important. Document
the training.
Janet Little Horton
Thompson & Horton LLP
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
713-554-6746
jhorton@thompsonhorton.com
www.thompsonhorton.com
© 2012