Disability Law

Is there any law for food allergy kids now?

Yes, three federal laws. This is a brief and simple explanation. More detailed explanations are found on the below listed web addresses. Specific questions should be directed to your attorney. The Chicago Bar Association has a Lawyer Referral Service. See www.chicagobar.org.

  1. Section 504 of the Rehabilitation Act of 1973. This is where the phrase “504 Plan” comes from. A public school that receives federal money can’t discriminate against a child with a disability. Every child is entitled to a free and appropriate public education.
    • Under this law, a food allergy may be a disability( the school has to determine it) because a severe reaction can interfere with a major life activity- such as breathing.
    • The U.S. Department of Education Office for Civil Rights enforces this law.
    • A “504 Plan” is simply a written plan that the food allergy parents and the school agree on to keep the child safe. It becomes a legal document.
      1. If a child needs services, then that should be provided in the 504 Plan.
      2. The more specific the 504 Plan the better.
      3. The 504 Plan should explain what everyone agrees upon for the child.
      4. The 504 Plan can set out the responsibilities of everyone involved from the child, to the teacher, nurse, parent, cook, bus driver etc
      5. A Doctor’s order can become part of the 504 Plan.
      6. Any document the parties deem relevant can become part of the 504 Plan.
      7. A Food Allergy Action Plan can become part of the 504 Plan. It tells everyone what to do if there is a food allergy reaction. Sample Food Allergy Action Plans are on the Home page.
    • If a parent disagrees with the approach of the 504 Plan then the parent can ask the school for a due process hearing. It must be an impartial hearing.
    • If the 504 Plan is not followed, then the Office for Civil Rights (OCR) can help. The bottom line is, however; the OCR wants everyone to work as a team.
    • The Chicago Office number is 312-886-8434.

    The general website for the OCR can be found at www.ed.gov. Use the search feature for OCR information.

    For a more detailed explanation of 504 Plans read the explanation on the Office for Civil Rights website at: www.ed.gov/about/offices/list/ocr/504faq.html.

  2. The other law is Title II of the Americans with Disabilities Act of 1990.
    • It prohibits discrimination on the basis of disability by public entities.
    • It prohibits discrimination on the basis of disability in the services, programs, or activities of all State and local governments. (Like Park District programs)
    • It even applies to such programs that DO NOT receive federal money
    • The Office for Civil Rights also enforces this law. For more information see: www.ed.gov/about/offices/list/ocr/504faq.html or call the Chicago Office number at 312-886-8434.
  3. The other law is Title III of the Americans with Disabilities Act of 1990. This act protects children from discrimination whether or not the institutionwhere the child is receives federal money. One place that it applies is to private schools.

4.    The U.S. Department of Justice enforces the Americans with Disabilities Act. The                                                        Department of Justice website is: www.ADA.gov.

 5.  The 2008 Amendments to the ADA. 

Why were they amended? Well, the Supreme Court decided to read the ADA narrowly and Congress got upset. They wrote the ADA to be read broadly so it passed the amendments. 42 U.S.C. 12101 sec. 2(a)(1)-(8). The Amendments impact food allergies because the Amendments stated that if mitigating measures helped your condition, that did not indicate that you did not have a disability. For example, if you have asthma and you avoid triggers or use an inhaler which helps, you still have asthma and you still might need an accommodation. Likewise with food allergies: one strictly avoids the food and if there’s a reaction one takes an anti-histamine or uses an epinephrine auto-injector. Those are mitigating measures but they don’t change the fact that one has a food allergy. 42 U.S.C. 12101 sec. 4(a)(1)(2), 4 (a)(4)(C)(D)(E)(i)-(ii).

For example, La Petite Academy, Inc., a Delaware corporation, provided childcare in about 750 locations nationwide. Its policy was to not give epinephrine auto-injectors to food allergic kids if there was an emergency. Its policy was to call 911 and request that the emergency medical service team administer the epinephrine. The food allergy kids filed a complaint with the Department of Justice. They said that was discriminatory. What happened? La Petite Academy and the Department of Justice reached a settlement agreement. La Petite changed its policy and agreed to administer epinephrine. La Petite admitted no wrongdoing.

  1. La Petite’s policy for administering emergency treatment to children with severe allergies can be found at: www.ada.gov/lapetite.htm. It’s at the end of the discussion about the settlement agreement.Remember, if your child has other disabilities, then you may qualify under other laws which are not discussed here.

Lesley University and the Department of Justice. Naturally places of higher learning need food allergy education.  So, Lesley University made all kids who lived on campus buy a meal plan. When the gluten-free kids tried to find something to eat there wasn’t much and they complained to the Department of Justice.  The school and the DOJ reached a settlement agreement in 2012 which states:

  • The school has to provide gluten-free and allergen -free food options
  • The school has to allow students with known allergies to pre-order allergen free meals
  • The school has to display notices concerning food allergies and to identify foods containing specific allergens
  • The school has to train food service and university stuff about food allergy related issues
  • The school has to provide a dedicated space in its main dining hall to store and prepare gluten-free and allergen-free meals.
  • The school has to work to retain vendors that accept student’s meal cards that also offer allergen free food
  • And the students each got $50,000 for their troubles.

Disclaimer

Any information is in no way intended to be a substitute for medical care or advice by a licensed physician or legal advice. Such information includes but is not limited to, studies, posters, handouts, literature, and support group listings, which is meant to help educate and support the Illinois community about food allergies. Nor is any advice a substitute for your own consultation with an attorney. Due to the rapidly changing nature of the law and our reliance on information provided by outside sources, we make no warranty or guarantee concerning the accuracy or reliability of the content. The Illinois Food Allergy Education Association disclaims any and all responsibility for any adverse effects resulting from any such information.