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Dear
XXXX,
The information below is written in response to your
questions about managing the risks related to S's food allergies at school and
on the school bus.
In brief, S's safety on the school bus should be addressed
in S's Individualized Health Plan (IHP) developed by the school nurse.
You also need to request a "Section 504 plan" that
details the special precautions and emergency plans for ''S's safety and the continuity
of care that her condition requires typically called "guidelines or
"accommodations" and "related services."
1. School
Responsibilities and Student/Parent Rights
Information regarding educational rights and
responsibilities is available from a variety of sources.
When you inform
the school that your child has special needs, such as food allergies, the
school district should provide you with the state Department of Education Parents'
Rights booklet.
If your school has not given this booklet to you, contact
your school district's director of special education, the school's Section 504
compliance officer (who should be named in the parent handbook with the
required notice of Section 504 rights), or your school's Special Education
Parent Advisory Council.
You can probably also download the booklet from your state's
Department of Education website. Also see the Federation for Children with
Special Needs website http://www.fcsn.org/parentguide/pgintro.html
You can find information about eligibility and your federal
civil rights in The Civil Rights of Students with Hidden Disabilities under Section 504
of the Rehabilitation Act of 1973. It is available on the U.S.
Department of Education's Office for Civil Rights website.
2. Safety on
the Bus
The time a child spends on the bus needs to be as safe as
the time the child spends in school.
The school district's protections and services extend to all
areas and school-related and extracurricular activities and services, not just
the classroom.
The school nurse and/or school principal share
responsibility for reducing the risk of allergenic exposures and for ensuring a
prompt and effective response in the event of a life-threatening allergic
reaction at all times during the school day and in all school settings -- on
the bus as well as during all school events and extracurricular
activities.
S 104.37 Nonacademic services.
(a) General. (1) A recipient to which this subpart applies shall
provide non-academic and extracurricular services and activities in such manner
as is necessary to afford handicapped students an equal opportunity for
participation in such services and activities.
(2) Nonacademic and
extracurricular services and activities may include counseling services,
physical recreational athletics, transportation
(emphasis added), health
services, recreational activities, special interest groups or clubs sponsored
by the recipients, referrals to agencies which provide assistance to
handicapped persons, and employment of students, including both employment by
the recipient and assistance in making available outside employment.
Regulations implementing Section 504 of the Rehabilitation
Act of 1973 prohibit discrimination "by contract."
S
104.4 Discrimination prohibited...
(4) A recipient may not, directly or through contractual or other arrangements,
utilize criteria or methods of administration (i) that have the effect of
subjecting qualified handicapped persons to discrimination on the basis of
handicap, (ii) that have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program or
activity with respect to handicapped persons, or (iii) that perpetuate the
discrimination of another recipient if both recipients are subject to common
administrative control or are agencies of the same State.
In other words, a school cannot contract with a bus company,
a food service or other entity that operates in ways that would discriminate or
have the effect of discriminating against a student with a disability,
especially by creating or ignoring conditions that endanger a child.
A complete copy of the regulations can be obtained from the
US Department of Education's Office for Civil Rights website.
3.
Availability of Epinephrine on the bus.
In the case of a child at risk for a severe allergic
reaction, the school must provide for the immediate administration of a
life-saving injection of Epinephrine by a trained first responder at all
times. With the parents' authorization for medication administration and
emergency care (standard school form) and a physician's medication orders and
recommendations for S, the school has the necessary documentation it needs to
develop appropriate safety steps.
I was surprised to see your school's statement regarding
Medication on the school district's website.
In
accordance with state regulations and policies, no prescription medication will
be administered to students without a written authorization from a physician.
(4.4.3f- School Committee Policy). In the case of short-term medications, (ie:
antibiotics), the original prescription container with pharmacy label serves as
the physician's authorization. In order to protect all students, no medication
may be brought to school or taken home by a student. All medications,
(including over-the-counter), must be brought to the health office by a parent
or guardian in the original container. (When having a prescription filled, ask
the pharmacist to provide you with two containers). No child at any level is
ever permitted to carry medication to school, or to take medication on their
own in this school system. Tylenol, Benadryl and other over-the-counter
medications may be administered with a signed permission authorization from
parents. Medication orders are good for the duration of the school year, and
are renewable annually.
This policy is not consistent with current state
regulations.
Several years ago, the Massachusetts Department of Public
Health School Health Unit developed exemplary regulations regarding the Administration of Prescription Medications
in Public and Private Schools, 105 CMR 210.000.
In recognition of the increasing numbers of students with
food allergies and other life-threatening allergies, the regulations include
specifics pertaining to the administration of epinephrine. The
regulations require the "identification of places where the epinephrine is
to be stored following consideration of the need for storage at places where
the student may be most at risk. The epinephrine may be stored at more
than one location or carried by the student when appropriate." [105
CMR 210.100 (E) (4) ].
Your district's Special Education Administrator,
Section 504 compliance officer and or School Nurse should be familiar with
state regulations. However, they may not be aware that your school's current
posted School Policy conflicts with current regulations. Note: If a
school policy undermines, contradicts or violates state law, or federal laws
such as IDEA or Section 504 requirements or mandates, it is invalid.
4.
Options
Individual circumstances and priorities differ from school
to school system and child to child. In some school districts, school
districts employ bus monitors as
trained first responders. They
are responsible for implementing safety measures detailed in the student's
individualized health plan or Section 504 plan.
If the student is determined to be too young to reliably
transport or carry the medication on his/her person, the bus monitor carries
the necessary medications needed by students with food allergies, asthma,
diabetes and other health conditions.
School districts sometimes arrange special transportation in
taxis, vans, or other small vehicles to reduce the number of students, to
reduce time spent in transit, and to reduce other risk factors typical of large
crowded school buses.
In some districts, the school administrator and parents agree that the school district will reimburse the parents for providing transportation when the school's
transportation system cannot meet the necessary safety standards. The
decision is the result of balancing the child's medical, developmental, social
and educational needs.
Thank you for your interest in Health Kids. Please
feel free to share this letter and other Healthy Kids articles and resources
with your school nurse and school staff.
Best regards,
Ellie Goldberg, M.Ed.
Please note that information in this letter is provided for
educational purposes
It does not substitute for the professional advice of your
physician or lawyer.
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