“Disability is a natural part of the human experience and in no way diminishes the right of individuals to enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society.” - Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. 701
It is a common misconception—often perpetuated by school administrators—that children with food allergies do not qualify for a 504 plan. Schools often tell parents that 504 plans are reserved for students with visible physical handicaps, mental health issues, or developmental disabilities. Likewise, they are often told that children with food allergies only need an “individualized health care plan” or that no plan is needed because the school is “allergy aware.” This is not the case.
To the contrary, the U.S. Department of Education’s Office for Civil Rights (OCR) has issued findings and resolutions explaining that general policies and health plans are insufficient and that a 504 plan is the correct method to address the unique needs of a severely allergic child. Indeed, one of the best ways to ensure a child with allergies has an equal opportunity to participate in school while also effectively managing the risks posed by food allergies, is to create a detailed 504 plan.
A “504 Plan” refers to section 504 of the Rehabilitation Act, which protects students with disabilities from discrimination. A 504 plan is a document that list accommodations that the school must make in order to ensure your child may safely participate in all school activities. It is a binding document that allows parents to file a complaint with OCR if the plan is not followed. A 504 plan may specifically incorporate an “individualized health care plan” or an “emergency action plan” but unlike those documents, a 504 plan is a legal document that subjects the school to liability if it is not followed.
To be eligible for protections under section 504 a student must have a physical or mental impairment that substantially limits at least one major life activity. When food allergies may result in severe, life-threatening (anaphylactic) reactions, the child’s condition meets the legal definition of “disability.” The OCR has expressly listed food allergies as an example of a hidden disability.
The key portion of Section 504 provides that a disabled student shall not “solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .”. This means that under the law, students with life-threating food allergies must be given an equal opportunity to participate in all public school activities. The law prohibits, for example, failing to allow students to participate in field trips, creating an unsafe learning environment for allergic children, asking allergic children to sit out during activities involving food, or retaliating against parents or teachers who advocate for children with allergies.
Section 504 applies to any school that receives federal money. This includes all public schools, including public charter schools and focus schools. Charter schools are not magically provided a blanket exception because of their charter status. Instead, the law generally requires that public charter schools provide access to education on site at the charter school.
How To Set up Your 504
I recommend that you collaborate with the school to create a plan that will best ensure the safety of your child and allow your child to meaningfully and equally participate in all school activities alongside his or her peers. Do not ask for more than you need to protect and include your child.
While school districts may each handle the process a little differently there are common procedures.
1. The first step is to contact the school’s 504 coordinator. Your school will be able to give you the contact information for that person. I suggest contacting the 504 coordinator in writing. Explain the necessity of having a 504 for your child to ensure access to education. If your child will be starting school for the first time, contact the school in time to have the plan in place prior to the start of school.
2. Second, prepare for a meeting with the 504 team. Once the 504 coordinator has received your request for a 504 Plan, the coordinator must assemble a 504 team to discuss the needs of your child. You should request to be present at that meeting. The school will likely request medical confirmation from your child’s doctor(s) regarding your child’s allergies, so you should have that information ready to go. Bring copies of your child’s emergency action plan from your allergist, along with anything else documenting the severity of his or her condition.
3. Third, once the 504 team determines that your child is eligible, the team will create a 504 plan which includes procedures and safeguards that must be followed by the school. Again, I recommend that parents and their advocates participate in these meetings. Ask that your child attend the meeting if they are old enough. If not, consider bringing pictures of your child so that school administrators can see the real person you are working to protect.
4. Fourth, after the plan is completed, ensure that everyone who works with your child has a copy of the plan and understands its contents. I recommend requesting in-person meetings with your child’s teachers to go over the plan, rather than assuming the school will convey all the information to the teachers.
What to Include in a 504
The specifics of your child’s 504 plan will depend on the severity of his or her allergy and the kinds of activities he or she participates in. The plan may be general or detailed, as there is no standard format. You should include as many details as possible to ensure there are clear expectations for every environment your child will encounter at school.
You should also specifically state who is responsible for ensuring compliance with each part of the plan. This means including a list of what the parents will do, what the allergic child is expected to do to be his or her own advocate, and what school staff and faculty must do.
Here are two good online resources that provide examples of specific accommodations that you may want to consider:
Don’t be discouraged if your school resists your request for a 504 by telling you that other children with allergies do not have one. If your child has a qualifying disability, you are entitled to a 504 plan and may elect to put one in place.
If you need assistance advocating for your child with food allergies, we can help.
___________
DISCLAIMER: Viewing this website does not create or constitute an attorney-client relationship. We are advocates for our clients, and our advocacy depends on the specific facts of each case. You should not rely on the information contained on this website without first seeking professional counsel tailored to your particular factual situation and specific legal question.