A food allergy may be considered a disability under federal laws, such as Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA).
Section 504 and Written Management Plans
According to the USDA, “when in the licensed physician’s assessment, food allergies may result in severe, life-threatening (anaphylactic) reactions, the child’s condition would meet the definition of ‘disability’.”
FARE recommends that parents of children with food allergy create, in collaboration with their school, a written food allergy management plan. One type of plan is called a 504 Plan, which is available under a federal civil rights law, Section 504 of the Rehabilitation Act of 1973
Section 504 applies to any school that receives federal money (i.e., all public schools and many private schools), and applies to a variety of health conditions, including a life-threatening food allergy. The U.S. Department of Education’s Office for Civil Rights lists allergy as an example of a hidden disability for the purpose of Section 504, and also further explains how a food allergy, for many children, would be considered a disability under 504.
What is more, the USDA states in its guidelines for accommodating students with special dietary concerns that when a physician diagnoses a food allergy as potentially causing life-threatening reactions, the child’s condition meets the definition of a disability under Section 504.
The Office for Civil Rights has also published an informative Q & A on Section 504 and recent amendments to the Americans with Disabilities Act, and food allergy is addressed in Questions 4 and 13.
Section 504 allows you to create, in collaboration with the school, a 504 Plan, which is a written management plan outlining how the school will address the individual needs of your child, and allow your child to participate safely and equally alongside his/her peers during all normal facets of the school day.
To begin the 504 process, you need to contact the school’s 504 Coordinator. This could be someone who works at the school, or it could be someone who works for your school district.
The 504 Coordinator will help assemble a 504 Team that will determine if your child qualifies for protection under Section 504. Typically, a 504 Team includes key members of the school staff such as the school nurse, teachers, food service personnel, coaches, counselors, and others.
In making their determination, the 504 Team will rely on medical information. As a result, you may be asked to obtain specific medical information or medical recommendations from your child’s allergist and/or pediatrician for the Team to review.
Once the 504 Team finds your child eligible, the Team will create an accommodation plan (or 504 Plan), which may include a number of components such as an Individual Healthcare Plan (IHP) and a Food Allergy Action Plan.
Written management plans such as 504 Plans have become increasingly more common over the past decade, especially for children with food allergy. These written plans come in a variety of shapes and sizes, ranging from a one-page, handwritten form to a 20-page plan made up of multiple components (IHP, Food Allergy Action Plan, Cafeteria Procedures, a Transportation Plan, and a Staff Education Plan).
If you experience difficulty with your school concerning a 504 Plan, contact FARE or the U.S. Department of Education’s Office for Civil Rights (OCR).
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) extends the protections provided by 504 to private schools and private child care centers.
Children with food allergies have received protection under ADA. For example, in a public settlement agreement under the ADA, a private child care facility was ordered to enroll children with food allergies, and to take appropriate steps to assure that the facility was prepared to recognize an allergic reaction, and respond appropriately.
Sometimes, private religious schools are exempt from the ADA. However, this depends on the relationship between a particular religion and the inner workings of the school.
To learn more about the ADA, visit the ADA website.