By Peter J. Maher, Shipman & Goodwin – GUEST COLUMNIST

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an
answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
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Dear Legal Mailbag:

I am a Section 504 coordinator working with a difficult family regarding accommodations they are asking to be placed in their child’s 504 plan. This 5th grade student is allergic to peanuts and tree nuts and requires an EpiPen if he ingests those substances. I think we are accommodating this student appropriately: we have a nut-free classroom and provide nut-free field trips and extracurricular activities. We also notify the bus driver and substitute teachers about the student’s needs and train school personnel to implement the student’s plan.

The parents are now asking that we create a policy banning any food from the school bus. Specifically, the parents want us to prohibit other students from taking home food leftover from a classroom party. We do not want to implement such a policy as we send food home with less fortunate students for their families, and kids may have left over lunch. There is supposed to be no eating on the bus anyway, but we know how that goes. And if that was not enough, the parents are also asking that all after-school and weekend school activities be nut-free. I feel this is asking too much, especially since the student is in 5th grade. She should know what she can and cannot eat. How much are we legally required to do to for this this child?

Thank you,
Allergies Anonymous

Dear Allergies Anonymous:

NOTE FROM ATTORNEY TOM MOONEY: Thank you for your excellent question, which stumped Legal Mailbag. Part of being all-knowing is knowing what you do not know. Accordingly, I am pleased that my colleague, Peter Maher, who is more knowledgeable than I am about Section 504, was able to respond as follows:

This must be driving you nuts. As with most issues involving students with disabilities–in this case a food allergy you identified through the Section 504 process–there is seldom a bright-line answer. The federal regulations implementing Section 504 of the Rehabilitation Act of 1973 require, among other things, that school districts provide students an equal opportunity to participate in or benefit from school services, such as transportation. Schools must provide accommodations, modifications, aids or services to students with disabilities on an individual basis to meet that requirement.

You appear to be on the right track in addressing this student’s needs through the Section 504 process. Decisions about what goes in a student’s 504 plan should be based on evaluative information reviewed by the student’s 504 team. Here, it will be important to review information about this student’s peanut/tree nut allergies and include relevant health or medical personnel as part of the team. When discussing food allergies, an important part of the conversation should focus on what a student requires in a specific setting. While it may be necessary in some cases to have nut-sensitive areas of a school, students still need to eat at school, which means students will need to bring food with them on their bus.

The 504 team should review what protocols have been successful in addressing the student’s needs in the school setting (e.g., a nut-sensitive cafeteria or classroom) and determine whether similar protocols would be necessary and sufficient on a bus. It may be more appropriate to consider designating this student’s bus as nut-sensitive, rather than banning all food from the bus outright. It would also be important to remind students (and the bus driver) of the rule that all food should stay in the student’s backpack. Moreover, if students are bringing home extra trays of healthy snacks from a classroom party, it may be appropriate to have them put that food in a designated area on the bus.

A similar analysis would apply to extracurricular activities. If it is necessary to have a nut-sensitive environment for the student during the school day, it likely would be reasonable to extend that accommodation to extracurricular activities in which the student may participate. These decisions must be made on a case-by-case basis by the 504 team based on evaluations of the student and other factors such as the age and independence of the student. To be sure, not all students with nut allergies will require a nut-sensitive setting.

Finally, you will notice that I have avoided using the term “nut-free” in favor of “nut-sensitive.” Despite a school’s best intentions, it cannot guarantee that nut products will never enter a certain environment and thus, that the environment is “nut-free.” Other students or parents may forget and include peanut butter crackers in the students’ lunchbox or visitors to school may have a nutty snack in their purse. A school should provide written notice to parents, students, and vendors of its nut-sensitive policies, if any, and should have internal protocols to effectuate those policies. But, a school must be careful not to give parents, students, and others the impression that nuts will never be present. Rather, it should clarify its policy is intended to reduce the possibility of a student’s accidental exposure to an allergen.

In sum, go back to a 504 meeting and discuss the parents’ requests and consider if other accommodations short of banning all food from the bus could adequately meet this student’s needs.