Home > Family, Health, Parenting > Allergies, child care and the ADA

Allergies, child care and the ADA

My sixteen-month-old son, Littler J, is severely allergic to eggs. My husband and I keep an Epipen with us at all times, and leave its twin with Littler’s child care.

My husband and I were considering moving Littler to his older brother’s school when it opens its infant room soon. Unfortunately, a sentence in the handbook provided by the school’s new owners concerned my husband.

I hadn’t actually read the sentence when my husband revisited it last week.

“This pisses me off!” Anthony exclaimed. “Can they even do this?”

He started reading the offending sentence. “‘We do not accept responsibility-‘”

I was talking with a friend. I waved him off. “Of course they can’t accept responsibility for outcomes! That’s a standard disclaimer.”

“I don’t think that’s what it says, Deb.”

I wasn’t listening.

I finished reading the sentence this morning. I immediately understood why Anthony was enraged, and unwilling to entrust Littler’s care to the school.

The sentence expressed a position inconsistent with the Americans with Disabilities Act.

“We do not accept the responsibility of … the administration of Epipen or other similar injections,” the handbook informed me.

Now, I understand that legislative documents are long and complex. The Act is not light reading.

Luckily for child care centers, parents and other impacted individuals, FAQs make accessible the otherwise incomprehensible.

Question #19 of the United States Department of Justice’s FAQ on how the Act applies to child care centers answers the question, “Do we have to take [kids with severe food allergies]?”

In a hard to misunderstand answer, the DoJ replies, “Generally, yes.” It further clarifies that centers “must take appropriate steps in the event of an allergic reaction,” including “administering a medicine called ‘epinephrine.'”

And that “generally”? How about that?

The DoJ kindly addresses that in questions #2 and #4 of the FAQ.

Question #2 specifies that religious entities are exempt. That exemption doesn’t apply to my son’s secular school.

Question #4 addresses exemptions for cases where “individual assessment” reveals that including a specific individual would “pose a direct threat” or “fundamentally alter” the nature of a program. Even apart from specific obligations to include severely allergic kids, the center’s categorical rejection of responsibility to administer a life-saving medicine fails–in this non-lawyer’s reading–the individual assessment test.

This all was established via a 1997 settlement.

That’s 1997, not 2014. None of this is news, which leads me to ask:

You know what’s harder than having to put up with someone else’s disability?

Having to live with one every moment of every day.

(For me, the “living with” is a constant fear of food not prepared at home, and that epinephrine might not be enough to save Littler if he does eat the wrong thing. Epinephrine often saves lives, but sometimes it doesn’t. For many others, “living with” presents much more concrete, immediate challenges on a minute to minute basis.)

That is precisely why the Act exists: to ensure protection for people not all others would necessarily care to protect. To make it their obligation to do so, overriding their inclinations–personal or commercial–by the written word of law.

To ensure that kids with severe allergies have centers to attend while their parents work, despite anyone else’s preference otherwise. That their parents are not improperly forced to enroll them elsewhere by any handbook suggesting they will simply be left to die should they have a severe allergic reaction.

I will not be sending Littler J to this school.

I will be discussing this matter with the school*, a discussion I began early this morning, for the sake of parents and kids at all the chain’s schools.

I do not accept its disavowal of its responsibilities.

* To my husband, I will be saying: I’m sorry. You were right, and I should have listened.

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  1. August 10, 2015 at 11:27 am

    Go get ’em!!

  2. August 10, 2015 at 11:35 am

    I’m glad Littler J will not be going to that school, and that y’all will be addressing it. I hope you know that this house is a safe one to bring him too because we’re absolutely obsessive about allergens. πŸ˜€ Anytime, chica.

    • August 10, 2015 at 1:39 pm

      I knew it to be true before, but it’s still good to see it in writing. Next time I will act on my faith, and grow less fearful by practicing in such a safe and comforting place. β™‘

  3. NotAPunkRocker
    August 10, 2015 at 11:37 am

    I guess the current school is OK with it? Just making sure…

    I would challenge them on it, but that’s the kind of mood I am in right now.

    • August 10, 2015 at 1:41 pm

      Where he’s at right now is great with it; they actually more quickly understood the severity than did I! While the director isn’t super personable with adults, she has a laser sharp focus on making sure the kids are safe and loved. I’m shifting my efforts to finding a more optimally located branch of that school for Littler J. πŸ™‚

  4. August 10, 2015 at 11:43 am

    How frightening!

    Does the law also make the day care worker, who is not a health care professional, liable if she messes up and administers the drug wrong? If, God forbid, a child dies? Does she and the facility get Good Samaritan immunity from wrongful death lawsuits?

    Any thinking, caring person would do what they had to do to save a child, but knowing this is something that is hanging over your head every day? I could see why they wouldn’t want the responsibility, frankly. And I can see why you wouldn’t want your choice of schools restricted. It’s a tough situation.

    • August 10, 2015 at 1:43 pm

      There are waivers of liability forms absolving providers from the consequences of administering medicine; as mentioned in my post, waiver of liability for consequence is to be expected. That’s not what this is, though. In a sea of carefully crafted statements, this equally careful sentence states they are not responsible for “the administration” of the medicine, which is in direct contravention of the Act. (See quoted text on question #19.)

      Nor is this a simple matter of one person’s choice of daycare. If every business were allowed to opt out of caring for kids with special, non-dangerous needs, those kids–and their parents–woud be left stranded … creating more strain on government infrastructure as the vast number of impacted parents struggled to keep work amidst managing the challenge of finding daycares willing to take on that added hassle.

      The Act, thankfully, removes the right to perpetuate such discrimination, thereby creating a level playing field for all providers … or, at least, those interested in complying with the law.

      • August 10, 2015 at 3:09 pm

        Deb, I can certainly appreciate that parents need daycare options even if their children have special needs. Not sure what you mean by non-dangerous, though – not dangerous unless something bad happens and then the condition is life-threatening?

        We had this situation at my kid’s school. A parent with a child with a severe peanut allergy wanted to send him there. As a private school, they had a choice not to take the child, but the kindergarten teacher stepped up and said she’d be willing to learn how to administer the Epi-pen, etc. Her biggest concern wasn’t the pen, it was being responsible for making sure this child didn’t get peanuts from somewhere else, didn’t eat any treats that might contain them, didn’t eat off another child’s plate at lunch, etc, etc. with all the risks inherent in watching little kids who don’t know what is best for them.

        Can the facility insist that someone sign the waiver of liability form? Or could parents refuse to sign it since the facility has no choice, by law, but to assume the risk?

        As an insurance agent, I admit to being cynical of responsibility being legally thrust onto someone else. Obviously I’m not talking about you, but in general, when something bad happens, most people want someone else to be held responsible, and to have to pay for it.

        • August 10, 2015 at 4:11 pm

          Based on your description of what happened at your kid’s school, the school presented you an erroneous accounting. For ADA purposes, “public” means anything non-governmental. The FAQ (http://www.ada.gov/childqanda.htm) addresses this in question #1, specifically enumerating private schools as encompassed in the “public” (non-governmental) portion of the Act.

          The school was obligated to accept the peanut allergic student; to do otherwise would’ve been impermissible discrimination, unless the school’s mission is specifically peanut-centric, which would be weird.

          I understand it’s frustrating having to make such accommodations. I do. Even before we discovered J’s allergy, though, I dramtically favored extra precaution over avoidable death. That sounds harsher when written than in my heart, for I admire and respect you, and love how you make me laugh amid moments of lovely insight. That’s just how it boils down in my heart.

          In conclusion and apart from anything else, Elyse pretty much nailed it for me.

        • August 10, 2015 at 7:07 pm

          I revisited my above comment, typed out on my phone outside a parking garage, in light of Elyse’s comment below. It was unduly harsh, though not intended that way. I’m sorry.

          I don’t doubt for one second the love and goodness of your heart, though a stranger’d not think it based on my penultimate paragraph above.

          I’ll do better next time. I promise. ♥

  5. August 10, 2015 at 11:59 am

    I’m so glad you’re going to discuss it with them. If centers are going to care for children, they need to be prepared and ready to handle an allergic reaction. With severe allergies as common as they are (and becoming more prevalent), they should be ready and willing to deliver care if needed. In fact, they should train all childcare providers to do so and should hold mock emergencies to make sure they maintain their skills.

    Okay. Off my soapbox. But I’m with you for sure!

    • August 10, 2015 at 1:50 pm

      Yes, yes and yes! The Act mandates they must be prepared, but I’m not sure–based on this–how many providers understand the obligation and are prepared. Were I in their shoes, I would be so on it; I would want to know I had done what I could to ensure a happy ending to an allergic reaction. But I’ll be honest here: the kinds of liability child care providers face–the emotional ones, even, apart from the legal ones–make that a path I will unlikely ever take. I knew this was so from the moment D’s Nana said she’d had a friend who had to close her daycare the very first day it was opened due to a SIDS death. That death wasn’t her fault, as would be the case with epinephrine not being enough, but you can’t ever undo having witnessed it. It’s these risks that make me vocal in my appreciation for my sons’ true caretakers. It is a great act of love to care for children.

      • August 10, 2015 at 2:05 pm

        Absolutely. And yes, I imagine a SIDS death would easily make one want to close up shop. How sad.

  6. August 10, 2015 at 12:10 pm

    I’m stunned. That’s a basic healthcare issue. Go get ’em, Mama Bear.

    • August 10, 2015 at 1:50 pm

      β™‘ I think that’s why I waved A off, though I should not have. I couldn’t conceive of such a thing!

  7. August 10, 2015 at 1:14 pm

    When my son was little I had same problem with allergy. I needed to stop working and take care of him instead, because no one would take the responsibility to have him in daycare.
    I hope for you and your family, that you will find a better place.

    • August 10, 2015 at 1:53 pm

      Your comment puts a face to a general concern I expressed in comment above. I know you are/were not alone.

      We are lucky to have J in a good place for now. Its location isn’t the best, but I’ll take a suboptimal location over risk of death anyday, as I search for a place with right location and policies.

      • August 10, 2015 at 2:01 pm

        I understand that and you can hope that he will grow away from the allergy. After years without help I found a kinesiologist and she helped my son free for almost all his allergies. The last one he needed to avoid and work with by himself, when he did grow older. So there are hope.

  8. August 10, 2015 at 2:31 pm

    I could not face daycare for any of my little folks until there was absolutely no other choice and luckily it wasn’t until they were old enough to tell me all about their day.

    Papers and policy aside, I would ask them for examples of real situations they have handled and what they did, getting references and so on.

    You have to feel safety is top priority if you’re ever going to leave!!

    • August 10, 2015 at 6:39 pm

      For me, there’s no trusting this institution. The place that does one illegal thing isn’t one I’d trust not to do another, y’know? For another couple of weeks, I can entrust my older son to that school knowing that the teachers are the same amazing teachers who’ve attended to him for the last two years. But beyond that, I cannot support this organization.

  9. August 10, 2015 at 3:14 pm

    I am rather shocked. What the heck is a daycare for if not to make sure a child is safe? Oh wait, only perfect children with no allergies or medical conditions no matter how manageable. Right.

  10. August 10, 2015 at 3:22 pm

    It must be really hard — especially with young kids who put everything in their mouths.

    But the purpose of the law is to make sure that schools/day cares, etc. train their employees on how to act in an emergency. They do so for emergencies like falling from a swing or other injuries. Choking. This allergy, is really no different from other things that can possibly (and often do) go wrong at school.

    Go get em. THIS is why you went to law school.

    • August 10, 2015 at 6:46 pm

      Oh, my gosh. J finds every little scrap and gulps it before we can snatch it away. It’s usually pretty safe in our house, but it’s impossible to tell elsewhere. So we watch and we listen and breathe a sigh of relief when all’s proven clear, but it’s exhausting. I’m excited for him to pass this everything-in-mouth stage.

      Your comment is spot on. This is another kind of emergency for which teachers must be prepared, at schools abiding by the law. This school’s new administration told teachers that parents willingly send their kids without their Epipens when told they can’t have them; they want their kids to attend that badly.

      I wonder if those parents know they’re waiving something not meant to be waived? It’s hard to believe they’d accept that if they thought they had plenty of alternatives.

      It’s clear the administration knows based on how they shift from clear, concise language about what must and must not be done to this shifty two-paragraph sentence.

      And your parting thought? Yes, and bless you! Anthony’s been telling me the last couple of years that I was made to advocate. Until the last few weeks, I’d pooh-poohed that, too. But then, the last few weeks, it’s clear this is another area he’s right: I’m most invigorated when I’m speaking up in difficult situations.

      In the meantime, I take great comfort in my law background. People’d ask dismissively, “Why go to law school if you’re not practicing law?” Because there’s strength in knowing I’ll never endure most of what my mother did; knowing that I can and will navigate certain situations gracefully though I’m trembling inside. That’s the merit in a law degree for one who’s not practicing, and it is worth the bill I pay every month.

      • August 10, 2015 at 6:55 pm

        Knowledge of the law is invaluable whether you practice or not! And if a school is violating one of the most basic principles we look for when we entrust our children to them, well, it’s time they know that they can’t get away with it.

        And are there really parents who are more concerned over what pre-pre-school their child attends than whether that child will survive it? What’s wrong with people?

        I have a confession, though. Peanut allergies just really started to be considered serious — to the point that nobody in the US was allowed to bring in peanutbutter sandwiches (PB&J was my staple through 6th grade). It took me a while to accept the reality that something has drastically changed in the world, and, really the smell alone can make someone very seriously ill.

        I wasn’t callous — just ignorant/ill-informed.

        You might get farther with this argument if you present it in a “let me help you learn” manner, rather than oppositional one. Flies and honey …

        • August 10, 2015 at 7:02 pm

          Absolutely, to your last point! It’s something I’m still not great at, but I think of my mentor who taught me I’d fare better with honey than stinging. She’s proven right 99% of the time. (The other 1% is with people who reject all polite boundaries, and only respond to stinging. They’re a barrel of fun to be with!)

          PB&J were a staple for me as well. I wonder when that stopped being the case? I wonder what changed to create the increased incidence? Either way, I’m glad to have your insight: It’s not necessarily a resistance to the idea of making accommodations, so much as … how can this really be? I find myself thinking such things–on unrelated topics–at least a few times a week. It takes effort to tackle those.

          And as to the parents question … I was flabbergasted. Of all the things that matter to me in this world, my family ranks highest. I’d give up everything in the world to ensure their safety. I can’t do that, but can and will take reasonable precautions, so I just don’t know how to understand that. At all.

          • August 10, 2015 at 7:08 pm

            Don’t you hate those pat phrases that turn out to be right? Ughghghghgh

          • August 10, 2015 at 7:09 pm

            I really, really do! πŸ˜€

  11. August 10, 2015 at 4:09 pm

    That doesn’t sound fair, to refuse kids who have allergies πŸ˜‘ requiring an epi pen in case of emergencies is a relatively common thing these days, it’s not like it’s a completely unique thing that they don’t know how to deal with!

    • August 10, 2015 at 6:50 pm

      It’s more than unfair–it’s illegal! And to your point, Carrie Rubin above (a doctor) mentioned that allergies are increasing.

      What’s so wild to me is they accept kids with allergies. They just won’t accept the Epipen, or its handling. Their whole approach is to call 911.

      That’s the kind of big thinkers I want caring for my kids.

  12. August 10, 2015 at 4:48 pm

    I’m pretty sure the daycare workers in my state have to go through CPR training and such or they aren’t allowed to take care of kids unsupervised. You’d think they could include administering the epipen in such training.

    • August 10, 2015 at 6:51 pm

      See, the teachers actually had to go through this for a student in D’s class a few months ago! But that was with the old ownership, with its funny interest in abiding the law.

      (So wild.)

  13. August 10, 2015 at 9:33 pm

    I’ve never heard something more stupid than that! How can you not take responsibility for something like that? You know what’s infinitely more difficult than administering an Epipen? Heimlich maneuver… Oh, and CPR. Did you know with those, you can cause more harm that good if not performed correctly? Did you know that it’s actually against the law to not perform those skills if you are trained to do so… which I imagine most daycare workers must be trained in? And I can attest – first hand – that administering an Epipen is far easier and dummy proof than any other medical endeavour. For goodness sake!

    • August 11, 2015 at 2:45 am

      My five-year-old was competent in using an Epipen about four minutes after we got his brother’s prescription. Seriously. He tested on his teddy bears, and then made his brother cry by testing directly on him, leading us to say: “Oh, no, sweetie! You only do it directly on him if he’s having a reaction!”

      I am flabbergasted that they take the highly allergic kids without the Epipens. Do they seriously believe this will absolve them of liability in case of a serious incident? “Oh, we didn’t have the Epipens [because we wouldn’t take them], we couldn’t do anything!”

      Yeah, definitely who I want watching my allergic kid, because poor thinking in one area isn’t indicative of poor thinking in others. :/

  14. August 11, 2015 at 2:22 am

    I’m new to any childcare woes you may be having so forgive me if I say something you’ve already discussed! I know at my school we have to take an epi pen training and 2 staff members are the “official” administrators of epi pens but we all take the training! Just in case Jonny falls out and it’s very visible he’s in distress. Even then though… They don’t want us to save little Johnny because skinny a mommy can sue if there are any complications. We live in such a crazy world. I’m sorry he has a tough road ahead! Egg based vaccinations cause my arms to swell and I have trouble digesting them. I cannot imagine being so allergic that you need a pen!

    • August 11, 2015 at 2:49 am

      It’s been an interesting year! The school closed its baby room early in the year, leaving us scrambling for a new school. Then the school was taken over and they indicated they’d open the baby room again. The current school is fantastic in some ways but inconvenient in others; all the same, I’ll stay with them and the relevant inconveniences forever over choosing a school that puts down in writing illegal positions and doesn’t expect any consequences.

      Your “can sue if there are any complications” statement reveals so much. The fact they won’t accept Epipens was perplexing to me: “How can they know there’s a risk of death and not accept the pens anyway?” Your comment illuminates: Oh, because they deem it more costly to administer the pens than to not administer them.

      That’s who I want caring for my kids: Someone who values their dollars earned over my kids’ lives. Yep.

      Thank you so much for weighing in!

      • August 11, 2015 at 3:16 am

        Doesn’t it just make you a little sick to know that dollars are worth more than people? Such a shame! I agree, the daycare my son goes to has its flaws, but the smile he has when he goes- I know he is being cared for in a good way πŸ™‚

  15. cardamone5
    August 12, 2015 at 7:10 am

    I am glad this disclaimer came to the attention of a trained professional. If anyone can change it, you can.

  16. August 12, 2015 at 5:04 pm

    I love you are taking it on even while not placing Littler in the school. You are a hero. I also love you will be saying ‘sorry’.

    • August 13, 2015 at 4:37 am

      Thank you. ♥

      I imagine my mom struggling to find someone to watch us. She’d have fled a school that wouldn’t administer, but wouldn’t have known that refusal was illegal. The law terrified her, as it would after being married to an officer of the law who used his status as part of his abuse

      Beside that, it’s exhausting in the best of circumstances to look for child care and to find the right one to protect the single most valuable thing in your life. If one person says “no,” time to move on quickly to the next person who might say yes. I’m lucky to be nearer the “best of circumstances” end of the spectrum, but imagining someone like my mom fighting an uphill battle to ensure her kids safety and care while she works to provide for her family … it makes me sick to my stomach. It makes me wish I could reach them directly and let them know they are protected by civil rights law.

  17. August 16, 2015 at 9:36 am

    I work at a school one day a week. We take CPR and First Aid training. Part of that training is how to use an epi-pen. They have a mock pen with no needle for practice on ourselves. I cannot imagine a school refusing to use one. I am so sorry you have encountered such a terrifying situation. I wonder if other parents realize what you discovered.

    • August 16, 2015 at 9:42 am

      Based on perusing childcare forums, I see that many, many don’t. 😦 I’m going to start posting on related forums (etc.) to start reaching them.

  1. August 11, 2015 at 9:36 pm

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