Home > Health, Parenting > The ADA, food allergies, and one rude-ass administrator

The ADA, food allergies, and one rude-ass administrator

Yesterday I wrote about how the federal Americans with Disabilities Act (“ADA”) applies to people with severe food allergies.

Today I had the opportunity to speak with my son’s school’s new owner. I began by calmly introducing my concern, giving a high level overview of the ADA as it applies–per the Department of Justice–to child care centers and kids with severe food allergies.

The owner quickly jumped in and explained that, because of teacher-student ratios and “mildly ill” student provisions, he’s permitted to decide whether or not to administer certain medications. He spoke in a manner Anthony would call “shouting,” but which I’d merely describe as “heated.”

I said that was inconsistent with everything I’d read on the ADA so far, since it must be construed to protect more affected individuals than fewer. Could he please point me to the provisions overriding the ADA?

“You’re not going to scare me!” he barked.

Startled, I said, “That’s good, because scaring wasn’t my intention.”

“Beside, this–” he said, thumping the school’s handbook. “–was put together by a bunch of lawyers!” 

I laughed. “Yes, because lawyers are well known for staying neatly between the lines, always.”

He began explaining how administering medicine to unwell kids–such as those with allergies–messed up teacher-student ratios if one teacher had to go injecting a kid; peculiar, I felt, given that many surprising situations require such individual teacher care. I asked again that he point me toward the provisions enabling his schools to reject care mandated by the ADA.

“Title 22,” he answered.

“Okay, I’ll look that up. Thanks.”

He began explaining how he can’t have untrained teachers being expected to give such critical medicine.

“Well, it’s a good thing they just got training for it, then!”

“What?”

“They just got training for [L], a student with severe allergies whose parents withdrew him when ownership changed. Also, my five-year-old son learned how to administer an EpiPen in about 30 seconds.”

He began reiterating previous statements. I said, “Please be clear; I’ll be looking at Title 22, but regardless of what I discover, I will be leaving reviews letting parents of severely allergic kids know that this is not a school friendly to them.”

He repeated some of his earlier points. I interjected, “I’m done. I’ve already gotten everything I can from this conversation. Have a good evening.”

“Fine,” he replied. “You, too.”

I am no expert in Title 22, having just met it this evening.

I grew suspicious when I saw it’s specific to California. I’d expected federal legislation, since the Constitution’s Supremacy Clause establishes federal law as superior–or supreme–over state law. The Americans with Disabilities Act is a federal law. Given that its very purpose is to give people fewer avenues to discriminate against people with disabilities, or each person “who has a physical or mental impairment that substantially limits one or more major life activities,” it would be extremely bizarre to enable states to enact legislation permitting business considerations to override civil rights ones: “You must accommodate disabilities, unless you don’t want to!”

If “don’t-want-to” is the bar for skirting the ADA, why bother having it? Everyone will seek–and find–business or other considerations overriding the hassle of accommodating a stranger’s disability.

Recent revisions to Title 22 permit California child care providers to decide whether or not to accept the responsibility of administering EpiPens. This is inconsistent with the ADA for the severely food allergic, raising a federal preemption issue sure to soon become contentious.

He was right, but I was right, too.

Before today’s discussion, I wrote a letter to the school’s owners. I didn’t mean to send it, but wanted to organize my thoughts before talking to them.

I’m including the letter here, though it reflects less nuanced understanding than I might someday have. Please know that, although I am legally trained, I am not an attorney. Everything included here is shared for the purpose of sharing my journey, not offering counsel. But if there is something you see here that gives you pause, I encourage you to talk to an attorney.

The ADA encompasses severe food allergies so that you have support for the tough, fearful journey of–through no fault of your own–either being severely food allergic or being parent to a child with severe food allergies. So that you’re protected by law instead of left at the mercy of commercial justifications. History has shown those mercies to be few.

[School]:

My son, [D], is currently enrolled at your school. My husband and I were considering reenrolling his younger brother, [J], when the infant and toddler room reopens in a few weeks.

[J] has a severe food allergy, so Anthony and I revisited the handbook with him in mind. We were surprised to discover your stated policy in regards to EpiPens, which is to say that you do not accept responsibility for administering them.

While I will not be enrolling [J] at your school, I wanted to address this matter with you for the safety of severely allergic students currently enrolled at your other schools.

The Americans with Disabilities Act encompasses severely food allergic individuals. Please see the Department of Justice’s FAQ for child care centers (http://www.ada.gov/childqanda.htm) for more information on this. Specifically, look to the DoJ’s answer to question #19 for its clear address of severe food allergies and the twin requirements to admit severely allergic students and to administer epinephrine as needed. Note that the DoJ’s answer to question #2 addresses the exemption for this requirement, which is specific to religious institutions, and thus inapplicable to you. The DoJ’s answer to question #1 clearly enumerates “private schools” as public institutions covered by the ADA.

Please also see the text of the DoJ’s 1997 settlement with La Petite Academy (http://www.ada.gov/lapetite.htm). Note that paragraph #6 describes an EpiPen policy precisely mirroring your policy. More importantly, please note that the DoJ determined this policy unacceptable and mandated La Petite Academy’s implementation of a non-discriminatory one in its stead. Details of that then-new policy are included and might be used to guide [School] in its adoption of its own new, ADA-consistent policy.

I appreciate your care for my older son, as well as your attention to adjusting your policies to (i) align with the ADA and (ii) ensure the safety of all your schools’ students, current and future.

Thank you,
Deborah

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  1. August 11, 2015 at 9:54 pm

    I’m glad that things went well today😕. At least you know for sure where he stands as opposed to a willy nilly person. Some people will act like they agree with you, but don’t actually. Etc.

    • August 11, 2015 at 9:58 pm

      Agreed! There was no ambiguity whatsoever to muddle through or second-guess.

      The clarity of today’s conversation made me very, very glad Li’l D has only a short while left there. I miss what the school was before, certainly, and how beautifully the old owner+administration handled complex situations … but life goes on, and it really does seem like D’s ready for first grade at just the right time.

      Love you!

  2. August 11, 2015 at 10:03 pm

    I am amazed that they are allowed to refuse to administer life saving medication….

    • August 11, 2015 at 10:08 pm

      It doesn’t make one bit of sense to me. Not one. And … I can usually find a shred in just about anything.

  3. August 11, 2015 at 10:48 pm

    Sigh.
    Followed by hiss and spit.
    Clarity is an advantage, in that you won’t be risking your precious boy, but I do hope that they are forced to come to the very sensible and ethical party soon.

    • August 12, 2015 at 5:18 am

      I knew I wouldn’t be sending him the moment I read that sentence … but now it’s a matter of law that impacting the lives of California students!

      California cannot override the ADA; the position it appears to take on EpiPens for the severely food allergic does that. If California Title 22 does indeed say that kids with allergies can be excluded and/or included but with provider option not to inject, these are ADA-illegal statements that will be challenged and overturned. The question is how quickly.

      (I only briefly reviewed the California law, so I could have misread it. It could be consistent with the ADA and not actually discriminate against severely food allergic people, which would be awesome. I’d be happy to be wrong in that way! I’ll have to read further.)

  4. August 12, 2015 at 6:49 am

    We need more level headed parents like you who can politely put school administrators in their place – which is properly caring for all children.

  5. NotAPunkRocker
    August 12, 2015 at 9:07 am

    How on earth can they justify that, or maybe my question is how the heck did that even pass as a law? If they are worried about parents suing them for incorrect administration or such, I would think they are covered under Good Samaritan laws. Which is more critical: saving a child, or fending off legal challenges (if they even come up?)?!

    • August 12, 2015 at 9:44 am

      Right? On the one hand, I feel like we as parents learn a great deal about whether or not we want to leave our kids at places that act as if they see kids as walking liabilities instead of valuable resources to protect. We also learn exactly why civil rights are so staunchly protected: where business might favor money over right, the law greatly increases the risk of doing so. Unfortunately, the impacts of law aren’t always immediately understood by impacted parties. In this life or death matter, I pray clarity doesnt come at the cost of a child’s life.

      Even as one legally trained, I will not stand by and watch someone die for fear of liability. And the thought of someone standing over my baby and waiting for a paramedic to administer epinephrine while my baby’s struggling to breathe, terrified, as his body shuts down? It enrages me. And let’s be clear: “rage” is entirely too mild a word for this feeling.

      There’d be liability, all right.

  6. August 12, 2015 at 9:36 am

    What on earth?? That’s insane that there’s a law allowing them to refuse. Is that even constitutional? Ugh.

    • August 12, 2015 at 9:47 am

      The ADA indeed does not permit this result. I just hope any inconsistency between CA and the ADA is worked out before parents have to try 100 day cares to find one that will accept their kid … or, much, much worse, before someone dies.

  7. August 12, 2015 at 11:19 am

    I think you need to spread the word about this — talk to pediatricians, talk to state legislators. Write to the governor. Let the parents you know, know. Because not every parent is as diligent or as knowledgeable. Or it might not occur to them that there are exemptions to a federal law designed to protect our children. BECAUSE THAT IS WHY THEY WERE ENACTED!!!!

    Arghghghghghghgh.

    • August 13, 2015 at 4:26 am

      What you said! Civil rights > commercial considerations.

      A couple days ago, I’d wondered why parents would leave their kids with providers who won’t administer (as impermissible under the ADA as not accepting the kids). It struck me that the parent who’s gone to a half-dozen providers who won’t accept their kids will potentially feel thankful to have found one who will, even at this cost. I want to reach those parents and let them know this is not a choice they have to make.

      Littler has an appointment today. I’ll ask Anthony to raise this with his doctor today, and think over the next couple of days how else to highlight this issue.

      I’m so glad you specifically mentioned the governor. I’d meant to write legislators, but failed–so engrossed assessing how to tackle this–to consider this important one. (I posted a copy of the letter I’ll send to Senator Lara via post. I’ll send another hard copy to the governor.) Thank you.

      • August 13, 2015 at 4:56 am

        Sure good luck!

  8. August 13, 2015 at 3:28 am

    I can only say, ‘what the hell?’ How does this happen? That is an honest question, how do states enact laws that are in direct conflict with federal law? I know they do it all the time, but does it take one or more horrific and terrible tragedies before something is done to change it? I hope you will let other parents know, as someone else said not every parent will understand what that sentence meant when they read it.

    • August 13, 2015 at 4:31 am

      I echo your question. Did not one single voting legislator understand this? Did they understand but ignore, either not anticipating or not caring about the direct impacts of the legislation? It’s flabbergasting.

      The thing is, the legislation was well meant. The goal was to get more EpiPens into more schools and protect more kids. Unfortunately, by couching it as a choice, kids in public (non-governmental) spaces are now worse off. Good intentions, terrible consequences.

  9. August 13, 2015 at 5:24 am

    I hate bullies. Looks like you did your homework, and will continue to, and the admin will resort to scare-mongering. Boo.

    • August 15, 2015 at 7:58 am

      It’s so funny recalling that conversation and realizing he thought it was a negotiation: “Let’s talk–or shout–her down off the ledge and we’ll be fine!” ‘Cause that’s how that works, yup.

      • August 15, 2015 at 8:59 am

        I hate to say it, but sometimes in these kinds of situations, I’m too tired to fight ‘the man’ so I get my husband to do the dirty work. Scary but true, almost every time they’re like “Oh yeah, great, thanks for letting us know, sir.”

  10. August 15, 2015 at 8:08 pm

    GUH.

    • August 19, 2015 at 12:34 pm

      Yeah. my brain comes back to this about 30 times a dsy. If it were just the one chain, that’d be one thing, but knowing–thanks to Google and a message from a friend–that it’s so much bigger than that just floors me. I have my next few steps noted, because, man. A law isn’t much of a law if no one knows about it because its not enforced.

  1. August 15, 2015 at 8:23 am

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