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!”
“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.
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.