I recently attended a presentation by a Senior Attorney for the Office of Civil Rights (OCR) in Denver, about protections of Section 504, Title II and Students with Disabilities in Public Schools from the American with Disabilities Act . This presentation was made to the MOSAIC support group in Denver, Colorado on  May 7, 2012 in regard to K-12 education and post secondary education.

This write up pertains only to students with food allergies in COLLEGE.

Sending a child with food allergies off to college is a daunting task and there are many ways to prepare for such; information in this blog post should not be used to argue a specific issue that you may have with a college, but is provided here for informational purposes only.

While it might work for some students with food allergies to deal directly with the college cafeteria staff or college housing office to secure accommodations, this may not be the best route to take in the long run. The college will provide information about the approved accommodations to the teachers and/or the cafeteria staff. The idea is to get a college to view our child’s food allergy as a Section 504/Title II issue and not just a dietary issue to be managed in the cafeteria.

For specific information about students with disabilities transitioning from high school to college, you may want to review:  http://www2.ed.gov/about/offices/list/ocr/transitionguide.html.  And for specific information about auxiliary aids and services at the post-secondary level, see:  http://www2.ed.gov/about/offices/list/ocr/docs/auxaids.html.

A student with food allergies heading to college should begin with the school’s Disability Services Office (or whatever the school calls this service) to find out what medical documentation and/or other documentation will be needed for the child and what accommodations are recommended. It is well to do this long before the freshman school year begins.

Most colleges receive some type of financial assistance through the Department of Education and therefore would be subject to Section 504 regulations (34 CFR part 104, subpart E). Schools that are public entities, for example state colleges and universities, are also subject to Title II of the American with Disabilities Act. (28 CFR part 35). Colleges and universities are not required to provide FAPE (Free Appropriate Public Education), but they are required to provide reasonable accommodations for students with disabilities. Not just academic accommodations, but also modifications and adjustments in the school’s programs when necessary to provide the student with an equal opportunity to enjoy the benefits and services of the schools programs. Cafeteria accommodations can be included, such as ingredient listings of foods and staff training on cross contamination.

OCR expects colleges to engage in an interactive process with students to determine the most effective way for the student to have an equal opportunity of an education. And some colleges will be better at managing this process and helping students manage their disability. That’s why it’s important to start with the Disability Services Office. The approval of adjustments may be in writing. And it would certainly benefit your student to obtain any agreements with the Disabilities Service Office in writing.

The Title II regulation does not require a school that is a public entity to take any action that it can demonstrate would result in the fundamental alteration in a program it provides or in an undue financial or administrative burden. The school has the burden of proving  that compliance with the regulation would constitute such an alteration or adminstrative or financial burden. (Such as a business major student saying they have a disability with math and therefore shouldn’t be required to take any math classes to major in business).

OCR doesn’t express opinions about hypothetical cases, particularly where they do not have all the facts and have not been involved in the interactive process with the student and disability services office to consider all the information available and determine what academic adjustments, if any, would be appropriate.  Generally, OCR does not tell schools which accommodations they must or may provide; they examine the process followed to determine what accommodations are or are not provided and whether they satisfy the requirement to ensure an equal opportunity for the student.  There are some considerations to take into account.  First (assuming there is a qualified* student with a disability), the school would be required not to exclude the student from participation in the any of the school’s programs on the basis of the disability.  Then, the school may not provide services in a manner that limits or has the effect of limiting the participation of the student with the disability.  Of course, accommodations requested and provided must be reasonable.  So, depending on circumstances, it may be unreasonable to expect a school to publish all the ingredients of all foods made available through its food services program.  However, it might be reasonable to expect the school to make a number of foods available and identified as “peanut and tree nut free” or “dairy free” or “free of any seafood product” or something similar.  Again, it would depend very much of the facts of an individual case.

*Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity.  28 C.F.R. § 35.104.

It was suggested, you may want to take a look at the Title II regulations (applicable to public schools and colleges—can be found on the internet):

28 C.F.R. Part 35, §§  35.130, 35.130(b)(1)(ii and iii), 35.130(d), 35.164.  See 34 CFR 104 subpart E. The principles applicable under the Section 504 regulations are fundamentally the same.

I have observed many students don’t start with the school’s Disability Services Office. They usually start with the dietitian and/or cafeteria staff and then if they have problems they just transfer out of the school.  ALWAYS start with the Disability Services Office.

Lastly, once your child is 18 years old, the school’s Disability Services Office might only speak with your child…not with the parent, to develop a plan of reasonable accommodations in order to comply with the laws ensuring the student’s confidentiality. This is one reason students need to learn to advocate for themselves early in their school career!