Legislation
In this section
School districts have a responsibility to be knowledgeable about all relevant state and federal laws and how they affect school policies on life-threatening food allergies and glycogen storage disease. It is important to note that Connecticut laws provide entitlement to an individualized health care plan for children with life-threatening food allergies and glycogen storage disease regardless of the child’s status as a child with a disability under Section 504 of the 1973 Rehabilitation Act, Individuals with Disabilities Educational Act (IDEA) or the Americans with Disabilities Act of 1990. Brief descriptions of the most relevant state and federal laws follow.
State Legislation
Public Act No. 18-185 An Act Concerning The Recommendations Of The Task Force On Life-Threatening Food Allergies In Schools. This Act makes several changes to education laws addressing food allergies in schools. It allows any student with a medically diagnosed life-threatening allergic condition, with the written authorization of a parent or guardian and written order of a qualified medical professional, to (1) possess, (2) self-administer, or (3) possess and self-administer his or her medication to protect against serious harm or death. The Act requires SDE, in conjunction with the Department of Public Health (DPH), to revise, review, and update its guidelines for managing students with life-threatening food allergies and glycogen storage disease. It additionally requires SDE to update its health and physical education curriculum standards and apply for external funding to raise public awareness about food allergies. The Act requires school transportation carriers to provide training in identifying and appropriately responding to severe allergic reactions to all school bus drivers, not later than June 30, 2019. Finally the Act extends the protections of the “Good Samaritan” law to cover school bus drivers rendering certain emergency first aid in response to a student’s allergic reaction.
C.G.S. 10-212c Life-threatening food allergies: Guidelines, district plans requires the Connecticut State Department of Education to develop guidelines for the management of students with life-threatening food allergies and have these guidelines available by January 1, 2006. In addition, not later than July 1, 2006, each local and regional board of education shall implement a plan based on these guidelines for the management of students with life-threatening food allergies enrolled in the schools under its jurisdiction which includes the development of an individualized health care plan for every student with life-threatening food allergies.
Public Act No. 12-198 (HB 5348) An Act Concerning the Administration of Medicine to Students with Diabetes, the Duties of School Medical Advisors, the Availability of CPR and AED Training Materials for Boards of Education and Physical Exercise During the School Day. The Act extends required educational guidelines for school districts in how to manage students with life-threatening allergies to cover students with glycogen storage disease. It requires the Connecticut State Department of Education and the Department of Public Health to issue the new guidelines by July 1, 2012, and school districts to develop individualized health care and glycogen storage disease action plans for their students with the disease by August 15, 2012. The plans must allow parents or guardians of students with the disease, or those they designate, to administer food or dietary supplements to their children with the disease on school grounds during the school day. The Act bars claims against towns, school districts, and school employees for damages resulting from these actions.
C.G.S. 10-212a Administration of Medications in Schools. This statute pertains to the administration of medications in the school setting. It addresses who may prescribe medications and who may administer medications in the school setting.
Section (d) of C.G.S. 10-212a Administration of Medications in Schools by a paraprofessional. This section of the statute provides for a paraprofessional to administer medication to a specific student with a life-threatening food allergy if there is written permission from the parent; written medication order by a legally qualified prescriber; and that the school nurse and school medical advisor have approved the plan and provide general supervision to the paraprofessional.
The Regulations of Connecticut State Agencies Section 10-212a-1 through 10-212a-10 Administration of Medications by School Personnel and Administration of Medication During Before- and After-School Programs and School Readiness Programs. These regulations provide the procedural aspects of medication administration in the school setting. The regulations include definitions within the regulations; the components of a district policy on medication administration; the training of school personnel; self-administration of medications; handling, storage and disposal of medications; supervision of medication administration; administration of medications by coaches and licensed athletic trainers during intramural and interscholastic events; administration of medications by paraprofessionals and administration of medication in school readiness programs and before- and after-school programs.
C.G.S. 10-220i Transportation of Students carrying cartridge injectors. This statute states that students with life-threatening allergies cannot be denied access to school transportation solely due to the need to carry a cartridge injector while traveling on a vehicle used for school transportation.
C.G.S. 52-557b Good Samaritan Law. Immunity from liability for emergency medical assistance, first aid or medication by injection. This statute provides immunity from civil damages to individuals who have been properly trained and who provide emergency assistance, voluntarily and gratuitously and other than in the course of their employment or practice to another person in need of assistance.
Federal Legislation
Certain federal laws may also be relevant to school districts’ responsibilities for meeting the needs of students with severe food allergies and glycogen storage disease. Additionally, Connecticut has created an entitlement to an individualized health care plan for a child with life-threatening food allergies and glycogen storage disease, without reference to a child’s status as disabled under either Section 504 of the Rehabilitation Act of 1973 (Section 504) or IDEA. It is important to note, however, that there is considerable variation in interpretation of these laws with respect to students with severe food allergies, as there is variability among the practices of school districts in addressing the needs of these students in school.
The Americans with Disabilities Act (ADA) prohibits discrimination against any individual with a disability. Section 504 of the Rehabilitation Act of 1973 further protects the rights of children with disabilities, requiring reasonable accommodations that allow for the provision of a “free and appropriate public education” (FAPE). This legislation applies to all programs and activities receiving federal financial assistance, including public schools. Children are eligible for accommodations through Section 504 if they have a physical or mental impairment that substantially limits a major life activity. Major activities may include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks. It is not required that the student receive special education services to be eligible for other services.
The Americans with Disabilities Act (ADA) of 1990 also prohibits discrimination against any individual with a disability and extends the Section 504 requirements into the private sector. The ADA contains a definition of “individual with a disability” that is almost identical to the Section 504 definition. The ADA also provides a definition of “substantially limits” (42 U.S.C. §12101 et seq.; 29 C.F.R. § 1630 et seq.).
Section 504 of the Rehabilitation Act of 1973 prohibits all programs and activities receiving federal financial assistance, including public schools, from discriminating against students with disabilities, as defined in the law. A student with a disability under Section 504 is defined as one who has a physical or mental health impairment (in this case, life-threatening food allergy) that “substantially limits a major life activity,” such as walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks (29 U.S.C. 794 § 504; 34 C.F.R. § 104 et seq.).
“Substantially limited” is not defined in the law or Section 504 regulations. It is the responsibility of the Section 504 team to determine eligibility criteria and placement as outlined in the regulations. In order to determine a child’s qualification, an individualized assessment of the child is required. If qualified, the child is entitled to receive a free, appropriate public education, including related services. These services should occur within the child’s usual school setting with as little disruption as possible to the school and the child’s routines, in a way that ensures that the child with a disability is educated to the maximum extent possible with his/her non-disabled peers.
The Individuals with Disabilities Education Act of 1976 (IDEA) provides financial assistance to state and local agencies for educating students with disabilities. Children are eligible if they fit one or more of the 13 categories of disability and if, because of the disability, they require special education and related services. The category that most often applies to children with diabetes is Other Health Impaired (OHI). This is defined as “having a limited strength, vitality or alertness, including heightened alertness to environmental stimuli, that results in limited alertness with respect to the education environment, that 1) is due to a chronic or acute health problem; and 2) adversely affects a child’s educational performance.”
District personnel should familiarize themselves with these federal laws and the regulations enacted thereunder to determine a child’s eligibility. Relevant court and agency decisions in Section 504, IDEA and ADA may provide additional guidance regarding the eligibility of students with severe food allergy for the federal laws noted above. When making eligibility determination for children with life-threatening food allergies or glycogen storage disease, schools must look at the student’s needs on a case-by-case basis.
The Family Education Rights and Privacy Act of 1974 (FERPA) protects the privacy of students and their parents by restricting access to school records in which individual student information is kept. This act sets the standard for the confidentiality of student information. FERPA also sets the standards for notification of parents and eligible students of their rights concerning access to records, and stipulates what may or may not be released outside the school without specific parental consent. Within schools, FERPA requires that information be shared among school personnel only when there is a legitimate educational interest.
Occupational Safety and Health Administration (OSHA), a regulatory agency within the U.S. Department of Labor, requires schools in Connecticut to meet safety standards set forth by this agency. These standards include the need for procedures to address possible exposure to blood-borne pathogens. Under OSHA regulations, schools are required to maintain a clean and healthy school environment. Schools must adhere to Universal Precautions designed to reduce the risk of transmission of blood-borne pathogens, which include the use of barriers such as surgical gloves and other protective measures, such as needle disposal, when dealing with blood and other body fluids or tissues.