Citing Food Allergy Incidents, Family Pulls Kids Out of VA Schools

in Food Allergy
Published: June 16, 2023
After multiple 504 violations, a VA family has decided they don't feel safe sending their food-allergic children to local public schools.
Photo: Getty

A Virginia family has decided they don’t feel safe sending their two food-allergic children to their local public schools. After filing three grievances over 504 violations, plus two federal civil rights complaints, the parents are pulling the students out of the public system. The boys will start private school instead.

In one incident, the family’s middle son suffered a serious allergic reaction from a class game. His mother Michelle (we’re not using her real name for the children’s privacy) explains what happened. 

The boy has a 504 Plan requiring notice of food in the class, as he has a severe peanut allergy. Yet, without warning, the teacher conducted a lesson on food groups, like proteins, grains and vegetables. This included tossing jars of peanut butter in a “Think Fast” game. One jar dropped, exploded and sprayed peanut butter. From the peanut butter getting all over students’ hands during cleanup, to continuing to play the game without washing, the allergen got on Michelle’s son. She says the boy began nonstop sneezing, had red flushed skin, a tingly mouth, and his eyes swelled almost shut.

Then in January 2023, Michelle says her oldest son’s middle school class were given doughnuts that contained egg. This was the class’s award in a decorating contest. (Egg is one of this son’s five allergens.) Though the 13-year-old’s 504 plan states that Michelle will have 48 hours’ notice of food in the classroom, she was not warned. So her son had no treat alternative.

“He sat there with nothing. That just breaks my heart, but it also violates his 504,” says Michelle. The family also has a younger son with no allergies. 

Of the decision to remove her two sons from the Chesterfield County Public Schools division, Michelle says: “I just want my kids to be safe.” 

History of Allergy Tragedy

The Chesterfield County Schools division did not reply to Allergic Living’s requests for comment on the family’s claims of violations of safeguards for these allergic children. 

However, Michelle says that, over a few years, she has tried to take action on adherence to the 504 plans. Sometimes, she spoke to teachers, reminding them of the rules that advance notice if food will be in the class. In the more serious incidents, she also filed formal grievances of 504 violations with the school division. 

After the peanut butter jar incident, the district offered assurance of more training for food allergies. But instead, soon after, there were more issues with food in the class with no warning.

It is not lost on the mom that Chesterfield Schools is the schools division where Amarria Johnson, at age 7, died after eating a peanut at her school in 2012. 

The girl’s tragic death sparked advocacy work that resulted in Virginia and, eventually, all other states, passing “stock epinephrine” laws. The laws allow schools to keep epinephrine auto-injectors for anaphylactic emergencies, even if a student reacting hasn’t been prescribed an injector.

Amarria did not have an auto-injector at the school that day. The nurse’s aide was not authorized to use a device not specifically prescribed to her. Amarria died on arrival at the hospital.

“They continue to fail other students like her every day,” Michelle says of the division. 

Amelia Smith of the Food Allergy & Anaphylaxis Connection Team (FAACT) is disappointed to hear of Michelle’s situation with Chesterfield Public Schools. “I would hope a district that experienced the tragic loss of a student to anaphylaxis would be a picture-perfect example,” says Smith, who is FAACT’s general counsel and vice president of civil rights advocacy. Smith would expect such a district to go “above and beyond to ensure the safety and inclusion of its food-allergic students.”  

What the Boys’ 504 Plans Say

The 504 plan, named for Section 504 of the Rehabilitation Act, requires accommodations meant to ensure a student with a disability has equal educational access in publicly funded schools. Students with food allergies often qualify as having a disability under the Americans with Disabilities Act (ADA), because food allergies can affect eating and breathing. (Title II of the ADA calls these as “major life activities”.) 

When students are viewed to qualify, parents then work with a school to develop a 504 plan, based on the student’s specific health needs.

Michelle’s older two sons have had 504 plans in place since kindergarten. The plans set out requirements such as: 

  • Provide parents with 48 hours’ notice if there will be food in the classroom.
  • Notify other students to bring peanut-free food if eating in the classroom. (The district does not serve nut or peanut products, but those can be brought to the cafeteria.)
  • When food is present in the classroom, surfaces must be wiped.
  • A parent must be allowed to attend school events and field trips.

“I’m at every event because I don’t trust them,” Michelle says. This stems from years of what she calls multiple 504 plan transgressions with her children at three different schools.

The incident with the smashing peanut butter jar took place in November 2021. When Michelle arrived at the nurse’s office, she saw that her middle child was clearly having multiple symptoms. The nurse had given Zyrtec, not epinephrine that the child self-carries, and which his individualized health plan says to use in this situation. 

“I was so confused,” Michelle says about finding the nurse hadn’t injected her son. She says she convinced the nurse to use the auto-injector. Then an ambulance took the boy and Michelle to the nearby hospital. 

Trying to Find Remedies

The Chesterfield County mom says that she tried to work with the public schools on adhering to her children’s 504 plans. “I feel I have gone out of my way to be collaborative,” Michelle says.

Her efforts have been met with mixed results. For example, after the peanut butter jar incident, the teacher was apologetic. But despite the district’s assurance of more training for food allergies, a week later the same teacher neglected to give the 48 hours’ notice of food in the class. The students all got smoothies. 

And that winter, Michelle spoke to the principal about a party that would include cupcakes and candy that her son couldn’t have. This time, the principal pulled all food from the party, so her son would not be excluded. 

The mom appreciated the principal’s action. But she knew she was still facing inattentiveness to her sons’ safety plans.

“Multiple violations, especially if it’s multiple violations of the same accommodation, may indicate that a collaborative approach is not working,” Smith says. If that approach becomes ineffective, “it is time for the parent/guardian to seek outside assistance, such as by filing a formal complaint with OCR,” she says.

Federal Complaints over 504 Plans

The Chesterfield family has taken some of their allegations to the federal level, filing complaints with the U.S. Department of Education’s Office for Civil Rights (OCR). One complaint, which included allegations about the doughnut and peanut-butter throwing incidents, was dismissed.

The OCR wrote that, as the family already had a grievance with the school division, it would not be looking into the case. A key reason for dismissal was also that the peanut butter incident was not filed within 180 days, as required. The office also said it was satisfied with the district’s resolution of staff training. 

The family filed another OCR complaint after the middle son ended up eating lunch with two other students eating peanut products during a field trip in April 2023. Students should have been notified to pack peanut-free food as required in his 504 plan. 

Again, OCR noted that a grievance had already been filed with the school division and dismissed the complaint. 

Smith says the OCR response is not uncommon. She says the OCR “will typically not investigate claims when the family has filed a formal grievance and is going through the formal grievance process” with their local or state educational agency. 

The school division then denied any violation for the field trip. Michelle relates that they said the notification advising parents to send nut-free items at the beginning of the school year was sufficient. 

The Chesterfield family has not decided whether to take legal action. Michelle stresses that their main goal is just to keep their kids safe. 

She hopes that the Chesterfield schools will become more attentive to the needs of food-allergic students. But for now, “I am excited to move on.”

How to Deal with 504 Plan Violations

The 504 plan provides accommodations to ensure safe participation in all school programs and activities. It is intended to level the playing field for the student who qualifies as having a disability, says FAACT’s Amelia Smith.  

But what can parents do when the requirements established to keep food-allergic students safe are not being followed? The response should depend on the severity of the 504 plan violation and the likelihood that a resolution can be reached. 

In the following, Smith describes steps families can take.

  • Collaborative Approach. 

This is for less serious violations, such as an honest mistake or accident. Here, the parent can address the 504 violations by writing an email to the school or the staff member involved. “State how the 504 plan was violated and indicate your desire and willingness to agree to a resolution,” Smith says. 

  • File a formal grievance.

The process varies by state, but this will be filed with either the local school district or the state education agency. 

  • File an OCR complaint.

For more severe or repeated 504 violations, it may be appropriate to file a complaint with the OCR.

OCR complaints typically must be made within 180 days of the 504 violation, notes Smith. Also, OCR will usually not investigate a claim that another agency or court is examining or resolving. 

Smith stresses the difference in informal complaints (sending emails and other written complaints to school personnel) versus formal school complaints. The latter are complaints made following the procedural safeguards that a school gives to parents of students with disabilities. 

She also notes that, as long as there’s a 504 plan in place, it is not necessary to file for administrative remedies before seeking other solutions, such as filing an OCR complaint. 

  • Legal action. 

Another option is to file suit on the student’s behalf in federal court alleging a violation of federal law. 

Related Reading:
Food Allergies at School: the Plans, the Laws to Keep Kids Included
Food Allergies and Your Student: Guide to Big Issues at All School Levels
After Allergic Son Targeted in Peanut-Smearing, Mom Wants Action