GUEST BLOG: COVID-19 and Students with Food Allergies

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GUEST BLOG: COVID-19 and Students with Food Allergies

 This guest blog post is provided by--and expresses the view point of--the Food Allergy and Anaphylaxis Connection team. AASA welcomed the opportunity to share this information with you for your own reference.
 
COVID-19 AND STUDENTS WITH FOOD ALLERGIES
Amelia G. Smith, J.D.
General Counsel and Vice President of Civil Rights Advocacy

 

The Food Allergy & Anaphylaxis Connection Team

The COVID-19 Pandemic has effected every aspect of our lives, including the rights of individuals with food allergies.  The Food Allergy & Anaphylaxis Connection Team’s (FAACT) Civil Rights Advocacy Division has been and is still actively monitoring and researching the impact of COVID-19, related directives and guidelines, school closures, and the impact of the CARES Act on the rights of individuals with food allergies.   One area of great concern that has arisen is the CDC’s “Interim Guidance for Administrators of US K-12 Schools and Child Care Programs,” released March 25, 2020, May 2020 CDC Activities and Initiatives Supporting the COVID-19 Response and the President's Plan for Opening America Up Again, and “Considerations for Schools” released May 19, 2020.  These guidance documents recommend avoiding mixing students in common areas and include the example of having students eat breakfast and lunch in their classrooms.  As the CDC’s guidance documents may affect the way students are exposed to allergens at school, AASA’s members should be aware of the potential issues these guidance documents may cause in order to effectively ensuring students are able to return to school safely when schools reopen.
 
FOOD ALLERGIES AS A DISABILITY
 
The U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice have determined that food allergies may be deemed a disability that requires accommodations under federal disability laws and regulations such as Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act, and the Americans with Disabilities Act, and the ADA Amendments Act of 2008. Students with food allergies, a protected disability that affects one or more major life activity including, but not limited to, eating, breathing and the major bodily functions of the immune, digestive, respiratory, and circulatory systems, are at a great risk of an allergic reaction when their allergens are present in the classroom.  The CDC’s own “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Educational Programs” (on which Eleanor Garrow-Holding, FAACT’s President and CEO, served as an expert panelist for the development of) recognizes that the implementation of said guidelines “must be implemented consistent with applicable federal and state laws and policies.” Additionally, on April 27, 2020 the U.S. Secretary of Education, Betsy DeVos, announced that she would not seek any waivers under the CARES Act of students’ rights afforded under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act. Instead Secretary DeVos held that schools must continue to accommodate students with disabilities, including providing a free and appropriate public education (“FAPE”) in the least restrictive environment.
 
CDC GUIDANCE
 
In March of this year, the Center for Disease Control and Prevention (“CDC”) released a early version of a school guidance document titled “Interim Guidance for Administrators of U.S. K-12 Schools and Child Care Programs to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19)”.  On page 9 of this guidance document, it is recommended “[w]hen there is minimal to moderate community transmission” schools “[a]void mixing students in common areas. For example, allow students to eat lunch and breakfast in their classrooms rather than mixing in the cafeteria.” The guidance document goes on to set out recommendations on how to limit mingling of students if it is not possible to suspend the use of common areas. Understandably so, the food allergy community is greatly concerned about the consumptions of meals in the classroom. It has been the position of FAACT since its inception that food-free classrooms are ideal and that prohibiting the allergens of a food-allergic student from their classroom is an essential disability accommodation for many students with food allergies.   
 
FAACT sent a letter to Dr. Robert Redfield, the CDC Director, on May 6, 2020 outlining our concerns about the CDC’s recommendation to consume meals in classrooms.  The letter outlined the different Federal disability laws that could possibly be violated by restricting the consumption of meals to classrooms.   The letter went on to outline the potential issues consuming meals in classrooms could pose for students with food allergies, specifically (1) an increased risk of allergen exposure and reactions, (2) increased risk of anxiety in a student with food allergies, and (3) the risk of students with food allergies fixation on the allergens in the classroom instead of being able to pay attention to the educational instruction taking place in the classroom.  All of these scenarios can lead to the denial of a “Free and Appropriate Public Education” (FAPE).  FAACT requested that the CDC revise the “Interim Guidance” document to address the concerns and safety of students with food allergies in light of the recommendation to consume meals in the classroom.  One specific request was that the CDC include a provision specifically recognizing that classrooms that contain a child with a known food allergy, especially those receiving accommodations through a 504 plan, IEP, or other accommodation plan, be specifically listed as a specific incidence where it is “not possible to suspend use of common areas”, at least for certain portions of the school’s population (i.e. certain classroom bodies of students).  
 
On May 19, 2020, the CDC updated its COVID guidance to schools and addressed the concerns FAACT expressed in our May 6, 2020 letter to CDC Director, Dr. Robert Redfield. The CDC’s new “Considerations for Schools” and the May 2020 CDC Activities and Initiatives Supporting the COVID-19 Response and the President's Plan for Opening America Up Again include instructions on how to safely use communal areas such as cafeterias, specifically the guidance to “stagger use and clean and disinfect between use”, and the guidance to “ensure the safety of children with food allergies” with a hyperlink to the CDC’s “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs.” The inclusion of this new attention to students with food allergies addresses the concerns FAACT raised in our May 6, 2020 letter to the CDC, specifically the risk of schools denying students the right to accommodations prohibiting the consumption of allergens in the classroom or requiring the consumption of food items outside of the classroom (accommodations encouraged in the CDC’s Food Allergy Voluntary Guidelines), it does not do so in plain and concise language.  
 
FAACT is concerned that the CDC does not specifically and concisely set out the manner in which schools should “ensure the safety” of students with food allergies and instead only includes a link to a 103-page document. Being mindful of the unprecedented burden on school officials and to address the overwhelming concerns of the food allergy community, FAACT sent a follow-up letter to Director Redfield on May 20, 2020 requesting that, in addition to the inclusion of the hyperlink to the CDC’s Voluntary Food Allergy Guidelines, specific language be used in the CDC’s guidance to specifically address students with food allergies in a manner equivalent to students with other disabilities such as asthma.
 
ACTIONS SCHOOLS CAN TAKE TO ENSURE THE SAFETY OF STUDENTS WITH FOOD ALLERGIES
 
In an effort to ease the unprecedented burden on school officials, school nurses, teachers, and other school staff, FAACT requested that the CDC revise their school guidance documents to specifically address and state the relevant language included in the CDC’s food allergy guidelines.  FAACT values the time of school administrators, nurses, teachers, and other staff and in an effort to ease your burden would call your attention to the following language contained in the CDC’s food allergy guidelines.  On page 37 of these food allergy guidelines, the CDC instructs schools to “create an environment that is as safe as possible from exposure to food allergens.”  The CDC states that some schools elect to ban specific foods across the entire school.  The guidelines additionally state that schools “may choose other alternatives to banning allergens including the designation of allergen-safe zones, such as an individual classroom or eating area in the cafeteria, or designation of food-free zones, such as a library, classroom, or buses.”  Further on page 41, schools are instructed to “[a]void the use of identified allergens in class projects, parties, holidays and celebrations, arts, crafts, science experiments, cooking, snacks, or rewards. Modify class materials as needed.”
 
ACCOMMODATION PLANS
 
Schools should be actively identifying the students that may need accommodations upon returning to school and working with the parents or caregivers of these students to ensure that proper accommodation plans are in place prior to the start of the school year.   Disability laws focus on the rights of the individual. It is important for schools and parents or caregivers of students with food allergies to focus on the individual needs of the student. Is the student a high schooler who has shown a level of maturity and an ability to safely manage their allergies in environments where his or her allergens are present? Is the student’s only food allergen shellfish? If so, there may not be an urgent need for the student’s class to avoid eating in the classroom (unless shellfish is a common lunch item in your school). This does not mean that these students will not need a 504 Plan or other accommodation plan.  The student may have asthma that can be triggered by certain cleaning products, by wearing a mask, or by having the classroom window open. This student might need accommodations addressing his or her classroom cleaning, allowing him or her to wear a face shield instead of a mask or to forgo a face covering all together, or prohibiting the classroom windows from being opened for ventilation. The student may have anxiety issues that make it too stressful for the student to learn in the in-person setting or may be at high risk for complications from COVID and needs the ability to elect to continue distance learning.
 
Areas to consider for COVID-related accommodations:
  • Meal consumption/allergens in the classroom and alternate locations.
    • While prohibiting the consumption of allergens in the classroom would seem like an easy mitigation of this risk, this approach has not been a universally accepted approach. Since FAACT’s launch in January 2014, FAACT’s Civil Rights Advocacy Division has assisted over 4,000 families, many of whose main concern was a school’s refusal to prohibit a student’s allergens from being consumed in the student’s classroom. Through FAACT’s advocacy and assistance, many of these families who were facing the challenge of schools declining to exclude their student’s allergens from the classroom were able to receive accommodations requiring food items to be consumed outside of the classroom, in areas such as the cafeteria, hallway, or outdoors.
  • If food is going to be consumed in the classroom, is enhanced cleaning, a larger room where students are going to be spaced further apart, or enhanced prohibition of food sharing needed.
  • Enhanced handwashing.
  • Face coverings for students with asthma.
  • Cleaning protocols and cleaning products for students with asthma and/or allergies to cleaning products.
  • Option to elect to utilize distance learning even when other students are participating in in-person education.
In addition to the COVID-related area of concerns above, a list of sample accommodations for students with food allergies can be found in FAACT’s Civil Rights Advocacy Resource Center. 
 
FAACT understands the uniqueness of the current COVID-19 pandemic. We appreciate that this is an unprecedented public health crisis, and we understand that the AASA and school administrators across the county are making extraordinary efforts to ensure that students return to school safely.  Should you have any questions or concerns regarding FAACT’s position and recommendation or should you wish to collaborate, please contact FAACT’s Vice President of Civil Rights Advocacy, Amelia G. Smith, J.D., at Amelia.Smith@foodallergyawareness.org or at (662) 322-7434.  FAACT appreciates your prompt attention to this crucial issue affecting the near 6 million American children with food allergies.
 
 
 

COVID-19 and Schools: Detailing the Continued Impact Full Report

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COVID-19 and Schools: Detailing the Continued Impact Full Report

As a follow up to our release of initial findings from "COVID-19 and Schools: Detailing the Continued Impact," today, June 24, 2020, AASA is publishing our full non-membership findings from our 2nd COVID-19 School Response Series.
 
Specifically, AASA launched this report to provide federal, state and local policymakers with immediate data on how districts are adapting and responding to prolonged closings, the resources and information superintendents are relying on or still need, and the initial financial implications associated with the pandemic as well as re-opening schools this summer/fall. 
 
As an indication of this study, AASA garnered 501 responses from 48 states over the weeks of May 5 through June 8, 2020. This report represents the second iteration of a series that AASA will release about the impact of COVID-19 on school districts and only speaks to the preliminary effects of the COVID-19 pandemic on district operations. The full findings can be accessed here.

AASA and BASIC Applaud House Leadership for Including School Infrastructure in Proposed Economic Stimulus Package

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AASA and BASIC Applaud House Leadership for Including School Infrastructure in Proposed Economic Stimulus Package

Today, June 18, 2020, AASA and the [Re]Build America's School Infrastructure Coalition (BASIC) released a statement applauding House leaderships' decision to introduce HR2, the Infrastructure and Economic Stimulus package. If the measure passes, the Act will infuse $100 billion in grants and $30 billion in bond authority for high-poverty schools that need upgrades to their buildings for safety. Specifically, the measure includes the following provisions:  

 

  • Allocates funds to states in proportion with the dollars that districts receive under Title I. Additionally, under this provision states must match 10 percent of the funds within 10-years of the act.
  • Includes language that mandates states have a public online database that outlines the condition of all public school facilities in the state.
  • Awards need-based grants to districts based on the poverty level of the school, limitations to raise funds to improve school facilities, and the greatest demonstrated need.
  • Allots fiscal 2020 program dollars for efforts related to reopening schools in line with the Centers for Disease Control and Prevention health guidelines. This money can be used to improve digital learning, including expanding access to high-speed broadband.
  • Prohibits funding for activities related to improving central offices, athletic stadiums, or other buildings that are not primarily used for instruction and for events where admission is charged to the general public. 
In a statement, the group said, "This is a good day for public education. Adding federal support to local and state efforts to modernize and build our public school infrastructure is long overdue. With these federal funds, our states and districts will be able to make progress on four pressing issues that confront public education." 
 
In response to the House's decision, Daniel A. Domenech, Executive Director of AASA stated "The backlog of construction, renovation and repair work in our nation's public schools has been well known for years and easily exceeds billions of dollars. And that was before a world pandemic shut the schools down and forced a critical conversation about ensuring the schools are ready to safely and healthily greet our students when they reopen this fall. The need was well documented in a GAO report issued just this month, which found that approximately half of public school districts need to update or replace multiple building systems or features in their schools. Highlighting the importance of this need and the critical role of federal support in response to both the need and the COVID pandemic, an estimated 41 percent of districts reported needing to update or replace heating, ventilation, and air conditioning (HVAC) systems in at least half of their schools. By including the Rebuild America's Schools Act in HR 2, Congress provides immediate relief to help districts in their efforts to reopen this fall while also creating jobs hard hit by economic downturn and addressing structural inequities in the existing K12 public education infrastructure." 
 
As of now, the measure is expected to stall in the Republican controlled Senate. That said, AASA will continue advocating for this funding so our members can upgrade their school facilities. Also, check out the full details on the BASIC's response by clicking here.

AASA Releases Initial Findings from 2nd Nationwide COVID-19 Survey

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AASA Releases Initial Findings from 2nd Nationwide COVID-19 Survey

In response to the COVID-19 pandemic, AASA issued a nationwide coronavirus school response survey to provide federal, state and local policymakers with data about how districts are adapting and responding to the virus, about prolonged closings, and about the resources and information, superintendents are relying on. The results being released today are from the second iteration of this survey, entitled COVID-19 and Schools: Detailing the Continued Impact, which collected more than 500 responses from 48 states.
 
“AASA is committed to supporting superintendents and other school district leaders throughout the country during this challenging and unprecedented time,” said Daniel A. Domenech, executive director, AASA. “We hope school systems will find our survey helpful as they carefully strive for a safe and healthy reopening process that is consistent with the Centers for Disease Control and Prevention guidelines.”
 
Please access the initial findings from the survey by clicking here.

Community Eligibility Provision Virtual Briefing

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Community Eligibility Provision Virtual Briefing

On June 17,  at 11:00 a.m. ET, AASA, The School Superintendents Association; the Food Research & Action Center; the American Federation of Teachers; the Center on Budget and Policy Priorities; and the National Education Association are co-hosting a virtual briefing on Community Eligibility Provision (CEP). 
 
For context, CEP allows over 30,000 high-poverty schools to offer breakfast and lunch at no charge to all students. As states and school districts make plans to safely reopen schools in the fall, and millions of households are experiencing job and wage losses, more schools than ever are becoming eligible to implement CEP, as well as finding the program to be a more financially viable option than before the pandemic. 
 
Specifically, this briefing will feature a panel discussion on how CEP works, the upcoming deadlines to apply and adopt the program, and some resources to help spread the word and support school districts as they determine whether community eligibility is a financially viable option for the 2020–2021 school year. You can register for the briefing by clicking here.

 

 
 

Three Major Myths of the New Title IX Regulations

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Three Major Myths of the New Title IX Regulations

Three Major Myths of the New Title IX Regulations

As of May 6, new Title IX regulations have been published, and a compliance deadline of August 14, 2020 now looms. In our interactions with our K-12 members, we’ve learned there are three main myths about the new regulations that deserve your attention:


•             The live hearings requirement;


•             The cross-examination requirement; and


•             The duty to appoint advisors to the parties in a sexual harassment complaint.


Fortunately, these misconceptions are easily dispelled, and it’s all good news for our K-12 colleagues, who have more than enough on your plates already. These three provisions apply to postsecondary institutions only, not to K-12. The regulations are confusing on these points, so this discussion should clarify.


Are Live Hearings Required in Public K-12 Schools?


Of course they are. Since Goss v. Lopez was decided by the Supreme Court in 1975, public K-12 has been required to provide hearings for students in cases that could result in suspension and expulsion. The Title IX regulations express that if schools are already required to provide hearings, they’ll need to apply those hearings to Title IX sexual harassment cases, too, but the regulations add no new or additional hearing requirements for K-12. If a sexual harassment complaint under Title IX isn’t going to lead to suspension or expulsion, and district policies don’t already require a live hearing to address them, you’ll be able to address them through the informal administrative mechanism for exchange of written questions that the regulations describe.

 


What the regulations don’t do is tell K-12 schools that if they hold live hearings, the live hearings provisions of the regulations apply to them. They don’t. ATIXA strongly encourages districts not to reinvent the wheel. Adapt your existing policies and procedures with a set of additional regulations-based rules that will apply to suspension and expulsion hearings when a Title IX complaint is in issue.


 


Is Direct Cross-Examination Required?


No, it’s not. The regulations require informal administrative decision-making which can be an entirely written exchange, requiring only that districts, “afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Then, the designated administrator/decision-maker makes a determination as to whether policy was violated.


So, whether the conduct falls short of suspension or expulsion, or a Goss hearing is required, the informal exchange of questions and responses described above and in the regulations will suffice for Title IX purposes. There may be state, board, or district level requirements for more formality, and those should be respected and applied to Title IX processes.


The regulations state:


If an elementary and secondary school recipient chooses to hold a hearing (live or otherwise), this provision leaves the recipient significant discretion as to how to conduct such a hearing, because § 106.45(b)(6)(i) applies only to postsecondary institutions. The Department desires to leave elementary and secondary schools as much flexibility as possible to apply procedures that fit the needs of the recipient’s educational environment. 


Thus, the Department declines to mandate hearings and cross-examination for elementary and secondary schools. 


K-12 Schools Not Required to Provide Party-Advisors


The district lawyers we spoke with recently shared their interpretation that while K-12 was not mandated to have hearings, once they opted to have them (or had to have Goss hearings), the cross-examination requirements of the regulations would then apply, and thus so would the appointed advisor requirement. But, as has been shown by the quote above, the regulations do not require direct cross-examination, thus leaving K-12 with only the obligation to ensure that the parties have the right to an advisor of their choice, but with no requirement to provide, appoint, or train district-level advisors for the parties.


The requirements of the regulations are onerous enough for K-12 without reading into them   additional compliance mandates that ED did not intend to extend to K-12. Since the regulations were published a month ago, our phones have been ringing with calls from school district attorneys and administrators looking for advice on where to start. We want to offer you this roadmap to compliance with the new rules to help guide your school or district forward on Title IX. For additional compliance resources please visit the ATIXA Regs Rapid Response Resource Center. 


__________________________________________________________________________________________


Brett A. Sokolow is president of ATIXA, the Association of Title IX Administrators. Contact him at brett.sokolow@atixa.org.

USDA Extends Community Eligibility Provision Deadline

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USDA Extends Community Eligibility Provision Deadline

As part of the U.S. Dept. of Ag's (USDA) response to the COVID-19 pandemic, the department has recently decided to extend the Community Eligibility Provision (CEP) deadlines for the 2020–2021 school year to provide states and school districts with additional time to apply and adopt CEP. Specifically, this newly released nationwide waiver will enable districts to apply for CEP any time between April 1, 2020–June 30, 2020, and to extend the deadline for schools to adopt the program by August 31, 2020.
 
Considering the economic downturn resulting from the COVID-19 crisis, it is likely that more school districts will be eligible to implement CEP for the 2020-2021 school year due to the increases in individuals who are now qualified for SNAP benefits. As such, AASA is encouraging our members to re-examine their eligibility for CEP, since it will now be a more financially viable option for many more schools. 
 
Are you looking to learn more about CEP? Our partners at the Food Research Action Committee (FRAC) are hosting a Webinar on  June 11, at 3:00 p.m. ET., to discuss the CDC's Interim Guidance for K-12 schools as it relates to operating school nutrition programs, and best practices for districts to implement innovative policies that meet students' nutritional needs. You can register for the event by clicking here. 

AASA and Allied Organizations Request an Extension to USDA COVID-19 School Nutrition Waivers

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AASA and Allied Organizations Request an Extension to USDA COVID-19 School Nutrition Waivers

Today, June 3, 2020, AASA and 84 allied education and nutrition organizations submitted a letter to the U.S. Dept. of Agriculture (USDA) urging for an extension to all COVID-19 related school nutrition waivers until September 30, 2020, so that districts can continue to serve meals to students and families throughout the summer. 
 
As we've highlighted in previous posts, AASA is appreciative of USDA's extension to the Non-Congregate Feeding, Parent Pickup, and  Meal Times Waivers. However, the department must continue allowing these additional flexibilities to ensure the transition to summer is seamless for states, districts, and the community. You can check out the full letter by clicking here.