1 USDA/State Agency Meeting November 2-5, 2015 Hyatt Regency-Crystal City, VA

2  Title VI of the Civil Rights Act of 1964  Civil Rights Restoration Act of 1987  Section 504 of the Rehabilitation Act of 1973  Americans with Disabilities Act  Americans with Disabilities Act Amendments Act  Title IX of the Education Amendments of 1972  Age Discrimination Act of 1975

3  7 Parts 15, 15a and 15b  CACFP specific: (7 CFR Parts 226)  FNS and its Appendices  Executive Order – (LEP)  7 CFR Part 16, Equal Opportunity for Religious Organizations  USDA Departmental Regulation  And many more…

4  Understanding the framework of disability law.  Understanding (and accepting) the (sometimes) nebulous nature of providing reasonable accommodations.  Understanding the relationship between Section 504 and the Americans with Disabilities Act in light of the Americans with Disabilities Act Amendments Act.

5  DID NOT change the definition of Disability.  DID NOT change the expectation of a Reasonable Accommodation.  DID make very clear that the emphasis must be on providing the reasonable accommodation, and the disabled person does not carry a high burden of ‘proving’ they have a disability.

6 I.A person with a physical or mental impairment that substantially limits one or more major life activities. II.A person who has a record of such an impairment. III.A person who is regarded as having such an impairment.

7  Discrimination because of the disability.  Failure to provided a reasonable accommodation.

8  Must be made in policies and practices in order to accommodate a disability.  “Reasonable” is the key word.  Reasonable is more broad when Federal money is involved, but is still applicable.

9  The requested accommodation... 1.fundamentally alters the nature of the program, or 2.is an undue administrative or financial burden (but be careful, some burden is always expected).

10  Many more fall under the definition of disability in light of the ADA Amendments Act.  Applies to much more than just “life threatening” allergic reactions.  “Digestive” functions specifically listed in the ADAAA.  Must be “reasonably” accommodated using the same analysis discussed above.  “Lifestyle” choices (e.g. vegetarian) are not protected issues unless it is required to accommodate an underlying disability.

11  Even one dollar of Federal money brings the entire scope of the operations within the jurisdiction of Section 504, even where the requested accommodation is not related to the part of the operations that receives Federal money.  Duty to negotiate. This means simply saying “no” is almost never appropriate.  Providing appropriate accommodations, not ferreting out any possible abuse of the process, is the primary objective.

12  Individualized analysis when evaluating a reasonable accommodations request.  Universal exclusions of specific foods or food groups is not an FNS policy, but could be appropriate depending on the circumstances, and is within the discretion of recipients.  “Stereotypes” regarding certain conditions or individuals can never drive decisions to reasonably accommodate. Decisions must be made on reasonably certain facts.

13  Parent requests are a starting point, not necessarily an end point.  Provider can choose how to best accommodate in accordance with medical recommendations (medical statement can’t specify brands of food, for example, unless there is a medical reason to do so).  Meal accommodations do not need to mirror the meal or meal item substituted.  Providers must still accommodate even where parents believe more should be done.

14  Integration clause in Section 504 means that disabled individuals should be accommodated in the least restrictive and most integrated setting possible.  In the food allergy context this most often comes into play where children with food allergies are ostracized in some way during meal time.  Providers must always balance safety vs. stigma. Age and severity of allergy are the primary considerations.

15  FNS is looking at this issue very closely.  A doctor’s note will always be able to be requested.  Does the doctor’s note really add integrity to the process? Doctors are not lawyers, and they have limited incentive to scrutinize requests for accommodations.  Does this requirement make sense where the meal standards are still followed and the accommodation is readily available and not an administrative or financial burden?  Does this have a disproportionate impact on disadvantaged communities.

16  Medical statement should be clarified when it is deemed inadequate or unclear regarding the accommodation needed.  Generally, a provider can propose an alternative accommodation only when the accommodation articulated on the medical statement would represent an undue financial or administrative burden or fundamentally alter the program.  Clarification of the note must be reasonable or the delay could be characterized as harassment/denial.

17  Should request in order to specify what accommodation is needed.  Does not necessarily need to be from an M.D. if State law is more expansive regarding who can write prescriptions.  Does not need to (and should not) state the diagnosis, only the needed accommodation for the underlying condition.  Cannot request medical records or charts.

18  Meals should always be reimbursed at the standard rate where the provider is reasonably accommodating a medical condition, whether or not the accommodation results in a meal that is within the meal standards.  Forms that distinguish between a “medical condition” and a “disability” will need to be revised in light of the ADA Amendments Act (including FNS templates).

19 Procedural Safeguards (7 CFR 15b.25) 1.Notice of the decision and procedural rights; 2.Opportunity to examine the record; 3.An impartial hearing with parental participation and legal representation (if wanted by parents); 4.A review procedure (avenue for appeal).

20  The 7 CFR 15b Subpart D procedural requirements only apply to “public elementary or secondary education.”  The cited regulation specifically references and contemplates that these procedural safeguards will likely be part of the LEA’s IEP/504 process.  States could have all requests for reasonable accommodations go through the procedural process from the beginning, but that seems cumbersome and unnecessary given the “routine” nature of many accommodations currently requested.

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22 For more information contact: David Youngblood, Director Civil Rights Division Food and Nutrition Service