1. The Private School Experience
Amy J. Ulrich, Esq.
ajulrich@aulrichlaw.com/650-373-2005

2. Todays Discussion
I will be sharing our family’s story and covering:
 Overview of some of the laws that may apply to
allergies in the private school setting
— Disability laws
— Epinephrine laws
 How to vet a private school for safety (which could
apply to day care, preschool, primary and secondary
schools and even camps)
 What to do if you are in private school and you learn
your allergic child may not be safe
*THIS PRESENTATON IS NOT TO BE USED AS LEGAL ADVICE.
CONSULT AN ATTORNEY FOR YOUR SITUATION.
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3. Legal Landscape for Allergies in the Private
School Setting
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4. Understanding Your School’s Setting
 Are you sure your school is a private school?
— Check to see if your school receives any federal funds
— Look at the IRS Form 990 on guidestar.org or check with the
Department of Education in your state
 Is your school a religious school?
— Legal protections are more limited for allergies at religious
schools
 Is the school non-profit or for-profit?
— In California, it can determine whether the Unruh Civil Rights Act
applies (must be a “business entity”)
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5. Laws That May Apply to Allergies in
Private Schools
 Include, but are not limited to:
— Federal and state disability laws
— Federal and state education codes
— State contract laws (unlike public
school, the private school
relationship is governed by contract
law)
— Common laws – basic safety and
care for children
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6. Title III of the American Disabilities Act
Title III of the ADA provides that…
“no individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public accommodations.”
42 USC Sec. 12182(a).
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7. Does Your Child Have a Disability
Under Title III?
 Whether your child’s allergies are considered a “disability”
under the ADA will depend on the facts of your situation.
 Is your child’s allergy severe or life-threatening? Allergies
that are severe or life-threatening or more likely to be
considered a disability.
 Federal government and Justice Department’s (charged
with enforcing the ADA) position vs. existing case law
(which has not consistently held that allergies, even
severe, are disabilities).
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8. Disability under the ADA
The ADA defines a disability as a “physical or mental
impairment that substantially limits one or more of the major
life activities of such an individual.”
 “Impairment” – many allergies can be considered a
physical impairment
 “Major life activities” – include caring for oneself,
performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working
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9. Public Accommodations
What qualifies as a “public accommodation” under Title III?
 A public accommodation is a private entity that owns,
operates, leases or leases to a place of public
accommodation. Private clubs and religious organizations
are exempt under Title III’s requirements for public
accommodations.
 Public accommodations include private day-cares,
preschools, primary and secondary schools, might include
camps and places that offer after-school activities and
enrichment.
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10. Reasonable Accommodations under
Title III
 A public accommodation must “make reasonable
modifications in policies, practices and procedures that
deny equal access to individuals with disabilities, unless a
fundamental alteration would result in the nature of the
goods and services provided.”
How is that accomplished?
 Through an “Interactive Process” (a less formal process
than a 504 plan in public school)
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11. California Disability Laws
 Unruh Civil Rights Act: States that all persons within the
state are free and equal no matter their disability or
medical condition and are entitled to full and equal
accommodations, advantages, facilities, privileges or
services in all business establishments of every kind.
 California Civil Code Section 54.1: States that individuals
with disabilities shall be entitled to full and equal access to
accommodations, advantages, facilities and privileges as
other members of the general public. The statute
specifically includes private schools. A violation of the
ADA is a “per se” violation of CC §54.1.
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12. Epinephrine Laws
 Many states have existing laws about the availability and
administration of epinephrine in the school setting.
 Those laws often differ for public and private schools.
 Many states, including California, have been passing new
epinephrine legislation so that schools are required to
have their own prescription epinephrine “on hand.”
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13. California Senate Bill 1266
 Allows schools if they meet certain criteria to obtain their
own prescription for epinephrine.
 In public schools, as long as there is a nurse or trained
volunteer and parents are given a waiver of liability for the
availability and administration of epinephrine, the school
must get a prescription for epinephrine to have “on hand.”
 Does not mean that your child is guaranteed to be
administered epinephrine.
 The application of Senate Bill 1266 in the private school
setting is completely optional. If the school wants a
prescription for epi, they must follow the requirements.
They are not mandated to get a prescription.
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14. Vetting a Private School for Allergy Safety
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15. What Should You Look For?
When vetting a private school, you want to look for:
Policies
Practices
Awareness
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16. POLICIES
 What is the school’s policy on the administration of
epinephrine?
— Is it in writing?
— Review any waivers
 Does the school have an allergy policy?
— What is it? If the school says it is “nut-free,” what does that
mean?
 How is the school’s allergy policy communicated to staff
and parents?
 Is the allergy policy in writing?
— Request a copy to review.
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17. PRACTICES
Practices
 What are the school’s “best practices” for allergy
management and supporting their allergy policy?
 Caution: Policies for nut-free schools or nut-free
classrooms
— Are there prohibited foods? Which ones are included? How is it
enforced?
 Are you in a state with a model policy that contains best
practices?
— Even if you are, private schools may not be required to adopt the
state’s model policy. California does not currently have a model
policy for managing allergies in the school setting.
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18. PRACTICES
Where is food eaten?
• Do the allergies practices cover:
 Eating in the classroom
 Eating outside of the classroom, common areas
 Rules about food sharing
 Cleaning procedures
 Special occasions
 Playground equipment
 Field trips
(Refer to the CDC policy and FARE materials for assistance)
• Storage of epinephrine
 Ask to see where the epinephrine is stored
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19. AWARENESS
Awareness
 Probes
— School’s history of allergy students
— Has the school ever had to administer epinephrine; have children
had allergic reactions or ER visits?
— Inquire about trainings
— Probe on their familiarity with allergy statistics
— Re: epi - do they know what a biphasic reaction is?
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20. Other Considerations
 Safety during shadow days and camps
 Carefully review and understand any liability waivers you
sign
 Reviewing and understanding the contract
 Requesting an Individual Healthcare Plan (IHP)
 Requesting a team meeting before the start of the school
year
 How to facilitate continuing awareness at the school
throughout the year
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21. KEEPING YOUR ALLERGIC CHILD SAFE
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22. Actions to Take if You Think Your
Allergic Child May Not Be Safe
 Consider removing your child if necessary until a
resolution with the school has been reached.
 Immediately consult with your allergist. Consult an
attorney if necessary to get advice about how to proceed
with the “interactive process” and regarding your
enrollment contract.
 State your requests for reasonable accommodations IN
WRITING, be specific.
 Request an Individual Healthcare Plan (IHP).
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