Field Trip: Lawsuits and Allergies and 504 Plans, Oh My!


DISCLAIMER: Frontline Education does not provide legal advice. Please consult your district’s legal counsel before taking action on anything discussed in this podcast.

Peanut butter and jelly: a staple for children everywhere, right?

Maybe when we were kids… but today, schools increasingly have to reckon with a rising number of students with allergies, many of whom now have 504 Plans that lay out in detail what accommodations must be made.

We’re speaking with attorney John B. Comegno II, president and founder of the Comegno Law Group, about:

  • How Section 504 applies to students with allergies
  • Does a medical diagnosis require a 504 Plan?
  • What is – and what may not be – required of schools under Section 504
  • Why it’s important to be careful with language when agreeing to 504 Plans
  • How schools should work to ensure students with allergies have access to the same opportunities as other students


Get More Info:
See our in-depth video series with John Comegno: Understanding Section 504

Full Transcript  

Well, it’s that time of year… holiday parties and wassail and cookies, and it’s also when some of us shrug our shoulders and say, “Heck with the diet, gimme all the good stuff.” And while I love the sight of a plate loaded with pecan pie and desserts with nuts in them… it can be problematic for schools to have students bringing in nut samplers or stuffing platters of shrimp into their backpacks to share with the class.

JOHN COMEGNO: Is this something as simple as we ensure that there is an allergen-safe table in the cafeteria that we clean in a certain way is this something as simple as making sure that classroom teacher knows that foods coming in have to be very clearly labeled? Or do we need to train the entire wing where that student is attending class to administer an EpiPen?

Today on Field Trip, we’re talking about allergies. We’re asking attorney John Comegno about Section 504 and how it applies to students with allergies. And how should schools work to make sure students with allergies have access to the same educational opportunities other students are provided with?

We ask, what are some of the legal considerations around allergies and 504 Plans?

JOHN COMEGNO: Words matter. Words matter.

Our language in interacting with families matters. Our email communication matters. The confidentiality that’s owed to documents, educators understand very deeply, and that matters.

Do all students with medical diagnoses need 504 Plans? And while we’re talking about it, what should be included in a 504 Plan?

JOHN COMEGNO: What’s going to ensure that that student may be in the same setting as the other general ed students? Because we need to avoid exclusion or isolation. What is appropriate and reasonable to enable that student to be in that school setting is what ought to be in the 504 plan.

That is what’s coming up. From Frontline Education, this is Field Trip.

Today, my guest is John Comegno, president and founder of the Comegno Law Group. A large portion of the firm specializes in education law and often works with school districts to help them navigate issues around special education, Section 504, labor and employment matters and many other issues.

I connected with John a few weeks ago at his offices in Moorestown, New Jersey, not far from Philadelphia.

Before we begin, it’s important to say that Frontline Education does not provide legal advice to school districts, and please, always be sure to consult your district’s legal counsel before taking action on anything we’re discussing in this podcast today.

RYAN ESTES: John, for being with us today.

JOHN COMEGNO: Ryan, thank you for having me.

RYAN ESTES: We’re here talking today about an issue that might seem more at home in the medical field than it does in education, but it is something that’s critical for school districts to be able to navigate, and that is Section 504 as it relates to allergies. As part of the Rehabilitation Act of 1973, Section 504 requires schools to meet the needs of students with disabilities, and a lot of folks might be listening and thinking, “Wait, an allergy, is that really a disability?”

JOHN COMEGNO: Is allergy a disability? Is ADHD a disability? Is diabetes a disability? Is the broken leg a disability? Our schools, the folks listening, are going to make that decision. They’re going to call that ball. They’re going to take medical information, they’re going to take information from mental health practitioners, they’re going to take information at times from special education teams and others, and they’re going to hold that up to the criteria. And let’s remember, and let’s start from the starting point, because it’s foundational and fundamental, Ryan. Two questions:

Number one, is there a physical or mental impairment? Physical impairment may be allergy. Number two, importantly, what’s the functional impact? Whether that diagnosis substantially limits one or more major life activities. Our team around the table is going to look at the note, is going to hear from parent, from student. We’re going to look at the data, we’re going to look at the functional impact, and they’re going to make a conclusion as to whether or not yes, it’s a disability, or not. The diagnosis itself doesn’t beget a plan. The diagnosis itself doesn’t get you accommodation. What does is when both of those prongs are met, when the functional impact is going to require an accommodation for access to the general education.

RYAN ESTES: And can you, go into some details there? Can you give me an example of what you mean by saying the functional impact is going to determine whether or not action is required?

JOHN COMEGNO: So let’s remember that 504 is but one of many vehicles of accommodating difficulty. The goal of all of our students, the goal for all of our students, is simply learning. Whether it’s IEP, whether it’s 504, whether it’s RTI, Response to Intervention, whether it’s something else, whether it’s good old fashioned teaching. These are different ways, different tools that we use, to enable learning, to work around the impact, the impediment, the barrier, the difficulty. 504 is not about some IEP lite, some IDEA junior, some Child Find lowercase, where we see an allergy diagnosis on a prescription blank and we then provide you a 504 plan and we’re going to disinfect the entire school and the entire campus and we’re going to follow your list of foods that we have to develop.

504 actually directs us in the negative. 504 says don’t discriminate. So very practically speaking right back at you, I think the question that our administrators, that our teachers, our principals, our nurses, ought to be asking to parents when there’s a representation of an allergy is, with all due respect, “So what? What’s the functional impact? What’s the need? What’s the need for accommodation?” Is this something as simple as we ensure that there is an allergen-safe table in the cafeteria that we clean in a certain way and we make sure from the lunch monitors’ supervision students aren’t swapping sandwiches. Is this something as simple as making sure that classroom teacher knows that foods coming in have to be very clearly labeled? Or do we need to train the entire wing where that student is attending class to administer an EpiPen? Is this something as severe as we need to send a nurse on the field trip to administer the EpiPen? Is this something beyond simply ingesting food? So the answer to the question of, practically, what do we need to do is, is what we need to do. It’s what we need to do to provide access for that student with the allergy to the general ed experience.

RYAN ESTES: Have the courts decided what indicates a lack of access?

JOHN COMEGNO: What indicates lack of access is the student not sitting in the seat, not walking the halls, not going on the field trip, not riding the bus, not being able to walk into the cafeteria. That student with whatever the allergy may be sitting in a classroom where Susie’s mom baked delicious chocolate chip cookies with walnuts, and that student is fearful for the student’s own ability to breathe. It may seem trite. We’ve got to recognize what might be significant and what might not be significant. 504 says don’t deny, don’t exclude, don’t discriminate. Don’t deny, don’t exclude, don’t discriminate. Don’t discriminate simply means don’t treat differently. That means make sure that she has access to that classroom, the student with the allergy.

Don’t exclude. Well, that student has a right, a right, a civil right to be sitting in that cafeteria with general ed peers. We can’t exclude and say, “You know what? We can’t keep this safe, so you’ve got to go eat in the counselor’s office.” Well, why? Simply because that student’s disabled? Don’t deny, don’t exclude, don’t treat differently. Don’t deny. Similar to exclusion, all the benefits of general education in the classroom, the cafeteria, extracurriculars, have to be available for the student with allergies. That’s what the cases look to. And the cases look to whether or not there’s provision of reasonable — reasonable — accommodation to enable access to those settings.

RYAN ESTES: We do seem to hear a lot more about allergies these days, I’m thinking peanut allergies, for example, than we did in say, the early eighties. As an attorney, you often represent school districts in cases around Section 504. Have you seen a lot of allergy related 504 litigation in recent years?

JOHN COMEGNO: Yes, and we have also seen a lot of requests, and I think what’s really paramount and not just for special service directors, not just for 504 coordinators, not just for school principals.

But I think that it’s important that that educators understand that 504 is about access. 504 is about avoiding exclusion. 504 is about making sure that the student, as you say, with a nut allergy, isn’t isolated in the nurse’s office to have lunch, or doesn’t have hesitation entering a school facility because of a concern over cross contamination.

So we may see 504 eligibility for diabetes. We may still see it for ADHD, dyslexia. What we need to focus on is, what is the function that’s impacted? And when we talk about allergies, there can be some significant functions that are impacted. Students may not be able to breathe. We may see anaphylactic reactions. So when we’re talking about 504’s application to allergies, again, let’s keep in mind what the goal is, and that goal is access. Freedom from discrimination, freedom from exclusion or isolation.

RYAN ESTES: Let’s say that as a parent, I’m out at a ballgame with one of my daughters. I buy some peanuts and Cracker jacks, as one does, and she starts saying that she’s feeling itchy, a really mild reaction, but let’s say that it’s there. Does that mean that I can walk into her school the next morning and ask for a 504 plan?

JOHN COMEGNO: Well, as we say, this is ‘Murica, so you can ask for anything under the sun, right? You can say anything under the sun. You can ask. I would hope, respectfully, the school would decline, because you’re not presenting on those facts the type of data with the quality or quantity, volume, that we would expect a school to be asking for to find eligibility.

RYAN ESTES: What do you mean by quality and quantity, volume there?

JOHN COMEGNO: So 504, again, misunderstood. 504 also very often disadvantages schools in that there is not clear process under law. IDEA, we have super clear process we know who’s involved, we know how they’re involved. We know the kind of assessments or evaluations they engage in. Schools don’t do that with 504. The law doesn’t require it. So schools are often left at the mercy of parents or others who bring in a doctor’s note. Maybe it’s old, maybe it’s a prescription blank diagnosis, or even like your hypothetical, they don’t bring in anything at all.

Schools have to keep in mind the two prong eligibility criteria when you talk about quality and quantity of data. Number one, is there a physical or mental impairment? Number two, does that impairment substantially limit one or more major life activities? So here, there’s a concern that there’s an allergy, physical impairment. The substantial limitation in your facts is there was some topical, some skin irritation from an allergy. Does that substantially limit? A one time mild rash irritant, to me, is not a substantial limitation.

RYAN ESTES: So is it a matter of there being a medical diagnosis or is that simply one out of many factors that comes into play?

JOHN COMEGNO: So we’ve got those two prongs. It’s important to remember that 504 prohibits disability-based discrimination. So we can’t get too stuck at times on the receipt of paperwork. But certainly our schools and folks listening should keep in mind that the accepted best practice is to expect a written diagnosis, a physical or mental impairment.

Oftentimes, it’s medical, certainly with allergies, it’s medical. The more objective information we have about diagnosis, prognosis, and treatment plan from physician, the more informed when we get back to those concepts of quality and quantity of data our school officials are going to be in addressing the functional impact.

RYAN ESTES: I’m trying to take all this that you’re saying and get to what it looks like in actual application here. I mean, how do we gauge the impact of an allergy in a school? For example, we might have a diagnosis, but what if you’re unable to observe that a given school day, that kind of thing?

JOHN COMEGNO: Great question and great point and concern. And oftentimes our students will come in and hopefully the difficulty is managed. When we’ve got a difficulty like ADHD, our teachers can see, our teachers can pay attention. We can see how attending, how focused, how organized a student is. When we’ve got something like celiac or diabetes or here, an allergy, allergy to a specific food item, maybe we don’t see it. Hopefully we don’t see it. Certainly we want to avoid administration of EpiPens as need be, but we still need a certain quality of data. So we want to hear from the physician what type of symptoms were seen, what type of function was impacted, how broad or severe is that allergy and over what period of time? Because the diagnosis itself doesn’t get you a plan. We hear that from the doc. We also hear it from the parents. There needs to be, when we hear the term “substantial,” there has to be quote unquote “significant restriction” in function. To me, again, the skin irritation is not significant restriction in function. When there’s a concern over respiratory function, when there’s a concern which may lead to epinephrine administration, that’s substantial.

RYAN ESTES: Again, going back to boots on the ground, as we think about 504 plans, how we work with students who might be dealing with an allergy like this and might have a 504 plan in place, what are some of the common questions that school administrators might be wrestling with that  honestly, it’s just not always clear, the way to go forward?

JOHN COMEGNO: Process is important and nailing down a compliant, consistent process is important. Using applications such as what Frontline offers with regard to 504 can be very helpful in normalizing a process. It’s very important. I often speak of vertical and horizontal or vertical and lateral consistency. So that note comes into the elementary school, the folks who look at it, how they look at it, when they look at it, the kinds of questions they’re asking about the criteria, it should be the same when we get to the middle, when we get to the high school.

The faces around the table. Do we have a nurse, our chief medical officer? Do we have an administrator? Do we have a school counselor? Do we have a general ed teacher? Do we have the folks who are going to have ownership of implementing the accommodations? That’s important.

How current is the note? How current is the information that we’re reviewing? It shouldn’t really be more than a year old. How often do we get to the table? I don’t think we should get to the table any longer than once a year. So the maximum, almost likening to an IEP, we ought to get back and look once a year. We need to make sure that those with quote unquote “need to know” of the plan, know. We’re going to be held accountable. The school is going to be held accountable to implement that 504 plan, so everyone who’s implementing it needs, needs to know.

I think those are common questions today and when we talk about practical considerations, process is really important .

RYAN ESTES: John, you and I spoke on the phone briefly in preparation for this conversation, and while we were doing that, you were talking about even some of the minor changes in language in these 504 plans that really have an impact on a school. And you talked about the difference between, say, “peanut free” and “peanut safe” schools. Maybe you could talk a little bit about that and how even one word can kind of make a difference in how a school approaches allergies like this.

JOHN COMEGNO: Words matter. Words matter. Our language in interacting with families matters. Our email communication matters. The confidentiality that’s owed to documents, educators understand very deeply, and that matters.

But when we talk about concepts like peanut free, versus peanuts. Safe latex, free versus latex safe. When we talk about allergies that we may see today, we can look at that 504 plan as a contract. It’s not a contract but we can liken it to it. It’s protected. It’s recognized under federal law, and we’re held accountable to it. It’s an admission. It’s saying, “Hey, Billy has a physical impairment, allergy, which we conclude substantially limits, whichever function in a substantial way and so we’re going to recognize that he’s protected under this federal law,” the Rehabilitation Act, which you mentioned, “and these accommodations in the plan are the exact accommodations that are required to accommodate and provide access.”

So that means that we own it. And if we can’t implement and can’t guarantee implementation and can’t live with the words on that page, we’re violating the law. So to get back to those terms, peanut free versus peanut safe, nut-free veruse nut-safe, allergen-free versus or allergy-safe if we are promising that there’s not going to be an allergen on campus, that means that you’re checking backpacks and briefcases for Snickers bars. Here we sit a couple of weeks after Halloween, we mean, then, no peanut butter and jelly sandwiches. We mean that there’s nothing used even in science class by way of food stuff or otherwise celebrations, et cetera. So promising allergen free, it means the entire campus. I mean, that’s even our football stadium if we want to go to certain extremes, as opposed to allergy-safe means that, where is Billy going to be? What is his workspace? What does that look like? What do teachers know? What are they policing as far as what comes in and what’s out? Which table is he sitting at, at the cafeteria, in the cafeteria? We can own that. We can implement that. That is doable. So the take home is, let’s be really mindful about the words in our plans.

RYAN ESTES: This is one area, like many legal areas that, “Oh my goodness, am I crossing the T’s, dotting the I’s there?” There’s some fear here, or at least the potential to, especially in a litigious culture like ours where parents might be saying, “Hey, I am going to absolutely fight for the rights of my kids” and often are well within their rights to do that. Inside this atmosphere, within this atmosphere, what would you say are the biggest things about dealing with allergies and Section 504 that keeps administrators up at night?

JOHN COMEGNO: So I’m not sure exactly what might keep educators up at night. I don’t think I want to know what keeps educators up at night. I think at times what keeps me up at night is a disparity in knowledge about the significance of 504 versus the significance of IEP. Folks understand what IEP is. They know what the process is. They know the data we plug in. They know the people that sit at the table. They know consent. Frontline’s apps keep them a safe and compliant. 504 is often looked at as IEP lite, the consolation prize, something less, than something not as desirable as accommodations exclusively for testing. Ryan, frankly, 504 presents more legal exposure than IDEA does or failing to implement an IEP or messing up process.

RYAN ESTES: Why is that? Why is there more legal exposure?

JOHN COMEGNO: That is because 504, the Rehabilitation Act, as I mentioned earlier briefly, was not intended to apply to school children. It was intended to apply to adults who were being discriminated against by virtue of their disability and the functional impact of the disability. And they were excluded. So like the other civil rights laws, there is recourse. There is cause of action right at the federal court level. Punitive damages, as well as compensatory damages, as well as recovery of attorney’s fees and all the stuff one can pursue in IDEA litigation is available to the litigant under 504. So that means that Billy with the allergy who is excluded from the cafeteria, Billy with the allergy who doesn’t get to go on the field trip cause there’s not a nurse there to implement the plan or administer an EpiPen, or Billy with the allergy who is not comfortable being in the classroom because of a Cinco de Mayo celebration and food stuff that might be coming in has a claim that may be more severe and more broad, and more legally powerful than the IEP. That’s a problem.

And so what do we do? Well, we need to train our folks. We need to inservice our folks. We need to dispel this misperception that 504 is something less. And I think, also, it’s important to recognize that 504, IEP, these are just vehicles to accommodate difficulty. So when we talk about keeping up at night, normalize a process, make sure that our people understand the significance of 504, and makes sure that we’re consistently implementing our accommodations that we’ve agreed to.

RYAN ESTES: I wonder if you could walk us through some real world examples here of either cases that you’ve handled or just cases that are out there that might illustrate some of these points and help bring them home.

JOHN COMEGNO: I’m holding in my hand, as we say, a 25 page proposed allergy action plan.

RYAN ESTES: And this thing is about half an inch thick, as I sit across the table from John. is thick.

JOHN COMEGNO: Right. It is very special. It is actually spectacular. And I’m sure that our listeners would love to see it, and it’s absolutely unfair to talk about a prop that they can’t see. The point is, it’s on letterhead. It’s presented from the medical practice of an allergist. It was presented in a case arguing that the setting was inappropriate for student because of the quote unquote “severity of the alleged difficulty.”

I think at times our administrators, especially since 504 is general ed. Special educators recognize that they have certain qualifications and expertise in that they just have to quote “consider” outside data that comes in. It’s not binding upon them. I think at times, our people in general ed with 504 think, “Well, I’m not a physician. I’m not an allergist. This is really significant. It’s single spaced. A specialist prepared it. I’ve got to do this.” Well, you know what, general ed administrator? I’m telling you, you don’t have to do everything. You don’t have to implement every document that comes into you.

In this case, a perfect example, access was facilitated in a much more reasonable plan, which was developed working with the school physician and our nurse, our chief medical officer. Recognizing what was accepted, what was proven, what really was functional impact and what wasn’t. And what does all that mean? Well, all that means, Ryan, is 504 is about access. So what do we need to provide to enable that student to walk into the cafeteria? What do we need to provide to make sure that student is safe on the bus? There were allegations here of airborne allergies. There were allegations here that there’s a scent wafting down the hallway of a certain food stuff, and the student is going to be in some type of anaphylactic episode, which frankly wasn’t demonstrated. It wasn’t proven. And just looking at some of the accommodations here: lotions, cosmetics may not be worn by students and staff. Well, that means your entire campus, that means your entire school. No rugs in areas since food or allergens may be tracked. Again, that’s your entire campus. “Allergy training by qualified board, certified independent consulting allergy expert with proficiency exams.” There’s another page that has a list of 30 or 40 specific different kinds of foods that must be cooked by our cafeteria staff. What might be best, what might be optimal, what might be the way that we set up our homes for our children, is not what courts have concluded is required for schools to have access.

RYAN ESTES: I’m hearing you describe all of those things and while of course we want to provide the kind of environment that gives every student that kind of access, I’m struggling to understand how any school district could possibly do everything that’s in that document.

JOHN COMEGNO: And I would agree with you and I would say that the law doesn’t require it. And let’s be mindful, we talk about process, let’s also be mindful of the standard. The standard of accommodation is not “optimal.” It’s not “what’s demanded.” It’s not “best.” The standard of accommodation in the public school setting is “reasonable.” What’s a reasonable accommodation? That standard in the independent school setting is even less, independent or private. The standard is minor adjustment. Mindful that there’s a contractual relationship there. Not a constitutional or civil right relationship, right?

So what does that mean? What’s reasonable? What’s reasonable is ensuring that there are not allergens on this student’s table in the lunchroom. How do we accomplish that today? Well, we accomplish that by having an allergy- safe table. We make sure that it is properly cleaned in between lunch periods. We make sure that lunch monitors are monitoring what students are ingesting. We make sure that students aren’t sharing food stuffs. In the classroom, similarly, we’ve got teachers that are aware of that medical difficulty and that the, classroom policy, the classroom practice, perhaps, could be only bringing in food items that are clearly labeled and purchased from stores, or provide suggestions. But we don’t have to be in a position where we’re literally decontaminating students from the bus stop onto the bus and for the remainder of their day.

Practical, reasonable. What’s going to provide access? What is going to ensure, and I think administrators, teachers, educators ought to ask themselves this: “What’s going to ensure that that student may be in the same setting as the other general ed students?”  Because we need to avoid exclusion or isolation. What is appropriate and reasonable to enable that student to be in that school setting is what ought to be in the 504 plan.

RYAN ESTES: So I think that for our listeners, I don’t think there’s anyone out there that is saying, “No, we don’t want to work with students like this. We don’t want to provide that kind of access.” But certainly navigating areas like this is challenging. I can imagine a situation where a parent brings in a stack of papers, like the one you have in front of you, and says, “Here’s what comes from my child’s allergist, and this is what we’re requesting.” And because it’s a a legal looking document and it looks very official, they say, “Well, okay, I guess we have no choice. We’re going to put that in the plan.” What are the pitfalls that are easy to fall into when it comes to Section 504 and what are some of the things that we can do to avoid them?

JOHN COMEGNO: So I speak often of process, making sure that the information that is received, like the stack of papers, is reviewed appropriately with parents in a 504 committee or 504 team process. And that the answer isn’t simply, “No.” The answer isn’t simply, “We’re going to disregard this.” The answer isn’t simply maybe perceived as hostile or disrespectful. But let’s come to the table armed with practical solutions.

So when we talk about common pitfalls, one is putting too much weight on this document. It’s binding upon us or putting not enough weight on this. Let’s come to the table armed with ideas as to how to accommodate that student. Process. Again, let’s also remember this information is not binding on us.

Another important point though, with 504 is, 504 kind of surprisingly doesn’t require a plan. 504 prohibits exclusion. So if there are ways that we can reasonably accommodate the student, even outside of a 504 process, because all the things that I’ve been talking about and we’ve been talking about today, Ryan, and best practices when it comes to 504, it’s just good old fashioned teaching. It’s simply good management of school buildings. So let’s remember that also. Let’s remember at times when a parent hasn’t made the referral or when through a handshake or otherwise we can accommodate, we ought to.

RYAN ESTES: You’ve mentioned how this doesn’t follow the same kind of legal binding as say, an IEP, IDEA, things like that. So, I’m thinking about finances here and wondering what is a district’s responsibility or a school’s responsibility, when it comes to accommodating students with allergies and putting elaborate allergy plans into place. What are districts and educators and schools really responsible for, then?

JOHN COMEGNO: Our schools are responsible to make sure that our students can access their learning. We’re responsible to make sure that they can safely ride the bus or safely walk or be driven or ride their bike to school. We’re responsible to make sure that they can navigate those hallways and get into those classrooms just like all the other general ed peers. Same with the cafeteria. The same with extracurricular activities. That’s the responsibility. The very basic responsibility is we’re talking to her about the civil right of public education. So the reasonable accommodations needed to provide access those settings? That’s the responsibility.

I mentioned that 504 and IEP, I didn’t mention RTI, accommodation plans, there are different ways that educators accommodate difficulties, and I think at times we get stuck when we see a medical note. When we see, like in the stack of papers here in front of me, what may seem overwhelming, overbearing, and we struggle with interpreting it. We get distracted by the fact that a 504 is gray and not clear. At times we’ve got wonderful, excruciating clarity with IEP and its process. And we get sucked into that. There’s litigation, there’s advocacy. Ryan, I think schools need to reduce the volume. And remember that all we’re talking about here is accommodating difficulty in enabling learning. The goal for the student with allergies is the same for the student with a traumatic brain injury under IDEA, the same for the general ed student with no represented physical or mental impairment or disability, and that is simply learning. So let’s remember that and let’s be efficient about that, and let’s be mindful about that. And let’s devote our energy toward accommodating that student’s difficulty in the most efficient way we can. If that’s good old fashioned teaching, if that’s the nurse assisting, if that is rising to the level of Child Find, we’re off to IEP or parent comes in with a note and we want a 504 plan, then then we’re off there. But, but let’s remember, all of this, very simply, is about learning and enabling learning despite difficulty.

RYAN ESTES: If you had to whittle it down to one step that schools can take to be smart about 504 plans and balance financial considerations, time considerations, serving students who need these kinds of accommodations well, what would it be? What do you think that schools really need to hear?

JOHN COMEGNO: Through the lens of 504, because we’re without clear process, I think the most important question is whether and if so, what, is the functional impact of the diagnosis? What is the functional impact of the allergy? If there is no data that shows functional impact except, getting back to the ballgame, some hives on the back of a thigh or some coughing or discomfort, that’s not a substantial limitation. Further, I don’t know what accommodation we’re going to be implementing in a school setting to address that difficulty other than a student being mindful of foods that that student may or may not ingest.

We can compare that with the student who has experienced a closing throat, significant respiratory difficulties, a real anaphylaxis episode, and the needs there are much more pervasive and severe, the accommodations are going to flow from it. So again, what’s the functional impact? We know how to address the broken leg, the student with the attentional difficulty. When it comes to allergies, what’s the functional impact? And we can broaden that to any difficulty, any diagnosis, any physical or mental impairment under 504 and that ought to guide our planning. Not to be distracted by notes or overwhelmed or overburdened, but to look within them to what may enlighten our team in developing accommodations which are meaningful, and also give us some sense of what reasonable accommodations are going to address that functional impact.

Words matter as we’ve discussed. The 504 Plan needs to be implemented. Every single word on every single page, and we have the with the benefit in 504 Plans that they’re less pages an IEP and they do not change.

 It’s important to remember that 504 plans provide accommodations which adjust different than IEP, which change or modify. An IEP creates an individualized learning experience, changing curriculum, a curricular standard, or expectation based on learning difficulty. 504 simply adjusts how a school delivers the same general education curriculum, how that student may interact in that curriculum, how we may assess mastery of that curriculum, how we enable access to the general education setting. Our accommodations need to be implemented. They are a guarantee of implementation. They are a guarantee of process, they are a guarantee that we’re going to make sure that that student is not excluded, is not isolated, not treated differently.

They’re not a guarantee of academic success. They’re not a guarantee of perfect behavioral performance and compliance with our disciplinary code. They’re not a guarantee you’re going to be the starting quarterback on the football team or have the lead in the play, but they’re going to make sure that that general ed experience that all other general ed students enjoy is protected and enjoyed by that student.

So when we say policing effect, we need to be able to own them. We get back to this concept again of peanut safe versus peanut free. when we say peanut free, then we’re combing the halls and the parking lot in the bags and the desks. And that goes for any other accommodation. If we’re talking about unlimited testing time, if we’re talking about modifying or waving attendance rules, schools should not be changing. Let’s be very focused again on functional need and impact and what’s required for that student to access the same general education experience as others.

RYAN ESTES: We’ve been speaking with John Comegno of the Comegno Law Group. John, I really want to thank you for your time today. This has been really enlightening.

JOHN COMEGNO: Ryan. Thank you. I enjoyed our time very much.

Field Trip is a podcast from Frontline Education, offering Frontline Special Ed & Interventions, software to help schools manage programs for special education and special student populations. That includes solutions for Section 504, for working with IEPs, RTI and MTSS, English Learners, Medicaid tracking, and more.

To learn more, please visit And while you’re at it, don’t forget to subscribe to Field Trip. We release new stories every 2 weeks, and this way, you won’t miss a single one.

For Frontline Education, I’m Ryan Estes. Thanks for listening, and have a great day.