JUL 21 1995 Ms. Alberta C. Frost Director Child Nutrition Division Food and Nutrition Service United States Department of Agriculture 3101 Park Center Drive Alexandria, Virginia 22302 Dear Ms. Frost: This letter is in response to your letter to the Coordination and Review Section of the Civil Rights Division requesting comments on the Department of Agriculture's guide to feeding children with special health care needs in schools. We apologize for the delay in responding. We understand that you have proceeded with an initial mailing of the guide and submit these views for your use for future mailings of the guide. On March 1, 1995, the Civil Rights Division reassigned the responsibility for interagency policy coordination with respect to issues arising under the Americans with Disabilities Act of 1990 (ADA), and section 504 of the Rehabilitation Act of 1973, as amended (section 504), to the Disability Rights Section. The Disability Rights Section has reviewed the draft that you provided to the Coordination and Review Section. Our comments and recommendations are as follows: 1. Under paragraph II. A. Physician's Statement for Child with Disabilities, the guide includes in the list of things that the physician's statement must identify "the major life activity affected by the disability." In this context, this is a legal, rather than a medical determination, because it is a statement that the child is eligible to claim the protection of the ADA and section 504. We do not think that it is appropriate to require a physician to make this determination. Furthermore, the Department of Agriculture reimburses schools for food substitutions made for children who do not have a disability on the basis of a certification of special dietary needs by health care professionals other than physicians. Therefore, we question whether it is necessary to require a physician's certification of any child's dietary need. cc: Records, Chrono, Wodatch, Milton, FOIA n:\udd\milton\letters\doaguide.fro\sc. young-parran 01-03672 - 2 - The process for making determinations of special dietary needs are no different because the special need is the result of an impairment that is legally regarded as a disability. Thus, the determination should be able to be made by a licensed medical authority (physician, physician's assistant, nurse practitioner, registered nurse, etc.) of the family's choosing, whether or not the special need is the result of a condition that qualifies as a disability under the ADA or section 504. Alternatively, you could elect to require determinations of special dietary needs for all children to be made by a physician. 2. Under paragraph III. A. School Responsibilities, the guide requires that substitutions for students with disabilities be based on a prescription written by a licensed physician. In medical terminology, a prescription is a physician's written instruction for preparation and administration of a medication. If you retain a requirement for a physician's certification of a child's dietary needs, we would suggest that you substitute the word "order" or "instructions" for "prescription." 3. In the subsection of paragraph III. A. headed Individualized Education Program (IEP), the guide states that "a child with diabetes may be certified by a physician as needing special dietary accommodations, but probably would not be in special education nor have an IEP." Because a child with diabetes is just as likely to be in special education as any other child, we would alter that sentence to say that a child with diabetes would not necessarily be in special education. 4. The first paragraph under III. B. Funding Issues states that schools may not charge children with disabilities who require food modifications "more than they charge other children for Program meals or snacks." It should be noted that schools may not charge children with disabilities more than they charge other children for any meals or snacks that are part of the meal program provided to all students. 5. Section 504 of the Rehabilitation Act has been amended to read "disability" rather than "handicap" and "individual with a disability" rather than "handicapped individual." These changes should be incorporated in the first paragraph of IV. A. School's responsibility for accommodating children with disabilities. 6. The third paragraph of IV. A. states that title II of the ADA "requires equal availability and accessibility in State and local government programs and services." More accurately, title II prohibits discrimination on the basis of disability in the services, programs, and activities of State and local government entities. 01-03673 - 3 - 7. Also in the third paragraph of IV. A., the guide states that title II "reiterates the statutory prohibition of the Rehabilitation Act of 1973 against discrimination on the basis of disability by programs receiving Federal funding." This might incorrectly be read to mean that title II is also limited to federally assisted programs. 8. The fourth paragraph of IV. A. states that title III of the ADA "extends public accommodations requirements to privately owned facilities. . ." More accurately, title III extends accessibility requirements to privately owned places of public accommodation. 9. In the response to the first situation posed under paragraph V. Situations and Responses, you may want to point out that the school must allow the child to bring his or her own juice and drink it whenever necessary to meet the prescribed schedule. 10. In the response to situation 9 under paragraph V., you may wish to make clear that the school can provide separate facilities for disabled children as long as the children have a choice between using those facilities and the facilities provided for all of the children. 11. In the glossary section, paragraph VII, you may wish to amend the entry on the Americans with Disabilities Act as noted in paragraph 6, above. I hope this information has been helpful to you. If you have any questions, please feel free to call Naomi Milton at (202) 514-9807. Sincerely, John L. Wodatch Chief Disability Rights Section 01-03674