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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
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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.

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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
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