Modifications to Accommodate Disabilities

This Management Bulletin (MB) provides information and policy that supersedes Food and Nutrition Service (FNS) Instruction 783-2, Revision 2, and California Department of Education (CDE) MB CNP-10-2015: Accommodating Children with Special Dietary Needs. The U.S. Department of Agriculture (USDA) provided updated guidance based on changes to the Americans with Disabilities Act (ADA) Amendments Act of 2008 and the interpretation of the term disability. This MB provides important updates to requirements related to accommodating participants with disabilities on the Child and Adult Care Food Program (CACFP) and the Summer Food Service Program (SFSP). This policy memorandum is available on the USDA FNS CACFP Policy Web page at https://www.fns.usda.gov/cacfp/policy.

It is important to note that agencies still have the option to accommodate participants with special dietary needs that are not considered a disability, including those accommodations related to religious or moral convictions, or personal preference. The USDA will issue separate guidance on accommodating special dietary needs and preferences that are not considered a disability.

The CDE may require school food authorities (SFA) that operate the CACFP or the SFSP to implement additional guidelines not included in this policy memo. For information on additional guidelines and safeguards, SFAs can refer to the CDE MB SNP-02-2017: Modifications to Accommodate Disabilities in the School Meals Program located on the CDE School Nutrition Programs MB Web page at http://www.cde.ca.gov/ls/nu/sn/mb.asp.

Background on Federal Statutes

For more information on the federal laws that set program guidance, refer to USDA Policy Memo CACFP 14-2017; SFSP 10-2017: Modifications to Accommodate Disabilities in the CACFP and SFSP located on the USDA FNS CACFP Policy Web page at https://www.fns.usda.gov/cacfp/policy, which provides additional information on the federal laws.

Under Section 619 of the Individuals with Disabilities Education Act (IDEA), preschool children with disabilities are entitled to a free and appropriate public education through special education and other services that comply with the child’s Individualized Education Program. Under Part C of the IDEA, appropriate early intervention services are made available to all eligible infants and toddlers ages one to two years old with disabilities and their families through an individualized family service plan. The U.S. Department of Education (USDE) is responsible for the administration and enforcement of the IDEA. Agencies should direct inquiries regarding IDEA requirements to the USDE IDEA Web site at http://idea.ed.gov/.

Child and Adult Care Food Program and Summer Food Service Program Regulations

The USDA regulations under Title 7, Code of Federal Regulations (7 CFR), sections 15b and 15b.26(d), implement Section 504 of the Rehabilitation Act of 1973, nondiscrimination requirements on recipients of federal financial assistance, to serve special meals at no extra charge to participants with disabilities. In addition, 7 CFR, sections 225.16(f)(4) and 226.20(g), require program operators to make substitutions or modifications in the CACFP and the SFSP for participants whose disabilities restrict their diets.

Participants with Disabilities

The ADA Amendments Act simplified what determines a disability. The simplification eliminates the requirement for extensive analysis. Agencies should not be involved in analyzing documentation to determine whether a particular physical or mental impairment is severe enough to qualify as a disability. The ADA Amendments Act amended the definition of disability, broadening it to cover most physical and mental impairments, and the goal is to ensure equal opportunity to participate in or benefit from the CACFP and the SFSP.

Section 504, the ADA, and 7 CFR, Section 15b, define a person with a disability as any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. Major life activities are broadly defined and include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

A physical or mental impairment does not need to result in a severe, life-threatening reaction to be considered a disability. It is sufficient that the impairment limits a major life activity. For instance:

• Digestion is an example of a bodily function that is a major life activity. A participant whose digestion is impaired by a lactose intolerance may have a disability regardless of whether consuming milk causes the participant severe distress. A modification in this case is appropriate.

• An allergic reaction that is controlled by taking medication should not be considered in determining whether the allergy is a disability. A modification in this case is appropriate.

• Dietary preference that a participant eat a gluten-free diet, because a parent believes it is better for the participant, does not constitute a disability and does not require accommodation.

State licensed healthcare professionals must determine on a case-by-case basis if a physical or mental impairment constitutes a disability. This determination must be made without regard to whether mitigating measures may reduce the impact of the impairment.

Substitutions and Other Reasonable Modifications

In many cases, reasonable dietary modifications for a participant with a disability are managed within the meal pattern requirements when a well-planned variety of nutritious foods are available. However, the needs of a participant with a disability may involve requests for accommodations that do not meet the meal pattern requirements.

Requiring a Medical Statement

Only when supported by a signed, written medical statement from a state licensed healthcare professional are agencies required to make substitutions to meals for participants with a disability that restricts the participant’s diet. The CDE only permits the following state licensed healthcare professionals to complete and sign a written medical statement for a disability: licensed physicians, physician assistants, or nurse practitioners.

California does not recognize other healthcare professionals as authorized to sign a written medical statement to determine a participant’s diet. Physician assistants and nurse practitioners both work under the direction of a licensed physician. This definition of a state licensed healthcare professional will safeguard program integrity while allowing appropriate flexibility for those families who do not have access to a licensed physician.

California allows electronic signatures. A written, electronically signed medical statement from the designated state licensed healthcare professional is acceptable.

Medical statements must:

• Describe the physical or mental impairment sufficiently in order for the agency to understand how it restricts a participant’s diet

• Explain what must be done to accommodate a participant’s disability

• Identify food or foods to be omitted from a participant’s diet

• Recommend food or a choice of foods that must be substituted in a participant’s meals

If a signed, written medical statement is unclear or lacks sufficient detail, the agency must obtain appropriate clarification to ensure a proper and safe meal is provided to the participant. Agencies may consider the services of a registered dietitian, when available, to assist in implementing meal modifications. Agencies may also contact the CDE for guidance.

In order to help agencies and state licensed healthcare professionals identify the information required to implement a sound nutrition plan for participants with dietary restrictions, the CDE developed a Written Medical Statement to Request Special Meals and/or Accommodations form. This recently revised form is available on the CDE SFSP Forms Web page at http://www.cde.ca.gov/ls/nu/sf/fm.asp.

Agencies may choose to accommodate requests related to a disability that are not supported by a signed, written medical statement if the requested modifications meet the meal pattern requirements.

Assessing Requests for Substitutions and other Modifications

Agencies may consider expense and efficiency in choosing an appropriate approach to accommodate a participant’s disability. Agencies are not required to provide the specific substitution or other modification requested, but must offer a reasonable modification that effectively accommodates the participant’s disability and provides equal opportunity to participate in or benefit from the program.

Agencies are not required to provide a specific brand name food item identified on the signed, written medical statement. Instead, agencies must offer the appropriate food substitution which does not contain the allergen that adversely affects the participant.

Agencies should consider the age, maturity, mental capacity, and physical ability of the participant when determining what is appropriate during the decision-making process. For instance, younger children may need more assistance with selecting and eating their meals, while older children and participating adults may be able to take more responsibility for some of their dietary decisions.

Additionally, agencies are not required to provide modifications that would fundamentally alter the nature of the program. The CACFP and the SFSP may be operated by small agencies that are limited in staff and resources; therefore, modifications that would make the continued operation of the CACFP or the SFSP unfeasible are not required. For example, providing an expensive medical infant formula to accommodate an infant’s disability may be a financial burden for a day care home (DCH) with one staff member. In this example, the DCH is not required to provide the requested formula.

When agencies are faced with an expensive request, they should first consider working with the participant and the participant’s parents or guardians to offer a reasonable modification that effectively accommodates the participant’s disability and provides equal opportunity to participate in or benefit from the CACFP or the SFSP. Agencies that are concerned that providing a modification would fundamentally alter the nature of the CACFP or the SFSP should contact the CDE for further assistance.

Serving Meals in an Integrated Setting

Agencies must provide all meal services in the most integrated setting appropriate to meet the needs of the participant. Exclusion of any participant from the environment is not considered an appropriate or reasonable modification. For instance, a participant may not be excluded from the meal service area and required to sit in another room during the meal service. It may be appropriate for an agency to provide a separate table for participants that controls exposure to a severe food allergy, however, this table cannot simultaneously be used to segregate children as punishment for misconduct.

Reimbursement

Regardless of the meal accommodation, program reimbursement for modified meals served to participants with disabilities is unaffected. If supported by a signed, written medical statement, these meal modifications do not have to meet the program meal pattern requirements and agencies may claim them for reimbursement.

Accessibility

Agencies are responsible for the accessibility of food service areas and for ensuring the provision of food service aides, where needed, to assist in preparing and serving meal accommodations.

Agencies will not receive additional reimbursement for these types of accommodations. However, any additional costs for adaptive feeding equipment for aides are considered allowable costs for the nonprofit school food service account. Special education funds could be a source of supplemental funding if specified in the agency’s general account.

Procedural Safeguards

Agencies are encouraged to implement procedures for parents, guardians, participating adults, or persons acting on behalf of adult participants, to request modifications to meal service for participants with disabilities and to resolve grievances. At a minimum, the agency must provide notice of nondiscrimination and accessible services as outlined in 7 CFR, Section 15b.7. Agencies should:

• Notify participants and parents or guardians of the process for requesting meal modifications to accommodate the participant’s disability

• Ensure that the center, DCH, summer site staff, and volunteers, as applicable, understand the procedures for handling requests for meal modifications

• Provide a written, final decision on each request

Agencies that employ 15 or more individuals must designate at least one person to coordinate compliance with disability requirements. This position is often referred to as the Section 504 coordinator. The Section 504 coordinator, who is responsible for addressing requests for accommodations in the center, DCH, or summer site, may also ensure compliance with disability requirements related to meals and the meal service. It is not required to designate a separate Section 504 coordinator responsible only for meal modifications.

Agencies that employ 15 or more individuals must also establish grievance procedures that incorporate appropriate due process standards and provide the prompt and equitable resolution of complaints as set forth by 7 CFR, Section 15.b(6)(b). The USDA FNS recommends that agencies that employ less than 15 individuals designate an employee to provide technical assistance to sites on meal modifications for participants with disabilities.

Team Approach

A team approach to providing modifications for participants with disabilities is strongly encouraged. Develop a team that includes individuals from the sponsoring organization, center, DCH, or summer site, and the Section 504 coordinator (when one is required). The most effective team will include others such as a nurse or registered dietitian. Any request for a modification related to the meal or meal service should be forwarded to the Section 504 coordinator and reviewed by the 504 team.

The Section 504 team will work with the child’s parents or guardian, participating adult, or person acting on behalf of the adult participant to review the request and develop a solution as quickly as possible. The Section 504 team is encouraged to develop policies and practices that allow for the disabilities they most commonly encounter to be quickly and consistently addressed. The team should be advised that any medical information obtained must be kept confidential.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) safeguards the release of personal health information. Agencies will need to consult with an appropriate agency official or seek their legal counsel regarding HIPAA requirements.

Contact Information

If you have any questions regarding this subject, please contact your CACFP or SFSP Specialist.

CACFP: The CACFP Specialist list is available in the Child Nutrition Information and Payment System (CNIPS) Download Forms section, Form ID CACFP 01. You can also contact the CACFP Office Technician (OT) by phone at 916-327-2991 or the Community Nutrition Program Administration OT by phone at 916-324-6153.

SFSP: The Summer Meals Specialist list is available in the CNIPS Download Forms section, Form ID SMU 01. You can also contact the Summer Meals Unit OT by phone at 916-322-8323.