AMESBURY — With food allergies becoming more common, new questions are arising on whether having an allergy that requires life-saving treatment falls under the Americans with Disabilities Act — a law that protects citizens from discrimination based on a disability.
In Amesbury, it's an issue that has hit home. A 6-year-old boy was denied entry into the town Youth Department's summer program last year due to a nut allergy.
Some say the child's legal rights are being violated. But at least one state official says the law isn't as clear-cut as advocates might think. A food-allergy case has been filed with the state Commission Against Discrimination but there has been no finding yet.
Town officials say the current policy — which is reviewed annually and is currently under consideration — discourages taking children with severe food allergies into the program. Officials justify the stance by citing a number of unique factors with the youth program that would make it extremely difficult to make provisions to deal with a life-and-death situation.
"Although we could train all the staff in EpiPens, there are difficult controls with having an outdoor program that is spread out at the park," Recreation Director Kathy Crowley wrote in an e-mail last week. "In addition, controlling the food and outdoor areas is extremely difficult with 300 children in one program, especially since what kids bring to the programs for snacks and lunches is predominantly peanut butter."
In Amesbury, the number of children with life-threatening allergies is significant.
According to school nurse records, there are 14 students with life-threatening allergies that have EpiPens just at Amesbury Middle School.
In addition, there are 12 or 13 diabetic students in the district.
In 2001, an Amesbury Middle School student with a peanut allergy died after eating a cookie with nuts in a class.
After his son had an allergic reaction while on the school bus in December, one Amesbury father is urging state legislators to adopt a state law that would require bus drivers to be trained on how to administer an EpiPen.
Barbara Lybarger, general counsel for the state Office on Disability, said whether a person falls under the terms of the Americans with Disabilities Act varies from case to case, dictated by how a person is impacted by that condition. "It depends on how severe the allergies are," Lybarger said.
Under the ADA, a disability is defined as a "physical or mental impairment that substantially limits a major life activity," she said.
There is a food allergy case currently filed with the state Commission Against Discrimination, Lybarger said, but there has been no finding yet.
"I would suggest that refusing to take kids with allergies is the kind of thing that would file a complaint and it would be taken seriously," Lybarger said.
Amesbury's Donna Devlin received a letter from the Youth Department last summer saying she couldn't enroll her 6-year-old son at Camp Kent's environmental program because counselors aren't allowed to administer EpiPens. She says she has been in discussions with a legal adviser who told her that her son is covered by the Americans with Disabilities Act.
Summer camps fall in the same category as child care, Devlin said she was told by a member of the Food Allergy & Anaphylaxis Network, an allergy awareness advocacy group based in Virginia.
"I'm going to re-apply (this summer) with a note and hopefully it will go through," she said.
Mike Chace, the Amesbury parent who urged the school district to seek EpiPen training for bus drivers, said he sees the Devlin's situation as a violation of the ADA and wondered whether those kids should be given a parallel program for equality's sake.
"You shouldn't be punished for your health conditions," Chace said. "That's what the Americans with Disabilities Act is. It's kind of like saying 'your son can't go to school because he has allergies.' It's absurd."
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