www.baltimoresun.com/news/breaking/bs-md-school-lunch-suit-20120223,0,2839957.story

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Ruling: Md. need not protect pupils from allergens in school lunch

Suit stems from peanut butter incident seven years ago

By Steve Kilar, The Baltimore Sun

9:38 PM EST, February 23, 2012

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Nicole Pace told the school nurse that her daughter was deathly allergic to peanuts and had her 5-year-old's allergist provide Hillcrest Elementary School in Frederick with a pre-measured dose of medicine, just in case.

But a cafeteria worker — unaware of the danger peanuts posed to the girl, Liana — gave her a peanut butter sandwich.

"The child immediately began experiencing an anaphylactic reaction; her airway and eyelids began to swell, and she became lethargic and confused," according to court records. Liana's epinephrine was administered, and she was rushed to the hospital. She survived the attack but developed anxiety, became fearful of her school and eventually was transferred.

Although the public school failed to prevent Liana from being exposed to her food allergen, the state cannot be held accountable for what happened to her, according to a decision this week by the state's highest court.

Maryland, its Department of Education and its superintendent of schools are not responsible for ensuring that school-provided lunches won't send students to the hospital in anaphylactic shock, the Court of Appeals ruled Wednesday. A state cannot be found negligent under the National School Lunch Act, which requires states to provide nutritious meals to students in need, the court said.

In an opinion assented to by six other judges, Judge Clayton Greene Jr. detailed how the incident arose.

"On November 9, 2005, Liana went to the school cafeteria without a lunch or sufficient funds in her cafeteria account to purchase a lunch," he wrote. The girl was offered a "credit lunch" — a sandwich subsidized by federal funds.

"On this particular day, a cafeteria worker gave Liana a peanut butter sandwich. Liana resisted eating the sandwich, informing the worker that she was not allowed to have peanut butter," the opinion said. "The worker mistook her protests as misbehavior and ordered her to eat the sandwich. Liana complied."

During a deposition, it came to light that the school's nurse did not inform the cafeteria staff of Liana's allergies, Philip J. Sweitzer, the Paces' attorney, said in a phone interview Thursday.

Though the responsibility for monitoring food allergies may rise to the level of the local school system, the court did not address that issue because Frederick County's public schools settled with Pace before the case got to the Court of Appeals.

A spokeswoman for the Frederick schools system did not respond to phone calls Thursday.

"We provide the school systems with guidance and instruction that meets the federal requirements; we keep them informed," Carol Fettweis, who heads the child nutrition program for Maryland's eduction department, said by phone Thursday evening.

The state outlines best practices, she said, and each school system goes about meeting the federal requirements in its own way.

Although states are supposed to visit local school systems and conduct regular reviews of their food programs, the court decided that the regulation requiring such review does not "impose a duty on the State to protect children with allergies from the foods that plague them."

"The [National School Lunch Act] does not impose a statutory duty on the State defendants to identify students with special dietary needs, develop a flagging regimen, or otherwise guard against individual exposure to food allergens," Greene wrote.

Sweitzer, who has not had the opportunity to speak to his clients since the opinion was issued, said he is contemplating taking the case to theU.S. Supreme Court.

"It's a novel issue nationally," Sweitzer said. "This is the first time that a state [high] court has said that a state cannot be sued under" the National School Lunch Act.

steve.kilar@baltsun.com

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