[Congressional Record Volume 155, Number 31 (Monday, February 23, 2009)]
[Senate]
[Pages S2368-S2371]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DODD (for himself, Mr. Alexander, Mr. Whitehouse, Mr. 
        Lautenberg, and Mr. Kerry):
  S. 456. A bill to direct the Secretary of Health and Human Services, 
in consultation with the Secretary of Education, to develop guidelines 
to be used on a voluntary basis to develop plans to manage the risk of 
food allergy and anaphylaxis in schools and early childhood education 
programs, to establish school-based food allergy management grants, and 
for other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. DODD. Mr. President, I rise today to introduce the Food Allergy 
and Anaphylaxis Management Act of 2009. I want to thank Senators 
Alexander, Whitehouse, Lautenberg, and Kerry for joining me for this 
introduction.
  Food allergies are an increasing food safety and public health 
concern in this country, especially among young children. I know first-
hand just how frightening food allergies can be in a young person's 
life. My own family has been personally touched by this troubling 
condition and we continue to struggle with it each and every day. 
Sadly, there is no cure for food allergies.
  The number of Americans with food allergies is on the rise. From 1997 
to 2007 the prevalence of food allergies among children increased by 18 
percent. Today, 3 million children in the United States have a food 
allergy. While food allergies were at one time considered relatively 
infrequent, they now rank third among common chronic diseases in 
children under 18 years of age. Peanuts are among several allergenic 
foods that can produce life-threatening allergic reactions in 
susceptible children. Peanut allergies doubled among school-age 
children from 1997-2002.
  Clearly, food allergies are of great concern for school-age children 
nationwide, and yet, there are no federal guidelines concerning the 
management of life-threatening food allergies in our nation's schools.
  I have heard from parents, teachers and school administrators that 
students with severe food allergies often face inconsistent food 
allergy management approaches when they change

[[Page S2369]]

schools. Too often, families are not aware of the food allergy policy 
at their children's school, or the policy is vastly different from the 
one they knew at their previous school, and they are left wondering 
whether their child is safe.
  In 2006, Connecticut became the first State to enact school-based 
guidelines concerning food allergies and the prevention of life-
threatening incidents in schools. I am very proud of these efforts, and 
I know that the parents of children who suffer from food allergies in 
Connecticut have confidence that their children are safe throughout the 
school day. I had the opportunity to visit with students and parents at 
Washington Elementary School in West Haven, CT, last May who shared 
with me their schools' comprehensive plan for its students with food 
allergies.
  Nine other States, including Massachusetts, Tennessee, Vermont, New 
Jersey, Arizona, Michigan, New York, Washington, and Maryland have 
enacted statewide guidelines. But too many States across the country 
have food allergy management guidelines that are inconsistent from one 
school district to the next. The result is a patchwork of guidelines 
that not only may vary from State to State, but also from school 
district to school district.
  In my view, this lack of consistency underscores the need for 
enactment of uniform, federal guidelines that school districts can 
choose to adopt and implement. For this reason, my colleague Senator 
Alexander and I are introducing the Food Allergy and Anaphylaxis 
Management Act of 2009 today to address the growing need for uniform 
and consistent school-based food allergy management policy. I thank 
Senator Alexander for his hard work and commitment to this important 
legislation.
  Mr. President, the bill we are introducing today closely mirrors 
legislation I introduced last Congress which was cosponsored by 41 of 
my colleagues. Last May, I, along with Senator Alexander, chaired a 
hearing in our Children and Families Subcommittee exploring the current 
state of food allergies and the challenges parents of children with 
food allergies face.
  Since that hearing, Senator Alexander and I have been working with 
members on both sides of the aisle to address any concerns they had 
with the legislation. As a result, the legislation we are introducing 
today reflects many excellent suggestions and changes offered by my 
colleagues. It is my sincere hope that the Senate will move quickly on 
this bipartisan legislation this year.
  The legislation does two things. First, it directs the Secretary of 
Health and Human Services, in consultation with the Secretary of 
Education, to develop and make available voluntary food allergy 
management guidelines for preventing exposure to food allergens and 
assuring a prompt response when a student suffers a potentially fatal 
anaphylactic reaction. The guidelines developed by the Secretary are 
voluntary, not mandatory. Under the legislation, each school district 
or early childhood education program across the country can voluntarily 
choose to implement these guidelines. The intent of the legislation is 
not to mandate individual school policy, but rather to provide for 
consistency of policies relating to school-based food allergy 
management by providing schools with consistent guidelines at the 
federal level.
  Second, the bill provides for incentive grants to school districts to 
assist them with adoption and implementation of the federal 
government's allergy management guidelines in all K-12 public schools.
  I would like to recognize the leadership of Congresswoman Nita Lowey 
who is introducing companion legislation today in the House of 
Representatives. She has been a longstanding champion for children and 
for awareness of the devastating impact of food allergies. I also wish 
to acknowledge and offer my sincere appreciation to the members of the 
Food Allergy and Anaphylaxis Network for their commitment to this 
legislation and for raising public awareness, providing advocacy, and 
advancing research on behalf of all individuals who suffer from food 
allergies.
  This legislation is supported by the Food Allergy and Anaphylaxis 
Network, the American Academy of Allergy, Asthma, and Immunology, and 
many others.
  Mr. President, I ask unanimous consent that the text of the bill and 
a letter of support be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 456

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Food Allergy and Anaphylaxis 
     Management Act of 2009''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Early childhood education program.--The term ``early 
     childhood education program'' means--
       (A) a Head Start program or an Early Head Start program 
     carried out under the Head Start Act (42 U.S.C. 9831 et 
     seq.);
       (B) a State licensed or regulated child care program or 
     school; or
       (C) a State prekindergarten program that serves children 
     from birth through kindergarten.
       (2) ESEA definitions.--The terms ``local educational 
     agency'', ``secondary school'', ``elementary school'', and 
     ``parent'' have the meanings given the terms in section 9101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 7801).
       (3) School.--The term ``school'' includes public--
       (A) kindergartens;
       (B) elementary schools; and
       (C) secondary schools.
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.

     SEC. 3. ESTABLISHMENT OF VOLUNTARY FOOD ALLERGY AND 
                   ANAPHYLAXIS MANAGEMENT GUIDELINES.

       (a) Establishment.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary, in consultation with 
     the Secretary of Education, shall--
       (A) develop guidelines to be used on a voluntary basis to 
     develop plans for individuals to manage the risk of food 
     allergy and anaphylaxis in schools and early childhood 
     education programs; and
       (B) make such guidelines available to local educational 
     agencies, schools, early childhood education programs, and 
     other interested entities and individuals to be implemented 
     on a voluntary basis only.
       (2) Applicability of ferpa.--Each plan described in 
     paragraph (1) that is developed for an individual shall be 
     considered an education record for the purpose of the Family 
     Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g).
       (b) Contents.--The voluntary guidelines developed by the 
     Secretary under subsection (a) shall address each of the 
     following, and may be updated as the Secretary determines 
     necessary:
       (1) Parental obligation to provide the school or early 
     childhood education program, prior to the start of every 
     school year, with--
       (A) documentation from their child's physician or nurse--
       (i) supporting a diagnosis of food allergy, and any risk of 
     anaphylaxis, if applicable;
       (ii) identifying any food to which the child is allergic;
       (iii) describing, if appropriate, any prior history of 
     anaphylaxis;
       (iv) listing any medication prescribed for the child for 
     the treatment of anaphylaxis;
       (v) detailing emergency treatment procedures in the event 
     of a reaction;
       (vi) listing the signs and symptoms of a reaction; and
       (vii) assessing the child's readiness for self-
     administration of prescription medication; and
       (B) a list of substitute meals that may be offered to the 
     child by school or early childhood education program food 
     service personnel.
       (2) The creation and maintenance of an individual plan for 
     food allergy management, in consultation with the parent, 
     tailored to the needs of each child with a documented risk 
     for anaphylaxis, including any procedures for the self-
     administration of medication by such children in instances 
     where--
       (A) the children are capable of self-administering 
     medication; and
       (B) such administration is not prohibited by State law.
       (3) Communication strategies between individual schools or 
     early childhood education programs and providers of emergency 
     medical services, including appropriate instructions for 
     emergency medical response.
       (4) Strategies to reduce the risk of exposure to 
     anaphylactic causative agents in classrooms and common school 
     or early childhood education program areas such as 
     cafeterias.
       (5) The dissemination of general information on life-
     threatening food allergies to school or early childhood 
     education program staff, parents, and children.
       (6) Food allergy management training of school or early 
     childhood education program personnel who regularly come into 
     contact with children with life-threatening food allergies.

[[Page S2370]]

       (7) The authorization and training of school or early 
     childhood education program personnel to administer 
     epinephrine when the nurse is not immediately available.
       (8) The timely accessibility of epinephrine by school or 
     early childhood education program personnel when the nurse is 
     not immediately available.
       (9) The creation of a plan contained in each individual 
     plan for food allergy management that addresses the 
     appropriate response to an incident of anaphylaxis of a child 
     while such child is engaged in extracurricular programs of a 
     school or early childhood education program, such as non-
     academic outings and field trips, before- and after-school 
     programs or before- and after-early child education program 
     programs, and school-sponsored or early childhood education 
     program-sponsored programs held on weekends.
       (10) Maintenance of information for each administration of 
     epinephrine to a child at risk for anaphylaxis and prompt 
     notification to parents.
       (11) Other elements the Secretary determines necessary for 
     the management of food allergies and anaphylaxis in schools 
     and early childhood education programs.
       (c) Relation to State Law.--Nothing in this Act or the 
     guidelines developed by the Secretary under subsection (a) 
     shall be construed to preempt State law, including any State 
     law regarding whether students at risk for anaphylaxis may 
     self-administer medication.

     SEC. 4. SCHOOL-BASED FOOD ALLERGY MANAGEMENT GRANTS.

       (a) In General.--The Secretary may award grants to local 
     educational agencies to assist such agencies with 
     implementing voluntary food allergy and anaphylaxis 
     management guidelines described in section 3.
       (b) Application.--
       (1) In general.--To be eligible to receive a grant under 
     this section, a local educational agency shall submit an 
     application to the Secretary at such time, in such manner, 
     and including such information as the Secretary may 
     reasonably require.
       (2) Contents.--Each application submitted under paragraph 
     (1) shall include--
       (A) an assurance that the local educational agency has 
     developed plans in accordance with the food allergy and 
     anaphylaxis management guidelines described in section 3;
       (B) a description of the activities to be funded by the 
     grant in carrying out the food allergy and anaphylaxis 
     management guidelines, including--
       (i) how the guidelines will be carried out at individual 
     schools served by the local educational agency;
       (ii) how the local educational agency will inform parents 
     and students of the guidelines in place;
       (iii) how school nurses, teachers, administrators, and 
     other school-based staff will be made aware of, and given 
     training on, when applicable, the guidelines in place; and
       (iv) any other activities that the Secretary determines 
     appropriate;
       (C) an itemization of how grant funds received under this 
     section will be expended;
       (D) a description of how adoption of the guidelines and 
     implementation of grant activities will be monitored; and
       (E) an agreement by the local educational agency to report 
     information required by the Secretary to conduct evaluations 
     under this section.
       (c) Use of Funds.--Each local educational agency that 
     receives a grant under this section may use the grant funds 
     for the following:
       (1) Purchase of materials and supplies, including limited 
     medical supplies such as epinephrine and disposable wet 
     wipes, to support carrying out the food allergy and 
     anaphylaxis management guidelines described in section 3.
       (2) In partnership with local health departments, school 
     nurse, teacher, and personnel training for food allergy 
     management.
       (3) Programs that educate students as to the presence of, 
     and policies and procedures in place related to, food 
     allergies and anaphylactic shock.
       (4) Outreach to parents.
       (5) Any other activities consistent with the guidelines 
     described in section 3.
       (d) Duration of Awards.--The Secretary may award grants 
     under this section for a period of not more than 2 years. In 
     the event the Secretary conducts a program evaluation under 
     this section, funding in the second year of the grant, where 
     applicable, shall be contingent on a successful program 
     evaluation by the Secretary after the first year.
       (e) Limitation on Grant Funding.--The Secretary may not 
     provide grant funding to a local educational agency under 
     this section after such local educational agency has received 
     2 years of grant funding under this section.
       (f) Maximum Amount of Annual Awards.--A grant awarded under 
     this section may not be made in an amount that is more than 
     $50,000 annually.
       (g) Priority.--In awarding grants under this section, the 
     Secretary shall give priority to local educational agencies 
     with the highest percentages of children who are counted 
     under section 1124(c) of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6333(c)).
       (h) Matching Funds.--
       (1) In general.--The Secretary may not award a grant under 
     this section unless the local educational agency agrees that, 
     with respect to the costs to be incurred by such local 
     educational agency in carrying out the grant activities, the 
     local educational agency shall make available (directly or 
     through donations from public or private entities) non-
     Federal funds toward such costs in an amount equal to not 
     less than 25 percent of the amount of the grant.
       (2) Determination of amount of non-federal contribution.--
     Non-Federal funds required under paragraph (1) may be cash or 
     in kind, including plant, equipment, or services. Amounts 
     provided by the Federal Government, and any portion of any 
     service subsidized by the Federal Government, may not be 
     included in determining the amount of such non-Federal funds.
       (i) Administrative Funds.--A local educational agency that 
     receives a grant under this section may use not more than 2 
     percent of the grant amount for administrative costs related 
     to carrying out this section.
       (j) Progress and Evaluations.--At the completion of the 
     grant period referred to in subsection (d), a local 
     educational agency shall provide the Secretary with 
     information on how grant funds were spent and the status of 
     implementation of the food allergy and anaphylaxis management 
     guidelines described in section 3.
       (k) Supplement, Not Supplant.--Grant funds received under 
     this section shall be used to supplement, and not supplant, 
     non-Federal funds and any other Federal funds available to 
     carry out the activities described in this section.
       (l) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section $30,000,000 for 
     fiscal year 2010 and such sums as may be necessary for each 
     of the 4 succeeding fiscal years.

     SEC. 5. VOLUNTARY NATURE OF GUIDELINES.

       (a) In General.--The food allergy and anaphylaxis 
     management guidelines developed by the Secretary under 
     section 3 are voluntary. Nothing in this Act or the 
     guidelines developed by the Secretary under section 3 shall 
     be construed to require a local educational agency to 
     implement such guidelines.
       (b) Exception.--Notwithstanding subsection (a), the 
     Secretary may enforce an agreement by a local educational 
     agency to implement food allergy and anaphylaxis management 
     guidelines as a condition of the receipt of a grant under 
     section 4.
                                  ____

                                                  Food Allergy and


                                          Anaphylaxis Network,

                                Washington, DC, February 18, 2009.
     Senator Christopher Dodd,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Dodd, on behalf of the Food Allergy and 
     Anaphylaxis Network (FAAN), I write to express strong support 
     for the Food Allergy and Anaphylaxis Management Act. This 
     important piece of legislation directs the Department of 
     Health and Human Services to develop guidelines for schools 
     to prevent exposure to food allergens and assure a prompt 
     response when a child suffers a potentially fatal 
     anaphylactic reaction.
       FAAN was established in 1991 to raise public awareness, 
     provide advocacy and education, and advance research on 
     behalf of the more than 12 million Americans affected by food 
     allergies and anaphylaxis. FAAN has nearly 30,000 members 
     worldwide, including families, dietitians, nurses, 
     physicians, and school staff as well as representatives of 
     government agencies and the food and pharmaceutical 
     industries.
       An estimated 2 million school age children suffer from food 
     allergies, for which there is no cure. Avoiding any and all 
     products with allergy-causing ingredients is the only way to 
     prevent potentially life-threatening reactions for our 
     children. Reactions often occur at school including severe 
     anaphylaxis, which can kill within minutes unless epinephrine 
     (adrenaline) is administered. Deaths from anaphylaxis are 
     usually a result of delayed administration of epinephrine. 
     Nevertheless, there are no current, standardized guidelines 
     to help schools safely manage students with the disease.
       The Food Allergy and Anaphylaxis Network applauds your 
     effort to address the seriousness of food allergies and 
     create a safe learning environment for those children who 
     deal with these issues on a daily basis. We are pleased to 
     endorse your legislation.
           Sincerely,
                                                Julia E. Bradsher,
     Chief Executive Officer.
                                  ____

                                      American Academy of Allergy,


                                          Asthma & Immunology,

                                Washington, DC, February 19, 2009.
     Hon. Chris Dodd,
     Hon. Lamar Alexander,
     U.S. Senate,
     Washington, DC.
       Dear Senators Dodd and Alexander: I am writing on behalf of 
     the American Academy of Allergy, Asthma and Immunology 
     (AAAAI) to express our strong support for your legislation, 
     the Food Allergy and Anaphylaxis Management Act of 2007, 
     which would make available to schools appropriate guidelines 
     for the management of students with food allergy who are at 
     risk of anaphylactic shock. The AAAAI is the largest 
     professional medical specialty organization in the United 
     States representing allergists, asthma specialists, clinical 
     immunologists, allied health professionals and others 
     dedicated to improving the treatment of allergic diseases 
     through research and education.
       The number of schoolchildren with food allergies has 
     increased dramatically in recent years. The policy developed 
     under your bill

[[Page S2371]]

     would assist schools in preventing exposure to food allergens 
     and assuring a prompt response when a child suffers a 
     potentially fatal anaphylactic reaction.
       Strict avoidance of the offending food is the only way to 
     prevent an allergic reaction as there is no cure for food 
     allergy. Fatalities from anaphylaxis often result from 
     delayed administration of epinephrine. The importance of 
     managing life-threatening food allergies in the school 
     setting has been recognized by our own organization as well 
     as the American Medical Association, the American Academy of 
     Pediatrics, and the National Association of School Nurses.
       The American Academy of Allergy, Asthma and Immunology 
     applauds your efforts to address the need to assist schools 
     with the policies and information needed to improve the 
     management of children with food allergy and avoid life-
     threatening reactions. We are pleased to endorse your 
     legislation.
           Sincerely,
                                                  Hugh A. Sampson,
     President.

                          ____________________