SERVICE ANIMAL ACCESS REQUESTS: ARE SCHOOLS STILL IN COMMAND?

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1 SERVICE ANIMAL ACCESS REQUESTS: ARE SCHOOLS STILL IN COMMAND? I. INTRODUCTION In the past several years, courts around the country have seen an increase in litigation surrounding access of service animals in schools to assist disabled students. Based on the recent court cases disfavoring the decisions made by school districts with respect to service animals, school districts must be aware of the appropriate response and their options when faced with a service animal access request. In light of the increase in questions received and litigation surrounding service animal access, on July 20, 2015 the U.S. Department of Justice Civil Rights Division issued a guidance document entitled Frequently Asked Questions about Service Animals and the ADA. In this presentation we will discuss the new DOJ guidance and recent court decisions related to access of service animals in schools, the issues that can arise concerning the service animal and the handler, and considerations and recommendations when faced with a request for access of a service animal to assist a disabled student. II. ADA REGULATIONS ON SERVICE ANIMALS A. Definitions 1. Service Animal A service animal is any dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals. The Illinois School Code defines a service animal as a guide dog, signal dog or any other animal individually trained to perform tasks for the benefit of a student with a disability. The provision further indicates that the service animal shall be permitted to accompany the student to all school functions, whether in or outside of the classroom. But Note: Miniature Horses may be permitted by a public entity for an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability and meets other specifications. 2. Work Tasks The work or tasks performed by a service animal must be directly related to the individual s disability. The animal must be individually trained to do something that qualifies as work or a task. Although the information contained herein is considered accurate, it is not, nor should it be construed to be legal advice. If you have an individual problem or incident that involves a topic covered in this document, please seek a legal opinion that is based upon the facts of your particular case Robbins Schwartz

2 B. Permitted Inquiries Examples include, but are not limited to: a. assisting individuals who are blind or have low vision with navigation and other tasks; b. alerting individuals who are deaf or hard of hearing to the presence of people or sounds; c. providing nonviolent protection or rescue work; d. pulling a wheelchair; e. assisting an individual during a seizure; f. alerting individuals to the presence of allergens; g. retrieving items such as medicine or the telephone; h. providing physical support and assistance with balance and stability to individuals with mobility disabilities; and i. helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors But Note: The crime deterrent effects of an animal s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks. A public entity shall not ask about the nature or extent of a person s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask two questions: 1) if the animal is required because of a disability, and 2) what work or task the animal has been trained to perform. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability). A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. C. Student and/or Alternative Handler Responsibilities A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether could interfere with the service animal s safe, effective performance of work or tasks, in which case the service animal must be 2

3 otherwise under the handler s control (e.g., voice control, signals, or other effective means). A public entity is not responsible for the care or supervision of a service animal, including providing food or water, walking the animal or taking the animal out to urinate. But Note: Current policies and procedures may need to be reviewed and altered with respect to handlers in light of recent cases and guidance. Many current policies and procedures state the above regarding the school district not being responsible for the care or supervision of a service animal, including walking the animal or providing any other care or assistance to the animal, but then go on to state that, students with service animals are expected to care and supervise their animals. In the case of a young child or a student with disabilities who is unable to care for or supervise his service animal, the parent is responsible for obtaining a handler to provide care and supervision of the animal when on school grounds, at school related activities or during school transportation. Such handlers must abide by the school district s volunteer guidelines. D. Access and Limitations Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity s facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal. E. Exclusions A public entity may ask an individual with a disability to remove a service animal from the premises if a. The animal is out of control and the animal s handler does not take effective action to control it; or b. The animal is not housebroken. If a public entity properly excludes a service animal pursuant to the regulations, it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises. The animal may also be excluded if the animal s presence fundamentally alters the nature of the service, program or activity. 3

4 Service animals can also be excluded when the animal s behavior poses a direct threat to the health or safety of others. a. Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services. III. COURT DECISIONS A. Illinois Courts 1. Kalbfleisch v. Columbia Community Unit School District No. 4, 920 N.E.2d 651 (Dec. 16, 2009) Parents, on behalf of their five year old autistic son Carter, sought an injunction to permit their child to bring his service dog with him to school pursuant to the Illinois School Code service animal provision, 105 ILCS 5/ The Circuit Court granted Parents preliminary injunction. The school district appealed. The Appellate Court affirmed the grant of the injunction finding; (1) parents were not required to exhaust administrative remedies before seeking the preliminary injunction, (2) parents established a likelihood of success on the merits, (3) parents established that the child would suffer irreparable harm if the injunction were not granted, (4) the trial court acted within its discretion in granting the injunction despite alleged alteration of status quo, and (5) the balance of hardships favored granting the injunction. The Appellate Court found that Parents established that Carter would be irreparably harmed if he was not permitted to bring his service dog to school. Specifically, Carter s mother testified that prior to having his service dog Carter behaved as follows: he had tantrums on a daily basis; he suffered from an eating disorder called pica, a pattern of eating nonfood materials; he would refuse to walk when he was taken to public places; he sporadically would take off running; he could not fall asleep on his own and, once asleep, woke up approximately every hour; he did not communicate with anyone; and he was unable to focus. When Carter was three years old, his doctor suggested that Carter obtain a service dog. The family applied and after approximately two years on a waiting list, Carter received his service dog, Corbin. Both parents were trained and took the examination to become certified dog handlers. Carter s mother testified that as a certified dog handler she is able to train other people and was willing to train school staff or, if needed, she could remain with Carter and Corbin at school. Carter s mother testified that after having Corbin for a month or so, Carter was much happier; his tantrums minimized to a couple times a week and his recovery time has been reduced to minutes, compared to a half hour or hour it used to take. She also testified that Corbin will physically take Carter down if he takes off running into a dangerous situation and, as a result, Carter does not try running into the road anymore and by the third night of training, Carter was able to sleep without his mother in the room because Corbin would calm him when he woke 4

5 up. Evidence was also presented that Corbin draws Carter out of his stimming by batting him with his nose, which allows Carter to focus more easily, and Carter began to use meaningful words after receiving Corbin, in telling Corbin to wait and hold. In support of their case, the school district presented several witnesses, including the director of special education, Carter s case manager, the mother of another child enrolled to attend Carter s school, the principal of Carter s school and the superintendent of Carter s school. Carter s case manager testified that she believed having a dog in school would be disruptive and that Carter had an individual aide at school to ensure his needs were met. Carter s principal testified that the school had a policy of allowing no animals at school. The mother of another child enrolled to attend preschool in Carter s class testified that her child had a rare lung disease, was highly allergic to dogs, that the school promised her at the last IEP meeting that her child would not be exposed to animals, and that if there was a dog in her child s class her child would not go to school. As to the school districts first argument, the Appellate Court found it unnecessary to determine whether Carter failed to exhaust his administrative remedies because the lower court found that Carter would be subjected to irreparable harm and that any other process would be inadequate due to time constraints. The court also noted that the school district failed to preserve this issue for review because the denial of the school district s motion to dismiss raising the exhaustion argument was an interlocutory order, not generally appealable, and no right to appeal was granted. The school district also argued that the court should construe the service animal statute as requiring an educational benefit. The court found there is no such requirement under the plain reading of the statute. As to the inquiry into the balance of hardships specifically related to the student with lung disease, the lower court made the injunction effective three weeks after its entry to give the school district time to accommodate both students. Additionally, the school district did not present evidence that this student would be allergic to Corbin, who is a hypoallergenic dog, that the district could not accommodate both students, or that the district would have suffered a great hardship by having the dog at school with the child. 2. K.D. v. Villa Grove Community Unit School District No. 302, 403 Ill.App.3d 1062, (August 24, 2010) K.D. is a six year old autistic student who attends Villa Grove Elementary School. In May 2009, K.D. received a Labrador retriever Chewey from Autism Service Dogs of America. Later that month, the school district sent K.D. s parents a letter informing them the dog was prohibited from accompanying K.D. to school. K.D. was unable to attend ESY during the 2009 summer because the school district refused to allow Chewey at school. On July 9, 2009 K.D. s parents filed a complaint and motion for a preliminary injunction. On July 13, 2010 the court granted the preliminary injunction and as a result, Chewey accompanied K.D. to school during the entire school year. 5

6 The school district appeals the entry of the order finding K.D. s dog to be a service animal under 105 ILCS 5/ and ordering the school district to allow K.D. to bring the dog to school functions. On appeal the school district argued that the trial court erred because (1) plaintiffs failed to exhaust their administrative remedies and (2) K.D. s dog was not a service animal. The appellate court affirmed the holding in favor of K.D. and his parents. On appeal, the school district argued that the trial court lacked jurisdiction over the case because K.D. failed to exhaust administrative remedies (i.e. a special education due process hearing) prior to filing suit. The court noted that the purpose of the exhaustion of remedies doctrine is to permit administrative bodies to apply the special expertise that they possess and that exhaustion is not required if the administrative agency s expertise is not required. The court found that the School Code s definition of service animal is not a matter requiring an ISBE hearing officer s expertise, Because the definition excludes any reference to the service animal s impact on the student s education, any hearing conducted by school administrators would simply amount to interpretation of the statute s language. The school district also argued on appeal that Chewey was not a service animal within the meaning of Section because (1) Chewey provided no tangible tasks for K.D. s benefit, (2) Chewey s training is not such to reflect the appropriate behaviors expected, (3) any act Chewey does is at the command of an adult handler not on his own or at the command of K.D. and therefore Chewey does not accompany K.D. for purposes of the statute, and (4) Chewey s behavior does not benefit K.D. but instead has actually caused K.D. to regress in his educational and functional development. The court disagreed with the school district and found that Chewey provides some benefit to K.D. and therefore is a service animal. The court noted that the testimony provided indicates that Chewey performs tasks to benefit K.D. Chewey prevents him from running away through tethering and applies deep pressure to calm K.D. when he experiences a tantrum. Such tasks have benefited K.D. and have (1) caused K.D. s sleep to improve from two to three hours a night to six to eight hours per night, (2) allowed for less difficulty when K.D. transitions from home to school in the morning, and (3) allowed K.D. to be more focused on his homework. K.D. s mom also testified that the tethering between K.D. and Chewey decreases the risk of K.D. running away because he is tethered to Chewey most of the day and Chewey alerts the family when K.D. leaves his bed at night. The court also noted that Chewey s trainer testified that she traveled to K.D. s home to adapt Chewey s autism-related training specifically to K.D. and noted that separation between K.D. and Chewey weakens the special bond between them and that this evidence establishes Chewey is individually trained to perform tasks for K.D. s benefit. As to the school district s argument that Chewey s behavior fails to reflect the appropriate behaviors expected and has actually caused K.D. to regress, the court held that such arguments exceed the plain meaning of the statute. Specifically, the court noted that, regardless of whether Chewey s behavior 6

7 varies from his training, section does not specify service animals must behave perfectly at all times. Moreover, the statute does not require evaluating the disabled child s educational and behavioral performances before labeling the animal assisting the child a service animal. Additionally, as to the school district s assertion that K.D., not an adult handler, must control Chewey for the dog to accompany K.D. is unpersuasive because the plain meaning of accompany does not encompass control. B. More Recent Cases from other Jurisdictions 1. Alboniga v. School Board of Broward County, 2015 WL (S.D.Fla) A.M., a six year old student with significant disabilities, who is confined to a wheelchair, obtained a service animal to alert the staff and student when the student was going to have a seizure. Due to the significance of the student s disabilities, he could not be the service animal s handler. Therefore, for the first four months the dog was in school the mother served as the dog s handler. Thereafter, the District made an administrative decision to provide an employee to be the handler for the student s service animal. The District made such a decision while also maintaining it was not responsible for the care and supervision of the service animal. The handler s only duties were to walk the service animal alongside the student with a leash, to take the service animal outside to urinate and to ensure other people to not approach, pet or play with the dog while the dog is acting as a service animal. The District eventually altered its position. Parent filed suit and requested the court allow the student to attend school with his service animal without having to hire a separate handler, without having to pay for additional liability insurance and vaccinations for the dog and that the District accommodate the student by accompanying the student and animal outside when the animal needs to urinate. While the court agreed that requiring the school district to act as the handler for and to control the service animal is not a reasonable accommodation mandated by the ADA, the court held that assisting the student in leading his service animal outside to urinate was a reasonable accommodation to the student, not to the dog. The court noted that assisting or monitoring the student in using his service animal is a reasonable accommodation in the same manner as; a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog. Court found it was unreasonable to expect the school to provide a handler for the dog, but that the handler wasn t the assigned custodian, but rather the student. The Judge noted that the student is tethered to his dog and the tether and thus the student constitute control. Therefore, given the dog s obedience and training, the Judge held that the dog requires no care or supervision at school beyond the occasionally being let outside to pee. In doing so, the school is being asked to accommodate the boy, not accommodate, or care for, the dog. As for the insurance required by the district, the court found it was an unlawful surcharge as they were over and above what other students are required to 7

8 expend in order to attend school. Thus, such requirements constitute an impermissible discriminatory practice. 2. C.C. v. Cypress School District, 2010 WL (C.D.Cal) The District cannot deny an autistic student use of his service dog in the school setting because such does not fundamentally alter the nature of the school district s program. Furthermore, requiring a staff member to learn 5-10 simple commands and to hold the service dog s leash when the student travels from one part of the school to another (which the court noted was a far easier task than holding the student s hand as the student is prone to squirm and the dog trained to walk calmly) is a reasonable accommodation. 3. Fry v. Napoleon Community Schools, 788 F.3d 622 (6 th Cir. 2015) School district refused to allow student with spastic quadriplegic cerebral palsy to bring prescribed service dog to school. While the court held that Parents needed to exhaust administrative remedies prior to bringing lawsuit, OCR and lower courts did find the school district discriminated against the student in not allowing student s service animal access to school. The school district refused to permit the student to bring the service animal to school, who was trained to assist with mobility and physical tasks, because they were already providing her with a one to one aide pursuant to her IEP. The school district reasoned that part of their reasoning in denying the dog s access to school was it would not provide any support the one to one aide could not and was not already providing. After a finding by OCR that the school district violated the ADA by refusing to permit the service dog to attend with the student, the school agreed to permit the student to attend school with her dog. However, Parents decided to have the student attend school in a different school district where they encountered no opposition to having the service animal attend with her. In making its finding, OCR noted that: The decision to deny the Student the service animal in the school setting would have wider implications for the Student outside of the school day. Activities that the service animal performs for the Student during school, such as providing assistance with balance and support, retrieving dropped items, and taking off her coat, are the same types of activities for which the Student uses the service animal outside of the school...th[e] evidence suggests that refusing to allow the service animal to assist the Student at school, which she is required to attend for nine months a year, would result in a more prolonged and complete separation that would likely cause the Student s working relationship with the service animal to deteriorate. The 6 th Circuit held that the exhaustion requirement applies because the case turns on the same questions that would have determined the outcome of IDEA procedures. However, one of the judges on the panel wrote a lengthy dissent with regard to the majorities finding that Parents needed to exhaust their administrative remedies. The dissent judge specifically noted that it is clear that 8

9 the request for a service dog would not require a modification of the student s IEP, because the request for a service animal could be honored simply by modifying the school s policy C. DOJ Investigation and Outcome Gates-Chili Central School District, New York, April 13, 2015 Issue was not the use of the dog or access to the school, but the handler obligations. The student in this case has Angleman Syndrome, autism, epilepsy, asthma and hypotonia. The service animal, which was obtained in June 2011, was trained to detect and alerting oncoming seizures, present elopement, apply deep pressure, disrupt stimming and provides mobility support for the student s core body weakness. Because the student could not act independently as the handler for the dog, the school district insisted that the student s family provide a handler for the dog, Hannah. The school district noted that the ADA requires service dogs in schools to be under the control of a handler and that school districts are not required to pay for such because they are not obligated to care for the dog. The parent argued that the student was the dog s handler and that the student only needed minimal assistance from school staff to work with the dog, who is trained to go through a school day without needing to be walked, eat or relieve herself. DOJ opened an investigation in August 2013 and over that period of time the parent paid a handler over $25,000 to accompany the student to school. School district refused to allow the student to bring her service dog to school unless the animal had a full-time handler. The DOJ found for the parents and required the school district to direct its staff to assist the student in the handling of the dog. The DOJ noted that we find that providing the requested assistance to the student falls well within the range of support and assistance that school staff provides to young children day in and day out. The decision potentially alters obligations of schools to assist and accommodate students with their service animals as the dogs move throughout the school, need to have a harness attached and are issued basic commands. The student s nanny, who was acting as the handler, estimated she probably spends 15 minutes of a full school day assisting the student with the dog. Her job involves issuing commands such as down and let s go a couple times a day and untangling the tether. The dog is tethered and untethered approximately 15 times a day and each transfer takes approximately three seconds to accomplish. Since the service animal started accompanying the student to school, the student has learned nonverbal ways to issue commands. When discussing the reasonable accommodations, the DOJ discussed that Staff assistance in issuing the few verbal commands necessary for the student to control the service dog would involve only minimal effort but would significantly further the student s ability to use the assistance of the service dog. The district may have to pay over $25,000 in damages to the family. Additionally, the decision notes that requiring the family to pay a handler amounts to a surcharge, since the student and dog can t attend school without the handler present. The DOJ also required the school district to reasonably modify its 9

10 policies by providing an aide and training other staff who worked with the nonverbal disabled student to issue the dog commands, tether and untether the dog, escort the dog and the student, and use the dog in accordance with the task they were trained to perform. IV. DOJ Guidance A. FAQ Clarifications 1. Service animals are not required to be professionally trained or submit proof of training. People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program. 2. Covered entities may not require documentation such as proof the animal has been certified, trained or licensed as a service animal. 3. Service animals are not required to wear a vest, ID tag or specific harness. 4. The handler is responsible for caring for and supervising the service animal, which includes toileting, feeding and grooming. School districts are not obligated to supervise or otherwise care for a service animal. 5. Service dogs are not exempt from any local animal control, public health requirements, including vaccinations, or licensing and registration requirements, including local city requirements. 6. Individuals with disabilities may have more than one service animal to perform different tasks or even the same task (i.e. stability walking). B. Handler Clarification for Schools Q: What does under control mean? Do service animals have to be on a leash? Do they have to be quiet and not bark? A: The ADA requires that service animals be under the control of the handler at all times. In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability. In the school (K-12) context and in similar settings, the school or similar entity may need to provide some assistance to enable a particular student to handle his or her service animal. The service animal must be harnessed, leashed or tethered while in public placed unless these devices interfere with the service animal s work or the person s disability prevents use of these devices. In that case, the person must use voice, signal, or other effective means to maintain control of the animal. For example, a person who uses a wheelchair may use a long, retractable leash to allow her service animal to pick up or retrieve items, but she may not allow the dog to wander away. 10

11 Under control also means that a service animal should not be allowed to bark repeatedly. However, if a dog barks just once, or barks because someone has provoked it, this would not mean that the dog is out of control. If a service animal is out of control and the handler does not take effective action to control it, staff may request that the animal be removed. V. RECOMMENDATIONS AND CONSIDERATIONS WHEN FACED WITH A REQUEST FOR SERVICE ANIMAL ACCESS 1. Only students with a disability are permitted to bring a service animal to school, so we must always first determine whether the student is a student with a disability within the meaning of IDEA or Section Once it is established that the student is a student with a disability, we must then determine if the animal is a service animal that will be performing specific tasks for the benefit of the student. The definition of service animal was significantly narrowed by the 2010 Revisions as it only includes a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. Other animals, whether wild or domestic, are no longer considered service animals under the 2010 Revisions. Trained miniature horses may be an exception to this rule in certain situations. But Note: the Illinois School Code provision still allows for other types of animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs used purely for emotional support, are not service animals. The crime deterrent effects of an animal s presence do not qualify that animal as a service animal and an animal individually trained to provide aggressive protection, such as an attack dog, is not considered a service animal. 3. Discuss with the parent and the handler how the animal s basic needs will be met during the school day. Public entities may remove a service animal if it is out of control and the animal s handler does not take effective action to control it or the animal is not housebroken. Public entities, such as school districts, are not responsible for the care or supervision of service animals. 11

12 But Note: Line of new cases/guidance requiring school districts to accommodate student to act as handler to provide care and supervision to the service animal. Service animals are required to be leashed or harnessed except when performing work or tasks where such tethering would interfere with the dog s ability to perform. 4. Do a background check on the adult handler. 5. Create a plan for integrating the animal into the classroom and school environment. 6. Check with the school nurse regarding any known allergies among other students attending the school. 7. Manage and balance competing educational interests (i.e. service animal presence, student with allergies) of current and future students and employees. 8. Create a school wide communication from the school principal informing other students and parents about the placement of a service animal in the educational setting. 9. Educate students on the presence of the service animal and how to address and respond to the service animal during the school day. 10. Require proof that vaccinations are current for the service animal (i.e. Illinois law requires a current rabies vaccinations; cities and villages may have other requirements). 11. Implement a service animal administrative procedure and determine necessary forms. IASB PRESS has created an administrative procedure and form for requesting the presence of a service dog at school. However, we would recommend you consult with legal counsel in your development of such policies and procedures as we would recommend adjustments to PRESS model procedure and exhibit. But Note: Some courts and guidance have indicated that requiring parents to sign certain forms, including waiver and liability forms, may chill a service animal s access to school and be found to be a discriminatory practice. 12