Back from vacation and so it is time to get another blog entry up.

I have written about service dogs before (they are in reverse chronological order here, here, and here).

When it comes to service dogs, there may be a lot more to think about than what first appears. the case of Alboniga v. School Board of Broward County Florida from the Southern District of Florida is such a case. As is my usual practice, I have divided the entry into categories: facts; issues; holdings; court’s reasoning; and takeaways. The reader, as always, is free to focus on any or all of the categories.

I
Facts

The child in this case is a six-year-old child with multiple disabilities who has cerebral palsy, spastic quadreparesis, a seizure disorder, is nonverbal, and is confined to a wheelchair. He needs care and support for all aspects of daily living and education. He attends public schools and has an IEP. Plaintiff then gets a trained service dog that meets all applicable standards for the purpose of meeting the child needs with respect to his seizures. The service dog performs very specific functions with respect to helping the child deal with his seizures. The service dog also has a special vest carrying pertinent medical supplies and information important for the care of the child in the event of an emergency. When the plaintiff asked the school board for the ability to have her child be accompanied to school with a service dog, the school requested information regarding liability insurance for the service animal and information about vaccinations of the service dog neither of which the plaintiff furnished. The vaccinations required by the school board mirrored those applicable to dog breeders with respect to ensuring the health of a dog before its sale but exceeded those related to the regulation of animals permitted in schools under Florida statute. Subsequently, the school board sent a letter requesting the additional vaccination information as well as proof of liability insurance in an amount to be determined by the school board’s risk management office. It then also required that the plaintiff provide a handler for the dog. The plaintiff did serve as the handler for the dog for four months and was not paid for doing so nor did she assist school staff with any activities regarding the child in the classroom. At the end of those four months, the school board provided a handler for the service dog. The responsibilities of the handler were to walk the dog with the leash instead of allowing the dog to be attached to the child’s wheelchair, take the dog outside of the school premises to urinate, and to ensure that other people do not approach pet or play with the dog while he is working as a service dog. The handler did not have any duties regarding the child’s education or care. At all times while at home and in other public places, the dog is tethered to the child. Finally, the plaintiff submitted declarations, which were not disputed by the defendant, that the dog and the child form a service dog team. Therefore, separation of the service animal from the target member of the team is detrimental and diminishes the animal’s responsiveness and effectiveness. Neither the child’s healthcare plan, his IEP, or his section 504 plan mentioned anything about service dogs. The plaintiff brought suit to allow the service dog in the school: without having to pay for additional liability insurance and additional vaccinations; without having to provide an additional handler; and to accommodate the child by walking his service dog when necessary.

II
Issues

1. Was it necessary for the plaintiff to exhaust the IDEA process first prior to bringing suit alleging violations of the ADA and § 504 of the Rehabilitation Act?

2. Since the school board has always allowed the child to attend school with the service animal, is the case moot?

3. Are the relevant implementing regulations pertaining to service dogs permissible and entitled to deference?

4. Are the insurance and vaccination requirements a surcharge in violation of the ADA?

5. Must the child have a handler excluding the child himself in order to be consistent with the Department of Justice regulations?

6. Was what the school’s handler was doing care and supervision under the Department of Justice regulations, which require that care and supervision be done by the person using the service dog?

III
Holdings:

1. No

2. No

3. Yes

4. Yes

5. No

6. No

IV
Court’s Reasoning:

1. With respect to service dogs, I have previously written on whether exhaustion of IDEA is required before bringing suit with respect to allowing a service dog in the schools. As I mentioned there, there are two views on this. That is, one view says the parent does not have to exhaust remedies, while the other view says that they do. Judging from my research on Westlaw, the minority view is represented by Sullivan by and through Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (E.D. Cal. 1990). In that case, the Eastern District of California held that whether the child could have a service dog with him or her in the school had nothing to do with the child’s IEP since the child was happy with that plan. Rather, this was a substantive question arising under § 504 of the Rehabilitation Act. In fact, IDEA doesn’t have anything to do with whether a court could mandate a service dog on a school district regardless of whether that service dog was educationally necessary. The majority view, represented by Cave v. East Meadow Union Free School District , 514 F.3d 240 (2d Cir. 2008), is that if the child has an IEP, then the remedy clause mentioned above applies if the situation is related to or has an impact on the IEP. The fact that relief may be sought that is different than what can be obtained under IDEA is of no matter.

The Southern District of Florida in this case opts for Sullivan and indeed cites to that decision. In particular, the court notes that the plaintiff is not claiming a denial of a free appropriate public education and that IDEA and its administrative scheme are simply not implicated by the kind of claims made in this case.

2. The court found that the case was not moot because when a party abandons a challenged practice freely, the case only becomes moot only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. That in turn depends upon the analysis of three different factors: whether the termination of the offending conduct was unambiguous; whether the change in government policy or conduct appears to be the result of substantial deliberation, or simply an attempt to manipulate jurisdiction; and whether the government has consistently applied a new policy or adhered to a new course of conduct. Applying those factors, the court found that the elements of the case being moot were not satisfied because a change in government conduct by administrative fiat in violation of its own rules cannot constitute unambiguous or consistent termination of the claimed improper conduct. Further, it wasn’t clear that the conduct wouldn’t start all over again once the threat of the lawsuit was removed.

3. The regulations were a permissible construction of the statute and entitled to deference under Chevron because:

A. The regulations were reasonable in light of the language, policies, and legislative history of the statute;

B. The regulation, which honored the choice of an individual with a disability to be accompanied by a service animal in all aspects of community life-including schools- promotes the ADA’s ultimate aim of ensuring equal opportunity for, and full participation by, individuals with disabilities in all aspects of civil life. In particular, the regulations carry out congressional direction that the ADA goes beyond prohibiting outright discrimination to require modification to existing facilities and practices in order to accommodate individuals with disabilities;

C. The legislative history of the ADA confirmed that DOJ regulations are consistent with congressional intent;

D. Over the years, there has been extensive judicial support, both before and after the DOJ added specific service animal provisions to title II regulations, for the principle that the ADA generally requires public entities to permit individuals with disabilities to be accompanied by their service animals;

E. The DOJ regulations also contain exceptions so as to not make mandatory the inclusion of service animals in all circumstances. That is, the DOJ regulations set forth certain circumstances where it is not reasonable to allow the service animal. The fact that such exceptions exist is another indicator that the regulations are reasonable.

4. The school board’s requirement that plaintiff maintain liability insurance for the service animal and procure vaccinations above and beyond the requirements under Florida law, are surcharges because the policy in effect amounts to an extra upfront charge to the plaintiff in order for the child to use his service dog. Further, the insurance costs are in excess of what other students are required to spend in order to attend school. Finally, the vaccinations, as mentioned above, exceed what is ordinarily required under Florida law regarding the regulations of animals permitted in schools.

5. The court had several reasons for holding that the child did not need to have a handler (excluding the child himself), in order to be consistent with the Department of Justice regulations:

A. Permitting a person with a disability to use a service animal is generally reasonable;

B. A public entity is not permitted to survey the universe of reasonable modification to determine what is in the best interest of the person with a disability since it is persons with disabilities that typically have the most accurate knowledge about the functional limitations imposed by the disability and the individual is not obligated to accept an alternative accommodation suggested by the provider if he or she believes it will not meet his or her needs and the preferred accommodation is reasonable;

E. A public entity cannot dictate the type of services a person with a disability needs in contravention of that person’s own decisions regarding his own life and care;

F. It was not disputed that separating the child from the service animal during the school day has a detrimental effect on the child-service animal bond and diminishes the animal’s responsiveness and effectiveness outside of the school setting;

G. It is not a reasonable accommodation for the public entity to act as the handler for the service animal. However, if one looks at the handler regulation as a whole, it is clear that tethering a service animal to a wheelchair of a person with a disability constitutes control over the animal by the person with a disability and therefore, that person with a disability is acting as the service animal’s handler. Accordingly, the child is the handler for purposes of the DOJ regulations, and therefore, it is perfectly reasonable to allow the service animal to be tethered to the child.

6. The school was not being asked to engage in care or supervision of the service animal since under the DOJ guidance to the revised ADA regulations, care and supervision means routine animal care such as feeding, watering, water washing the animal. Case law is similar. For example, the court cited to a Montana case where the Montana Supreme Court said that caring for a service animal means looking after the service animal in the owner’s absence, which is not the case here. Finally, the court makes a very important distinction that the school board is not being asked to accommodate or care for the dog, rather the school board is being asked to help the child as a reasonable accommodation to provide an employee to walk the dog when necessary so that the dog could relieve himself. In that way, it is no different than a school assisting a diabetic child with her insulin pump,
assisting a child with disabilities in employing her motorized wheelchair, or assisting a child with vision impairments to help her deploy her white cane, or assisting that same child with her seeing-eye dog.

V
Takeaways

1. I look for this case to be appealed to the 11th Circuit if for no other reason because there is a split of authority on just when IDEA remedies need to be exhausted when it comes to the issue of a service animal accompanying a child into the schools. I do find it interesting that the court does not mention the majority view on this subject in its opinion. The case law surrounding exhaustion of IDEA remedies creates an interesting situation. That is, generally the rule of thumb is for an IEP to be comprehensive and include everything that is possible to include in it. However, in light of the case law, if you’re on the plaintiff’s side and faced with a service dog issue, it may make a great deal of sense to demand the service dog a company the child to school but also fight against the service dog being included in the IEP so as to maximize your remedies later. On the defense side, it may make sense to encourage the inclusion of the service dog in the IEP. If the person does not have an IEP but does have a § 504 plan, it probably doesn’t matter if the § 504 plan contains a reference to the service dog or not.

2. Just because you allow the plaintiff to get some of what they want that does not make the case moot necessarily, especially if the plaintiff is only getting some of what they want. On the defense side, you would want to make sure that the entire system moves in the direction it needs to move in and for the right reason. On the plaintiff side, you want to keep a lookout to see if a person is going at it alone or if the conduct is otherwise violating school policy, even if that policy itself is discriminatory.

3. Considering what we have discussed before regarding whether the service dog regulations would withstand a challenge, it isn’t surprising that the DOJ regulations were found by the court to be permissible and entitled to Chevron deference.

4. Be sure to remember that when it comes to the ADA, regardless of title, surcharges are not appropriate.

5. The term handler is being construed by this court in a way that maximizes the independence of a person with a disability, which is the goal of the ADA in the first place.

6. The court makes a very important distinction between accommodating the service animal v. accommodating the child himself. That is, since the child and the service animal are a team, it is the principal of that team that the accommodation relates back to. Further, care and supervision is being interpreted in a broad sense.

4 Responses to Service dogs: you may be surprised how much there is to think about

This just in from the Department of Justice April 13, 2015:

http://www.ada.gov/briefs/gates-chili_lof.docx

what is interesting about this case that is being linked to is that it is a New York case which is a Cave jurisdiction. Nothing in the letter mentions and IEP. If there is an IEP in place and the administrative process has not been exhausted by the parent, the important point would be that the Department of Justice would not be bound by the administrative process exhaustion requirement since they are enforcing title II in their own behalf.

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