In 2008, the Department of Justice submitted draft final rules for Title II of the ADA to add a detailed definition of “service animal” to the Title II regulation at 28 CFR 35.104 and to amend 28 CFR 35 to include a new regulation on service animals. These draft rules were placed on hold in 2009. However, the final rules were recently released by the Justice Department on July 23, 2010. Since requests for service animals for students with disabilities are on the rise, it is important to educate staff on how to handle these requests, especially in light of the new amended ADA regulations. This article addresses issues regarding students enrolled at the school district, not others who may require a service animal to enable them to access the public accommodations provided by the school district.
First, know what constitutes “service.” Under the new regulations, a service animal is “any dog that is 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 for the purposes of this definition.” Work or tasks include, but are not limited to, “assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.” The provision of emotional support, well-being, comfort or companionship does not constitute work or tasks.
Next, understand that in Pennsylvania, the use of a “guide or support animal” is recognized as a civil right. The Pennsylvania Human Relations Act provides “the opportunity for an individual…to obtain all accommodations, advantages, facilities and privileges of any public accommodation…without discrimination because of…the use of a guide or support animal because of blindness, deafness or physical handicap of the user…is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act.” Courts have held that public schools are places of “public accommodation” within the meaning of Pennsylvania’s Human Relations Act, and equal educational opportunity is a civil right enforceable by the Human Relations Commission.
Third, make proper inquiries. The revised regulations provide that “a public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform.” For students who are enrolled at the District, a School District may also make reasonable inquiries to ascertain the nature or extent of the student’s disability or require documentation, such as proof the animal has been certified, trained or licensed as a service animal. These inquiries would not be appropriate for others who require a service animal to access public accommodations.
Next, consider safety issues. The rule states that “a public entity may ask an individual with a disability to remove a service animal from the premises if the animal is out of control and the animal’s handler does not take effective action to control it or if the animal is not housebroken.” An animal also may be removed if it poses a direct threat, defined in the regulations as “a significant risk to the health and safety of others that cannot be eliminated by a modification of policies, practices or procedures.”
Finally, remember your FAPE duty. Even if an animal does not meet the definition of service animal under the ADA, schools still should consider if the animal is required for FAPE. OCR has held that even if the requested service dog did not qualify as a service animal, the district should have considered whether the dog’s presence was necessary for the student to receive FAPE. However, in other cases, if a district was able to show it could provide FAPE to a student without the use of a service animal, the courts and OCR have supported the district’s decision not to allow the student to bring a service animal to school. For instance, a district did not have to allow a service animal to accompany a student to school to comfort him when he had seizures because his full-time one-on-one aide could perform the same duty.
While the new regulations provide some additional guidance to School Districts in addressing requests for service animals, there are many remaining unanswered questions, such as the scope of a proper inquiry in the school setting, which may result in more OCR investigations and litigation as the new regulations are interpreted and applied.