In the Fall 2010 edition of MBM Education News, we reported on the final Department of Justice (DOJ) regulations which at that time had only recently been released by the DOJ on July 23, 2010.  The regulations regarding service animals for students with disabilities became effective on March 15, 2011.  As with any new regulation, ongoing implementation issues continue to raise questions and concerns. 

While the new regulations regarding “service animal” limit the definition to service “dogs,” they further specify that “the work or tasks performed by a service animal [dog] must be directly related to the individual’s disability” and that “an animal’s presence and the provision of emotional support, well-being, comfort or companionship do not constitute work or tasks for the purposes of this definition.”  Making this determination at times can be difficult.  According to the DOJ, “doing work” is broader than “performing tasks” as doing work includes “activities that do not appear to involve physical action.”  However, the DOJ cautioned against “comfort” sort of work, emphasizing “that unless the animal is individually trained to do something that qualifies as work or a task, the animal is a pet or support animal and does not qualify for coverage as a service animal.”  The key to making this determination, according to the DOJ, is “recognition and response.”  While a “pet … may be able to discern that the handler is in distress, … it is what the animal is trained to do in response to this awareness that distinguishes a service animal from an observant pet or support animal.”

Clearly, the new general rule regarding the presence of service animals in schools is that it must be permitted.  However, there are two exceptions to this general rule which are (1) when the animal is not house broken; or (2) when the animal is out of control and the handler is unable to control the animal.  While these are the exceptions, the only inquiries permitted under the new rule are to question whether the animal is required because of a disability and what work or task the animal has been trained to perform.  A school district cannot require documentation such as proof that the animal has been certified, trained or licensed as a service animal.

A significant difficulty in implementing the new service animal regulations is that there is no provision to exclude a service animal which is a direct threat in the educational setting.  The regulations only generally provide that “in determining whether an individual [with a service animal] poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain:  the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures or the provision of auxiliary aides or services will mitigate the risk.”  The Appendix to the regulations states that a direct threat to the health or safety of others is one that cannot be eliminated by reasonable modifications.  However, the DOJ declined to provide specific examples, but rather left each determination to the discretion of the particular school district. 

When an animal is introduced into a closed classroom environment, a common threat that could rise relates to allergies.  Depending on the severity, allergies can be an impairment which may arise to a disabling condition.  Therefore, if any student or staff member, assigned to a classroom which includes a service animal, suffers an allergic reaction to the animal, a school district must be prepared to have the person with custody and control of the animal remove the animal to a different location designated by the building principal until an alternative plan is developed with appropriate district staff.  This may require the IEP or Section 504 Team to meet as soon as possible.  All alternatives must be considered, including the possible reassignment of the person having custody and control of the animal to a different classroom.  Similarly, if allergies impact transportation services, an alternate transportation plan may also be necessary.

As with most new regulations, while several areas of concern have been addressed regarding service animals, implementation of the new regulations has identified other issues.  Implementation will, in all likelihood, continue to result in other issues as school districts are confronted with increasing requests for service animals.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.