Service dogs in schools–a decision for the parent

My law practice consists of estate planning, probate, business, nonprofit, real estate and other transactional-type of areas.  However, an unadvertised part of my practice involves service dogs in schools.  This area of practice came about by experience (my knowledge of the Americans with Disabilities Act [ADA]) and happenstance (jumping into the service-dog fray due to representing someone pro bono after their egregious situation made its way into the news).

Children with disabilities have service dogs (SD) for a variety of reasons.  Service dogs aren’t just comforting pets that accompany a child to make him or her feel better.  In situations where I’ve been involved, the SD has been trained to detect seizures before they happen and alert adults, detect low blood sugar in children with diabetes, prevent elopement (wandering) of children typically with autism, calm “meltdowns” that are uncontrollable, and trained in search and rescue when children do wander away without being noticed.  This training usually costs five figures or more and is time-intensive.  Some of these situations, especially “wandering,” might seem strange to parents who don’t have children on the autism spectrum, or other special needs.  Elopement-wandering, for example, is when children–again, typically who are autistic–escape notice and wander off (elopement happens often in nursing home residents as well).  This can happen in a split second and, in fact, elopement is a leading cause of death in children with autism.  Death from elopement is caused mostly by drowning, then by being struck by a vehicle.

Parents obtain service dogs for a variety of reasons also, but for most, having a service dog with their child is a matter of life and death.  One mom had an elementary-age daughter, nonverbal, autistic, who kept escaping her classroom, then escaped the school building.  The Special Education Director assured Mom that the school could keep her child safe.  The very next week, this nonverbal 6 year-old escaped the school building, wandered a mile down the road, crossed four lanes of traffic and entered a 7-11 store to the shock of the employees inside, and the school didn’t notice her missing for over an hour.  This was life and death for this child, and Mom got a service dog.  In a class of 20 students, a teacher already has his or her hands full, which is why the parents got a service dog for their child with Type 1 diabetes, so that blood sugar issues didn’t go unnoticed and possibly become fatal.

For years, schools would bring the SD issue under determination of special education procedures, i.e., an IEP, under special education federal law, the Individuals with Disabilities Education Act (IDEA).  Typically, the school would deny the SD as not necessary to the child’s education.  Fortunately the U.S. Supreme Court weighed in, and recognized what some courts held, that a service dog is a civil right to the child and not a matter under purview of anyone, including schools.  Governing federal law–the Americans with Disabilities Act and the Rehabilitation Act of 1973–permit service dogs to accompany their person anywhere, with very rare exceptions.  Service dogs are working animals, not pets, and are actually considered durable medical equipment, no different than a wheelchair.  They are protected in public places by federal law, as opposed to emotional assistance animals (most remember the peacock on the plane).

Children with disabilities can be accompanied by their service dogs to school.  Period.  This is not a decision left to the school.  A service dog is a right of the child independent of their receipt of a Free and Appropriate Public Education (FAPE).  Whether the SD is medically necessary is not up to the school.  Obtaining a prescription from the parent for the SD, requiring insurance coverage, or requiring vaccinations beyond what is required of any dog are not permitted.  Rejecting the SD’s presence due to another’s allergies, or because of the dog’s breed, are also prohibited.  These are all reasons that were given to my clients by schools in service dog cases.  Parents ask permission from the school to permit the dog to accompany their child, but frankly this is not required.  It is certainly good practice to alert the school and work with the school to accommodate your child with the service dog.  My favorite court ruling mentioned the defendant-school stating that “we[staff] can help Johnny when he needs it, he doesn’t need the service dog” (Johnny isn’t his real name), to which the court responded that this was akin to saying about a student in a wheelchair, “we’ll carry him where he needs to go–he doesn’t need his wheelchair.”

The school has to provide reasonable accommodations and reasonable modifications to policies when a request for a reasonable accommodation is made by a student with a disability.  The Department of Justice (enforces the ADA) makes it clear that public schools are to make reasonable accommodations for service dog requests.  Schools perhaps justifiably analyzed service dog requests under the law that governs their daily work lives, the IDEA.  Fortunately, the Supreme Court realized that other federal laws govern students as well.

If you have any questions regarding service dogs, whether it’s school-related, or service dogs in public places or elsewhere, please contact me at julie@juliemilslaw.com, or (614) 519-8661.

 

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