Home > Accessibility > What the Disability Laws Say About Service Dogs

Email Print Share

What the Disability Laws Say About Service Dogs Shana De Caro, Esq., BrainLine (page 1 of 2) Page 1 of 2

My grandson suffered a brain injury when he was 4 weeks old. He is now 5 years old. Through private donations, we raised $11,000 to purchase and train a special behavioral dog to go with him to school to help with his temper outbursts and to keep him calm. Unfortunately, the school won’t allow his dog to attend school with him even though we have all the documentation including official notes from his doctor stating that there is a "need" for this dog to accompany him.

We live in Wichita Falls, Texas, and we were told recently that we would have to "fight" to be allowed to have the dog go to school with him as we would be setting a new precedent. How can we get permission for this trained dog to attend school with my grandson? I would appreciate any guidance on this issue.

Unfortunately, there is no uniform national standard allowing the use of animals by children with disabilities in school settings.

Three major federal laws govern children with disabilities, including traumatic brain injuries. They include the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). Essentially, IDEA requires public schools to provide all children with disabilities a “free appropriate public education.” It is the interpretation and definition of this law that sometimes requires legal intervention.

Section 504 of the Rehabilitation Act requires schools to make appropriate modifications to the educational environment for children with disabilities. The use of a “service animal” by a child with a disability should fit under this category.

Additionally, the Americans with Disabilities Act (ADA), which applies to children and adults alike, requires that public facilities accommodate people with disabilities. The ADA applies to both public and private schools, as well as to adults in public settings.

The main question is whether or not an animal fits within ADA’s definition of a “service dog.” Title III Regulation 28 CFR §36.104 defines a “service animal” as “Any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.”

Certainly, the rules regarding the use of service dogs within public premises are well established. However, the rules with respect to the use of service dogs at a school are less well settled. The U.S. Department of Education has not issued guidelines and/or policies regarding service animals in schools.

To date, there is only one decision on this issue. A U.S. District Court decision in California, Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (1990), held that pursuant to Section 504, a child with cerebral palsy, learning disabilities, and right-sided deafness who used a wheelchair should have been granted the right to bring her service dog with her to school. The judicial finding made clear that this was not “educationally necessary” but rather that the district discriminated against her on the basis of her disability by refusing her access to the school with her dog. The court specifically rejected the school’s contention that their decision was in part based on space and health concerns.

The court held that the school district must make reasonable accommodations and that accommodations for a service animal were deemed to be reasonable, including provisions for potential allergies of others.

Other states handle this question differently. Some allow individual school districts to make these decisions on their own (Pennsylvania) while others have promulgated statewide rules (Virginia). In fact, the State of Virginia has codified the law and defined the term “service dog” to mean “A dog trained to accompany its owner or handler for the purpose of carrying items, retrieving objects, pulling a wheelchair, alerting the owner or handler to medical conditions, or other such activities of service or support necessary to mitigate a disability.” (Emphasis supplied.) Code of Virginia §51.5-44

In New York, it was found that the controlling law is the State’s Human Right’s Law. The New York State Human Rights Commission found that the school district’s determination utilizing a “balancing test” on a “case by case” basis violated basic human rights.

The New York Law expressly bans discrimination on the basis of a service dog, and states that it is a civil right to be able to obtain an education without discrimination. Similar laws exist throughout the country and may also be a useful tool in obtaining permission to use a service dog in school.

The Texas Statutes Human Resources Code contains explicit language regarding the rights of a disabled person to use an “assistance dog” defined by their statute as “an animal that is specially trained or equipped to help a person with a disability” within a “public facility” which specifically includes an “educational facility.” (Texas Statutes Human Resources Code Title 8, Chapter 121)

In order to comply with general requirements for accommodations, the parents or the child’s legal guardian should provide a letter from a physician (psychiatrist, neurologist, neuropsychologist as necessary, or the child’s primary physician in consultation with a specialist) specializing in the type of disability the child has that at a minimum states:

1. The child has a disability, and
2. The “service animal” (Here the terminology is important. It is less preferable to call it a “therapy dog.”) performs tasks that will alleviate the symptoms of the disability or provide important disability-related assistance. The physician should explain why these services are necessary and why not having the animal would be detrimental to the child, and

The parents and/or guardian should also submit the following additional items:

1. Written documentation from the trainer or training school stating that the animal has been specially trained and certified to assist a person with a disability, and
2. Documentation from a veterinarian that the service animal is properly vaccinated and in good health and has the appropriate licenses and

Shana De Caro, Esq. is an officer of the American Association for Justice, Traumatic Brain Injury Litigation Group and serves on the Board of Trustees of the Civil Justice Foundation. She serves as editor of the New York State Academy of Trial Lawyers' monthly legal update. She has been a member of the Medical Malpractice Review Panels in New York State and is a former law secretary to a Justice of the Supreme Court, Kings County. She has served as a member of the Executive Committee-Chappaqua PTA Special Education Pre-K through 12th Grade. Ms. De Caro is a trial and appellate lawyer focusing her practice on representing victims of traumatic brain injury and other catastrophic injuries. She has been selected for inclusion in Who's Who of American Women and Who's Who in American Law. She has been named one of the top 100 trial lawyers in New York by the American Trial Lawyers Association and is an Elite Lawyer. Ms. De Caro can be reached at De Caro & Kaplen, LLP, 427 Bedford Road, Pleasantville, NY 10570; 914.747.4410 or toll-free at 1.866.BRAIN.LAW.

---

The contents of Brainline (the “Web Site”), such as text, graphics, images, information obtained from the Web Site’s licensors and/or consultants, and other material contained on the Web Site (collectively, the “Content”) are for informational purposes only. The Content is not intended to be a substitute for medical, legal, or other professional advice, diagnosis, or treatment.

Specifically, with regards to medical issues, always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Web Site. If you think you may have a medical emergency, call your doctor or 911 immediately. The Web Site does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Web Site. Reliance on any information provided by the Web Site or by employees, volunteers or contractors or others associated with the Web Site and/or other visitors to the Web Site is solely at your own risk.

 Comments [2]