Wednesday, February 18, 2015

School Board Cannot Require Insurance, Extra Shots, or Separate Handler for Service Dog of Special Needs Child

Some schools have opposed special needs children coming to classes with service dogs, as noted here before, but courts have been generally unsympathetic to such efforts to exclude service dogs.  A recent case from Florida concerns a school that did not prevent a child’s use of a service dog and even allowed the child to come to school with the dog without all of the school’s requirements being satisfied.  The legal dispute arose over whether the school could require that the child’s family provide a handler for the dog when the child was in school, purchase liability insurance for the dog, and obtain more shots than are required under state law for dogs before they can enter a school.  Similar issues are likely to come up in other school districts as the number of service dogs for children with disabilities increases, so the order of the court is an important development in service dog law.

The U.S. Department of Justice filed a Statement of Interest in the matter, responding to an argument that its Title II ADA regulations exceeded the Department’s authority.  Many of the cases and legislative history cited in the DOJ Statement appeared in the Florida federal district court’s order in Alboniga v. School Board of Broward County, Florida, No. 14-CIV-60085-BLOOM/Valle (February 10, 2015).
Seizure Alert and Response Dog for Child in Florida

A.M., whose full name has been revealed in press reports, a six-year-old, lives with his mother, Monica Alboniga, in Broward County, Florida.  A.M. suffers from multiple disabilities, including cerebral palsy, spastic quadriparesis, and a seizure disorder.  He is nonverbal and uses a wheelchair and, according to an order on cross motions for summary judgment issued by the federal district court for the Southern District of Florida, “needs care and support for all aspects of daily living and education.” 

Broward County Service Animal Request, page 1.
In 2013, Monica Alboniga determined that her son required a seizure alert and response dog and obtained a medium-sized terrier named Stevie.  Stevie is tethered to A.M. when they are at home or in public places, and Stevie is able to go outside to urinate even when tethered to A.M.  According to the court’s statement of the facts, Stevie alerts 30 to 45 minutes in advance of a seizure and is trained to step onto A.M.’s wheelchair and lay across his lap in the event of a seizure, a task called “Cover” that keeps A.M.’s head up to “prevent airway distraction or choking on saliva during a seizure episode.”  Cover also helps calm A.M. during outbursts and helps disrupt abnormal behaviors or movements and provides A.M. with a tactile presence that can help bring A.M. out of an episode. The court states that "[c]urrently, A.M. has seizures every other night" but notes that "[n]o school staff at A.M.'s school has observed this behavior from the service dog."

Stevie is also trained to alert human responders if A.M. begins experiencing a medical crisis: 

“This [alerting] includes activating a sensor mat by stepping, jumping on or passing across the mat which sets off an alarm; going for help, physically alerting a human responder, and then returning to and staying with A.M.; or otherwise acting in a way to bring attention to the medical situation…. Stevie was also equipped with a special vest which carried pertinent medical supplies and information important for the care of A.M. in an emergency.”

Uncontroverted documentation was presented to the court indicating that separating Stevie from A.M. would be detrimental to Stevie’s effectiveness, “reducing the animal’s ability to respond and perform tasks for its target, and disrupting the animal-target bond that is important to the effective working connection between members of the service dog team.”  Such negative effects from separation would “carry over even when the service dog team is reconnected.”

Ms. Alboniga spoke to the Education Opportunity Office of the School Board of Broward County regarding her son being allowed to be accompanied by a service dog to school during the 2013/14 school year, and filled out a form labeled Request for Use of Service Animal in School District Facilities (a copy of which is included in the Broward County’s posted Proposal to Adopt a New School Board Policy “Use of Service Animals in School District Facilities” (4001.2)).  The School Board requested information on liability insurance for the service animal that was not provided by Ms. Alboniga.  Also, the vaccinations of the service dog listed in the information she provided did not correspond with those vaccinations required by the School Board.  The two pages of the request form that are to be filled out by an applicant are reproduced in plates here.

Vaccination, Insurance and Handler Requirements

The School Board required vaccinations for distemper, hepatitis, leptospirosis, parainfluenza, parvovirus, bordetella, roundworms, hookworms, and rabies, which are the vaccinations required of a dog transported or offered for sale under Florida Statutes 829.29.  The federal district court noted that owners of dogs are, under Florida Statutes 828.30, only specifically required to obtain rabies vaccinations for their dogs, which is the sanitation standard for K-12 private schools under Florida Administrative Code 6A-2.00400.  In a later letter, the Board also required that Stevie be vaccinated against coronavirus, a vaccine that is not generally recommended by veterinarians. 

The School Board informed Ms. Alboniga that she would need to obtain liability insurance for a professionally trained service animal in an amount determined by the School District’s Risk Management Department. The School District was to be listed as an additional insured in the policy.  Finally, the School Board informed Ms. Alboniga that she would need to provide a handler for the dog. 

School Begins

A.M. began school in August 2013 and was accompanied by Stevie and his mother, who served as the dog’s handler.  She was not paid by the school and did not assist with any care or activities regarding A.M. in the classroom.  The School Board maintained that it was not responsible for the care or supervision of Stevie, but in November 2013 the Board made an administrative decision to provide an employee to serve as the handler for Stevie, who happened to be the school’s custodian.  The custodian received training from the same individual who initially trained Stevie.  According to the federal district court:

“The ‘handler’s’ only responsibilities in school are the following: to walk Stevie alongside A.M. with a leash instead of allowing Stevie to be attached to A.M.’s wheelchair via a tether; to take Stevie outside of the school premises to urinate; and to ensure that other people do not approach, pet or play with Stevie while he is working as a service dog.”

Issues Presented

The Court considered and resolved a number of issues, including whether:

  1. The case should be dismissed for Alboniga’s failure to exhaust administrative remedies.
  2. The matter is moot because A.M. had been coming to school with A.M. and the school has never tried to stop this. 
  3. The School Board is not obligated to adhere to the service animal regulations of the Department of Justice because those regulations exceed the Department’s authority. 
  4. The school is not obligated to allow A.M. to come to school with Stevie given that school staff members were trained to provide seizure care measures sufficient for A.M.’s needs.
  5. The school could require that Alboniga obtain liability coverage on Stevie.
  6. The school could require that Stevie receive vaccinations beyond those required in the Florida administrative code for other animals entering schools, i.e., beyond rabies.
  7. The responsibilities the school has undertaken with respect to Stevie—particularly the accompaniment of a staff member with A.M. and Stevie when the dog needed to go outside to urinate—meant that the school was providing care and maintenance to the service dog.  
  8. The school could require that Alboniga either serve as or obtain a handler to be with Stevie while A.M. was in school. 
As will be seen below, the court decided all of these issues in a manner favorable to Alboniga and A.M. 

Exhaustion of Administrative Remedies

Failure of students and parents to exhaust administrative remedies has at times led to dismissal of actions regarding the refusal of a school board to allow use of a service dog, as discussed here in a prior blog and in Service and Therapy Dogs in American Society, pp. 180, 182. The Florida federal district court cited with approval, however, prior cases in which exhaustion was not required, including Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947 (ED Cal. 1990), where the federal district court for the Eastern District of California determined that the student was not claiming that the education plan for her was inadequate but rather that the school had “discriminated against her on the basis of her handicap by arbitrarily refusing her access if she is accompanied by her service dog.”  The Florida district court followed the same logic with regard to A.M.’s situation:

“Plaintiff does not claim that A.M. has been denied a free and appropriate public education. Plaintiff does not claim that A.M.’s IEP [Individualized Education Plan] is in any way deficient. Plaintiff does not claim that A.M.’s service animal is educationally necessary, or that the School Board’s provision of A.M.’s education would be impacted by the presence of the service animal. Defendant, in point of fact, agrees. Elsewhere in its submissions, Defendant argues that the service animal is not necessary for or relevant to A.M.’s educational experience – that the services provided by the animal are performed through other means by school staff in order to provide A.M. a FAPE [free and appropriate public education] in accordance with his IEP…. Plaintiff asserts claims for violation of the ADA and Section 504 regardless of Defendant’s compliance with the IDEA [Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.]. The IDEA and its administrative scheme are simply not implicated by Plaintiff’s claims here.  As such, exhaustion of those procedures is not a prerequisite to this action.”


Broward County Service Animal Request, page 2.
The School Board argued that summary judgment should be granted because the case is moot as the school has always allowed, and continues to allow, A.M. to come to school with Stevie.  The district court notes, however, that voluntary cessation of allegedly illegal conduct does not deprive it of the power to hear and determine a case.  If the threat of the lawsuit were to be removed, there would be nothing to stop the School Board from enforcing its policy in a manner detrimental to A.M. and Alboniga’s interests. 

Americans with Disabilities Act Regulations Apply

After noting the substantial overlap between the Rehabilitation Act and the Americans with Disabilities Act, and the regulations under the latter that cover, among other entities, public schools, the federal district court focused on the regulations that apply to service animals, specifically 28 CFR 35.136.  The School Board argued that this regulation exceeded the statutory authority of the Department of Justice, but the court held it valid, enforceable, entitled to deference, and a permissible interpretation of the ADA.  

Seizure Detection and Care Measures for A.M.

Accepting that the school might be able to provide seizure detection and care similar to what A.M. receives from Stevie, the court said this was not up to the School Board to insist upon as it would be “akin to allowing a public entity to dictate the type of services a disabled person needs in contravention of that person’s own decisions regarding his own life and care.” 

The court saw an analogy to a housing case it decided recently, Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fischer, 6 F.Supp.3d 1272 (SD Fla. 2014), where a condo association refused a reasonable accommodation request under the Fair Housing Act made by a resident.  The association said the resident had not substantiated her need for a service dog, and even if a dog was reasonable or necessary to secure for the resident an equal opportunity to use and enjoy her dwelling, a dog over 20 pounds, such as the resident used, was not reasonable or necessary.  The court said that it was not up to the association to determine what size of dog the resident needed:

“[T]he most fundamental problem with the argument that a dog over 20 pounds was not necessary is that it gets the law wrong. [The association]’s implied argument – that even if a dog is reasonable or necessary for [plaintiff], a dog 20 pounds or under would suffice – is akin to an argument that an alternative accommodation (here, a dog under 20 pounds), would be equally effective in meeting [plaintiff]’s disability-related needs as a dog over 20 pounds. . . .  Since a dog over 20 pounds is a reasonable accommodation, [plaintiff’s] (commonsense) belief that a dog over 20 pounds – in particular, a dog of [her dog’s] size – is better able to assist her renders the need to evaluate alternative accommodations unnecessary as a matter of law. That a blind person may already have a cane or that he or she could use a cane instead of a dog in no way prevents the blind person from also obtaining a seeing-eye dog as a reasonable accommodation under the FHA. A contrary result is absurd.”

Judge Bloom also notes that the Ninth Circuit, in Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004), had rejected an argument by the defendant arts center that it could provide an able-bodied specially-trained companion for the plaintiff that would obviate her need for her service dog.  

Insurance Is Impermissible Surcharge

As to the requirement that Ms. Alboniga maintain liability insurance for Stevie, the court stated:

“The School Board’s requirement that Plaintiff maintain liability insurance for A.M.’s service animal and procure vaccinations in excess of the requirements under Florida law is a surcharge prohibited by 28 C.F.R. § 35.136(h). The School Board’s policies require what amounts to an extra upfront fee charged to Plaintiff in order for A.M. to use his service animal at school. The insurance costs are over and above what other students are required to expend in order to attend school.”

Requiring Additional Vaccinations Is Discriminatory Practice

The court determined that requiring more vaccinations than are ordinarily required under Florida law, including those required for animals entering schools, constitutes an “impermissible discriminatory practice.” Again, this is the correct conclusion under the relevant law.

In 2000, the Association for Professionals in Infection Control and Epidemiology, Inc. (“APIC”) issued an APIC State-of-the-Art Report: The Health Implications of Service Animals in Health Care Settings, published in the American Journal of Infection Control, 28, 170-180. In listing possible zoonotic risks of dogs, this report specifies rabies and indicates that proof of rabies vaccination may be appropriate “in an area with a high prevalence of dog rabies,” but mentions no other vaccination requirement.  The Centers for Disease Control's Guidelines for Environmental Infection Control in Health-Care Facilities cite the APIC Report in its brief mention of service dogs, and observes that “[n]o reports have been published regarding infectious disease that affects humans originating in service dogs.”

The veterans administration, however, recently proposed rules regarding animals on VA property, 79 Fed. Reg. 69379 (November 21, 2014), which would require more shots than just the rabies vaccine for service dogs in certain situations:

"The individual with a disability must provide VA with documentation that the service animal has had a comprehensive physical exam performed by a licensed veterinarian within the last 12 moths that confirms immunizations with the core canine vaccines distemper, parvovirus, and adenovirus-2, and that confirms screening for and treatment of internal and external parasites as well as control of such parasites...."  Proposed 38 CFR 1.218(a)(11)(vii)(B).

A major organization I contacted in researching this blog indicated that it does not place dogs without an assurance that the dogs will continue to receive a "full array of vaccinations, including canine influenza," and will consider decertifying a team that does not follow this requirement.

A possible area of concern is bordetella.  In 1999, Dworkin et al. identified nine HIV-positive individuals with Bordetella bronchiseptica infections, sometimes verified as coming from household dogs or cats. In 2008, Rath et al. reported on a recurrent bordetella infection in an infant who did not have HIV and was considered immunocompetent.  The initial hospitalization, when the infant was six weeks old, occurred only days after the household dog received an intranasal vaccination with an attenuated live vaccine, but genetic comparison established that the source of the infant's infection was not from the vaccine, though it could have been from a slightly different strain of bordetella that the dog may have passed. The patient was admitted to emergency rooms at four and six months and treated for presumed pertussis with azithromycin by doctors who did not know about the previous bordetella infection.  At eight months, a culture identified that the child was again positive for bordetella and received imipenem therapy and remained symptom-free after that.  In 2014, Yacoub et al. described serious bordetella infections in immunosuppressed patients and stated that such patients should be strongly cautioned "to minimize contact with animals when they are ill." Such reports should receive the attention of medical authorities advising schools regarding the presence of animals with children. Certainly, if any of the children in a school have compromised immune systems, an argument could be made that a dog coming into the school should have previously been vaccinated against bordetella.

It is the author's opinion that vaccination requirements for pet dogs as well as dogs that enter educational, medical, and other facilities should on occasion be reevaluated by medical and veterinary professionals to determine what vaccinations are appropriate. Taylor et al. (2001) noted that 61% of pathogen species causing disease in humans are zoonotic, and 75% of emerging pathogens are zoonotic, indicating that diseases not formerly transmitted across species lines may yet do so in the future.  Nevertheless, unless such modifications are made under Florida law as to all dogs entering schools, no additional vaccination requirement should be asked of A.M.'s service dog. 

School’s Responsibilities Do Not Amount to Care and Supervision of Service Dog

Under 28 CFR 35.136(e), a “public entity is not responsible for the care or supervision of a service animal,” but the School Board contended that leading Stevie outside to urinate constitutes care or supervision.  According to the court’s reading of language in the preamble to the final regulations (75 Fed. Reg. 56197, September 15, 2010, 3rd column under Responsibility for supervision and care of a service animal), care or supervision refers to routine animal care, “such as feeding, watering, walking or washing the animal.”

Florida Statutes 413.08(3)(d) similarly define "care or supervision of a service animal" as "the responsibility of the individual owner. A public accommodation is not required to provide care or food or a special location for the service animal or assistance with removing animal excrement.” The Florida Department of Education (District Implementation Guide for Section 504, p. 106) states that a school board is not responsible for “training, daily care, or healthcare of service animals.” 

The question then becomes, according to the court, whether assisting A.M. to lead his dog outside the school to relieve itself is part of the “routine overall maintenance” of the dog.  The court concludes it is not, reasoning as follows:

“The School Board is not being asked to provide an employee to walk Stevie. Rather, the School Board is being asked to help A.M. do so. That is, the School Board is being asked to accommodate A.M., not to accommodate, or care for, Stevie.”

The court finds such assistance provided to A.M. to be similar to that provided other children: 

“In the same way a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog—the accommodations here are reasonable.” 

The court finds that it does not need to go as far as the California district court in C.C. v. Cypress School District, discussed in a prior blog, which had held that requiring a school to provide an aide to “hold the dog’s leash when navigating campus, provide Eddy with water, and tether and untether him throughout the day” did not fundamentally alter the school’s educational program, necessarily impose an unreasonable accommodation, or amount to the school providing care and supervision for Eddy.  (The Department of Justice also filed a Statement of Interest in that case.)  The aide's responsibilities in that case amounted to at least temporary handling, which touches on the remaining issue considered by the Florida district court.  

No Obligation on Family to Provide Handler

Under 28 CFR 35.136(d), a “service animal shall be under the control of its handler.” The School Board argued that it was not obligated to provide a handler for Stevie, but that one is necessary because “A.M., due to his disabilities, cannot act as the dog’s handler.”  (A prior blog describes how the regulations were amended by the Department of Justice to take into account the fact that the individual with the disability may not always be the handler of a service dog for that individual.)  

The court disagreed with the School Board, stating that “normally, tethering a service animal to the wheelchair of a disabled person constitutes ‘control’ over the animal by the disabled person, acting as the animal’s ‘handler.’ And, even absent tethering, voice controls or signals between the animal and the disabled ‘handler’ can constitute ‘control.’”  The court concludes that given "the specific facts here, having Stevie tethered to A.M. in school would constitute control by A.M. over his service animal as the animal's handler" under the federal regulations, including 28 CFR 36.302(c)(4), which provides:

"A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).”  

In seeking feedback on an earlier draft of this blog I spoke with a number of individuals involved in the training and operation of service animals with special needs children. Several emphasized that a handler should always be present in class when a child with disabilities similar to those described for A.M. is accompanied by a service dog. One major organization that provides service dogs for severely disabled individuals does so by requiring that there be a team consisting of a “Facilitator,” who is the handler, and the “Skilled Companion,” the service dog.  The disabled individual, child or otherwise, is never permitted to handle the Skilled Companion in public, only the Facilitator.  Individuals receiving service dogs are told they must attend school without the dog unless the Facilitator is able to be present in the classroom. Facilitators are often family members.  

Under a two-leash system sometimes used with autistic and other children, described in Service and Therapy Dogs in American Society, pp. 80-82, a service dog is tethered to the child with one leash while a second leash is held by a parent or other handler.  Insofar as I have been in communication with parents using such systems, they generally do not refer to the child as a handler, but only themselves. This is, of course, not a perspective derived from legal analysis.     

The Florida federal district court, however, found the arrangement with the custodian satisfactory under the facts presented. I believe that there could be other situations, however, where more handling by someone other than the individual with the disability would be required, as appears to have been true in CC Cypress. Some minimal handling should be permitted without making the accommodation unreasonable or amounting to impermissible care and supervision. Cases in the future will likely define the limits of a school's responsibilities here.        


The comment of Patty Dobbs Gross below, which came in after this blog was posted, raises important issues with regard to considering special needs children to be handlers.  Ms. Gross is the founder of North Star Foundation and the author of The Golden Bridge: A Guide to Assistance Dogs.  There are gaps between what the law requires and what many service dog organizations consider to be best practice. (When I come to revising Service and Therapy Dogs in American Society, I will deal with such gaps more comprehensively than was done in the first edition.)
Nevertheless, I believe that the court's order is correct on the law as it stands. The case is scheduled to have a settlement conference by March 17, when, presumably, remaining issues will be resolved. 

This blog was written with the assistance of Leigh Anne Novak, Veronica Morris, Brad Morris, John Moon, and others who prefer to remain in the background. The opinions expressed in this blog, however, are not necessarily those of these individuals who generously gave me time and help.

1 comment:

  1. I agree with my colleagues that a child served by way of an assistance dog cannot ever be assumed to be the handler of the team in a public place, and certainly not in a school. In fact, it is part of our policies and signed placement agreements at North Star that these are three- or four-way partnerships we are creating, and that the North Star dog and hander(s) are assisting the child socially, emotionally and educationally in his or her daily living.

    Complications add new wrinkles to old assumptions here and so schools may want to avoid the question of autism assistance dogs entirely, but they would then be avoiding an evidenced based therapy and effective educational tool for helping mainstreamed children overcome social and emotional challenges posed by autism within public schools. Social and emotional challenges rule the early day of any child recently diagnosed as on the autism spectrum, and a properly bred and trained assistance dog can be a versatile tool, acting alternately as a social bridge to others as well as a positive motivator for a variety of children who may need one in addition to the child served.

    This is a dangerous field as it emerges, as it's a numbers game when you are looking at large groups of children and an assistance dog to serve them in intimate and close quarters. Even one bite to one of these children is one bite way too many.

    This is why I think extreme caution needs to be employed here. Having a child act as handler to his own assistance dog, even for a short period, leaves this team vulnerable to many potential dangers, both those intrinsic to this placement as well as those imposed by others who may be passing by or interfering with the smooth flow of the day. To consider the child as handler during any part of the school day may be smart thinking in legal circles, or based on legal precedent, but I think it's actually uneducated thinking at work here, for experience would tell you that a child or two (or many more) may straggle over to the child and pup team, who may be tethered together (a practice I don't endorse). With just the child in charge there is no one to protect the pup, and in no time perfectly sweet looking children may step on paws, accidentally as well as on purpose, pull fuzzy tails just to see what will happen, and put their vulnerable faces directly into the pup's, and squeal very loudly.

    I've seen all of this happen, and this is why we prepare North Star dogs for this by way of socialization along with trying to prevent by way of educating the staff about our educated policies, but I am not convinced that all autism assistance dog organizations take this expensive care. Unlike most assistive devices, this is a fuzzy tool can turn on you with teeth. It can be a dog's nature, or nurture, or a combination of the two with kids thrown into the combustible mix that could cause a dog to misbehave in a variety of ways, it can also be a teacher or aide who may misunderstand how to care for this autism assistance dog and his or her needs to an uncomfortable degree for the dog in question. This is why I believe the organization that trained the specific dog should educate the staff who will be working with them.

    Autism is a wild card and still quite new to us in terms of understanding children with autism's civil rights; their social and emotional needs in public schools may be a fairly sudden legal challenge for us to meet in the schools, but I view autism assistance dogs as something we can all depend upon to keep fun and tolerance in the educational mix while mainstreaming, but only when done safely, effectively and respectfully for all concerned.

    I greatly appreciate your continued interest in this emerging field, Mr. Ensminger! Please continue to share your thoughts with us so we can be all be educated on this important issue.

    Patty Dobbs Gross
    Executive Director
    North Star Foundation
    We help children find their way.