Transcript WHOSE DOG IS IT? - ESC-20

WHOSE
DOG IS IT?
JIM WALSH
WALSH, ANDERSON, BROWN, GALLEGOS AND
GREEN, P.C.
NEW REGS
Department of Justice issued regulations that went into
effect March 15, 2011.
These regs are pursuant to the ADA and are about access
and non-discrimination based on disability in public facilities.
Regs are at 28 CFR 35.104 and 35.136.
WHAT IS A SERVICE
ANIMAL?
A dog.
Individually trained.
To do work or perform tasks.
Work or tasks directly related to the disability.
Providing comfort, companionship or support is not “work.”
28 CFR 35.104
MODIFY YOUR
POLICIES
The regs require schools to modify “policies, practices or
procedures” so as to permit the service animal to accompany
the person.
Exceptions: when the animal is out of control, and the
handler does not effectively take control; when the animal is
not housebroken.
WHOSE DOG IS IT?
Dog must be under the control of the handler, using a
harness, leash or tether unless the disability prevents this.
Care and supervision is not the responsibility of the public
entity.
The regs require the “handler” (the person with the disability)
to be able to handle the dog.
QUESTIONS YOU CAN
ASK
You can ask if the dog is “required because of the disability.”
You can ask what work or tasks the dog has been trained to
perform.
You cannot require documentation.
You are not supposed to ask about the nature or extent of the
disability.
Does that make sense in the school setting?
THINK OF IT THIS
WAY
•These regulations are primarily aimed at GENERAL
ACCESS.
•Consider the grandma who comes to high school graduation
with her service animal.
•In that context, these regulations make perfect sense.
MORE ON GENERAL
ACCESS
“General Access” issues come up with parents, patrons and
visitors.
Also with students. Consider the student who wants to
attend a football game even though the student is not on the
team, the band, the drill team or a cheerleader. This is a
General Access issue. If the dog is a service animal, the dog
gets in.
WHO DECIDES?
General Access issues should be decided solely on whether
or not the dog is a “service animal” as defined in the regs.
This can be done by an administrator—principal or 504
Coordinator.
BUT THEN….
Requests to have the dog with the student every day in the
classroom raise more complex issues.
Take this to the ARD or 504 Team.
POLICIES, PRACTICES,
PROCEDURES
TASB has sent out proposed FBA Regulation pertaining to
service animals.
New Legal Policy FBA will come out in May.
Call your school lawyer before adopting.
Concerns about FBA(R): it permits an “adult handler” rather
than requiring the child to handle the animal.
MINIATURE HORSES
Even though the regs clearly state that only dogs qualify as
“service animals” they also require schools to modify
policies to permit miniature horses that have been trained to
do work or perform tasks. 28 CFR 35.136(i).
Personal comment: this is the most mystifying federal
regulation I have ever encountered.
ASSISTANCE ANIMALS
Be aware that Texas has a law that permits the use of
“assistance animals.” See Texas Human Resources Code
121.003(c).
The term is not defined.
TASB Legal Policy GA references this provision in state law.
BOTTOM LINE
Look for more requests for service animals in the school
setting by students, employees and the general public.
Distinguish between “general access” issues and FAPE
issues.
Get some policies/procedures in place.
CONTACT
Jim Walsh
Walsh, Anderson, Brown, Gallegos and Green, P.C.
www.walshanderson.com
[email protected]
800-252-3405
505 E. Huntland Dr. #600
Austin, Texas 78752