Autism Service Animals – Required in the IEP? NOT!
Which law applies? ADA or IDEA?
By Diane Wiscarson, Esq.
Service animals, usually dogs, can provide excellent support for people with Autism Spectrum Disorder and/or other disabilities. Service animals are individually and specifically trained to perform tasks that help a person manage and navigate their environments. These tasks can include anticipating seizures, signaling self-stimulation behaviors, alerting to important/alarming sounds, providing deep pressure sensory input, interrupting self-harm behaviors, and preventing elopement, among others.
Divide Among School Districts:
In recent years, there has been disagreement among school districts regarding service animals accompanying students to school. While some districts have welcomed service animals at school with open arms, reasonableness and training, others have simply refused to follow the law and allow service animals to attend school with their persons.
What is the difference between the schools that allow service animals and those that do not? The surprising answer seems to be which law is applied by the school district – the Americans with Disabilities Act (ADA) or the Individuals with Disabilities Education Act (IDEA).
A recent United States Supreme Court case cleared up the confusion between the two laws and, in the case of service animals, which law applies. In Fry v. Napoleon Community School District, issued in February 2017, the United States Supreme Court agreed that service animals are an ADA issue, rather than an IDEA/special education issue. You can read the entire case and the United States Supreme Court’s opinion and look at other documents that were part of the case at http://www.scotusblog.com/case-files/cases/fry-v-napoleon-community-schools/.
Americans with Disabilities Act:
The ADA protects those with a disability from being discriminated against on the basis of that disability. Known as an “access” law, the ADA guarantees, among other things, access to education for students with disabilities. This generally means that accommodations are provided to a student, which allows access to education. A simple example is a wheelchair ramp for a wheelchair user. A reasonable accommodation might also be a nut-free lunch table for a student with tree-nut allergies.
School districts that have applied the ADA to service animal requests have allowed service animals, almost without exception. There may have to be discussion regarding who provides the “handler” for the service animal, but that is a separate issue.
Individuals with Disabilities Education Act:
The IDEA requires school districts to write an Individualized Education Program (IEP) for every student identified with a disability, when that disability impacts the student’s education, and the student is in need of specially designed instruction. The IEP must be individually written to address that particular child’s educational needs, and must be reasonably calculated to enable a child to make progress appropriate in light of the student’s particular circumstances.
The most prevalent argument for keeping service animals out of school is that “It is not on a student’s Individualized Education Program” (IEP) and therefore not required for a student to receive a “free appropriate public education” (FAPE). The individually written IEP must contain all of the services and supports a student requires to receive a FAPE. The school district logic is, if the student does not need a service animal to receive a FAPE, then the school does not have to let the service animal through its doors.
There are many documented instances when a parent has advocated for a student to have an Autism Service Dog at school, only to be informed by the rest of the IEP team that the service animal is not necessary at school. Therefore, since the service animal is not “necessary,” the service animal is banned from the school.
Who Gets It Right?
As the United States Supreme Court ruled, Districts following the ADA are complying with the law. Under the ADA, school districts that allow service animals to attend school with their student correctly understand that IEPs, FAPEs, and other special education considerations miss the mark when talking about service animals. Service animals are allowed to attend school with their person without regard to any special education laws, via the ADA. The ADA requires schools to allow children’s service animals to accompany them to school, and the IDEA is not discussed in this context.
Where Are Complaints Filed?
Despite confusion as to which law applies to disputes about service animals at schools – the ADA or the IDEA – parents must pick one or the other in order to file a complaint in the right forum. ADA cases are filed in the United Stated District Court (a federal court), in the region where the family lives. Complaints about IDEA violations are filed with the State’s education agency, and result in an administrative hearing. In Oregon, complaints are filed with the Department of Education, and in Washington, the Office of Superintendent of Public Instruction.
Even Courts Were Confused:
In several instances, children who were not allowed to bring a service animal to school filed lawsuits in federal court claiming a violation of ADA. In other cases, courts have found that service animal issues should be analyzed under the IDEA rather than the ADA, and then dismissed the case from federal court.
Other parents have tried to have the service animal put on a student’s IEP as an accommodation. Some school districts have told parents that since the service animal is not “necessary for the student’s education” there is no reason to discuss whether the service dog can attend school with its student. These districts simply refuse to allow the service animal, often without any discussion.
Trying to figure out which law applies to service animals and how to educate school districts so that students can have their service animals at school has been very frustrating for families. Where service animals been have excluded from school, some animals have unfortunately lost the bond with their student when the student was forced to attend school without them. Other service dogs sit at home, waiting for their student to return from school, unable to provide services to their person during the school day.
How Does This Help Families?
Before the Fry case, most parents and education attorneys were hesitant to file cases related to service animals, because they can be lengthy, expensive, and complex. And, judges were seemingly uncertain as to which law to apply, and whether the complaint should be resolved in a judicial or administrative proceeding.
The law is much clearer, thanks to the Fry family. Service animals accompanying children to school fall under the ADA. There is no need to claim that the student “needs” a service animal, as is required for other accommodations put into place on an IEP for a student. Under the ADA, service animals can attend school with a student as a reasonable accommodation, and no permission or discussion of “need” should be required.
If a school district refuses to allow a service animal at school with its student, pursuing a legal remedy will still likely be lengthy and frustrating, but at least the law is now clear about where families need to go to obtain help from the legal system and that the ADA is the correct law to be applied.
Diane Wiscarson worked her way through the special education system on behalf of her son, and in so doing, found her passion for helping other families navigate special education and the law. Since graduating from law school in 1996, and founding Wiscarson Law, she has helped thousands of Oregon and Washington families obtain appropriate services and placements for their special needs children in public schools and education service districts in both states. For more information call 503.727.0202 or go to www.wiscarsonlaw.com.
This article originally appeared in the Spring 2017 issue of Spectrums Magazine available in print and online.