SERVICE DOG ALLOWED FOR YOUNG STUDENT - School District Scolded by DoJ in Litigation

The United States Justice Department announced on August 20, 2020, that it reached a SettlementAgreement with the Gates Chili Central School District in Rochester, New York to resolve the Department's long-standing lawsuit alleging disability discrimination in violation of the Americans with Disabilities Act (ADA). The Department’s civil complaint alleged that the School District denied a female student with disabilities, designated as D.P., equal access to school by requiring her service dog to be accompanied by an full time adult handler, despite the student’s demonstrated ability to control and handle her service dog with minimal assistance, the service dog’s extensive training to serve and respond to the student and follow school routines, and the 1:1 aide provided the school district.

The Dispute

The story began back in 2012. Heather Pereira, the mother of Devyn Pereira, requested that her then-kindergartner daughter be permitted to bring her service dog to help her walk, sit still and to detect her life-threatening seizures. Devyn was born with Angelman syndrome, a neuro-genetic disorder that causes developmental delay, lack of speech, seizures and problems with walking and balance. Devyn’s service dog, a white Bouvier des Flandres named Hannah, was also trained so she did not need to eat, drink or go outside for toileting during the school day. According to court documents, Devyn was able to issue commands to Hannah via hand signals and was able to tether herself to the dog. The only assistance she required — according the documents — was simple help with untethering herself when appropriate, and an occasional reminder to issue necessary commands.

Devyn Periera with her first service dog, Hanna, who has since passed on.

The dispute wasn't whether Devyn could bring Hannah to school, but whether the girl was capable of handling the dog on her own. While her mother said she was, the district said Devyn wasn't and insisted that Ms. Pereira provide and pay for a dog handler throughout the school day.

School officials remained adamant that the aide provided by the District to help Devyln in school, was not be allowed to provide even minimal assistance with the dog, asserting that it was the parent’s responsibility to provide such assistance.

In 2015, after completing an investigation, the Department disagreed, stating that the District’s position violated the ADA. It ordered school officials to reverse their policy and to reimburse Ms. Pereira more than $25,000 she'd already spent on a dog handler. The School District refused, and litigation ensued.

The Settlement

After more than 5 years of litigation, and the expenditure of more than $700,000 in litigation expenses, settlement was finally reached.

Under the Settlement Agreement, the School District will pay the Pereira family $42,000 to reimburse their dog handler expenses and for emotional distress. The District was also required to revise its Service Animal Policy and to provide reasonable modifications to service dogs use for students with disabilities. The District modified its Service Animal Policy, purportedly available on the District’s website but not readily located by this author, which the Department reviewed and approved. Key excerpts of the policy required by the Settlement Agreement are below:

1. Service Animal Under Handler’s Control.  A service dog shall be under the control of its handler.  A service dog 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 dog’s safe, effective performance of work or tasks, in which case the service dog must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).  28 C.F.R. § 35.136(d).  The District shall not untether a service dog from a student with a disability without the consent of the student’s parent or legal guardian (or, if the student is an adult, consent of the student), except under exigent circumstances.

2. Care or Supervision.  As a public entity, the District shall not be responsible for the care or supervision of a service dog.  28 C.F.R. § 35.136(e).  Care or supervision of a service dog includes such things as toileting, feeding, grooming, and veterinary care.

3. Handler.  The handler of a service dog is typically the individual with a disability.  As long as the conditions of 28 C.F.R. § 35.136(d)&(e) are met, the School District shall permit a student with a disability to serve as the handler of their own service dog in school and shall not require the student (or their guardian) to provide a third-party handler for the service dog.

4. Modifications to Policies, Practices, and Procedures.  Generally, the District shall modify its policies, practices, and procedures to permit the use of a service animal by an individual with a disability in accordance with Title II of the ADA and its implementing regulation.  See 28 C.F.R. § 35.136(a).  For example, if needed, the District generally shall help a student with tethering or untethering a service dog, assist a student with getting water for a service dog or pouring water into a bowl, prompt a student to occasionally issue commands to a service dog, and escort a student throughout the school or campus as the student uses their service dog.  

The Lessons

The DOJ made clear that while a school is not responsible to feed, walk or groom a student's service animal, neither is a school district allowed to throw up its hands when a student with disabilities needs some support in order to effectively handle a service dog. The District’s obligation was to make modifications necessary to comply with the ADA, including the types of minimal assistance the School District refused to provide the student in this case, such as helping to tether or untether a service dog, assisting the student to get water for the service dog, and prompting the student to issue commands to her service dog.

The young lady, Devyn Periera, is now in sixth grade and has her second trained service dog, a Bluetick Coonhound/Australian Cattle Dog mix named Rubin.

Devyn Periera with her service dog, Rubin. Devyn changed school districts during

the litigation and has been accommodated with her need for Rubin.

"Devyn can no longer be denied the help she needs to use her service dog at school," the Pereiras wrote online. "Our victory is not only for Devyn, but for all the families facing similar injustices."

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More about Devyn’s background can be found on FB: www.facebook.com/dogfordevyn or on YouTube, search for “Service Dog Denied: Devyn’s Story” https://www.youtube.com/watch?v=HT2qhNPTTFk).