WHOSE DOG IS IT?

1. WHOSE DOG IS IT? Jim Walsh Walsh, Anderson, Brown, Gallegos and Green, P.C.

2. 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.

3. 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

4. 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.

5. 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.

6. 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?

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. Contact • Jim Walsh • Walsh, Anderson, Brown, Gallegos and Green, P.C. • www.walshanderson.com • jwalsh@wabsa.com • 800-252-3405 • 505 E. Huntland Dr. #600 • Austin, Texas 78752