Animal-Use in the School Setting New York Association

Animal-Use in the School Setting New York Association of School Psychologists Annual Conference Rochester, NY November 12, 2016 Dr. Lynn O’Connell, Psy. D. , NCSP Dr. Andrea Burch, Psy. D. Zachary Longo, B. A. Division of Counseling & School Psychology Alfred University

Objectives 1. Identify federal and state regulations that form the legal framework for use of animals by individuals with disabilities 2. Define different types of service and assistance animals 3. Identify what questions can be asked of an individual with a service animal 4. Discuss relevant case law related to use of animals as SPED accommodations within school setting 5. Outline components of an appropriate evaluation for an emotional support animal 6. List recommendations for animal-use procedures in K-12 and higher education settings

The Case of Sean and Sophia • • • Sean Forsthye, 8 year-old third grader Diagnosis – Autism Spectrum Disorder Alleghany County, Wexford, PA KDKA-TV Station; Pittsburgh, PA Service Dog accompanies Autistic Child to school. - You. Tube

Questions about Use of Animals in Schools • Are dogs an allowable accommodation for a child with a disability? If so, how why? • Are dogs allowed if other accommodations are easier to implement? • What if others (peers or educators) have allergies, fears/phobias, etc? • Who is responsible for the dog? • How will the dog impact education?

1. What are the federal and state regulations related to animal use? • Americans with Disabilities Act, 1990, 2008, 2011 • Fair Housing Act, 1968, 1974, 1988 • NYS Human Rights Law

Americans with Disabilities Act • ADA, 1990 – Civil rights law that prohibits discrimination of individuals with disabilities in all areas of public life – The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else – The ADA is divided into five titles (or sections) that relate to different areas of public life • Employment, State & Local Gov’t, Public Accommodations, Telecommunications, Other • 2011 Changes to definition of Service Animal

Fair Housing Act • FHA, 1968 – Civil rights legislation designed to protect the buyer or renter of a dwelling from seller or landlord – Prohibits discrimination of a person based on the individual’s inclusion in a protected class • Revision, 1974 – Sex was added as protected class, in addition to race, color, religion, and national origin • Revision, 1988 – Disability added as protected class Housing providers are obligated to make reasonable accommodations for assistance animals

New York State – Civil Rights Bureau • State has to assure that citizens are afforded an equal opportunity to enjoy a full and productive life…without discrimination… • Attorney General – Service Animals in Public Accommodations brochure outlines use – https: //www. ag. ny. gov/sites/default/files/pdfs/publication s/service_animals_brochure. pdf

Service Dog Central • www. servicedogcentral. org • Collection of state statutory law concerning service dogs and assistance dogs (with links) • Each state may have different guidelines – often found in Human Rights Commission and/or Attorney General’s Office

When Multiple Laws Apply • In situations where ADA, FHA, and state laws apply (e. g. , housing associated with a university or other place of education), entities must meet their obligations related to public access afforded service dogs and accommodation standards of ADA

2. Definitions of Service and Assistance Animals • Service Animals - ADA • Emotional Support Animals - FHA • Therapy Animals

National Network Information, Guidance, and Training on the Americans with Disabilities Act ADA Fact Sheets Service Animals and Emotional Support Animals: Where are they allowed and under what conditions? Southwest ADA Center

What is a Service Animal? • A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals. • Miniature horses

Examples of Work or Tasks Performed • assisting individuals who are blind or have low vision with navigation and other tasks • alerting individuals who are deaf or hard of hearing to the presence of people or sounds • pulling a wheelchair • pushing a button to open a door or retrieve an elevator • assisting an individual during a seizure • alerting individuals to the presence of allergens • retrieving items such as medicine or the telephone • providing physical support and assistance with balance and stability to individuals with mobility disabilities • helping individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors

Specific Types of Service Animals • Guide Dog or Seeing Eye Dog – trained to alert to environmental stimuli that person cannot see • Hearing or Signal Dog – trained to alert a person when sound occurs (e. g. , knock on door) • Seizure Response Dog – trained to alert handler of impending seizure, stand guard, or go get help • Psychiatric Service Dog – trained to detect onset of psychiatric episodes and lesson their effects • Sensory Signal Dogs (SSig) – trained to alert handler of repetitive movements

Psychiatric Service Animal (PSA) • A special type of service dog specifically trained to perform tasks that detect the onset of psychiatric symptoms and alleviate their effects (Younggren & Boisvert, 2016). • Tasks performed include: – Medication reminders – Providing safety checks/room searches – Interrupting self-injurious behaviors – Anticipating epileptic seizures – Preventing endangerment of disabled person

What is NOT a service animal? • Emotional support animals, comfort animals, therapy animals, and pets are NOT service animals under ADA • The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship are not considered work or tasks for purposes of the definition of a service animal.

Handler’s Responsibility • Under the control of handler • Care and supervision – housebroken, immunizations • Unacceptable behavior does not have to be tolerated animal can be asked to leave • Direct threat to health or safety of others (i. e. , growling or jumping) can result in animal being asked to leave

What does “under control” mean? • ADA requires dog be under the control of handler at all times – Individual with disability or third party • In schools (K-12), school staff may need to provide some assistance to enable a particular student to handle his or her service animal • Dog must be harnessed, leashed, or tethered while in public places • May use voice commands

Assistance Animals • FHA defines assistance animal as – an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability • Does not need to be individually trained or certified

Assistance Animal • The request can be denied if: – The animal poses a threat to the safety of others and accommodations cannot be made to alleviate this threat – The animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation • These criterion must be based on an individualized assessment with objective evidence and not on mere speculation. • Individuals can be asked to provide documentation that proves the presence of their disability.

Emotional Support Animal (ESA) • One type of an assistance animal • Belongs to person with emotional or psychological disability • No breed or animal restrictions • Licensed Mental Health Professional (LMHP) has determined the individual has a disability and an animal is necessary to reduce or alleviate symptoms – Letter of Prescription must be written by LMHP • Not recognized by ADA, nevertheless they still qualify as reasonable accommodations under FHA

Differences: ADA vs FHA • Definition of service animals under FHA broader than under ADA – FHA allows for different type of animals – FHA allows for animals that provide comfort or emotional support • No special training necessary – only lessens the effect of the disability and allows person to fully enjoy housing • Housing entity may request documentation of disability and need for animal

NYS Attorney General • Definition of Service Animal – A Broad Definition • • • Same as ADA Working animal, not a pet Certification and/or license not required • Allowed where public is allowed • Restaurants, hotels, stores, theatres, sport facilities, transportation (i. e. , taxes, buses) • May not impose extra fees, but may bill for damages • Documentation is not required • Federal ADA overrides state/local law • Suspended dog license fee (Agriculture & Markets Law)

Be careful of fee-for-service • NYS Attorney General – Some businesses, many of them online, sell fake service dog certifications: certificates, licenses, tags, or harnesses that identify service dogs in exchange for a fee. Individuals should be careful when dealing with businesses selling such documentation and accessories, especially those that do not provide training or evaluation, or that charge high fees.

Therapy Animals/Dogs • Many species of animals and breeds of dogs • Typically found in nursing homes, hospitals, private clinics, schools • Used by health care professional or educator • May be present to increase sense of well-being • Often incorporated as part of a goal-oriented and structured therapeutic intervention plan

US Swimmers Use Therapy Dogs to Relax Before Olympic Trials • USA Today, Jun 30, 2016 • USA Swimming partnered with Domesti-PUPS – a nonprofit organization based in Lincoln, NE, • Collar – Please ask to pet me. I’m friendly. • There’s a lot of pressure. Having the dogs here is a great distraction, a way to take a break from all of that. They’re happy all the time. It just makes you happier. You can forget about whatever race you just had.

Comfort Dogs Aid Healing in Newton • Communique, 41(8) by Corinne Serra Smith • Team of dog handlers and 10 comfort dogs from Addison, Illinois went to Sandy Hook • One week 12/15/12 & February 2013 • Kids used dogs to express emotions & regain selfcontrol • Some parents said they had not seen their child smile in weeks • Dogs were calm, felt like we were going to be ok – symbol of strength & love

Therapy Animals/Dogs • NOT considered service animal, assistance animal, or emotional support animal, so not covered by ADA of FHA • No legal protections for use in schools • Use is decided by individual district

3. Questions That May Be Asked • To determine if an animal is a service animal, a public entity or a private business may ask only two questions: 1. Is this animal required because of a disability? 2. What work or task has this animal been trained to perform? • No documentation required • No tag or vest on animal required

What questions cannot be asked? • Questions may not be asked if the need for the service animal is obvious (e. g. , the dog is guiding an individual who is blind or is pulling a person’s wheelchair). • May not ask about the nature or extent of an individual’s disability or require documentation, such as proof that the animal has been certified, trained or licensed as a service animal, or require the animal to wear an identifying vest.

Emotional Support Animal • To determine if an animal is an emotional support animal, a housing entity may request: 1. Documentation of person’s disability 2. Documentation by licensed mental health professional that animal is needed to diminish or alleviate symptoms

4. Relevant Case Law • US Dept of HUD v. University of Nebraska Kearney • Grand Valley State University (Michigan) • Michigan case • Gates-Chili • Supreme Court case

ESA Case Law in Higher Ed • United States v. University of Nebraska Kearney – Court ruled university housing was a “dwelling” under FHA – FHA requires university housing providers make reasonable accommodations to no pet policies for students with disabilities to live with ESAs – FHA overseen by Housing and Urban Development (HUD) applies a broader definition of “assistance animal” when enforcing section 504 for reasonable accommodation purposes

From the Office of Housing and Urban Development

Implications • United States v. University of Nebraska Kearney – Colleges and universities created policies for allowing ESAs on campus – Greater recognition of ESAs as a legitimate need for persons with disabilities • UC @ Davis found number of registered assistance dogs increased ten-fold between 2000 -2002 and 2010 -2012 – Increase in requests for medical professionals to recommend ESAs to patients

Unanswered Questions for College Campuses • Where may ESAs be allowed to go? – GVSU Settlement • Will there be any restrictions on what type of animal will be considered an ESA? • How to accommodate all needs when animals are involved? “The lesson to be learned here, to the extent there is one, is that until the federal government brings some degree of clarity to the me lange of laws and regulations governing this area, disability services offices, campus counsel, faculty and other campus leaders should address issues with service animals on a careful case-by -case basis. “

Can the School Refuse to Allow a Service Dog? • How do we handle a student who requests use of service dog? ESA dog? • ADA, Title II & III – Requires entities to make reasonable modifications to policies – No Pet rule must be modified to allow service animals • Allergies or fear of dogs are not valid reasons for denying access or refusing service to people using service animals

DOJ sued Gates-Chili CSD • Devyn, 8 yo, 3 rd grader with Angelman Syndrome, severe epilepsy, autism • PK (2011) allowed dog; K refused dog without separate handler – In violation of ADA, Title II • School argued that child’s 1: 1 aide or other school staff were not allowed to help manage dog • April 2015, DOJ ordered district to reverse its policy and pay compensatory damages to family for injuries suffered

Case To Be Heard by Supreme Court • Fry v. Napoleon Community School District – Elhena Fry, severe cerebral palsy – Obtained service dog, Wonder, in 2009 at age 5 years to help her live as independently as possible • School refused to allow dog because IEP already provided for human aide to provide 1: 1 support and dog “would not provide any support the human side could not provide. ” (10/09 – 04/10) • Trial period – location/use requirements issued – dog not allowed after trial • Home schooled Ehlena, then different school where Wonder was allowed

Relevant Law • Sued under ADA & 504, not IDEA – IDEA provides limited rights and protections, but does not guarantee ‘equal’ educational opportunities – ADA is anti-discrimination statute that requires equal access and opportunity; entities required to make reasonable modifications to rules and policies

Timeline of Earlier Rulings • 2010 - Parents filed suit with OCR of DOE • 2012 – OCR concluded that district violated ADA • Parents filed suit under ADA & 504 to seek damages for social and emotional hardship • Did not request a SPED due process hearing under IDEA • District – motion to dismiss – “parents did not exhaust their administrative remedies under IDEA” • District court granted dismissal stating IDEA’s exhaustion provision required review of case prior to ADA suit • Fry’s appealed, arguing IDEA EP does not apply bc they are not seeking relief provided by IDEA procedures – Hearing officers are not allowed to award damages • 2014 – district court dismissed stating IDEA applied to case

Strong dissent by Judge Daughtrey Disability discrimination at issue is a text-book example of the harm that Section 504 and ADA were designed to prevent, and claim should not have been dismissed because victim of discrimination was a school-aged child…dismissal based on conclusion that the specific injuries are essentially educational, and therefore subject to IDEA…I conclude the contrary that the claim here is noneducational in nature and that the IDEA’s exhaustion provision was improperly invoked by disctrict court

Appeal to Supreme Court • October 2015, Frys appealed to SC • May 2016, Solicitor General stated: – Courts are split – Question is important and recurring – Supreme court should resolve question • “the proper resolution of that question has considerable practical significance, especially for plaintiffs seeking to vindicate the rights of children with disabilities

5. Animal Use Evaluations • First, determine what type of animal is in question – Service Animal vs Assistance Animal • Is this a service animal that is required because of a disability? Y N • What work or tasks has the animal been trained to perform? _______

Assistance Animal Use Evaluation • Does the person seeking to use and live with the animal have a disability that impairs their life functioning (i. e. , a physical or mental impairment that substantially limits one or more major life activities? ) Y N • Does the person making the request have a disabilityrelated need for an assistance animal? Y N • Does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability? ________

Questions to Consider 1. Do you have a disability? 2. Do you have a disability-related need for an assistance animal? 3. Related to your disability, what work, task, or assistance does the animal do for you? 4. How does the animal’s work, task completion, or assistance alleviate the symptoms of your disability? 5. Does the animal significantly reduce the impact of your disability enabling you to fully use the housing?

Case Example of ESA Evaluation • 21 year-old white male enrolled in private university & residing in dorm room • Junior with 3. 1 GPA; involved in many extracurricular activities • Was given iguana as gift in summer b/n sophomore and junior year • Requested use of ESA through Office of Disabilities – Recommended ESA evaluation

Case Findings: Not Eligible for ESA 1. Individual had a mental health diagnosis (i. e. , GAD) through history & clinical evaluation 2. Need for assistance was questionable given high level of functioning over time without an animal present 3. Animal was not trained to provide work, complete tasks, or provide assistance 4. Animal reduced feeling of anxiety, but no overt behaviors could be identified 5. Previously living in dorm for two years, no significant reduction in disability could be determined

Classification of dog that calms handler during panic attack • Depends… • ADA distinguishes between PSA & ESA – If dog is trained to sense attack is about to happen and alerts owner = service dog (PSA) – If dog’s mere presence provides comfort to owner = not service dog (ESA)

6. Recommendations for Animal Use Procedures in Schools • Federal government needs to provided clarity of guidance • Districts need to develop policy • Connect with MH evaluators who can assess disability & need for animal • Be careful of online documentation • Consider locations that animals can be (i. e. , dorms, science • Handle on an individual case-by-case

Pets Allowed: Why are so many animals now in places where they shouldn’t be? • The New Yorker, Oct 20, 2014 – By Patricia Marx • Pets Allowed: My Unusual Emotional Support Animal | Shorts & Murmurs – You. Tube

THANK YOU FOR YOUR INTEREST AND TIME TODAY Dr. Lynn O’Connell oconnelm@alfred. edu Dr. Andrea Burch burcha@alfred. edu Zachary Longo ZL 4@alfred. edu