We're Famous (Almost) Again!

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For the second time that I am aware of, this blog has been quoted in a law review! We're taking street cred to a whole new level.

Volume 41 of the University of Toledo Law Review contains a note beginning at page 375 by Jeffrey A. Knight.  The article reviews the standards of reviewing when the failure to  implement an IEP constitutes a violation of IDEA. That is, how much of an IEP does a school district have to implement? You can read the article here.

The article quotes us about the hot button issue of IEP implementation.  It also quotes this blog for the proposition that special education law is new law.  Pretty cool, huh?

And get this - footnote number 2 quotes this blog.  Thanks you to Mr. Knight.  Blogs and websites have in many ways increased the ability of people to do research.  I'm glad that we are again part of the expansion of knowledge and debate.

I'll be signing autographs in the lobby at 6 pm!
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New ADA Regulations Re Service Animals - Part I

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If you read this blog, you know that I love service dogs.  Really I love almost all dogs, but the regal service dogs are beautiful animals and they really help many people with disabilities.

On September 15th the Department of Justice finalized new regulations concerning service animals under the Americans With Disabilities Act. These regulations take effect on March 15, 2011.  They pertain to Title II (governments, including schools) and Title III (public accommodations). Here is a summary by the Department of Justice.  Here is the printed version in the federal register (this works as a sleep aid as well.)  This is a highlight sheet of the changes to Title II.
Here is the definition of "service animal"
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 service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler's disability. Examples of work or tasks include, but are not limited to, 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, providing non-violent protection or rescue work, pulling a wheelchair, 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, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. 
And here is the new regulation under Title II:

§ 35.136 Service animals

  • (a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
  • (b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if—
    • (1) The animal is out of control and the animal's handler does not take effective action to control it; or
    • (2) The animal is not housebroken.
  • (c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.
  • (d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal 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 service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means).
  • (e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.
  • (f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
  • (g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.
  • (h) Surcharges. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
  • (i) Miniature horses.
    • (1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
    • (2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—
      • (i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
      • (ii) Whether the handler has sufficient control of the miniature horse;
      • (iii) Whether the miniature horse is housebroken; and
      • (iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
    • (C) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.  
Happy Columbus Day!
 
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Big Changes to §504: Do They Affect Special Education - Postscript Part III

International Day of Persons with DisabilitiesImage by City of Edmonton via Flickr


We recently finished a popular series on the recent changes to ╘504 as a result of the ADA amendments.  There was a lot of material and we have received a lot of favorable comments.  Thanks for reading and being interested.  


We often get great comments and emails concerning  our posts and this series was no exception.  Here is an example of a thoughtful comment by our new friend Jo Anne Simon:


Dear Jim:

I have to agree with Art Cernosia. I also agree with Professor Weber's prediction that §504 will be seeing more action because of the IDEA eligibility tightening. 

The sad truth is that public schools have long seen §504 and IDEA as the same thing and indeed the federal regulatory scheme for P-12 is similar to that of IDEA and often permitted the application  of similar eligibility criteria - even though they were never meant to be precisely the same.  §504 was always meant to cover a broader swath of children with disabilities, including those who needed less in the way of "special education" but more in the way of accommodations.  Just to confuse things, the IDEA and §504 shared terminology with some of the services/interventions that would not be required under 504, such as certain therapies.

The exhaustion requirement is also a significant barrier to a pure §504 claim.  However, a pure §504 claim does have its place.  For example, §504 would permit a claim against a physically inaccessible school environment.  That's not within the purview of impartial hearing officers to remedy.  Similarly, retaliation claims can proceed under §504.  Moreover, as more and more school systems declassify children for IDEA purposes and opt to serve them under §504 instead, those schools will be hard pressed to claim a failure to exhaust administrative remedies of a law by which the schools just said these children were not protected.  One can only talk from both sides of one’s mouth for so long...

Jo Anne
 
So what do you think?
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Tri-State Special Education Law Conference Next Stop on Gerls Rock Tour

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OK you cannot accuse me of not getting out there.  My Gerls Rock Special Education Law Tour 2010 has added one more stop.  As those of you who follow my tweets and mobile posts are aware, I will be addressing the Tri-State Regional Special Education Law Conference. It will be convening on November 4 and 5, 2010 in Omaha, Nebraska.

I have never spoken at this conference before, but I am really looking forward to it.   It is co-sponsored by the state departments of education for Kansas, Nebraska and Iowa as well as the Mountain Plains Regional Resource Center (or TAESE). It looks like a great conference.  I'm honored to be among the big names in the special education law field who will also be presenting at the conference.

Please look me up if you will be in the area.  I was lucky enough to meet a number of readers this summer.  Thank you for taking the time to tell me what you think about this blog.

One lawyer-type note/disclaimer.  None of the sponsors of the conferences I appear at necessarily endorse any of the opinions and thoughts expressed on these pages.  This blog represents my opinions and should not be attributed to any one else.  Fine print, maybe, but covering the bases is good policy.
I have not been to Nebraska for awhile.  I'm looking forward to it.  See you there!
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