Today’s blog entry deals with the question of whether the DOJ final regulations on service dogs are applicable to a case arising under the Rehabilitation Act and not the ADA. The case is Berardelli v. Allied Services Institute of Rehabilitation Medicine, a published decision from the Third Circuit decided August 14, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader, of course, is free to read any or all of the sections. As a heads up, the court’s reasoning is quite detailed.
The facts are pretty egregious. What you have is an elementary school student with dyslexia and epilepsy where the school consistently turned away efforts for her to be accompanied by her service dog to school. The school was subject to title III of the ADA and the Rehabilitation Act but not title II of the ADA. As the child grew older and became more independent, her pediatric neurologist recommended that she obtain a service dog so that the dog could monitor her with respect to any seizures and take action when those seizures occurred. She was okay in second grade with the service dog, but when she switched in third grade to the dePaul school, which had a specialized program for dyslexic students, things went downhill fast even though her mother had served notice that a service dog would be coming to school. In the end, things got so bad that she had to repeat an earlier grade when she transferred to a public school some two years later. In particular, the things that happened included: 1) principal consistently denied the use of a service dog; 2) principal repeatedly denied, citing distraction to others, the use of a service dog even though it was made clear that the service dog would alert during seizures and also could predict and alert to them minutes before they even began; 3) principal denied use of service dog based upon worry about allergic reaction to others and made the dog wear a vest to prevent allergies. The vest overheated the dog and prevented the dog from doing his job; 4) when mother came with the child and the service dog to school, the principal stopped them at the entrance of the school and refused to allow the service dog to enter; and 5) the resistance to the dog continued even when a teacher furnished the principal an article on what seizure alert dogs do, and the family of the student allergic to dogs said that they would get their child allergy shots rather than deny a service dog for a child that needs it. Of course, all this made for an impossible situation for the child since it created a great deal of stress and anxiety and it also caused her to fall behind her peers by a year when she transferred back to public schools.
At trial, the District Court proceeded as if the DOJ service regulations applied to a Rehabilitation Act matter, but in midstream reversed course and said that the DOJ regulations did not apply. Further, it rejected a proposed jury instruction tracking DOJ regulations on service dogs. Instead, the jury instruction it wound up giving instructed the jury that:
To prevail on a claim for failure to accommodate, the plaintiff had to prove by a preponderance of the evidence that the requested accommodation was reasonable. If further defined that term as meaning necessary to avoid discrimination on the basis of disability or, in other words, necessary to permit meaningful participation. Only if the plaintiff prove the accommodation was necessary to avoid discrimination on the basis of disability, the burden then shift the school to prove by a preponderance of the evidence that the requested accommodation were unreasonable.
Understandably, this jury instruction really confused the jurors (I can’t understand it either), but when the jury sought clarification, the court refused to clarify. The jury returned a verdict for the school, and the child’s parent timely appealed seeking reversal of their State law claim as well as a new trial on the Rehabilitation Act claim because the District Court did not properly instruct the jury on the applicable law.
Court’s Reasoning Reversing the State Law Claim and Awarding a New Trial
- Since substantive standards for liability under the Rehabilitation Act and the ADA are the same, the service animal regulations interpreting reasonable modifications under the ADA apply equally to reasonable accommodations under the Rehabilitation Act.
- The Rehabilitation Act was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities.
- §504 of the Rehabilitation Act established that no otherwise qualified individual with a disability shall solely by reason of his or her disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. The Supreme Court has interpreted this to mean that an individual with a disability must be provided with meaningful access and that federally funded programs were required to make reasonable accommodations or reasonable modifications, but not fundamental or substantial one when necessary to assure such meaningful access.
- After two decades of experience with the Rehabilitation Act, Congress acknowledged the limited extent of its coverage impeded its effectiveness in eliminating disability discrimination and enacted the ADA.
- Congress designed the ADA to fit hand in glove with the Rehabilitation Act leaving intact the scope of protection under the Rehabilitation Act, but extending its reach beyond federally funded programs to three major areas of public life [i.e. title I, II, and III of the ADA].
- The most far-reaching portion of the ADA was extending the Rehabilitation Act concepts to places of public accommodations as title III prohibit discrimination on the basis of the disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
- Title III of the ADA also codified the concept of reasonable accommodations recognized by the Supreme Court when interpreting the Rehabilitation Act when it adopted 42 U.S.C. §12182(b)(2)(A)(ii). That particular provision says discrimination occurs when there is a failure to make reasonable modifications in policies, practices or procedures where such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities unless a fundamental alteration exists.
- While title III and title II of the ADA the use term “reasonable modification,” and title I uses the term “reasonable accommodation,” it is pretty clear that the two terms are interchangeable.
- Both the Rehabilitation Act and the ADA recognize that disabilities do not diminish the right to full inclusion in American society. Both statutes also target the same critical areas, including education. Finally, history teaches that both statutes aim to root out disability-based discrimination thereby enabling a person with a disability to participate equally to all others.
- As a general rule, repetition of the same language in a new statute indicates the intent to incorporate those provisions and the judicial interpretations of that language as well. Case law interpreting the Rehabilitation Act have used the terms reasonable accommodations and reasonable modifications interchangeably.
- Although the Rehabilitation Act and the ADA diverge with respect to the entities they cover and the remedy they provide (I might add they diverge on causation as well), they impose the same substantive liability standards, and therefore, require a unified approach to the reasonableness of accommodations and modifications.
- Case law invariably says that the Rehabilitation Act and the ADA are to be interpreted in the same way.
- The Third Circuit has assumed that the term reasonable accommodations and reasonable modifications are synonymous. For that matter, the Supreme Court has done the same. Finally, other Courts of Appeals have also recognized that while title III of the ADA uses “reasonable modification,” rather than “reasonable accommodations,” the term did not differ in the standards they create.
- The reasonableness of an accommodation or modification is the same under Rehabilitation Act as it is under the ADA. Therefore, while the Rehabilitation Act does not explicitly resolve whether accommodating the use of service animals by individuals with disability is generally reasonable, it is appropriate to consider the DOJ regulations and guidance applicable to the ADA’s reasonable modification requirements when answering that question.
- Citing to a case that we discussed in this blog entry, the court said that the service animal regulations are consistent with and a specific application of the reasonable modification requirement of the ADA. More specifically, those regulations present DOJ’s holistic view in enforcing the ADA when it is reasonable and unreasonable to require accommodating service animals.
- Defendants do not always have to allow service animals if to do so would fundamentally alter the nature of the program, pose a direct threat to the health or safety of others, or if the animal is either out of control or not housebroken. Further, in a footnote, the court notes that service animal under 28 C.F.R. §§104, 36.104 has a very precise definition namely, any dog individually trained to do work or perform tasks for the benefit of an individual with a disability.
- Under the DOJ final regulations on service dogs, a person with a disability proposed accommodation of her service animal is reasonable as a matter of law in the absence of direct threat, fundamental alteration, dog out of control, or the dog is not housebroken.
- The DOJ regulations are entitled to Chevron deference.
- The DOJ interpretation of its regulations must be deferred to as well because such an interpretation is not plainly erroneous or inconsistent with the regulation.
- The DOJ regulations on service dogs fulfill Congress’s intent to provide the broadest feasible access to service animals in all places of public accommodations, with few exceptions.
- Considering all of the above, logic dictates that the service animal regulations are no less relevant to the interpretation of the Rehabilitation Act even though they technically are only interpreting the ADA. Accordingly, where no exception for the allowance of a service dog applies per the applicable DOJ regulations, the use of a service animal by a person with a disability is per se reasonable.
- Numerous agencies have indicated in one form or another that a person’s request to be accompanied by a service animal is generally reasonable.
- HUD has even indicated that the Rehabilitation Act might go even further than the ADA when it comes to service animals. As we have discussed previously, HUD has interpreted the Fair Housing Act as going further than the ADA.
- While responsibility for administering the Rehabilitation Act was not delegated to a single agency, the body of work of the agencies implementing the Rehabilitation Act does constitute a body of work that courts and litigants can resort to for guidance.
- Congress has given no indication that service animals should be less accommodated in the school setting then in another setting covered by the Rehabilitation Act or the ADA. In fact, the Rehabilitation Act specifically notes that individuals with disability continually to encounter discrimination in education. Further, the Rehabilitation Act at 29 U.S.C. §701 has an integration and inclusion requirement built into it.
- Claims alleging failure to accommodate under the Rehabilitation Act involve the same inquiry as those alleging failure to accommodate under the ADA, namely: 1) was the requested accommodation reasonable?; 2) Whether the requested accommodation was necessary; and 3) would the requested accommodation fundamentally alter the nature of the program?
- The jury instructions were flawed for two reasons. First, the accommodations were reasonable as a matter of law in light of the facts as applied to the DOJ final implementing regulations. Second, the jury instructions confused the reasonable accommodation with the separate requirement that the accommodation be necessary. Accordingly, the jury wasn’t instructed properly.
- Compelling evidence existed that the dog accompanying the child was indeed necessary for providing meaningful access to the school’s programs and activities.
- The alternatives offered by the school simply did not cut the mustard (the court uses the term, “woefully short.)” In particular, the child was subjected to additional safety risk, increased anxiety leading to more seizures, and a gaping educational deficit causing her to regress to a prior year when she transferred to a public school. Further, forcing the dog to wear a vest prevented the dog from doing the job it was supposed to do.
- The facts and the law are such that a reasonable jury would award a verdict for the plaintiff.
- In a footnote, the court notes that where a trial judge rules early in litigation that a rule of law applies to the facts and that ruling shape the course of the trial and strategy, but then the judge reverses course, the parties may be prejudiced under a doctrine called law of the case.
- Dismissing the state law claim was improper because while the liability standards for the Pennsylvania Human Rights Act and the ADA are the same, the remedies are not. More specifically, the Pennsylvania Human Rights Act expressly permits damages. Further, the Pennsylvania Human Rights Act specifically has a provision that prohibits places of public accommodation from denying any person the use of a guide or support animal in order to access accommodations, advantages, facilities, or privileges of a place of public accommodations. Accordingly, the dismissal of the Pennsylvania Human Rights Act claim has to be reversed.
- Absolutely mind-boggling to me the efforts that the mom went through to get the school to do the right thing. Few people would have stayed with it that long. Curious, as to why the board of the school was never contacted. At least, nothing in the opinion indicates as much.
- Also, mind-boggling to me is the school’s behavior with respect to service dogs. Certainly, not good preventive law at all. I can only imagine how much money was spent on the defense in this case and the appeal only to see it all go up in smoke. Further, liability is certain as is damages. So, the defense is going to have to pay for its attorneys fees, plaintiffs attorneys fees, and whatever damages are awarded. Hard to believe this case won’t settle for a substantial sum and a substantial award of attorney’s fees.
- The court’s reasoning is exhaustive. Hard to argue that the Rehabilitation Act and the ADA should not be interpreted in the same way.
- I find it interesting that the Administrative Procedure Act did not come up. Ordinarily, the way that it works is that the agency responsible for implementing the regulations goes through a rule making effort. Once that effort has been completed, those regulations become final and are binding upon the courts. So, each agency could through the rulemaking system have its own spin on service dogs. The problem here is, as the court noted, the Rehabilitation Act does not designate a single agency for carrying out the law. That is not the case with the ADA (it’s either the EEOC or the DOJ). The lack of a single agency being given implementing authority may be another reason why the DOJ regulations could be imposed upon the Rehabilitation Act.
- Considering the United States Supreme Court decision in the case we discussed here with respect to service dogs, I don’t see how an appeal by the school to the Supreme Court will be successful.
- The decision is published and is thereby likely to be cited frequently around the country.
- The DOJ service dog implementing regulations are entitled to deference. That shouldn’t surprise readers of this blog as we discussed that issue many moons ago here.
- One does not have to look further than this case to realize that jury instructions are a big deal.
- Who is educating the judges? I had the privilege of doing an education training session on service dogs and effective communication to municipal judges in Georgia. This case does raise the issue that District Court judges when they are getting trained should revisit the ADA as part of that training. It would make a difference with respect to service dog issues as well as accommodating people with disabilities in the court system generally (the latter issue we discussed previously in our blog, such as here).
- Schools need to be aware that the world does not end with IDEA, but rather they have to consider the ADA and the Rehabilitation Act as well.
- While title III of the ADA does not contain a right to damages, applicable state law might. Further, applicable state law may have a much lower threshold for coverage than the ADA does.
- What this case says is that interpretation differences between the Rehabilitation Act and the ADA are going to be few and far between, if ever. The biggest difference out there now is that causation and damages (damages would be different if a title III matter was involved), are different between the two laws.