Here are some recommended blog articles you might have missed this summer. This is divided into three separate categories: special education, employment law, and animal law.

Special Education issues:

Kate Ahern’s Teaching Learners with Multiple Special Needs is among my favorite blogs. This summer, Kate published a few excellent blog articles about the latest assistive technologies, including :

The WrightsLaw Way churn out high quality blog posts every single week about special education matters. This summer was no exception. You shouldn’t miss reading these outstanding articles:

The Phoebe Prince case was in the news again this summer. I previously discussed the lessons of the Phoebe Prince case and why bullying issues should be addressed as quickly as possible. Slate’s blog article “What Really Happened to Phoebe Prince?” provides very provocative perspectives in a massive 18 page report (also available in pdf format here). My colleague Jennifer Laviano, a special education attorney in Connecticut, also chimes in: “Phoebe Prince, Bullying, Disabilities, and the Eggshell Skull.

Since I’m an attorney who practices education and special education law in New Jersey, these two New Jersey based articles were illuminating: the New York Times’ “Little As They Try, Students Can’t Get A ‘D’ Here” and Christine Samuels’ “New Jersey’s High Numbers.”

Employment law issues:

Molly DiBianca and her colleagues on the Delaware Employment Law Blog are always keeping an eye out on the intersection between technology and employment law. Check out:

This summer has seen some really fascinating employment law issues, including (1) whether employers must accommodate “stressed” or “anxious” employees and (2) whether employees who are bald might win a case under the Genetic Information Nondiscrimination Act.

Animal law issues:

Animal lawyer, Daniel Meek, always stresses the importance of including pets in wills and establishing trusts for pets. This summer, Daniel Meek blogged, “Do You Have A Pet Power of Attorney?” He also blogged about whether a service animal is a pet or property in “Is A Guide Dog Property or Pet?

Just a few weeks ago, the Justice Department revised the Americans with Disabilities Act regulations. One of the key changes in the regulations was the definition of a ‘service animal,’ which I previously blogged about. Another important change in the ADA regulation is the prohibition of breed specific dog discrimination in “Justice Department Rules Against Dog Discrimination,” which is a victory for individuals with disabilities who depend on German Shepherds, rottweilers, and pit bulls as trained service dogs.

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Over the past year, I have devoted a substantial amount of time talking about service animals. I have discussed how dogs, miniature horses, and monkeys can be trained to become service animals. I have also discussed badly behaved ‘service animals’ — people who claim to have legitimate disabilities and pawn their untrained companion pets as service animals. This blog post marks the 15th article on the subject in the past year.

Last week, the U.S. Department of Justice revised the ADA regulations. Prior to the revisions, the ADA regulations had not limited “service animals” to any specific type of animal. Now, there is an extremely narrow limitation: only dogs meet the definition of service animals.

The newly issued regulations provides in part:

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 new definition of service animal will sorely disappoint individuals with disabilities who have and rely on parrots, monkeys, snakes, and miniature horses, as their service animals. As Martin Matheny points out, “dogs are great, but there are some things that they cannot do.”

But wait a moment.

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When a student has food allergies or special dietary needs, schools may be legally obligated to provide accommodations. When a student has special dietary needs, she may qualify for a 504 plan. Likewise, a student who has a life threatening allergy to certain food ingredients may also qualify for a 504 plan. The “504″ refers to Section 504 of the Rehabilitation Act of 1973, a civil rights law that prohibits discrimination on the basis of disability.

To qualify for a 504 plan, a physician must first sign a statement (1) identifying the student’s disability or health need, (2) an explanation why the student has a dietary need or allergy, (3) an explanation how the disability or health need constitutes a major life activity, and (4) an explanation what the school can do to address the matter. The next step will be to share this information with school personnel and schedule a meeting to develop a 504 plan.

What types of 504 accommodations might be available to students who have special dietary needs or food allergies? Consider these examples:

  • Diabetes
    • Schools may be obligated to hire a certified school nurse or RN in the building when there are diabetic students in schools.
    • School staff may be required to ensure that a student with diabetes eat snacks throughout the day.
    • School staff may be required to know where insulin and hypoglycemia supplies are stored.
    • School staff may be required to monitor glucose levels.
  • Cystic Fibrosis
    • Students with cystic fibrosis may require additional calories, and the school may be required to provide either larger food portions or a high calorie diet.
  • Allergies
    • A student is allergic to a specific food ingredient. The school nutrition staff may be required to make food substitution or modifications.
    • The school nurse may be required to be trained to give epinephrine to alleviate allergic reactions.
  • Feeding difficulties
    • A student cannot chew solids and must consume liquid diets. The school nutrition staff may be required to provide a liquid diet.
    • School staff may be required to hire a qualified person to assist a student who feeds through a tube.
    • School staff may be required to assist a student who is unable to feed herself.

The United States Department of Agriculture has an excellent primer titled “Accommodating Children with Special Dietary Needs in the School Nutrition Programs.” The entire 59 page manual is available here. (If you want even more information beyond the USDA’s primer, check out this 200 page course manual.) The USDA also has published other resources here.

Guidance to developing a 504 plan for food allergies may be found here. A sample 504 plan for students with diabetes may be found here and there. The American Celiac Disease Alliance has a model 504 plan for students with celiac disease.

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Can you juggle on crutches? This guy is amazing!

Boy with Down’s Syndrome sings “Amazing Grace.”

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One of several email listservs that I belong to discuss how best to assist children who are hard of hearing or deaf. A listserv member recently asked a question about developing an Individualized Educational Plan (“IEP”) for hard of hearing and deaf children entering kindergarten. A discussion ensued regarding appropriate services and IEP goals that might be incorporated in the IEP.

Since I was born profoundly hearing impaired and am a practicing special education attorney, I offered some general thoughts based on my own personal and professional experience. I would like to share some of these thoughts in this blog post.

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When parents of children with special needs contact me for an initial consultation, I always ask them to bring copies of every document that pertains to their special needs children. No matter how “thick” the file might be, I tell parents that I want to see it. During the initial consultation, I will scan through the documents to get some idea of what I am dealing with and what the potential issues may be.

Some parents, however, do not seem to realize how important it is to share the entire file with their special education attorney at the initial consultation.

In the mind of every special education attorney, every single document is important, no matter how old it might be and no matter how irrelevant a particular document may appear. So, when a special education attorney asks, “Please bring every document that you have in your file,” they really do mean that. Even if you think that a document is irrelevant or “too old,” show it to your attorney anyway. Let your attorney make the decision whether it is relevant or not. You will not waste the attorney’s time by sharing too many documents.

By and large, many of these IEPs, evaluation reports, waiver forms, and correspondences between you and the school are very, very important. In fact, they are among the most important pieces of evidence. Without having had the opportunity to carefully review these documents, it is impossible for any special education attorney to make an educated guess what can be done from here on in.

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It isn’t enough to know the federal laws that protect the right of persons with disabilities to be accompanied by their service animals. Good attorneys and advocates need to be intimately familiar with state law as well. Often, state law may offer additional protections and benefits than federal law provides. One of the best sources for researching state statutes relating to service animals is the Michigan State College of Law’s Animal Center website.

In last week’s post about calculating the value of service animals (The Legal Value of Service Animals), I explained the difficulties in calculating damages associated with the injury or death of a service animal. When a service animal is injured or killed, there are many legal questions that must be considered. Fortunately, some states have passed laws that help people with disabilities recoup the costs associated with the harm or death of their service animals without the need to resort to expensive litigation.

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The value that individuals with disabilities derive from service animals is immeasurable. But the concept of “immeasurability” is not a quantifiable term. From a legal perspective, it is important to measure loss of life and damage to property into some quantifiable term and explain how damages can be reasonably measured.

This blog post is concerned with a single question: When a person or companion pet physically harms or kills a service animal, how much damages can the disabled owner reasonably anticipate to win in court?

This is not an easy question.

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On April 29, 2010, a very special event took place at the Congregation B’nai Jeshurun synagogue in Short Hills, New Jersey. Actor Henry Winkler and actress Marlee Matlin stood next to each other on a raised podium and discussed how they first met, how their friendship had grown, and how each learned to overcome their own obstacles.

The evening was filled with wisdom, life stories, Jewish parables, jokes, and many laughs.

Two funny quotes got the audience roaring in laughter:

  • When Henry played the ‘Fonz’ on the Happy Days television series, he received 50,000 fan mail each week. Many girls sent Henry jewelry, such as crucifixes. Henry learned something important: “Jewish girls do not give away jewelry.”
  • A television director quipped: “Marlee is great! Is she going to be deaf the entire series?”

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There are two basic scenarios why a parent would place her disabled child in a private school:

  1. the parent has a disagreement with the School District and unilaterally places the child in a private school, or
  2. the parent has no disagreement with the School District and unilaterally places the child in a private school.

Under Scenario #1, the parent believes that her child is not being provided a free and appropriate education (“FAPE”) at a public school, which is the reason why the parent is unilaterally placing her child in a private school.

Under Scenario #2, the parent simply believes that the private school will provide a better (or the “best”) education for her child.

I want to focus on one aspect of special education law when Scenario #2 occurs.

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