The response to Lucy and Otto’s story was all over the map. Some readers thought Lucy was “sick,” “bizarre,” or “creepy.” Others wondered about the damage Lucy may be doing to Otto. Still others thought Lucy was doing the right thing in helping Otto find love and enjoy life. I leave it to the reader to form his or her own judgement about Lucy. But before you do, consider what Otto had to say: he said that he would like a girlfriend so that he can “have a shower together, wash her back and have a lazy day in bed. Also go to the cinema and things like that.”

This post is not about Lucy. Rather, this post aims to change public perception that it is abnormal for disabled people to want sex, companionship, and marriage. Disabled people who marry and have sex shouldn’t be a taboo topic. Sex and companionship are basic human needs. Individuals with different kinds of disabilities have such needs. Yet, the idea that someone with cerebral palsy or an intellectual disability cannot–or should not–date, marry, and/or have sex is very dated.

Perhaps because people in general are more used to the idea of physically disabled individuals dating and marrying, more people struggle with the idea of an intellectually challenged individual (like Down’s Syndrome) marrying and having sex. In a Frequently Asked Questions webpage on Sexuality and Intellectual Disabilities, the American Association on Intellectual and Developmental Disabilities writes:

“[A]ll individuals are sexual beings. Expressions of sexuality include, but are not limited to, socialization, activities of friendship, boundaries in relationships, body awareness, human connectedness, genital interactions, assertiveness, self image, self-care, decision making, and personal code of ethics.”

For specific information about issues of sexuality in Down’s Syndrome, see Dr. William Schwab’s interview and this study.

Caption: Photo of man and woman both holding a heart symbol.

Regardless of the extent of one’s physical or intellectual impairments, the fact is that a great deal of people with disabilities want companionship and have sexual needs. And yes, many are married! A google search can turn up hundreds of stories about individuals with disabilities who marry.

Not too long ago, the San Francisco Chronicle recently ran a wonderful story about Kim Bazile and Noah Kessler who met 20 years ago and married in 2004. Both are developmentally disabled. Similarly, artist extraordinaire Dan Keplinger, otherwise known as “King Gimp” in that well-made 1999 documentary, has cerebral palsy and recently married. Back in 2005, the Wall Street Journal profiled Carrie Bergeron, a 29 year old New York woman with Down’s who married.

In June 2006, the Daily Mail (a U.K.-based newspaper) ran a long article about a Down’s couple. The romance between this particular couple is described in intimate detail and is quite amazing. (The reporter writes that they “share a love and devotion so raw that it is almost painful to watch. With their simple logic and searing honesty, they enjoy a relationship which perhaps every husband and wife should aspire to.”)

Isn’t it interesting that reporters and academics are beginning to recognize the things we can learn from about sex and marriage from people with disabilities? In fact, The Sunday Times recently ran a terrific story about what the disabled can teach us about sexual fulfillment.

Academics and practitioners at The National Sexuality Resource Center in San Francisco have been hard at work changing how the public thinks about disabled people and love and marriage. Their website is full of useful information and is a testament to their commitment to changing public perception. Additional professional and academic support may be found here.

In some countries, disabled people are prohibited from marrying. For example, in the country of Georgia, there is a law that prohibits some physically and mentally disabled persons to marry. That law is sorely outdated. Indeed, such laws should be invalidated because they violate basic human rights. It is hoped that in the future, everyone around the world will have a right to marry if they so choose, regardless of disability.

For the rest of the world where no such discriminatory laws exist, the internet has been boon for people with disabilities and finding love can be easier for many at such dating sites as Dating4Disabled.com, DisabledSinglesConnection, and LoveByrd, among countless others. The ways in which people with disabilities can find romance will increase as technology continues to develop. Many people with disabilities are reaching out not only to dating sites to find love and friendship, but also to other online communities, like Disaboom, where they can read articles (such as”Dating with a Disability: The Best Ways to Disclose Embarassing Sex Issues” and “Be A Sex Advocate For Your Sexual Health“) and ask other people with disabilities questions and advice about love, sex, and marriage.

Beautiful, isn’t it?

Happy Valentine’s Day.

© 2010, Matthew Stoloff. All rights reserved.

Valentine’s Day is for Disabled People Too originally appeared on Matthew Stoloff's Blog on February 14, 2010.

Related posts:

1. Deaf People are not Deaf to Justice

Charter schools are elementary or secondary schools in the United States that receive public money but have been freed from some of the rules, regulations, and statutes that apply to other public schools in exchange for some type of accountability for producing certain results . . .

In Charters: Students With Disabilities Need Not Apply?, Thomas Hehir reminds us that charter schools are not exempt from special education law. Indeed charter schools must comply with the Individuals with Disabilities in Education Act, Section 504, Americans with Disabilities Act, as well as applicable state anti-discrimination laws. Randy Chapman, the Director of The Legal Center for People with Disabilities and Older People in Colorado, provides a concise overview of the laws that charter schools must comply with in The IDEA and Charter Schools. For more specific examples in Question and Answer Format, see the Pennsylvania Education Law Center’s pamphlet, Students With Disabilities Attending Public Charter Schools.

Yet, according to studies and anecdotal evidence that Mr. Hehir cites, charter schools apparently serve few students with disabilities and may be discouraging students with disabilities from enrolling.

There is at least one white paper about the special education challenges that charter schools must face: Lauren Morando Rhim’s Special Education Challenges and Opportunities in the Charter School Sector (NCSRP Working Paper # 2008-12, Center on Reinventing Public Education) (cited with permission).

This paper clearly illustrates the many special education issues that charter schools face due to their small size. Here is an excerpt:

[C]harter schools are generally too small to realize economies of scale when it comes to special education staff or programs. For instance, a charter school with a child with autism is required to provide the same services and supports as a district with a large number of children with autism. Furthermore, the district can place the students with autism in a single school and concentrate specialized staff, materials, and equipment, thereby distributing the overall program cost across multiple children. A charter school with only one or two children with autism cannot distribute the cost of the services across multiple students.

If charter schools are too small to realize economies of scale, then parents and their children will, inevitably, face challenges too.

Another interesting challenge for parents of students with disabilities is that a charter school can be its own district or it can be its own Local Educational Agency (LEA), which may be problematic. A good overview of these two challenges can be found in Public Charter Schools and Students with Disabilities. For more details about the relationship between charter schools and LEAs, I suggest reading Charter School Legal Status and Linkage to an LEA.

In late 2009, the Boston Globe ran a story, Charter schools lag in serving the neediest, which questioned the successes of charter schools due to the fact that charter schools recruit fewer children with special needs and children whose native tongue is not English. The reporter asked a very important question: “Are many charter schools achieving dazzling [achievement test] scores because of innovative teaching or because they enroll fewer disadvantaged students?”

I don’t know the definitive answer to that question, though the evidence we have seems to suggest that charter schools aren’t terribly in favor of school diversity. Based on what I’ve read thus far, it appears that school segregation is increasingly becoming a hot topic once again–this time in charter schools.

When charter schools do not serve the needs of disadvantaged students, including students with disabilities, this gives the public a distorted view why charter schools may be so successful.

Whether or not the public has a distorted view of charter schools, the reality is that there are more than 5,000 charter schools throughout the country. That number will surely increase; and the government, children’s advocates, and special education attorneys must work together to ensure that charter schools comply with applicable federal and state laws governing special education.

Charter schools are a viable option for many children. In some cases, it may be a viable option for children with disabilities. Before enrolling your child at a charter school, it is important to do your research and due diligence. If you are considering finding a charter school for your child, see this map.

© 2010, Matthew Stoloff. All rights reserved.

Special Education Services in Charter Schools originally appeared on Matthew Stoloff's Blog on February 1, 2010.

Related posts:

1. Services at Public Expense for Students with Disabilities in Private Schools
2. Are IEPs Necessary for Service Animals?
3. Service Animals in the Schools
4. Students with Disabilities and Extracurricular Activities
5. Preparing For Your First Meeting With A Special Education Attorney

But I’m not interested in those guys.

I’m interested in Doug Barron and his case against PGA Tour.

Who’s Doug Barron?

Apparently, many people did not even know who Doug Barron was until November 2009 when PGA Tour alleged that Doug had failed a drug test.

When I heard of the possibility that golfers took steroids or performance enhancing substances to improve their golfing game, I was surprised. But apparently, Doug didn’t fail the drug test because he took steroids or Human Growth Hormone to gain an unfair advantage over other players. Doug failed because he took beta blockers to treat a heart condition and synthetic testosterone because he suffers from hypogonadism. Consequently, PGA Tour suspended Doug for a year.

I thought this was fascinating because it intersects disability law with sports. It raises important questions about anti-doping policies that punish players for taking controlled substances to treat their disability.

Hypogonadism, generally known as “low testosterone,” is a medical condition that can affect men and women. Symptoms of hypogonadism in men may include poor libido, fatigue, muscle atrophy, infertility, depression, and other medical issues. A normal testosterone count is 300-350 nanograms per deciliters of blood. But according to this CNN report and this Golf magazine article, Doug’s testosterone count is 78 nanograms. The synthetic testosterone that Doug was taking was intended to increase his unnaturally low testosterone count to normal ranges.

In addition to hypogonadism, Doug also has mitral valve prolapse. To treat this condition, Doug was prescribed beta blockers, which is also used to treat hypertension, angina, and glaucoma, among others.

The PGA Tour’s stance is that synthetic testosterone and beta blockers have been used to enhance performance and are known to be used for such purposes. It’s true. The scientific literature is replete with evidence that synthetic testosterone and beta blockers enhance sports performance; and there are thousands of athletes who take these types of performance enhancing drugs to gain a competitive advantage. But that wasn’t Doug’s purpose, was it?

I find this an interesting case because it makes me wonder about the anti-doping policies that are in force at middle schools and high schools around the country. If a student with a disability takes medication to treat a condition or disease and subsequently fails a random drug test for “performance enhancement,” what result? Should schools and local sports clubs make exceptions for students who take medications to treat their conditions?

Considering that Doug doesn’t have Tiger Woods’ physique and didn’t make nearly as much (he allegedly made nothing in 2009), Marty Henwood doesn’t think Doug is a cheater. Steve Ellen of CBSSports.com argues that Doug has a legitimate disability and should be exempted from PGA Tour’s anti-doping policy. Robert S. Whitehead, the CEO of Slate Pharmaceutical, Inc., defends Doug and said that PGA Tour’s actions was “dopey.” Even Harvard medical expert, Dr. Abraham Morgentaler, criticizes PGA Tour and calls the suspension “unreasonable, unfair, and discriminatory.”

PGA gives its side of the story here. Doug gives his side of the story here.

As of this writing, Doug’s case against PGA Tour is still pending.

Should Doug be punished for his use of synthetic testosterone or beta blockers? Should Doug be listed under the same category as Mark McGuire and Jose Canseco? What’s your stance?

© 2010, Matthew Stoloff. All rights reserved.

Disability, Sports, and “Performance Enhancing Drugs” originally appeared on Matthew Stoloff's Blog on January 25, 2010.

Related posts:

1. Medical Marijuana and Disability Discrimination in the Workplace

But in just a few short weeks after giving birth, Kaney broke up with her boyfriend, David Trais. David then demanded full custody of Aidan. David alleges that despite all the support systems in place, Kaney is unfit to be a mother. In December 2009, the Chicago Tribune published a follow-up article, Disabled Mom fighting to keep her son.

Now that the case has reached the courthouse where a judge is hearing arguments from both sides, bloggers have been discussing the custody dispute, and many blog readers have defended Kaney’s right to raise her son. See Lisa Belkin’s Should A Quadriplegic Mom Have Custody?; Jeanne Sager’s Quadriplegic Mom Fights Discrimination to Keep Son; and Sarah Caron’s Is She Fit To Parent? Over 100 comments have been submitted here: Can a quadriplegic be a good parent? Her ex-bf says “No.”

Kaney’s situation is unique, but not new. Doesn’t anyone remember the story of Robert Carney who was a quadripegic and fought for the custody of his two sons? Or the story of Tiffany Callo, a woman with cerebral palsy who fought to raise her two children? Or even Sean Penn’s role in I Am Sam?

According to DisabledParents.net, there are more than 8 million disabled parents in the United States. It is not known how many single disabled parents there are in the United States, but it is probably a good chunk of the 8 million. Individuals who are deaf, blind, paraplegic, quadriplegic can be capable parents. Even parents with mental impairments can be capable parents.

Now is a good opportunity to read about the challenges that disabled parents face and the ways in which they can overcome those challenges to successfully raise their children. On Being A Disabled Parent is a terrific starting point, in which a deaf-blind mother (who is married to a quadriplegic husband) shares her personal stories about raising her twins. I Know I’m Raising Really Good Girls was written nearly a decade ago by a mother with cerebral palsy, and it is still very relevant to this day. Although I haven’t seen it yet, Parents with Developmental Disabilities: A Fair Chance is a film in which six developmentally disabled parents talk about raising their kids.

There are also several books about parents with disabilities, including Disabled Parents: Dispelling the Myths and Parenting and Disability: Disabled Parents’ Experience of Raising Children.

For a host of links containing a wealth of information about disabled parents, see Parents With Disabilities Online and The Looking Glass.

It will be very interesting to see who will ultimately get custody of Aidan and the reasons for the judge’s decision. I hope all of you will join me in keeping a close eye on this case. In the meantime, check out the links I found above. You might be surprised.

© 2010, Matthew Stoloff. All rights reserved.

Parents with Disabilities?: Yes, they can! originally appeared on Matthew Stoloff's Blog on January 11, 2010.

Related posts:

1. Resources for Parents who have Children with Disabilities in New Jersey

This Montana case is about whether an employer is legally obligated to “accommodate service animals.”

This unique case resulted in a surprising outcome, perhaps in a way that no disability rights attorney or advocate could have predicted. Equally surprising is the fact that this case has gotten scant discussion in the blogosphere. (The only two I found were this one and that one.) I hope my readers will agree that this case merits discussion.

Let’s look at what happened in this case.

Janelle McDonald has a leg injury that makes it difficult for her to walk up the stairs, walk long distances, or walk on concrete. McDonald also suffers from various psychological disorders, including “chronic depression and disassociative identity disorder.” McDonald’s service dog is an Australian Shepherd named Bess who has been trained to provide physical support whenever McDonald needs to stand or walk. In addition, when McDonald experiences a psychological episode, Bess provides McDonald “tactile stimulation in the event of a dissociative episode” and brings McDonald “back into reality.”

McDonald’s office was located in a carpeted room. But the hallways leading to the restroom, elevator, meeting rooms, and building entrance/exit were tiled. McDonald alleged that Bess had “difficulty maintaining traction on the tile floors” and “slipped on these floors repeatedly.”

McDonald tried training Bess to maintain traction on the tiles. She also tried fitting Bess with boots so that Bess would not slip. Nothing seemed to work: Bess kept slipping and subsequently injured her shoulders, neck, and chin. Over a period of 17 months, McDonald repeatedly requested that her employer install non-skid floor coverings to prevent Bess from slipping any more. Soon, Bess had injured herself to a point where she could no longer work as a service dog. Bess retired, and McDonald found employment elsewhere. McDonald’s employer never installed the non-skid floor coverings or carpeting that McDonald requested.

McDonald filed a complaint against her employer. In essence, McDonald argued that her request for a non-skid floor covering was a reasonable accommodation and that the failure to provide the non-skid floor covering violated state law and the Americans with Disabilities Act.

The Supreme Court of Montana held that McDonald’s employer was legally obligated to install the non-skid flooring. In the court’s opinion, the non-skid flooring accommodation was not for Bess–rather, the accommodation was for McDonald because she depended on Bess. Therefore, the non-skid flooring was necessary “to enable McDonald to perform her job duties.”

The court drew an ingenious analogy:

The court went on to say:

The McDonald case is also interesting for other reasons that I have not covered here. I encourage disability rights attorneys and advocates to read the decision in its entirety and pay close attention to the arguments that McDonald’s employer raised and how the court dealt with those arguments. This case contains language that is persuasive and may have widespread implications outside of Montana.

In my opinion, McDonald is the most interesting (and perhaps the most significant) service animal case of 2009.

© 2010, Matthew Stoloff. All rights reserved.

Accommodating Service Animals originally appeared on Matthew Stoloff's Blog on January 4, 2010.

Related posts:

1. When Companion Pets Become Service Animals
2. Service Animals in the Schools
3. Are IEPs Necessary for Service Animals?
4. Badly Behaved “Service Animals”
5. Calculating Damages and the Legal Value of Service Animals

But all of that is based on Chinese astrology, which has a long and rich history.

I started this blog post with a brief description of the Chinese zodiac signs because I feel it is a good segue to my topic: the year 2009 was the Year of the (Service) Dog.

I suspect that there was probably more discussion, more debate, and more litigation about service dogs and service animals in 2009 than in past years. There are several reasons for this.

One reason is because our traditional notions of service animals are changing. Traditionally, we thought of service animals that assist the blind (“seeing-eye dogs”), the deaf or hearing impaired (“alert dogs”), and the physically disabled (“mobility service dogs”). Utilizing effective training methods, animal trainers can now train animals to assist children who are deathly allergic to peanuts, children with autism, and soldiers with post-traumatic stress disorder. There are service dogs that detect low blood sugar in people with diabetes. There are also service snakes, service ferrets, and service dogs that detect oncoming seizures in people who have epilepsy. Many of these service animals have been profiled in the newspapers across the country. I have talked about these service animals in previous blog posts, including Service Animals and the Law and especially in Should We Rethink the Concept of Service Animals?

Caption: A seeing eye miniature horse guides a visually impaired person in a store. Courtesy of Guide Horse Foundation.

A second reason has to do with the types of animals that are being used to mitigate the disability. We typically think of dogs as the creatures of choice to assist the physically disabled. But not all dogs may be able to perform certain tasks as well as other animals. This past year, there have been several news articles about various animals that are used as service animals, including miniature horses, monkeys, parrots, pigs, snakes, lizards, ferrets, and rats. I discussed the use of these creatures as service animals in a previous blog post, “Should We Rethink the Concept of Service Animals?” which included a discussion of two lengthy articles on the use of exotic creatures as service animals, Rebecca Skloot’s “Creature Comforts” and Joe Eskenazi’s “Service With a Snarl.” Other bloggers have also shared their reaction to use of exotic animals as service animals (see, e.g., Definition of ‘Service Animal’ Hotly Debated: Monkeys, Horses, Birds – Oh my! … Helper Parrots & Guide Dogs: Where to Draw the Line? … Man’s Use of Snake As A Service Animal … Everybody’s Got Something to Hide Except Me and My Service Monkey).

A third reason has to do with certain people who pawn their companion pets as service animals. I discussed the social problem of “fake service animals” in Badly Behaved ‘Service Animals’ and When Companion Pets Become Service Animals. By exposing people who are taking advantage of the system, the media is shedding light on the problems businesses and individuals with disabilities face when service animals visit places of public accommodations. Some businesses do not understand what they can and cannot do under the law. Individuals with disabilities who depend on their service animals face increasing scrutiny. And people who pretend to have disabilities and pretend that their pets are service animals cause multiple problems for both businesses and the people who depend on their service animals.

A fourth reason has to do with the fact that parents who have children with disabilities are becoming more knowledgeable about the Americans with Disabilities Act. Parents who learn about the Americans with Disabilities Act subsequently encourage their disabled child to take their service animal to school. Sometimes, the school will react negatively to the idea of a service animal brought to school. When this happens, the parents will often sue on behalf of their child; and when this happens, the press and bloggers will report the ongoing litigation between the parents and the school. Two closely watched cases this year involved Carter’s dog Corbin and Kaleb’s dog Chewey. I discussed potential arguments why schools don’t want service animals in schools in Service Animals in the Schools. I also discussed whether IEPs are required in order to for students to be accompanied by their service animals in Are IEPs Necessary for Service Animals?

A fifth reason has to do with new and proposed legislation permitting children to bring their service animal to school. Although a school may be a place of public accommodation as that term is used in the Americans with Disabilities Act, some state legislators want to enact laws that explicitly provide that children with disabilities may bring their service animals to school. By enacting such laws, the state seeks to eliminate the need for either the parents or the schools to litigate the matter, which saves time and money. The Governor of Virginia, Tim Kaine, recently signed a bill that explicitly require schools to permit children with disabilities to bring their service animals. New Jersey Senate Majority Leader Stephen Sweeney has recently proposed similar legislation.

What does the New Year have in store for us? Undoubtedly, more discussion, more debates, and possibly more litigation across the country regarding service animals. There will be more discussion about how to distinguish between service animals and companion pets. There will be more debates regarding whether exotic creatures can be trained to be service animals and whether dogs can “smell” an oncoming seizure or be trained to help autistic children from harming themselves. There will be more talk about whether service animals should be certified. We will likely see more service animals in the schools, on the streets, and in other places where the public is invited. This issue is not going away.

Happy New Year, everyone!

© 2009, Matthew Stoloff. All rights reserved.

The Year of the (Service) Dog originally appeared on Matthew Stoloff's Blog on December 28, 2009.

Related posts:

1. Are IEPs Necessary for Service Animals?
2. Accommodating Service Animals
3. Service Animals in the Schools
4. Badly Behaved “Service Animals”
5. Should We Rethink the Concept of Service Animals?

The importance of extracurricular activities cannot be overemphasized, particularly for students with disabilities who are mainstreamed because it provides an opportunity for them to learn new skills, improve their talents and self-esteem, and develop relationships with their peers. In addition, when students with disabilities participate in extracurricular activities, other “nondisabled” students will look past one’s “disability” and focus more on one’s talents and skills.

Therefore, it is important that parents understand that students with disabilities have the right to participate in extracurricular activities at school.

The federal law known as Section 504 of the Rehabilitation Act requires that public schools provide students with disabilities equal opportunities to participate in extracurricular activities as their non-disabled peers. For those who enjoy reading regulations may refer to 34 CFR Section 104.37.

Many schools must also comply with another applicable federal law that prohibits discrimination on the basis of disability: The Americans with Disabilities Act. Like Section 504, the regulations that public entities (which include schools) must adhere to under the Americans with Disabilities Act are stringent.

Children with disabilities may also be protected by another federal law known as The Individuals with Disabilities in Education Improvement Act. This is a very important law that affords children with disabilities the right to a “free and appropriate education.” A “free and appropriate education” may include gym classes, including physical and occupational therapy, as well as any extracurricular activities that may be available to the general student population.

Under these federal laws, schools must not discriminate against students on the basis of disability and may be required to implement necessary modifications or provide accommodations in order for students with disabilities to participate in extracurricular activities.

Here are a few concrete examples:

1. A student with diabetes who tries out for the cheerleading team may not be excluded because she may need to give herself insulin.
2. A student with autism or Asperger’s Sydrome may not be excluded from participating in Tae Kwon Do classes because he or she is non-verbal.
3. A deaf or hard-of-hearing student may be provided a sign language interpreter to help facilitate communication at a student government club meeting.
4. A student who is blind may be permitted to touch the chess pieces on the board or have someone verbally explain where a piece has been moved to.
5. A school would be required to provide wheelchair accessible mode of transportation for a disabled student who wishes to participate at an off-site, school-sponsored music training program.
6. A student with mobility issues who wants to play golf but cannot walk long distances may ride in a golf cart.
7. A student who is allergic to nuts may join a baseball team and ask the school to implement a policy prohibiting all team players from bringing, eating, or spitting out sunflower seed shells, pumpkin seeds, and peanuts.

Additional examples of modifications and accommodations are provided in this wonderful article titled, “‘I Know I Can Do It’: Sports are for Disabled People Too.”

Over the years, there have been many interesting cases involving students with disabilities who were denied from participating in extracurricular activities. A summary of some of these cases may be found here and there.

The purpose of this article was to inform parents that extracurricular activities play an important role in every child’s life. Children with disabilities who participate in extracurricular activities develop skills and talents and friendships. Children with disabilities have the right not to be discriminated against on the basis of disability. Moreover, schools may not deny children with disabilities the opportunity to participate in extracurricular activities.

If your child has a disability and is interested in participating in an extracurricular activity, but has not been able to do so, your child may be a victim of disability discrimination. It is important that you advocate on behalf of your child and speak with the school to find out why your child has not been afforded an opportunity to participate in an extracurricular activity of his or her choosing. If you are unable to make headway with the school, you may wish to consult with a child advocate or a special education attorney for assistance.

© 2009, Matthew Stoloff. All rights reserved.

Students with Disabilities and Extracurricular Activities originally appeared on Matthew Stoloff's Blog on November 16, 2009.

Related posts:

1. Services at Public Expense for Students with Disabilities in Private Schools
2. College Bound Students with Intellectual Disabilities
3. Twice Exceptional Students: A Primer
4. Are IEPs Necessary for Service Animals?
5. Special Education Services in Charter Schools

In a previous blog post, I discussed the law and issues relating to service animals who accompany children with disabilities to school. Thus far, I have not discussed whether it is necessary to have an Individualized Education Plan (IEP) in order to bring a service animal to school. Those of you who have been reading my blog for some time probably know the answer to this question.

Caption: A boxer dog lies down with her head on a laptop.

Briefly, an Individualized Education Plan (IEP) is a written document that consist of goals and objectives agreed to by the parents and school district on behalf of an eligible child with a disability. The IEP will also contain the necessary accommodations, modifications, and services that the school must provide in order for the eligible child to gain a meaningful and beneficial education.

The IEP is governed by a federal law known as the Individuals with Disabilities Education Improvement Act (IDEIA [but commonly referred to as IDEA]), which guarantees eligible children a free and appropriate education.

Ideally, and when appropriate, the IEP should be designed to address the child’s educational, developmental, social, and functional needs. Thus, once a child has been identified as an eligible child, parents and the school district will meet to discuss what accommodations the child needs, what modifications are necessary for the child, and what other services the child requires in order to develop intellectually, physically, and emotionally. For additional information on IEPs, I recommend visiting Jennifer Laviano’s Connecticut Special Education Lawyer blog, the A2D Educational Advocates blog, and The WrightsLaw Way.

There seems to be conflicting information on the internet whether service animals are required to be in the IEP. This confusion is natural because the Individual with Disabilities Education Improvement Act is complex, and there are other federal disability laws at play: The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

Both the ADA and Section 504 prohibit discrimination on the basis of disability. Virtually all schools are covered by the ADA, and schools that receive federal funding are subject to Section 504 requirements.

As I have explained elsewhere on this blog, the ADA protects individuals with disabilities and their service animals. There is no age limit or age requirement to be eligible under the ADA. So, all individuals who meet the ADA definition of “disability”–regardless of age–are protected under the ADA.

Therefore, if schools are places of public accommodations, schools cannot discriminate against children with disabilities under the ADA. It follows that schools cannot prohibit children with disabilities from bringing their service animals to school. Likewise, public schools that receive federal funding may not discriminate on the basis of disability and must develop a 504 plan for students who meet the definition of “disability” and want to bring a trained service animal to school.

So, does a child with a disability need an IEP in order to bring a service animal to school? I don’t think so. Hopefully, the judge in the Illinois case will see it the same way. If the judge does not, it will be interesting to find out why. I, along with many other disability rights and special education attorneys, impatiently await the judge’s decision.

© 2009, Matthew Stoloff. All rights reserved.

Are IEPs Necessary for Service Animals? originally appeared on Matthew Stoloff's Blog on November 9, 2009.

Related posts:

1. Service Animals in the Schools
2. Carter’s Service Dog Case
3. IEPs for HOH/Deaf Kindergarteners
4. Service Animals in Training on Airplanes
5. The Year of the (Service) Dog

The federal courts recently issued opinions on two service animal cases. One of these cases involves an alleged service monkey. The other case involves an alleged service dog. What is particularly interesting about these two cases is that each of the handlers were not medically diagnosed with a “disability” until some time after acquiring the “service animals.” The other interesting thing about these two cases is that there is no indication that either service animal behaves badly (at least not in the courts’ opinions).

A brief overview of the facts and the court’s analyses follow. At the end of this long post, I offer six important lessons to learn from these two cases. (If you want to skip the case discussion, you can just jump down to the six “take-home” lessons.)

Richard the Service Monkey

If Richard the “service monkey” sounds vaguely familiar, it is because you probably read about him in Rebecca Skloot’s New York Times article, “Creature Comforts.” In that article, Rebecca wrote about Richard, a Bonnet Macaque, who supposedly helps Debby Rose with her anxiety disorders and agoraphobia. I discussed Rebecca’s article at length in Should We Rethink The Concept of Service Animals? Although Rebecca just posted a brief update about Debby Rose’s case with a link to the court’s opinion, I’d like to devote some space to discussing the facts of the case and what the court determined.

Caption: Richard sits on Debby Rose's lap while driving a car. Courtesy of Rebecca Skloot

Debby Rose has owned Richard since 2004. Although she claims to have suffered anxiety disorders and agoraphobia for years, Rose’s medical records do not appear to support these claims. Apparently, Rose was not medically diagnosed until 2006. When the local Health Department determined that Richard was not a service monkey and posed a threat to public health, the Department ordered the local food establishments not to allow Richard into their buildings. Rose subsequently filed a federal complaint against various entities, alleging that she had been discriminated on the basis of disability.

Rose alleged that Richard “alleviates” her anxiety and agoraphobia symptoms. However, Rose provided no evidence that Richard had been trained to perform any specific task. Rose only alleged that Richard “breaks the spell” or “changes her mood.” Rose’s own physician (apparently) admits that Richard is a service animal to the extent that Rose is “comforted” by the monkey.

Based on the facts presented, the court determined that Debby Rose’s “disability” did not substantially impair a major life activity. (For a detailed explanation of what would constitute a “major life activity,” see my previous post, Is Driving a Major Life Activity?) The court noted that Rose had been married several times, gave birth to several children, was employed, took vacations, and was the President of a local Historical Association. The court determined that Rose’s anxiety and agoraphobia symptoms were “mild limitations.”

The court went on to say that even if Rose had a disability, the court was unconvinced that Richard was a trained service animal. The court could not find a single task that Richard was trained to perform in order to mitigate Rose’s “disability.” For example, even if Richard could retrieve a toothbrush, how does that mitigate Rose’s anxiety disorder? The task is not related to the disability–there is no connection. Likewise, even if Richard “gently” pushed people away from Debby, how does this “task” help Debby “mitigate” her disability? The court, therefore, determined that Richard was nothing more than a comfort pet.

In the end, the court granted summary judgment to the defendants. (Rose lost.)

In the days since the court’s opinion was published, at least four bloggers (here, there, over yonder, and way over there) have had some pretty harsh words to describe Debby Rose and her “monkey case.” Only one blogger, OnPoint, provided a restrained and objective perspective of this case. OnPoint also informs us to another service monkey case that was litigated in Arizona earlier this year. Have a look at what these bloggers had to say, then form your own opinions. If you like, leave a comment at the bottom of this post to share your opinion with others.

Booster the Service Dog

Unlike most bloggers who commented on the “service monkey” case, several attorneys (John Ensminger, Joshua Gerstin, Lincoln Hobbs, and Lisa Magill) have blogged about Booster the service dog case in a more thoughtful and respectful manner.

In this case, Davis Hawn, the plaintiff, purchased a condominium in 2004 and was aware that no pets were allowed on the property. In 2005, Hawn adopted a Labrador Retriever puppy named “Booster” and subsequently wrote to the condominium property association that the pet policy should be revised. The property association apparently did not respond to Hawn’s request. In 2006, Hawn claimed that he suffered from panic attacks and some mobility issues and, for the first time, Hawn referred to Booster as his “service dog.”

(By the way, Hawn and Booster were featured in The Freeport News in 2007. In that same year, Hawn wrote an article titled “My Booster: A Personal Story,” wherein he repeatedly refers to Booster as that “damn dog.”)

The property association requested documentation that Hawn suffered from these disabilities and requested proof that Booster was a service animal. Hawn provided some documentation, but when the property association requested additional information concerning Hawn’s medical providers’ backgrounds and extent of Booster’s training, Hawn failed to respond to the association’s requests. The property association then informed Hawn that until such documentation was provided for consideration, Booster could not remain at the condominium.

Hawn then filed a federal complaint. In essence, Hawn argued that he was discriminated against on the basis of his disability and was denied a reasonable accommodation.

The lower court found in favor of the condominium property association. Hawn subsequently appealed, and the appellate court agreed with the district court that the property association may request additional information and documentation in order to conduct a meaningful review. Since Hawn failed to provide the requested information within the specified time-frame, the property association had the right to deny Hawn’s application to have Booster stay in the condo. In short, Hawn lost.

The Bottom Line

This article is already quite long, so I’ll keep this short and sweet.

1. The legal definition of disability matters.
2. The tasks that a service animal has been trained to perform should be related to the handler’s disability.
3. A demonstration of the service animal performing a specific task to mitigate the alleged disability is very helpful.
4. Timing is important. There is a healthy skepticism with regard to an animal being a companion pet one day, then a service animal in the next.
5. Litigation is expensive and not always feasible. Cooperating with the other party and providing the necessary information to support your position may save time and money.
6. Where there is a conflict between the Department of Health and the right to be accompanied by a service monkey under the Americans with Disabilities Act, it’s going to be a very difficult battle.

© 2009, Matthew Stoloff. All rights reserved.

When Companion Pets Become Service Animals originally appeared on Matthew Stoloff's Blog on November 1, 2009.

Related posts:

1. Badly Behaved “Service Animals”
2. Calculating Damages and the Legal Value of Service Animals
3. Accommodating Service Animals
4. Service Animals in the Schools
5. Service Animals and the Law

According to the ADA (which was recently amended in Jan 1, 2009 and should technically be referred to as the ADAAA), an individual with a disability is a person who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

In this post, I want to talk about only the first definition. Let’s break it down in smaller components: An individual has a disability if he or she:

• has a physical or mental impairment that
• substantially limits
• one or more major life activities.

Our understanding of this one definition of disability is not complete. There are still three questions that need to be answered: What does “physical or mental impairment” mean? What does “substantially limits” mean? What does “one or major life activities” mean?

The concept of “physical or mental impairment” is broad. It may mean any type of condition, disorder, or disease that causes a physical impairment (e.g., cerebral palsy) or a mental impairment (e.g., Downs’ Syndrome). It may include a wide range of medical issues from abnormal cell growth to to reproductive issues. “Substantially limits” means something that “severely restricts” an individual from performing a particular task that comes naturally to the average person. A “major life activity” can mean many things, and this is often where attorneys from both sides will have an argument about. “Major life activity” includes the following functions:

• caring for oneself
• performing manual tasks
• seeing
• hearing
• eating
• sleeping
• walking
• standing
• lifting
• bending
• speaking
• breathing
• learning
• reading
• concentrating
• thinking
• communicating.

A person who has Cerebral Palsy is disabled under the ADA: Cerebral Palsy is a physical impairment that substantially limits a person’s ability to stand, walk, and/or speak. A person who is deaf or hard of hearing is disabled under the ADA: Deafness is a physical impairment that substantially limits a person’s ability to hear and/or speak. A person with Downs’ Syndrome is disabled under the ADA: Downs’ is a mental impairment that may substantially limit a person’s ability to learn, read, think, and/or communicate.

But what about driving? Is driving a major life activity? What if someone has a disability and the only thing that has been substantially restricted is the ability to drive?

This is a really interesting question, and so far, the federal courts have been in agreement that driving is not a major life activity. See Winsley v. Cook County, Kellogg v. Energy Safety Servs. Inc., Chenoweth v. Hillsborough County, and Colwell v. Suffolk County Police Dep’t.

In the most recent case and the first to be decided under the recently amended ADA, the court in Winsley held that each of the major life activities listed above

have several things in common with each other that driving does not share with them. Most importantly, the listed activities are so important to everyday life that almost anyone would consider himself limited in a material way if he could not perform them. This is not the case with driving. In fact, may Americans choose not to drive and do not consider the quality of their lives to have been diminished by their choice…. Moreover, the importance of the listed activities does not vary depending on where the person lives.

Back in October 2008, one blogger suggested that under the amended ADA, the courts might find that driving is a major life activity. While that is always a possibility, it did not turn out that way in Winsley.

So, it appears that the recently amended ADA does not guarantee that a person who is unable to drive due to a mental or physical impairment will meet the first definition of disability under the ADA. Thus, when an employee claims that she has been discriminated on the basis of disability, a federal court may agree that the employee has a mental or physical impairment. However, if the employee’s impairment affects only her driving, a federal court may not find that the employee has a disability under the first definition of the ADA.

The take-home lesson? It appears that one’s inability to drive, standing alone, may not be enough to win a disability discrimination case.

© 2009, Matthew Stoloff. All rights reserved.

Is Driving a Major Life Activity under the ADA? originally appeared on Matthew Stoloff's Blog on October 5, 2009.

Related posts:

1. When Companion Pets Become Service Animals

In the three months since that June 2009 resolution was passed, I still have not been able to find the full text of that resolution online. Suffice it to say, the AMA’s reasons for resolution are lacking. To date, only a few bloggers have discussed their responses to this resolution: here, there, and over yonder.

Caption: A doctor stands next to a slightly overweight patient who is not wearing a shirt.

The Americans with Disabilities Act is an important federal law that prohibits discrimination on the basis of disability. The law provides expansive protection for individuals with disabilities in a variety of situations. In the context of physicians, clinics, and hospitals, the Americans with Disabilities Act requires, among other things, compliance with building accessibility as well as providing patients reasonable accommodation, such as sign language interpreters for the deaf and hearing impaired.

I am not aware of any provision in the Americans with Disabilities Act that provides patients the right to sue physicians for simply discussing the patients’ disability during consultations. Nor am I aware of any case in which a patient has sued a physician under the Americans with Disabilities Act for simply addressing a health issue the patient allegedly may have had during consultations.

Therefore, in the context of patient-physician consultations, it is not clear what the American Medical Association seeks to accomplish by passing a resolution to reject efforts to make obesity a disability.

Obesity is a serious health issue. Clearly, it is important that physicians discuss obesity with their patients. However, it is equally important that physicians not harbor exaggerated or unwarranted fear of litigation. Therefore, for the sake of clarity, I encourage the American Medical Association to explain why it is singling out obesity and how the Americans with Disabilities Act is implicated with regard to patient-physician consultations. In addition, I encourage the American Medical Association to engage in open dialogue with attorneys knowledgeable in disability law before passing similiar resolutions.

© 2009, Matthew Stoloff. All rights reserved.

An Invitation to an Open Dialogue with the AMA originally appeared on Matthew Stoloff's Blog on September 28, 2009.

No related posts.

It is important that small and large businesses be familiar with both federal and state disability laws that may affect their business.

Caption: A woman is fitting in a hearing aid

Like the blind and visually impaired, there are degrees of hearing impairments and speech impediments. How one communicates depends on one’s ability to hear, lip-reading skills, speaking abilities, and so on. Some people are deaf (cannot hear anything at all) and some are hearing-impaired (can hear a little or less than the average person). Some deaf people can read lips proficiently and speak well; others cannot and rely on sign language as the exclusive method of communication. Some hearing-impaired people need to hear and read lips simultaneously for effective communication. Hearing aids may help some—but not all—hearing-impaired people. The possibilities are endless.

When a person with a hearing impairment or speech impediment visits a business, it is sound business practice to find ways to communicate effectively. Sign language interpreters are not necessary in all cases. In simple business transactions, such as the selling of pizza, books, or clothes, exchanging written notes can be effective. These exchanges of written notes using pen and paper cost virtually nothing to the business owner. If you see a customer wearing a hearing aid, it is always a good idea to assume that the customer can read lips, so speak as clearly as possible and avoid covering your mouth or face.

A common communication tool among deaf, hearing-impaired, and speech-impaired individuals is the use of a telephone relay service. Several different types of relay services exist, but most share the same essential features. Suppose that Sarah, a hearing- and speech-impaired person, wants to order a pizza for delivery. Sarah dials the number for a relay service and asks the relay operator to dial the number for the pizza parlor. When the pizza proprietor picks up the telephone, the relay operator explains that a call is being made on behalf of a person who is either deaf or speech-impaired. Once the relay operator has provided simple instructions how to respond, Sarah will type “I would like to order one large pizza with pepperoni for delivery, please.” The relay operator will then read the message to the pizza proprietor. When the proprietor asks for Sarah’s address, the relay operator will type the message so that Sarah can read it and provide the information requested.

When a business owner receives a telephone relay call, federal law requires that business owners accept the call. Although the telephone relay service can take a little bit longer than the average telephone call between two hearing persons, the delay should mean very little to the pizza proprietor or any business owner. Money is being made: Without Sarah’s ability to call through the relay service, it would have been one less pizza delivered that night.

That a jury awarded $400,000 to a deaf patient who was denied a sign language interpreter should set off warning alarms to all business owners. The law requiring effective communication is clear. However, the cost of communicating with a deaf, hearing-impaired or speech-impaired individual is often nominal. If business owners take the initiative to find ways to effectively communicate with patrons, patients, and clients, there will be more opportunities for good, long-term business relationships.

© 2009, Matthew Stoloff. All rights reserved.

Communicating with the Deaf and Speech Impaired originally appeared on Matthew Stoloff's Blog on September 21, 2009.

Related posts:

1. Deaf People are not Deaf to Justice
2. IEPs for HOH/Deaf Kindergarteners
3. Web Accessibility for the Blind and Visually Impaired Under the ADA

Caption: Empty seats in the jury box

Yet, I was disheartened several weeks ago when I heard through the grapevine that certain legislators at the North Carolina House of Representatives were opposed to the idea that the deaf and hard-of-hearing should serve as jurors. The National Association of the Deaf blogged about this in North Carolina Legislators Oppose Deaf Jurors. When I read some of the transcript excerpts, I was astonished.

One legislator said, “You know we don’t have quadriplegics running track. Nor do we need to have deaf persons serving on juries…. But if you think about this realistically, folks, as an attorney, I’m never going to let a deaf person serve on a jury. It’s not going to happen.”

Correct me if I am wrong, but isn’t this the 21st century?

Embarrassing remarks such as the one just quoted above shocks the conscience because these words were spoken by well-educated people who apparently have little knowledge of federal disability laws and have had scant interaction with people who are deaf or hard-of-hearing. Those of you who are familiar with the Rehabilitation Act of 1973 and Americans with Disabilities Act know that these are federal laws that prohibit discrimination on the basis of disability. Individuals who are disabled are protected under these laws, and that includes jurors and potential jurors.

It is incredible that in the many years since the passage of the two laws that prohibit discrimination on the basis of disability, North Carolina still has a law on the books that excludes jurors on the basis of a hearing impairment. (If you enjoy reading statutes, the pertinent North Carolina provision is Section 14-7-810.) Since federal law pre-empts state law, any interpretation relating to Section 14-7-810 that excludes individuals who are disabled from the jury pool is out of compliance with the Rehabilitation Act and the Americans with Disabilities Act.

While not commonplace, the fact is that there have been deaf and hard-of-hearing jurors in civil and criminal cases. Keith Davis is a deaf individual who served as juror on a murder case in Atlanta. Karen Smith is a deaf individual who served as juror on a criminal case in Rochester, Minnesota. For a personal perspective on what it is like to be a deaf juror in a civil and criminal case, see Sheila Mentkowski’s blog post.

You’ll notice that Keith Davis, Karen Smith, Sheila Mentkowski, and many other deaf and hard-of-hearing individuals who have served as jurors, were provided accommodations. There are several different kinds of accommodations that a deaf or hard-of-hearing person may request: sign language interpreter, cued speech interpreter, Communication Access Real-time Translation (CART), to name a few. These are but tools that facilitate effective communication. With these tools, deaf and hard of hearing jurors are able to understand what is being said in the courtroom and satisfactorily fulfill their juror obligations. Federal law requires that the courts provide these accommodations not only to deaf and hard-of hearing jurors, but deaf and hard-of-hearing witnesses and parties as well.

Deaf and hard-of-hearing individuals who live in New Jersey, as well as attorneys who practice in New Jersey, are encouraged to be familiar with the Guidelines for Trial Involving Deaf Jurors Who Serve With the Assistance of Sign Language Interpreters. Those living outside of New Jersey are encouraged to check the Advocacy Statement: Communication Access in State and Local Courts (2008), which was published by the National Association of the Deaf.

I don’t know if anyone from the North Carolina legislature will read this blog post, but I hope that the way they think about jurors who are deaf and hearing impairments change. Like it or not, there are 36 million people in this country with some degree of hearing loss. As the population ages, that number will increase. If potential jurors are deaf or have any degree of hearing impairment, but are able to understand the proceedings and answer questions truthfully, they should be permitted to serve on a jury.

© 2009, Matthew Stoloff. All rights reserved.

Deaf People are not Deaf to Justice originally appeared on Matthew Stoloff's Blog on September 9, 2009.

Related posts:

1. Communicating with the Deaf and Speech Impaired
2. IEPs for HOH/Deaf Kindergarteners
3. Valentine’s Day is for Disabled People Too
4. Real Jury Managers Don’t Show Up At Your Door
5. iPhone Apps that Help People with Disabilities Be More Independent

Caption: Photo of kid in a wheelchair with a dog by his side

Not all stories are happy ones. Some school districts blatantly refuse to permit students to bring their service animal to school in violation of federal and state law. To ensure that no service animals are brought to school, some schools will deliberately ignore the law and demand a court order before taking action.  (Some bloggers have shared their perspectives about one case in particular here, there, and over yonder.)

Most recently, there was a news story about an autistic child starting pre-kindergarten special education classes who was met with resistance when the school would not allow the child to bring in his service dog. There’s a terrific and heated debate occurring at the Newsvine regarding whether children with autism should be permitted to bring a service dog to school. This debate clearly demonstrates that service animals for kids with autism  is a tricky issue because it may not be clear if the animal is a “service animal” or a “companion pet.” More on that below.

Fortunately, in many cases, the school administrators who refuse to permit service animals to school will lose because the Americans with Disabilities Act prohibits discrimination on the basis of disability and explicitly provides that service animals are permitted in places of public accommodations. The Americans with Disabilities Act provides that a school is a place of public accommodation. So, in all likelihood, where a school refuses to permit service animals in school, a judge will order the school to revise its policy to permit the service animal. One such case where the judge ordered the school to permit an autistic child’s service dog to school occurred just this summer.

Attorneys for the school districts typically have a few “stock” arguments to persuade judges from permitting children to bring in their service animals:

(1) It is a “safety” issue. We all agree that no one wants other students to be at risk of harm. However, one important requirement of service animals is good temperament. Clearly, if the animal has good temperament, has never been known to bite, has been trained to perform specific tasks over a period of time, and performs those tasks adequately, the “safety” issue is (in all likelihood) moot.

(2) At least one other child or teacher is allergic to the animal (e.g., dog dander). This is a very interesting argument, but I’ve never seen it successfully applied in school settings. This argument, however, has been used in business settings, and, to my knowledge, has always failed. In any event, assuming that there is a student with a documented allergy, there may be work-arounds.

(3) At least one other child or teacher is “terrified” of dogs. Like the allergy argument above, it’s an interesting argument, but again, I’ve not seen it successfully applied in either the educational or business setting.

(4) The school faculty has not been given training how to handle the animal. This is a poor argument that is really designed to delay or discourage service animals from attending school.

(5) The students will be distracted by the service animal. Didn’t any of your teachers have a fish tank in science class? Rabbits? Rodents? When students are exposed to anything interesting for the first time, there’s always going to be excitement. The novelty fades away over time. After a while, no one really notices. In any event, well trained service animals aren’t distracting at all. Furthermore, it’s a good opportunity for students to learn service dog etiquette, i.e., these are service animals, not companion pets, and one should not “pet,” feed, or play with an animal that is working.

(6) The animal is not a service animal, but a companion pet (or a therapy pet). This is a powerful argument if it is true. A service animal is one that has been trained to perform a specific task to mitigate a disability. This is different from a therapy/companion pet. Obviously, the burden would be on the parents and the child to show that the animal has been trained to perform specific tasks to mitigate the child’s disability. While there is no requirement that the animal be “certified,” there must be some evidence demonstrating that the animal does what it has been trained to do. The child’s disability can be described in the attorneys’ briefs and supplemented with medical and/or psychological reports. The service animal’s training and function can also be described in the attorney’s briefs. Additionally, a demonstration of how the service animal helps the child can be given in-person or recorded on video. The animal trainer may also testify on the child’s behalf.

So, what should a parent do when the school district refuses to permit the child to go to school with a service animal? First, engage in open dialogue and try to understand the school’s position. Perhaps a compromise can be worked out. If not, it may be necessary to consult an attorney to determine the next step.

For more information about organizations that train service animals, see Assistance Dogs International, Inc., the International Association of Assistance Dog Partners, or more generally, this website.

© 2009, Matthew Stoloff. All rights reserved.

Service Animals in the Schools originally appeared on Matthew Stoloff's Blog on August 25, 2009.

Related posts:

1. Are IEPs Necessary for Service Animals?
2. Calculating Damages and the Legal Value of Service Animals
3. The Year of the (Service) Dog
4. Service Animals and the Law
5. Badly Behaved “Service Animals”