See bloggers and readers comment on this story here, there, and way over yonder.

As I have discussed on multiple occasions on this blog, the Americans with Disabilities Act protects the right of people with disabilities to be accompanied by their service dogs. (The U.S. Department of Justice has a nice summary here.) That being said, however, if a person’s allergy rises to the level of a disability, there seems to be a stalemate: whose rights reign supreme–the blind person or the cab driver? That is a question this story raises.

Taxi cabs in New York City

If the cab driver is severely allergic to dog dander and there is a real potential for a life-threatening asthma attack, that might rise to the level of a disability as that term is defined under the Americans with Disabilities Act.

In situations where a cab driver is severely allergic to dog dander, the driver should make arrangements to call for another cab to assist persons accompanied by their service dogs. But that is not what happened in Colorado. Instead, the cab driver told the visually impaired passenger to put his service dog in the trunk of the car.

Requesting that a service dog be placed in the trunk is not acceptable. The trunk of a car has poor ventilation, which can be dangerous for the dog; it may also rise to the level of animal cruelty, which is a punishable crime in many states.

In the end, the Colorado cab driver had his licensed revoked and was served a fine. But it is hoped that such incidences will not happen again. To avoid such incidences and public embarrassment, cab drivers and cab businesses should carefully review their legal obligations under the Americans with Disabilities Act to ensure compliance with the law.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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A Service Dog in the Car Trunk originally appeared on Matthew Stoloff's Blog on July 15, 2011.

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.

If you keep on reading the regulations, you’ll find something interesting. Section 36.302(c)(9) provides:

(9) Miniature horses.

(i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.

(ii) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider –

(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;

(B) Whether the handler has sufficient control of the miniature horse;

(C) Whether the miniature horse is housebroken; and

(D) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

(iii) Other requirements. Sections 36.302(c)(3) through (c)(8), which apply to service animals, shall also apply to miniature horses.

Although the regulation now limits the definition of service animals to dogs only, the regulation suggests that individuals with disabilities who own and rely on miniature horses to mitigate their disabilities may nonetheless be afforded some legal protection under the ADA. If this sounds confusing, you’re not alone.

So, one wonders what had prompted the limitation of service animals to only dogs. And why the inclusion of miniature horses?

With respect to limiting the definition of service animals limited to dogs, the drafters were quite concerned about the safety risks that exotic animals, particularly primates, pose to the public.

With regard to miniature horses, the drafters were cognizant of the fact that there is a long history of training miniature horses and these types of horses lived much longer than dogs. Additionally, the drafters were aware that miniature horses may be better suited for people with allergies as well as disabled Muslims who rely on miniature horses instead of dogs for religious reasons (see video below).

I predict that the new regulations will be revised to expand the definition of “service animals” someday. I’m fairly certain that someday in the future (perhaps a few years down the road), monkeys and miniature horses will be included in the definition of service animals. I’m not sure about snakes and parrots, but who knows?

© 2010 – 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Service Animals Now “Defined” originally appeared on Matthew Stoloff's Blog on August 2, 2010.

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.

Layla’s Law in Washington state, for example, was the first state to impose fines and jail time whenever a person (or their dog) injures, disables, kills, or interferes with a service animal. This law also provides that when a service animal is injured, the person responsible for the injury will be required to pay for all expenses associated with the service animal’s training, health care, and replacement. (To read the statute, see this link.) At least one other state, South Carolina, has followed suit.

Layla’s Law is an excellent example of tort reform. Unfortunately, not all states have been as progressive as Washington State or South Carolina. Some states, like New Jersey, have laws that impose only a maximum of $500 fine for interfering with a service animal. Disability rights advocates, animal rights advocates, and those who support tort reform, may want to research whether their state has enacted a law like Layla’s Law. If no such law has been enacted in a particular state, or if a particular state fails to provide as much protection as Washington or South Carolina, advocates may wish to contact their state representative to draft and sponsor similar legislation. This is an area that disability rights advocates, animal rights advocates, and tort reformers can join forces to benefit many different interest groups.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Service Animals, Tort Reform, and Layla’s Law originally appeared on Matthew Stoloff's Blog on May 17, 2010.

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.

Damages associated with the injury or loss of service animals is a new area of law, relatively unexplored and not well understood. The reasons we know very little about this area of law are primarily three-fold: (1) most service animals have not been harmed, (2) damages for the death or injury to a service animal is not widely reported, and (3) the legal rules related to damages of companion pets vary widely among jurisdictions. A fourth possible reason is that damages for companion pets that have been injured or killed are nominal, and attorneys may assume that damages for a trained service animal might be approximately the same as damages for a companion pet. This may be true in some jurisdictions.

If, for instance, the service animal dies prematurely as a result of an attack by another dog, then arguably, the first thing we need to do is figure out a reasonable market value of the service animal.

The media, as well as the organizations that train service animals, have been very good in sharing with the public that a well-trained service animal can be very expensive. Dogs, monkeys, and horses, that have been trained to perform specific tasks to mitigate a person’s disability can cost tens of thousands of dollars. From what I understand, the average cost for a professionally trained service dog is approximately $15,000.

Suppose an individual with a disability has had a professionally trained service dog for 4 years. Is the market value of the service dog $15,000? What if the service dog is one year shy of retirement, is it still worth $15,000?

Let’s say that a person with a disability trained her own dog to be a service dog? The service dog is a victim of a dog fight and dies. Was that service dog worth $15,000 even though it was not “professionally” trained?

Is the value of a service animal dependent upon (1) the amount of time expended in training the service animal, (2) the number of tasks the service animal can perform, and (3) the difficulty of these tasks? Should the value of the service animal also be dependent upon who trained the service animal?

There are so many questions to consider.

I would venture to say that the amount of damages associated with the injury of a service animal should most likely be related to:

• emergency veterinary care;
• the costs associated with rehabilitating the injured service animal back to health;
• the time it takes for the injured service animal to return to work (if feasible);
• the time it takes for the injured service animal to be retrained (if necessary).

The amount of damages associated with the premature (and unnatural) death of a service animal should most likely be related to:

• emergency veterinary care (if applicable);
• the length of time that the disabled person will need to adapt without a service animal;
• the costs that the disabled person will require assistance until a service animal is provided.
• the costs associated with purchasing and training the service animal to mitigate the person’s specific disability;

Note that I have not even considered the disabled person’s requests for damages for emotional distress and punitive damages associated with the injury or death of a service animal.

Unfortunately, the law has a long-standing perception that animals are mere “property.” When courts view pets as mere “property,” the plaintiff may not be able to win damages for emotional distress associated with the injury or loss of the service animal. An award for damages for emotional distress will largely depend on the jurisdiction where the case is tried, the judge’s views, as well as state law.

Fortunately, some courts have consistently recognized that animals, particularly dogs, are much more than mere “property.” This is a trend that will likely spread across the country as judges come to realize the importance of animals (and service animals) to human life. Despite this favorable trend, however, it will still be difficult to predict whether a judge will perceive a service animal as mere “property” or something much more than that.

As you can see, lawyers and judges have a lot of work cut out for them. They have to argue about many different issues to reach the ultimate question: “What is the legal value of a service animal and how much damages is a disabled person entitled to receive?”

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Calculating Damages and the Legal Value of Service Animals originally appeared on Matthew Stoloff's Blog on May 10, 2010.

Caption: A collie sits next to her owner at an airport.

Is this a correct interpretation of the law?

It appears so. The law that prohibits discrimination on the basis of disability on aircrafts falls under the Airline Carrier Access Act. The Federal Register, Vol. 68, No. 90 (May 9, 2003), page 24876 (available here), provides, in part:

“Although ‘service animals in training’ are not pets, the ACAA [Airline Carrier Access Act] does not include them, because ‘in training’ status indicates that they do not yet meet the legal definition of service animal. . . . [However] some airlines permit qualified trainers to bring service animals in training aboard an aircraft for training purposes.  Trainers of service animals should consult with airlines, and become familiar with their policies.”

The 2009 updated version of the Federal Register, page 103, provides identical language.

Based on these sources, it doesn’t appear that service-animals-in-training can accompany trainers on any airplane for training purposes unless airline grants permission to do so.

Bottom line: if you train service dogs and want to take them on a commercial aircraft, check with your service dog organization for recommended airline carriers and double-check with the airline to ensure that their policy hasn’t changed. The following blog post “How to travel with your Assistance or Service Dog, a step by step guide,” contains helpful tips to keep in mind when traveling. See also this post: “Flying with your Dog.”

Have a safe flight!

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Service Animals in Training on Airplanes originally appeared on Matthew Stoloff's Blog on April 5, 2010.

In that same blog article, I mentioned that the Columbia School District had argued that Carter could not bring his service dog to school because it was not in his IEP. I wondered how a judge would respond to that argument.

On December 17, 2009, Judge Wexxsten issued an opinion, granting a preliminary injunction permitting Carter to bring his service dog to school.

Put simply, a preliminary injunction is an order to do something or not to do something. It is a quick temporary remedy until the merits of the case are decided. Think of it as a band-aid that doesn’t stick a long time. In this case, the judge issued an order allowing Carter to bring his service dog to school. Carter’s right to bring his service dog to school is temporary, however, because the preliminary injunction does not answer the question, “Does Carter have a legal right to be accompanied by his service dog to school?” If the answer is “Yes,” then Carter will have a right to bring his service dog to school. If the answer is “No,” then Carter will not be able to bring his service dog to school.

In order to win a motion for a preliminary injunction, the moving party (e.g., Carter) must be clear and persuasive. In addition, the moving party must show all four basic elements to win the motion, in essence: (1) there is a right to do or not to do something; (2) harm could be caused if the motion is not granted; (3) there is no alternative; and (4) the moving party is likely to win on the merits.

Judge Wexxsten found that Carter was successful in arguing each of these four elements. Judge Wexxsten provided a clear and concise analysis, finding that Carter had a right to a service dog; that Carter would be harmed if he could not bring his service dog to school; that Carter had no alternative to having a service dog; and that Carter was likely to win on the merits.

Judge Wexxsten’s opinion is worth the read. A copy of the Kalbfleisch opinion may be downloaded here.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Carter’s Service Dog Case originally appeared on Matthew Stoloff's Blog on March 8, 2010.

It is important that pet owners think about where they want their pets to end up after the owners pass away. Equally important, service animals can survive their disabled owners. But there are other reasons why it is important to consult with an attorney to prepare certain papers to ascertain that your pet is taken care of. Consider these three scenarios:

• You and your service animal have been involved in an accident. You are taken to the hospital, and your service animal is taken to the veterinarian. While you are incapacitated in the hospital, your service animal is in need of veterinary care. Is there anyone who can speak for you on behalf of your service animal? Is there anyone who can sign your checks or access your bank accounts to pay the veterinarian or veterinary hospital?

• You have been involved in an accident. Your service animal, however, is unharmed. While you are incapacitated in the hospital, who will be responsible for taking care of your service animal? Who will feed and bathe your service animal? Do you have an arrangement with anyone who will do so? Also, as long as you are in the hospital, the service animal will not be working. The longer you are in the hospital, it is possible that your service animal will forget what he or she has been trained to do. What is the best way to ascertain that your service animal remembers what he or she has been trained to do?

• You have passed away unexpectedly. Do you want your service animal to be returned to the organization that trained him or her? Do you want the service animal to be given to another person who has the same disability that you have? Or do you want the service animal to retire and live with a friend or family of your choice? Also, there are significant costs associated with feeding and bathing the animal, so consider leaving a reasonable sum of money to cover these costs for a reasonable period of time.

Each of the above scenarios should get you thinking about your service animals when you are not around to help. It is critical to realize that a Will only kicks in after the person passes away. Thus, under the first two scenarios, a Will will not help at all. Instead, other documents, such as power of attorney and financial power of attorney, will need to be prepared in order for your pets to be taken care of.

Caption: Photo of a handshake between a dog and human

A good estate planner will provide you a questionnaire, and some of the questions should ask you about your pets. If there aren’t any questions about pets, tell the estate planner that you have a service animal and ask for their professional opinion.

If you’re new to the concept of pet wills and pet trusts, I highly suggest starting with the following blog posts: A Will… a way… to protect your Pets?, Can I put my pet in my will?, What is a pet trust?, and Why do I need a pet power of attorney? Each of these blog posts were written by Danny Meek, an attorney in Florida. His Pet Trust Blog is among the best and most informative blog on the subject I’ve seen anywhere. For more indepth analysis and technical aspects of drafting will provisions and establishing pet trusts, I highly recommend perusing the materials at Professor Beyer’s website, starting with Estate Planning for Non-Human Family Members.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Taking Care of Your Service Animal When Something Happens to You originally appeared on Matthew Stoloff's Blog on January 18, 2010.

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, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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

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, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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

I read on and learned that Judge Ferguson is a volunteer service dog trainer who wants to see more dogs in the courtroom. Aptly referred to as “courthouse dogs,” these dogs would provide emotional support for jurors, witnesses, and victims, and reduce stress for all those in the courtroom.

Fascinating idea.

I researched this some more. While Jacksonville, Florida does not yet have any emotional support dogs at its courthouses, other jurisdictions do, including Harris County in Texas and King County, Washington. A video of Labradors at King County courthouse in Washington State is shown below:

Debra S. Hart-Cohen, an attorney, wrote in Canines in the Courtroom that there is evidence that the use of emotional support dogs has had a positive effect on everyone in the courtroom. Bloggers and attorneys alike have also been extremely receptive to the use of emotional support dogs in the courts in The Bark and Dancing Dog Blog. (There is even a podcast about this here and there.)

So, what types of dogs are qualified to work in the courthouse, when is it appropriate for the dogs to greet jurors and assist witnesses, and how should the dogs behave in the courtroom? Courthouse Dogs provides answers to these questions at this webpage: Using a Facility Dog in the Courtroom. One of the key points that Courthouse Dogs make is that a courthouse dog is different from a therapy dog. A therapy dog is one that is always leashed and held on to its handler. In contrast, a courthouse dog is not leashed and the handler is not near the dog at any time during the court proceedings. Furthermore, unlike therapy dogs, courthouse dogs are not actively seeking the attention of all those in the courtroom. Rather, courthouse dogs must have the ability to sit or lie down next to jurors or witnesses for extended periods of time and must not do anything to interfere with the questioning of witnesses or court arguments between lawyers.

Although research have suggested that there are therapeutic use of animals, and that humans become more grounded and emotionally stable as a result of their interactions with dogs, the notion of courthouse dogs is quite new. It remains to be seen whether courthouse dogs will be deployed in all courthouses across the country.

Until I read about Judge Ferguson, I’d not heard of courthouse dogs. As of this writing, Wikipedia doesn’t even have an entry for this type of working dog. If you ever see a courthouse dog in New Jersey, please let me know.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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These Dogs Go to Court for a Living originally appeared on Matthew Stoloff's Blog on November 23, 2009.

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, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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

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, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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

Caption: Chihuahua sticks out her tongue, making the human sound "Phhlt"

One emerging social issue that the media is taking notice of is “‘bad’ service animals” or “fake service animals.”

As reported in “Service with a Snarl” (San Francisco Times) and “Oregon Wants ‘Dog Friendly’ To Be Less So” (New York Times), some alleged service dogs are behaving badly, very badly — mouthing, barking, nipping, or biting other people, knocking shelf items over, urinating and defecating in the shops. It is a sad fact that there are some people who are unlawfully pawning their companion pets as service animals.

Although I’ve not personally observed any of the alleged service dogs mentioned in the above referenced articles, I suspect that most, if not all, of these dogs were trained by nonprofessionals who had very little experience and knowledge training service dogs. I also suspect that some of the people referenced in the above articles are taking advantage of the system.

Well trained service animals should not behave badly, but since some alleged service animals do, what can be done? In “Service Animals and the Law,” I explained that when a service animal behaves badly, the shopkeeper has the right to remove the animal or ask the handler to remove the animal from the premises. This is information provided in the Department of Justice’s Commonly Asked Questions About Service Dogs In Places of Business.

But what legal action can one take if an alleged service animal bites a customer or urinates in the store? A person or business that has been harmed by an alleged service animal may sue for damages. The issue whether the animal is a “service animal” is irrelevant. A personal injury or property damages lawsuit against the handler of a service animal will depend on such questions as: (1) Did the animal behave appropriately? (2) Did someone provoke the animal or do anything to cause the animal to behave the way that it did? (3) Was a person or business harmed as a result?

One wonders, though, whether a service animal who has bitten another person may be euthanized. I am not aware of any cases involving service dogs who have been euthanized under a court order following a dog bite incident. But I can’t think of any reason why a service animal could not be euthanized pursuant to a court order. Should trained animals who bite be treated any differently from untrained animals who bite?

Handlers who train their own service animals are strongly encouraged to participate in as many seminars, workshops, and other training programs as possible, to ensure that their service animals are well trained and well behaved at all times. There has been a lot of talk about whether service animals should be “certified.” This is an interesting topic, and some bloggers have debated the pros and cons of certification. (Check out the comments in Pet Connection Blog: “Is Justice A Service Dog? Court Says No.“) Certification sounds like a step in the right direction, but, as the comments under that blog post indicate, certification raises many questions, such as “Who should certify the service animals?” “Who certifies the certifiers ?” “How often will service animals need to be certified?” “How much money will the disabled individual have to pay to get their service animals certified?” “Won’t this invade the privacy of those who are disabled?”

The fact that we hear very little about badly behaved “service animals” is an excellent sign that the number of well trained service animals far outnumber those who are untrained. But I hope I never hear a judge issue an order to euthanize an alleged service animal. I also hope I never hear about badly behaved “service animals” again. I’m hopeful, but am I dreaming?

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Badly Behaved “Service Animals” originally appeared on Matthew Stoloff's Blog on October 12, 2009.

A few months after Rebecca Skloot’s article was published, Joe Eskenazi wrote an article in the San Francisco Weekly creatively titled “Service With a Snarl.” In that article, we meet some of San Francisco’s service animals: Tita, a vicious chihuahua and an alleged service dog who has bitten people; Skippy the iguana who seems quite friendly enough; and Fiona the Mastiff who seems to have gotten in worse trouble than Tita. As we read through the article, we are graced by the presence of a few rats, snakes, and tortoises, that are allegedly service animals that assist people with various psychiatric disorders.

Rebecca’s article is largely about how these exotic creatures help people with physical disabilities and mental illnesses, as well as the legal and ethical issues associated with owning these exotic creatures as service animals. Joe’s article is concerned with how many of these creatures, exotic and domestic, don’t appear to be service animals at all (or at least, they are not very well behaved service animals); and even if they are not truly service animals, there’s little that the government can do about it.

Two articles. But one law — the Americans with Disabilities Act.

The purpose of the Americans with Disabilities Act is to prohibit discrimination on the basis of disability. The law also provides that individuals with disabilities may be accompanied by their service animals in places where the public is invited.

One has to wonder if Congress anticipated that there would be service animals trained to help people who suffer from invisible diseases or mental disorders of various degrees? This would be an interesting research topic.

Caption: A man and a chicken look at each other face-to-face

When we think of service animals, we typically think of animals who are trained to perform a specific task or tasks to mitigate the person’s physical disability. Another way of describing it is to say that a service animal is an “extension” of one’s person. A guide dog (or miniature horse) is a blind person’s sight. An alert dog is a deaf person’s hearing. A monkey is a paraplegic person’s arms or legs.

But some people find it difficult to imagine how a service animal can be an “extension” of a person who has a psychological disorder or has no visible physical handicap.

Can an animal be trained to keep a mentally ill person from experiencing panic and anxiety attacks? Soldiers returning from Iraq experiencing post traumatic stress disorders have been assisted by so-called “psychiatric service dogs.” The evidence suggests that these dogs have helped soldiers returning from Iraq re-adjust and re-adapt to their new lives as civilians. Are they really service dogs or companion pets? It appears that many psychiatric service dogs have been trained quite well. There are plenty of stories illustrating that psychiatric service dogs do help soldiers with post traumatic stress disorder. In fact, USA Today and the Chicago Tribune recently reported that the U.S. Department of Defense is conducting a study to learn how these dogs actually help soldiers.

Can an animal be trained to save the lives of people who have no visible physical handicap? Recently, there have been a few stories about dogs trained to detect peanuts. You see, some children suffer from severe peanut allergies that could potentially result in death. (See this video about Kate Slobodian who is deathly allergic to peanuts, eggs, and dairy products.) In a 2008 article, a medical expert claimed that a cure for peanut allergy will be developed sometime in the next five years. In the meantime, there is high demand for “peanut sniffing service dogs,” and a few children are lucky to have their own “peanut sniffing service dog” by their side. These are dogs that are trained to smell peanuts from a distance and warn peanut allergy sufferers not to go to a particular area. One dog in particular, a Portuguese water dog, has received considerable press.

What about people with autism who have service dogs? Autism is a very interesting brain disorder with seemingly unexplainable origins. People with autism may have poor social development and poor communication skills. Some parents who have children with autism say that service dogs help improve social development and communication skills. (Read first hand perspectives at Assistance Dog for Autism.) Service dogs may also help prevent these autistic children from harming themselves. Service dogs for children with autism has become such a hot issue because some school districts are reluctant to permit autistic children to bring their service dogs to school. I discussed common arguments schools have against children with disabilities who want to bring in their service dogs in “Service Animals in the Schools.”

Caption: A young kid hugs her dog

In some ways, the traditional notion of service animals (the “extension” concept) seems overly restrictive. It is easy for blind, deaf, and physically disabled people to explain how their service animals can help by describing the specific tasks the animals perform for the handlers. The handlers can even give a demonstration. It is not quite as easy for children who have peanut allergies, but it’s do-able. But people with certain psychological disorders, such as post traumatic stress disorder, autism, or panic attacks, face an uphill battle; if they are not able to explain in detail what specific tasks their service animals can perform “on demand,” skepticism naturally tends to set in.

Some people might argue that maybe, just maybe, the “extension” concept is wrong. Perhaps we should be thinking about how disabled people and service animals “balance” each other out. This “balance” concept would seem to fit the mold between service animals and people who have visible or hidden health issues. But this doesn’t draw any lines, does it? In fact, any animal (mammal, reptile, amphibian) could bring “balance” or “harmony” in the human minds of those who own them.

The fact that the “balance” concept doesn’t draw any lines is not going to sit well with a lot of people, particularly business owners, lawyers, judges, and politicians. Those who agree that there should be lines drawn face two tough questions: Where do we draw the line, and How do we get there?

Part of the trouble of drawing lines is most people stick to the traditional notion of what a service animal is (i.e., seeing-eye dog for the blind, alert dog for the deaf, etc), but there are so many people with different types of disabilities of various degrees who genuinely benefit from their furry counterparts.

Another reason why we have trouble drawing lines is because we often disagree about whether certain conditions are “disabilities” at all. Is peanut allergy a disability? Is post traumatic stress syndrome a disability? When someone suffers from frequent panic attacks, is this a disability?

In light of the fact that there are more people with unique health issues, and given that there are animals who have been trained to assist these people in ways that we had not imagined ten or twenty years ago, perhaps we should rethink the traditional concept of service animals.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Should We Rethink the Concept of Service Animals? originally appeared on Matthew Stoloff's Blog on September 14, 2009.

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, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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