Third Circuit Decides Service Dog Issue of First Impression

by John M. Simpson

In Berardelli v. Allied Services Institute of Rehabilitation Medicine, No. 17-1469 (3rd Cir. Aug. 14, 2018), the U.S. Court of Appeals for the Third Circuit ruled that, as to service animals, the 1973 Rehabilitation Act’s mandate of “reasonable accommodations” must be interpreted and applied in the same manner as the 1990 Americans With Disabilities Act (ADA) standard of “reasonable modifications.”  Therefore, even though there was no Rehabilitation Act regulation specifically so stating, the ADA regulation on public accommodations and public entities controlled.  As a result, a request to an institution covered by the Rehabilitation Act for an individual to be accompanied by a service animal is “per se reasonable in the ordinary course.”   Slip op. at 4. 

The case was brought by the parents of a child (M.B.), a fifth grader with dyslexia and epilepsy, who had requested that M.B.’s school allow her to be accompanied by a service dog (Buddy) who was trained to detect and respond to seizures.  The school declined the request arguing variously that Buddy would be “too much of a distraction,” and that another child was allergic to the dog, although that child’s parents had arranged for allergy treatments and supported M.B.’s efforts to bring Buddy to school.  The school ultimately allowed Buddy to accompany M.B. but required that he wear a special hypo-allergenic shirt which apparently interfered with Buddy’s ability to alert or respond when M.B. had seizures.  As a result, M.B. reverted to a public school but was placed in the fourth grade due to the substantial time missed in the defendant school due to Buddy’s exclusion.

During the trial in the ensuing case by the parents against the school, the judge instructed the jury that plaintiffs had the burden of proving the reasonableness of the requested modification and only if that burden was satisfied did the defendant school have the burden of proving that the request was unreasonable.  The Third Circuit found these instructions flawed and reversed the jury verdict that had been rendered in favor of the school.

The court of appeals examined the legislative and regulatory histories of the two statutes as well as the relevant case law under both and determined that, in the absence of any exceptions (and none applied here), in the ordinary course, a person’s request to an entity covered by the Rehabilitation Act to use a service animal will ordinarily be deemed reasonable as a matter of law.  The court noted that this issue was one “of first impression in the Courts of Appeals.”  Slip op. at 3-4.  As the court explained:

“The upshot of our analysis—including the statutory histories, case law, and DOJ and other agency guidance—is that, under the RA, just as under the ADA, a covered actor ordinarily must accommodate the use of service animals by individuals with disabilities.  As a result, although as a general matter the ‘reasonableness’ of an accommodation under the RA ‘must be decided on a case-by-case basis’ … the accommodation of a disabled person’s request to be accompanied by her service animal—absent exceptional circumstances—is per se reasonable ….  And if necessity is then also established, so is liability.”

Id. at 32 (citations omitted; emphasis added).

The decision in Berardelli is significant for any entity subject to the Rehabilitation Act,  which generally applies to programs and activities receiving federal funding and to federal employment.