per se<\/em> reasonable in the ordinary course.”\u00a0\u00a0\u00a0Slip op. at 4.\u00a0 <\/p>\nThe case was brought by the parents of a child (M.B.), a fifth grader\u00a0with dyslexia and epilepsy,\u00a0who had requested that\u00a0M.B.’s\u00a0school allow her to be accompanied by a service dog (Buddy)\u00a0who was trained to detect and respond to seizures.\u00a0 The school declined the request arguing variously that Buddy\u00a0would be “too much of a distraction,”\u00a0and that another child was allergic to the dog, although that\u00a0child’s parents had arranged for allergy treatments\u00a0and supported M.B.’s efforts to bring\u00a0Buddy to school.\u00a0 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.\u00a0 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\u00a0school due to Buddy’s exclusion.<\/p>\n
During the\u00a0trial 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.\u00a0 The Third Circuit found these\u00a0instructions flawed and reversed the jury verdict that had been rendered in favor of the school.<\/p>\n
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\u00a0to use a service animal\u00a0will ordinarily be\u00a0deemed reasonable as a matter of law.\u00a0 The court noted that this issue was one “of first impression in the Courts of Appeals.”\u00a0 Slip op. at 3-4.\u00a0 As the\u00a0court explained:<\/p>\n
“The upshot of our analysis\u2014including the statutory histories, case law, and DOJ and other agency guidance\u2014is that, under the RA, just as under the ADA, a covered actor ordinarily must accommodate the use of service animals by individuals with disabilities.\u00a0 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\u2019s request to be accompanied by her service animal\u2014absent exceptional circumstances\u2014is per se reasonable<\/strong> ….\u00a0 And if necessity is then also established, so is liability.”<\/p><\/blockquote>\nId<\/em>.\u00a0at 32 (citations omitted; emphasis added).<\/p>\nThe decision in Berardelli<\/em> is significant for any entity subject to the Rehabilitation Act,\u00a0 which generally applies to programs and activities receiving federal funding and to federal employment.<\/p>\n","protected":false},"excerpt":{"rendered":"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,\u00a0the 1973 Rehabilitation Act’s mandate of “reasonable accommodations” must be interpreted and applied in the same manner as the 1990 Americans … <\/p>\n
Continue reading “Third Circuit Decides Service Dog Issue of First Impression”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[92,91,49,5,93,94,90,89],"ppma_author":[697],"class_list":["post-79","post","type-post","status-publish","format-standard","hentry","category-general","tag-ada","tag-americans-with-disabilities-act","tag-animal-law","tag-john-simpson","tag-reasonable-accommodation","tag-reasonable-modification","tag-rehabilitation-act","tag-service-dog"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/79","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=79"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/79\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=79"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=79"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=79"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=79"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}