BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and the Delran Township School District (School District).
2. This matter was initiated by a complaint filed with the United States Department of Justice (Department) pursuant to title II of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12131-12134.  Complainant is the parent of an 8-year old child who was a student in the School District during the 2012-13 school year.  The child has several disabilities, including autism, developmental coordination disorder, and encephalopathy.  Complainant alleged that the School District refused to permit the child to be accompanied in school by his service animal when the Complainant is present as the dog’s handler.
3. Pursuant to 28 C.F.R. § 35.190(e), the Department has exercised its discretion to retain this complaint for investigation under title II of the ADA.  The Department is authorized to bring a civil action to enforce title II of the ADA where a violation is found and efforts to secure voluntary compliance are unsuccessful.  42 U.S.C. § 12133; 28 C.F.R. Part 35, Subpart F.  This Agreement does not address rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, or any other laws.

TITLE II

1. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.  42 U.S.C. § 12132; 28 C.F.R. §35.130(a).  The School District is a public entity within the meaning of title II of the ADA, 42 U.S.C. § 12131, and therefore is subject to the requirements of title II, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. Part 35.
2. Title II of the ADA requires public entities, generally, to modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. 28 C.F.R. § 35.136(a).  Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity’s facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go. 28 C.F.R. § 35.136(g).  A public entity may properly exclude a service animal if (1) the dog is out of control and the animal’s handler does not take effective action to control it; or (2) the dog is not housebroken (i.e. trained so that absent illness or accident, the dog controls its waste elimination).  Under title II of the ADA, a public entity is not responsible for the care or supervision of a service animal.  28 C.F.R.  § 35.136(e).
3. The term “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.  28 C.F.R. § 35.104
4. Under title II of the ADA, a public entity shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether a dog qualifies as a service animal: (1) whether the dog is required because of a disability and (2) what work or task the dog has been trained to perform.  Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that the dog is trained to do work or perform tasks for an individual with a disability.  A public entity shall not require documentation, such as proof that the dog has been certified, trained, or licensed as a service animal.  28 C.F.R. § 35.136(f).  Nor shall a public entity ask or require an individual with a disability to pay a surcharge for using a service animal. 28 C.F.R. § 35.136(h).

FINDINGS OF FACT

1. On October 5, 2012, the Complainant signaled an interest in her child being able to be accompanied by his service animal in school.  In an email, Complainant wrote that she would like to keep the door open for her child to bring the service animal to school, but that she was not planning on starting right away.  The child’s service animal is trained to perform numerous tasks directly related to the child’s disabilities.  For the child’s autism, the service animal is trained to prevent elopement (wandering), to disrupt stimming, and to apply deep pressure to prevent or limit meltdowns.  In addition, the service animal is trained to provide mobility support for the child’s core body weakness, alert others that the child is going to have a seizure, and perform search and rescue functions in the event the child wanders off.
2. On October 8, 2012, in response to the Complainant’s request, the School District Psychologist asked the Complainant to submit copies of the child’s medical records to document the child’s need for a service animal, and indicated that the School District would need to determine whether the child is able to benefit from instruction without the service animal. The Complainant submitted documentation from the child’s treatment team at The Children’s Hospital of Philadelphia, explaining that the service animal is “an important part of the treatment program for [the child] in all settings, school, home, and community.”
3. On October 16, 2012, the School District sent an email to the Complainant stating that a service animal would only be admitted if added to the child’s Individualized Education Program (IEP) pursuant to IDEA and deemed necessary by the child’s IEP team.  The School District indicated that the dog would “have to be  . . . absolutely essential for some specific purpose related to a specific disabling problem (i.e. what will a dog be able to do, that is required, that school staff and program cannot).”  The School District also cited concerns about student allergies, pupil fears, parental concerns, and supervision and transportation of the service animal.
4. On October 19, 2012, the Complainant objected to the School District’s assertion that IDEA offered the only process through which the child’s use of a service animal could be evaluated.  The Complainant clarified that she sought her child’s use of a service animal pursuant to title II of the ADA and requested a copy of the School District’s relevant written policy.  Because the District had no service animal policy at the time, no policy was provided.
5. On November 5, 2012, in a letter to the Complainant, the School District stated that the dog would not be considered under the child’s IEP, but rather, as a “general accommodation.”  The School District requested that the Complainant respond to two inquiries regarding the child’s service dog: (1) Is the dog required due to [the child’s] disability; and (2) What task or work has the dog been completely trained to perform for [the child]?  The District’s letter went on to state that it would be inappropriate to bring the dog onto school grounds without the School District’s approval.
6. On November 9, 2012, the Complainant submitted documents related to her son’s use of a service animal to the School District.
7. On November 21, 2012, the School District sent a letter to the Complainant; citing to state law, the School District requested additional information, including documentation of a dog license, as well as certification directly from a veterinarian that the dog is properly vaccinated and free of contagious diseases.  The School District also requested – a specific response as to whether the service animal is “required due to [the child’s] disability,” and “what task or work the dog has been completely trained to perform for [the child].”
8. On December 19, 2012, the Complainant sent an email to the School District stating that the service animal is “a fully trained service animal” with “more th[a]n 500 hours of intensive training.”  The Complainant provided a list and description of tasks that the dog is trained to perform, with adult control, including behavior disruption and mobility support.  The Complainant referenced Dr. Mintz’s letter stating that the service animal is medically necessary.  The Complainant formally requested access for the service dog to attend school functions, trips, etc., when the Complaint is present as the service dog’s handler.
9. On January 10, 2013, the School District asked for clarification about the circumstances in which the Complainant (the child’s parent) was requesting access.
10. On February 26, 2013, the Complainant reiterated, by email to the School District, her request that the child be permitted to use the service animal at school events when the Complainant is present as the handler.  The Complainant specifically referenced an upcoming class trip, in April, to an aquarium and asked whether any decision had been made regarding her previous request.
11. On March 22, 2013, the School District responded to the Complainant with a letter requesting clarification on whether, for the pending class trip, the Complainant was requesting to ride the bus with the child and service animal, or whether the Complainant was requesting permission for the child and service animal to meet the class at the aquarium for the field trip.  The letter also requested additional information in response to the School District’s letter dated January 10, 2013.
12. On March 25, 2013, the Complainant responded to the School District and stated her belief that she had submitted all required documents.  With regard to the pending field trip, the Complainant stated that she expected to be treated like any other chaperone and that her child would “ride the bus with his peers as there is no reason to exclude him.” The School District did not reply.
13. On April 15, 2013, the Complainant again contacted the School District seeking an answer regarding the class trip on April 18.  The School District responded, by letter dated April 16, 2013, requesting verification that the service animal was licensed and a statement from a veterinarian that the service animal does not have a contagious disease.
14. On April 17, 2013, the Complainant’s advocate submitted a copy of the service animal’s license as well as a letter from Mercerville Animal Hospital stating that the service animal is free of communicable diseases and parasites and is current on all required vaccinations.  In a letter, dated April 17, the School District stated that the service dog (with the Complainant as handler) would not be permitted to accompany the child on the bus for the April 18 aquarium trip.  The School District’s articulated reason for its refusal was that it did not have adequate time to prepare for the presence of the service animal on the bus and field trip, or to address any concerns of other students and staff.  As a result, the child went on the bus without his service animal while the Complainant followed the bus in her own car with the dog.
15. Internal School District emails demonstrate that School District officials considered improper factors such as generalized concerns about student allergies and fear of dogs as justification for refusing to grant the child’s request for a reasonable modification.
16. The School District does not have a policy that specifically addresses service animal requests under title II of the ADA.
17. The facts establish that during the 2012-13 school year the School District never allowed the child to be accompanied by his service dog at school or during school-related activities.  Over at least a six-month period, the School District lodged a series of unnecessary and burdensome requests for information and documentation, some of which were redundant and others of which were outside the scope of permitted inquiry as set forth in the ADA Regulations.
18. As a result of being separated from his service dog, the child and service animal bond was jeopardized, making implementation of his training more difficult.  This made it necessary to provide some re-training of the dog over the school year.  On days when the child’s motor function and balance were problematic because of his disabilities, the child was required to remain home.
19. The Department determined that School District discriminated against the child, a qualified individual with a disability, on the basis of disability, by excluding him from participation in and denying him the benefits of the School District’s programs, services, and activities, and by subjecting him to discrimination, in violation of title II of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. Part 35.
20. The School District disputes the Department’s Findings of Facts.  However, without adopting such facts, expressly or by omission, the School District agrees to resolve this matter expeditiously and without protracted litigation.  Accordingly, the School District, without admitting liability or wrong-doing, and the United States, have agreed to resolve this matter as set forth below.

ACTIONS TO BE TAKEN BY THE SCHOOL DISTRICT

1. Generally, the School District shall modify its policies, practices, and procedures to permit the use of a service animal by an individual with a disability.  The School District shall not engage in any act or practice that has the purpose or effect of discriminating against an individual with a disability in the use of a service animal in accordance with title II of the ADA.
2. Within forty-five (45) days of the effective date of this Agreement, the School District shall submit to the United States, for review and approval, amended policies, practices, and procedures, to include the following.  The School District will adopt the amended policies, practices, and procedures within 15 days following the United States’ approval.
   1. Service Animal Inquiries.  When an individual with a disability seeks to use a service animal in school facilities, programs, or activities pursuant to title II of the ADA, the School District may make two inquiries to determine whether an animal qualifies as a service animal: (1) is the dog required because of a disability; and (2) what work or task has the dog been trained to perform.  The School District shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. 
   2. Access to Facilities.  Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a School District’s facilities where members of the public, participants in services, programs, or activities, or invitees, as relevant, are allowed to go.  The handler may be the individual with a disability or a third party who has been appropriately trained to handle the service animal.  The School District may require a service animal’s handler to remove the service animal from School District property if (1) the dog is out of control and effective action cannot be taken to control it; or (2) the dog is not housebroken (i.e. trained so that absent illness or accident, the dog controls its waste elimination).
   3. Reasonable Modifications.  The School District must make reasonable modifications to its policies, practices, and procedures, where necessary to avoid discrimination against a student with a disability who uses a service animal unless the School District can show that making the modifications would fundamentally alter the nature of the service, program, or activity.  Reasonable modifications in this context include, but are not limited to, providing assistance to a student with a disability in tethering or untethering the service animal, or escorting a student with a disability throughout the school or campus as he or she is accompanied by a service animal.
   4. Prohibition Against Surcharges.  The School District shall not require a surcharge for the use of a Service animal on School District property. 
   5. Request Evaluation Process.  When a student (or potential student) with a disability seeks to use a service animal in accordance with title II of the ADA at school and school-related events, the School District shall review the request in a timely manner.  The School District shall promptly notify the requestor if additional information, consistent with that permitted under title II of the ADA, is needed to evaluate the request and shall specify in writing what information is needed.
3. Within 15 days after adoption of the policies, practices, and procedures required by paragraph 29 of this Agreement, the School District shall publish an announcement and description of its ADA service animal policy on its website’s homepage at http://www.delranschools.org.
4. Within 60 days after adoption of policies, practices, and procedures required by paragraph 29 of this Agreement, the School District shall provide training to the following School District staff members on the School District’s obligations under title II of the ADA, including obligations with respect to service animals: all Principals, Assistant Principals, School Psychologists, Pupil Personnel Directors, Teachers, Child Study Team Members, and any other staff members that work closely with, or participate in decisions involving students with disabilities pursuant to title II of the ADA.  The School District shall provide such training on an annual basis for the term of this Agreement.
5. The School District shall maintain written records of all service animal-related requests received from individuals with disabilities for the duration of this Agreement.  Such records shall include the individual’s name and contact information, date of the request, nature of the request, the determination regarding the request and who participated in the decision-making, and all other documents created by the School District or that come into its possession, custody, or control relating to such requests.  The School District shall provide records of all requests related to service animals on a quarterly basis to counsel for the United States for the duration of this Agreement, beginning three months from the effective date of this Agreement, and at any other time upon request.
6. Within 20 days of the United States providing the School District a signed Release from the Complainant and a signed w-9, the School District shall pay damages to the Complainant in the amount of $10,000.00.
7. The School District shall not retaliate in violation of 42 U.S.C. § 12203 against the Complainant, the child, or any person based on their cooperation with the Department’s investigation of this matter, nor on the basis of any person’s involvement in the administration of this Agreement.

IMPLEMENTATION

1. In consideration for the terms set forth above, the United States will refrain from undertaking further action relating to the investigation of Department of Justice complaint number 204-48-284, or from filing a civil action alleging discrimination based on the facts set forth above, except as provided in paragraph 36, below.
2. The United States may review the School District’s compliance with this Agreement or title II of the ADA at any time.  If the United States believes that this Agreement or any portion of it has been violated, the United States will raise its concerns with the School District and will attempt to resolve its concerns with the School District in good faith.  If the United States is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the School District, the United States may institute a civil action in the appropriate United States District Court to enforce this Agreement or title II of the ADA.
3. Failure by the United States to enforce any provisions or deadlines of this Agreement shall not be construed as a waiver of the United States’ right to enforce other deadlines or provisions of this Agreement.
4. A signatory to this document in a representative capacity for the School District represents that he or she is authorized to bind the School District to this Agreement.
5. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and the School District shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
6. This Agreement constitutes the entire agreement between the United States and the School District on the matters raised herein and no other statement, promise or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including its attachments, shall be enforceable.  This Agreement can only be modified or amended by mutual written agreement of the parties.
7. This Agreement does not affect the School District’s continuing responsibility to comply with all aspects of the ADA.

EFFECTIVE DATE / TERMINATION DATE

1.  The effective date of this Agreement is the date of the last signature below.
2. The duration of this Agreement will be three years from the effective date.

AGREED AND CONSENTED TO: