United States District Court, D. New Hampshire
Jamie Riley, et al.
School Administrative Unit #23, et al.
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Jamie and Alan Riley ("plaintiffs"), on behalf of their minor child A.R., brought suit in this court against School Administrative Unit No. 23 ("District") and Dr. Donald LaPlante (collectively, "defendants") alleging that the defendants violated Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504") by failing to provide reasonable accommodations related to A.R.'s use of a service animal. Compl., Doc. No. 1. Before the court for a report and recommendation is the plaintiffs' motion for a preliminary injunction. Pls.' Mot. for Prelim. Inj., Doc. No. 2. For the reasons that follow, the court recommends that the motion for a preliminary injunction be denied.
Findings of Fact
I. Undisputed Findings of Fact
These facts are taken from the agreed upon facts submitted by the parties on November 6, 2015. Doc. No. 18.
1. A.R. is an eight-year-old second grade student attending Woodsville Elementary School who has been diagnosed with developmental delays, hypotonia (decreased muscle tone), hearing loss, dysphagia (difficulty swallowing requiring all nutrition through a feeding tube), epilepsy, and cortical blindness.
2. A.R. is primarily non-verbal.
3. A.R. suffers from frequent seizures of multiple types (drop, grand mal, temporal lobe).
4. A.R. is a qualified individual with a disability per Title II of the Americans with Disabilities Act.
5. A.R. enrolled full-time in [the District] in September of 2012.
6. [The District] receives federal financial assistance.
7. Since his enrollment, A.R. has been receiving special education and related services. Since June of 2012, these services have included being accompanied at all times by a 1:1 aide who, currently, is a registered nurse.
8. In addition to nursing services, A.R. receives instruction from a special education teacher, a teacher of the deaf, a teacher of the visually impaired, and related services of speech, physical therapy, and occupational therapy.
9. When A.R. was a preschool student and only attended school for a few hours a day, [p]laintiffs first requested that he be accompanied at school by a service dog named Carina.
10. Carina is a service animal per the ADA and [New Hampshire Revised Statutes Annotated ("RSA") § 167].
11. A.R.'s family provided a signed letter from A.R.'s doctor supporting his use of a service dog.
12. Carina was trained by 4 Paws for Ability ("4 Paws") in Dayton, Ohio, an organization that has placed more than 1, 000 service dogs.
13. A.R. and his family spent eleven days at 4 Paws doing intensive training with Carina before she was brought home.
14. Carina is a certified, multipurpose service animal.
15. 4 Paws trained Carina to alert for seizures by licking A.R.'s face.
16. The [p]laintiffs requested that A.R.'s 1:1 aide (who at that time was not a nurse) act as Carina's handler.
17. The [p]laintiffs offered to provide training on the proper way to command and control Carina.
18. The District agreed to the 1:1 aide arrangement on a trial basis during the summer of 2011.
19. The District withdrew its agreement to have A.R.'s 1:1 aide assist A.R. in acting as Carina's handler.
20. The District notified the [p]laintiffs that they could have Carina accompany A.R. in school but they would be required to hire an adult, at their own expense, to accompany Carina.
21. The [p]laintiffs hired Denise Young, at additional cost, to attend school with A.R. to accompany Carina.
22. On July 13, 2012, the [p]laintiffs filed a complaint with the U.S. Department of Education's Office for Civil Rights ("OCR").
23. The complaint was resolved through a Voluntary Resolution Agreement between OCR and the District dated May 22, 2013 (the "Voluntary Resolution").
24. Pursuant to the terms of the Voluntary Resolution, the District adopted a service animal policy, which OCR expressly approved.
25. In addition, as set forth in the Voluntary Resolution, the District agreed to contract with an expert in training seizure-alert dogs named Mike Robertson of the White Mountain College for Pets, or another trainer, to provide training to Carina and District staff.
26. Mr. Robertson was specifically identified in the Voluntary Resolution as a possible qualified trainer approved by OCR.
27. Mr. Robertson began training efforts with Carina and District personnel.
28. As recently as September , on a call with counsel for both parties[, ] 4 Paws explained a trainer could come to New Hampshire at a cost of only a thousand dollars plus travel expenses.
29. In January of 2014, the [p]laintiffs sent Carina back to 4 Paws for additional refresher training.
30. When she returned, the [p]laintiffs began sending Carina to school tethered to A.R., accompanied by Denise Young who would hold Carina's leash at the same time.
31. In March 2015, A.R. left school to undergo brain surgery to attempt to help reduce the frequency and severity of his seizures.
32. While A.R. was recovering from his surgery, Denise Young began treatment for cancer and she was no longer able to supervise Carina at school.
33. The District notified A.R.'s parents that he would not be able to return to school with Carina unless A.R.'s parents provided and paid for someone to supervise Carina.
34. A.R.'s family has limited means and it was difficult for them to find an affordable adult to assist A.R. with Carina. A.R. returned to school on May 18, 2015 accompanied by Carina and an adult.
35. A.R. continued to attend school throughout the summer accompanied by Carina and an adult paid for by [the] [p]laintiffs.
36. When A.R. has attended school since the fall of 2015[, ] he is accompanied by Carina and an adult paid by [the] [p]laintiffs.
37. When an adult is available to assist A.R. with Carina and that adult is called out of the classroom for a phone call, a break, to use the restroom or any other reason, Carina must go with the adult leaving A.R. without Carina.
II. Additional Findings of Fact
Having heard and reviewed the testimony and evidence presented by the parties and the parties' briefs, the court hereby makes the following additional findings of fact.
A. A.R.'s Physical Health
38. A.R.'s seizures impact his independent mobility. ...