There Is No Assurance It Will Make It Easier for Students with Disabilities to Bring a Service Animal to an Ontario School
Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance
September 10, 2019
SUMMARY
On September 9, 2019, the Ford Government issued a palpably weak policy direction to Ontario school boards on how to handle requests by students with disabilities to permit them to bring a service animal to school. It is good that this policy direction requires every Ontario school board to develop a policy for dealing with such requests. However, it falls far short of what students with disabilities and their families need. It does not require those school board policies to be good. It does not ensure that students with disabilities will be more readily able to bring a service animal to school than has been the case in the past, even though the Tories talked about making that easier, during the 2018 Ontario election campaign.
The Ford Government’s new policy direction to school boards, set out below, reads as if the school boards themselves wrote it, in order to require little of them, while appearing to show provincial leadership. The provincial policy wastefully requires each of over 70 school boards to reinvent the wheel. It burdens students with disabilities and their families with having to once again lobby every one of those school boards. Doug Ford’s policy directive provides no assurance of consistency across the province.
There are several deficiencies with the new provincial policy directive. For example:
* The provincial policy directive ultimately leaves it to over 70 school boards to invent their own rules on when they will permit a student with a disability to bring a service animal to school. In that regard, it largely sets no provincial standards at all. Each school is to decide each case, on a case-by-case basis. That really says nothing new.
* While the new provincial policy directive refers in brief and summary terms to the duty to accommodate students with disabilities under the Ontario Human Rights Code, Doug Ford’s policy new directive ultimately leaves it to school boards to decide when it is “appropriate” to allow a student to bring a service animal to school. The Ontario Human Rights Code does not, however, make the test a sweeping open-ended and unpredictable one of “appropriateness”.
* The provincial policy erroneously does not direct school boards that they should allow for trial periods with a service animal before refusing this accommodation outright for a student.
* The provincial policy directive erroneously focuses on requiring or considering documentation from “medical professionals.” Of course, it should be open to a student with a disability or their family to bring forward medical documentation if they wish. However, doctors likely have no expertise in this area. People with disabilities have for years battled against the undue medicalization of their disability accessibility and accommodation needs.
Two years ago, the Human Rights Tribunal of Ontario rendered a seriously flawed decision in this area. The Waterloo Catholic District School Board had wrongly refused to let a student with autism bring his autism service dog to school. The family took the case to the Human Rights Tribunal of Ontario. Shockingly, the family lost the case.
In a detailed article to be published in the National Journal of Constitutional Law, AODA Alliance Chair David Lepofsky shows that the human rights ruling is riddled with errors. Doug Ford’s new provincial policy directive does not address and solve those problems. That article can be downloaded by visiting https://www.aodaalliance.org/whats-new/how-ontarios-human-rights-tribunal-went-off-the-rails-in-an-important-disability-accessibility-case-read-the-new-article-by-aoda-alliance-chair-david-lepofsky-on-the-tribunals-ruling-against-an/
Here, the Ford Government had a great opportunity to do much better that it has done. For years, Ontario has had a patchwork of different practices from school board to school board. Some allow service animals. Some do not. Some have no policy. The Ford Government could and should have surveyed the policies of those Ontario school boards that allow service animals, and drawn on the best of them to create a strong, inclusive provincial policy for all school boards to follow, that would be more favourable to meeting the needs of students with disabilities . Instead, the Ford Government dropped the ball and did a tremendous disservice to students with disabilities.
Perhaps the most stunning illustration of the deficiency in this new provincial policy is that under it, the family that fought the Waterloo Catholic District School Board a few years ago in that human rights case could well have ended up with the same refusal from that school board, had this provincial policy been in place at that time. It is a matter of public record that the mother of the student in that case, Ms. Amy Fee, has since won a seat in the Ontario Legislature, as a Conservative MPP. The Ford Government should have been prepared to do better for her and for the other families in her situation.
The Ford Government should quickly issue a supplemental policy to strengthen its weak September 9, 2019 provincial directive to school boards. It will also now be up to the K-12 Education Standards Development Committee to try to set strong provincial accessibility standards in this area. The Ford Government had frozen its work for over one year. It is having its first preliminary conference call this afternoon to initiate the resumption of its work. MORE DETAILS
New Ford Government Policy Direction to Ontario School Boards on Allowing Students with Disabilities to Bring A Service Animal to School in Ontario
Originally posted at: http://www.edu.gov.on.ca/extra/eng/ppm/ppm163.pdf Policy/Program Memorandum No. 163
Date of Issue: September 9, 2019
Effective: Subject: Until revoked or modified
Application: School Board Policies on Service Animals
Directors of Education
Supervisory Officers and Secretary-Treasurers of School Authorities Executive Director, Provincial and Demonstration Schools Principals of Elementary Schools
Principals of Secondary Schools
Purpose
All school boards1 in Ontario are required to develop, implement, and maintain a policy on student use of service animals in schools.2 The purpose of this memorandum is to provide direction to school boards on the development and implementation of their policy. The ministry’s expectations regarding the components of a board’s policy are identified in this memorandum as well as the implementation and reporting requirements.
School boards are expected to:
* allow a student to be accompanied by a service animal in school when doing so would be an appropriate accommodation to support the student’s learning needs and would meet the school board’s duty to accommodate students with disabilities under the Ontario Human Rights Code;
* make determinations on whether to approve requests for a service animal on a case-by-case basis, based on the individual needs of each student;
* put in place consistent and transparent processes that allow for meaningful consideration of requests for service animals to accompany students in school.
This memorandum applies to all publicly funded elementary and secondary schools, including extended-day programs operated by school boards. However, this memorandum does not apply to licensed child-care providers, including those operating on the premises of publicly funded schools.
Context
The Ministry of Education is committed to supporting school boards in providing appropriate accommodations to all students with demonstrable learning needs, including special education programs and services in Ontario’s schools.
The term “service animal” refers to any animal that provides support to a person with a disability. Traditionally, service animals have been dogs, and dogs remain the most common species of service animal; however, other species may also provide services to individuals with disabilities. The types of functions performed by service animals are diverse, and may or may not include sensory, medical, therapeutic, and emotional support services.
In Ontario, the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) sets out a framework related to the use of service animals by individuals with a disability. The Blind Persons’ Rights Act sets out a framework specifically for the use of guide dogs for individuals who are blind.
People with disabilities who use service animals to assist them with disability-related needs are protected under the ground of “disability” in the Ontario Human Rights Code. Under the Human Rights Code, school boards have a duty to accommodate the needs of students with disabilities up to the point of undue hardship. The Ontario Human Rights Commission’s Policy on Accessible Education for Students with Disabilities (2018) states that: “Depending on a student’s individual needs and the nature of the education service being provided, accommodations may include . . . modifying ‘no pets’ policies to allow guide dogs and other service animals.”3
Nothing in this memorandum detracts from other legal obligations of school boards under applicable law, including the Ontario Human Rights Code.
Definition of “Service Animal”
In the context of this memorandum, “service animal” means an animal that provides support relating to a student’s disability to assist that student in meaningfully accessing education. Due consideration should be given to any documentation on how the service animal assists with the student’s learning needs, and disability-related needs (e.g., documentation from the student’s medical professionals).
School boards must make a determination, on a case-by-case basis, as to whether a service animal may accompany a student taking into account all the circumstances, including the needs of the student and the school community and a school board’s obligation to provide meaningful access to education.
School boards may also consider including service animals in training in their service animal policies.
Components of School Board Policies on Service Animals
When developing their policy on student use of service animals, school boards must respect their obligations under the Ontario Human Rights Code, the AODA, the Blind Persons’ Rights Act, and collective agreements as well as other applicable laws and government policies. When developing their policies on student use of service animals, school boards are encouraged to consult with local partners, as appropriate.
Each school board policy on student use of service animals must contain, at a minimum, the following components:
Communication Plan. The school board policy should say how the school board will inform the school community about the process by which parents4 can apply to have their child’s service animal in the school. It should also say how it will inform the school community of the presence of any service animals at the school.
Process. The school board policy should lay out how requests for students to be accompanied by service animals in schools can be made and the steps in the school board decision-making process. School board processes must be timely, equitable, and readily available, and decisions must be based on a student’s individual strengths and needs.
Policies should include the following:
* a clearly articulated process for a parent to follow when making a request for a student to be accompanied by a service animal in school, including: o a primary point of contact;
o supporting materials for initiating requests(e.g., templates);
* information around the process through which a determination is made about whether or not a service animal is an appropriate accommodation. This could include:
o a meeting or meetings for all appropriate parties(e.g., parents, school staff) to discuss the request for a service animal; o a list of documentation that a parent must provide;
o a list identifying who must be consulted in making the determination;
* information about the factors the board will consider when making a case-by-case determination, including:
o any documentation on how the service animal supports the student’s learning needs and/or disability-related needs, including documentation from the student’s medical professionals; o the disability-related needs and learning needs of the student; o other accommodations available;
o the rights of other students and the needs of the school community; o any training or certification of the service animal;
o any special considerations that may arise if the animal is a species other than a dog;
* consideration of privacy rights of the student seeking to bring a service animal to school;
* information about how the school board will document its decision regarding a request. For example, if a school board approves a request, that information could be recorded in the student’s Individual Education Plan (IEP), if one exists;
* if the school board approves a request for a service animal: a process for developing a plan that addresses:
o the ongoing documentation required for the animal(e.g., annual vaccination records); o the type of support the service animal will provide to the student; o who will be the handler of the service animal while at the school;
o a plan for how the care of the animal will be provided(including supporting the safety and biological needs of the animal); o how the animal will be readily identifiable;
o transportation of the animal to and from school;
o time line for implementation;
* if the school board approves a request for a service animal: strategies for sharing information with members of the broader school community who may be impacted by the decision (e.g., other students, parents, educators, school staff, volunteers, Special Education Advisory Committees) and organizations that use the school facilities (e.g., licensed child-care providers operating in schools of the board), while identifying how the student’s privacy will be considered;
* if the school board denies a request for a service animal: a statement that the school board will provide a written response to the family that made the request in a timely manner.
Health, Safety, and Other Concerns. The school board policy should include a protocol for the board to hear and address concerns from other students and staff who may come in contact with a service animal, and from parents of other students, including health and safety concerns such as allergies and fear or anxiety associated with the animal. Wherever possible, school boards should take steps to minimize conflict through cooperative problem-solving, and/or other supports which may include training for staff and students.
Roles and Responsibilities. The school board policy should clearly outline the roles and responsibilities of students, parents, and school staff regarding service animals at school, taking into account local circumstances.
Training. The school board policy should consider strategies for providing training related to service animals, as appropriate, for school staff who have direct contact with service animals in schools.
Review of School Board Service Animal Policies and Data Collection. The school board policy should be reviewed by the board on a regular basis.
School boards are expected to develop a process for data collection and to collect data regularly, including, but not limited to:
* total number of requests for students to be accompanied by service animals; * whether requests are for elementary or secondary school students; * the number of requests approved and denied;
* if denied, the rationale for the decision, including a description of other supports and/or services provided to the student to support their access to education; * species of service animals requested and approved;
* types of needs being supported (e.g., medical, physical, emotional).
School boards should use this data to inform their cyclical policy reviews.
Implementation
School boards must implement and make publicly available on their websites their newly developed or updated policies and procedures on student use of service animals by January 1, 2020.
School Board Reporting
School boards are required to report to the Ministry of Education, upon request, regarding their activities to achieve the expectations outlined in this memorandum. This could include specific data collected.
1 In this memorandum, school board(s) and board(s) refer to district school boards and school authorities. This memorandum also applies to Provincial and Demonstration Schools.
2 2. This policy is established under the authority of paragraph 29.5 of subsection 8(1) of the Education Act and school boards are required to develop their policies on service animals in schools in accordance with this policy.
3 Policy on Accessible Education for Students with Disabilities (Ontario: Ontario Human Rights Commission, 2018), pp. 5960.
4 4. In this memorandum, parent(s) refers to parent(s) and guardian(s).