UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

A.R., Jamie Riley and Alan Riley, on behalf of their son, Plaintiffs

v. Case No. 15-cv-152-SM Opinion No.

School Administrative Unit #23, Defendant

O R D E R

Plaintiffs, A.R., and Jamie Riley and Alan Riley, on behalf

of their son, A.R., filed suit on April 29, 2015, asserting

violations of Title II of the Americans with Disabilities Act

(“ADA”),

et seq., and Section 504 of the

Rehabilitation Act,

(“Section 504”) by defendant

School Administrative Unit #23 (the “District”).1

A.R. is a student at Woodsville Elementary School who has

been diagnosed with developmental delays, hypotonia, hearing

loss, dysphagia, epilepsy, and cortical blindness. A.R., who is

non-verbal, suffers from frequent seizures of multiple types

1 Plaintiffs also brought suit against Dr. Donald A. LaPlante, the District’s Interim Superintendent, but have since voluntarily dismissed all claims against him. See Document No. 46. (drop, grand mal, temporal lobe). Those seizures impact A.R’s

independent mobility, and he requires significant support to be

safe, to be mobile within his classroom and on the school

campus, to care for his personal needs, and to communicate those

needs to others.

A.R. receives special education and related services from

the District pursuant to his individualized education plan

(“IEP”). Those services include instruction from a special

education teacher, a teacher of the deaf, and a teacher of the

visually impaired, as well as related services of speech,

physical therapy and occupational therapy. Since June of 2012,

A.R. has also been accompanied by a one-on-one aide who,

currently, is a registered nurse. The aide’s responsibilities

include: wiping his mouth to prevent skin irritation, feeding

A.R., treating A.R.’s multiple seizures (by monitoring his

breathing, placing him a safe location during seizures, and

checking for ill effects resulting from the seizures), assisting

A.R. with walking from place to place, and, on some days,

providing instructional support.

A.R. has a service dog named Carina. Carina was trained by

4 Paws for Ability (“4 Paws”) as a multipurpose service animal.

2 Carina alerts for seizures by licking A.R.’s face. While Carina

is trained to go through the school day without needing to be

walked, eat or relieve herself, she requires a service animal

handler during the school day. Because of A.R.’s cognitive,

sensory and physical limitations, he is not in a position to act

in that capacity. After some initial resistance, the District

allows Carina to accompany A.R. at school. However, the

District requires that A.R.’s parents provide and pay for a

handler to supervise Carina during the school day. Plaintiffs

contend that, by refusing to provide and pay for a service dog

handler for Carina while A.R. is at school, the District has

failed to reasonably accommodate A.R.’s disability.

Upon filing suit, plaintiffs moved for a preliminary

injunction. The Magistrate Judge held a hearing on that motion

on November 12, 2016, and issued her Report and Recommendation

on December 22, 2016, (document no. 39), recommending that

plaintiffs’ motion be denied. Neither party objected to the

Magistrate Judge’s recommendation, and, on January 13, 2016, the

court approved that Report and Recommendation, denying

plaintiffs’ motion for injunctive relief.

3 The IDEA: Background

In opposing plaintiffs’ motion for preliminary relief, the

District argued, in part, that plaintiffs were unlikely to

succeed on the merits because they were required, but failed, to

first exhaust their administrative remedies under the

Individuals with Disabilities Education Act,

et

seq. (“IDEA”). As our Supreme Court has explained, the IDEA:

ensures that children with disabilities receive needed special education services. One of its provisions, § 1415(l), addresses the Act's relationship with other laws protecting those children. Section 1415(l) makes clear that nothing in the IDEA “restrict[s] or limit[s] the rights [or] remedies” that other federal laws, including antidiscrimination statutes, confer on children with disabilities. At the same time, the section states that if a suit brought under such a law “seek[s] relief that is also available under” the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures.

Fry v. Napoleon Cmty. Sch., ___ U.S. ___,

,

(2017).

The IDEA “offers federal funds to States in exchange for a

commitment: to furnish a ‘free appropriate public education’ –

more concisely known as a FAPE – to all children with certain

physical or intellectual disabilities.”

at 748 (citing

(a)(1)(A) and 1414(3)(A)(i)). “[A] FAPE comprises

‘special education and related services’ – both ‘instruction’

4 tailored to meet a child’s ‘unique needs’ and sufficient

‘supportive services’ to permit the child to benefit from that

instruction.”

at 748-49 (quoting

(9), (26),

(29) (additional citations omitted).

The scope of “related services” under the IDEA is fairly

broad. As the Supreme Court observed, “related services,” as

defined by the IDEA, “broadly encompass[] those supportive

services that ‘may be required to assist a child with a

disability to benefit from special education.’” Cedar Rapids

Community Sch. Dist. v. Garret F. by Charlene F.,

(1999). “A service that enables a handicapped child to

remain at school during the day is an important means of

providing the child with the meaningful access to education that

Congress envisioned.” Irving Independent School Dist. v. Tatro,

(1984). “Services . . . that permit a child

to remain at school during the day are no less related to the

effort to educate than are services that enable the child to

reach, enter or exit the school.”

An “individualized education program, called an IEP for

short, serves as the ‘primary vehicle’ for providing each child

with the promised FAPE.” Fry,

(quoting Honig

5 v. Doe,

(1988)). In addition to documenting

“the child’s current ‘levels of academic achievement,’” and

specifying “measurable annual goals,” the IEP also “lists the

‘special education and related services’ to be provided so that”

the child may “advance appropriately toward [those] goals.”

(quoting

(d)(1)(A)(i)(I), (II), (IV)(aa)).

The IDEA “establishes formal procedures for resolving

disputes” between parents and school representatives when they

“cannot agree on such issues,” and requires exhaustion of those

procedures before seeking judicial review.

A plaintiff

asserting claims arising “under the ADA, the Rehabilitation Act,

or other similar laws, must in certain circumstances” exhaust

the IDEA’s administrative procedures prior to filing. Id. at

750. Our court of appeals has “recognized that exhaustion is

mandatory in such cases, even though a party might seek relief

that ‘is not available in the administrative venue.’ Mandatory

exhaustion in such cases is both consistent with the legislative

intent of the IDEA and practical because it ‘facilitate[s] the

development of a useful record.’” S.S. by S.Y. v. City of

Springfield, Mass.,

(D. Mass. 2015)

(quoting Frazier v. Fairhaven Sch. Comm.,

(1st

Cir. 2002)). However, before the Supreme Court’s February,

6 2017, opinion in Fry v. Napoleon Cmty. Sch., the full scope of

the IDEA’s exhaustion requirement was unsettled. See Fry,

(explaining that the Court granted certiorari “to

address confusion in the courts of appeals as to the scope of

§ 1415(l)'s exhaustion requirement.”).

Fry v. Napoleon

In Fry, a Michigan elementary school refused to allow E.F.,

a student with a severe form of cerebral palsy, to bring her

service dog, Wonder, to school. Fry,

. The

Frys filed suit under Title II of the ADA and Section 504 of the

Rehabilitation Act. The school district moved to dismiss,

arguing that the Frys were required to first exhaust the IDEA’s

administrative remedies procedures.

. The Sixth

Circuit agreed, finding that, “[b]ecause the harms to E.F. were

generally ‘educational’ — most notably, the court reasoned,

because ‘Wonder's absence hurt her sense of independence and

social confidence at school’ — the Frys had to exhaust the

IDEA's procedures.”

(quoting Fry v. Napoleon Cmty. Schs.,

(6th Cir. 2015)). In making that

determination, the Sixth Circuit took the view that the IDEA’s

exhaustion requirements apply “whenever ‘the genesis and

7 manifestations’ of the complained-of harms were ‘educational’ in

nature.”

(quoting Fry,

).

In this case, the District relied primarily upon the Sixth

Circuit’s opinion in Fry, arguing that the IDEA’s administrative

remedies must be exhausted before A.R.’s suit could be filed.

In her report and recommendation, the Magistrate Judge carefully

considered the Sixth Circuit’s opinion, but found it

distinguishable. She noted that, in Fry, the primary reason

Wonder was in school was to develop and maintain a “bond” with

E.F., which, the Sixth Circuit found was an educational goal.

See Document No. 39, at 19. Here, the Magistrate Judge

determined, the evidence demonstrated that Carina, A.R.’s

service dog, was not related to A.R.’s educational goals.

Instead, Carina was a “health and safety service used by A.R. to

identify and alert for seizures.” Id. at 18. And, she noted,

the defendants seemingly agreed, as “defendants’ counsel

acknowledged that if Carina does not come to school, A.R. is not

denied any program activity or service offered by the district.”

Id. Accordingly, the magistrate concluded, the IDEA’s

exhaustion requirement did not apply, as plaintiffs were not

contending that A.R.’s IEP was inadequate or that he was

receiving a substandard education. See id. at 17.

8 On February 22, 2017, the Supreme Court vacated the Sixth

Circuit’s decision in Fry, and clarified the scope of the IDEA’s

exhaustion requirement.

. The Court held that

“exhaustion is not necessary when the gravamen of the

plaintiff’s suit is something other than the denial of the

IDEA’s core guarantee – what the Act calls a ‘free appropriate

public education.’”

. However, “[i]f a lawsuit

charges such a denial, the plaintiff cannot escape § 1451(l)

merely by bringing her suit under a statute other than the

IDEA.” Id. at 754.

The Court further held that, “in determining whether a suit

indeed ‘seeks’ relief for such a denial [of a FAPE], a court

should look to the substance, or gravamen, of the plaintiff’s

complaint.” Id. at 752. The Court stated:

In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities — the IDEA on the one hand, the ADA and Rehabilitation Act (most notably) on the other. The IDEA, of course, protects only “children” (well, really, adolescents too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier noted, the statute's goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her “unique needs.” § 1401(29); see Rowley, 458 U.S., at 192, 198; supra, at 753 – 754.

9 By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs. See supra, at 749 – 750. In short, the IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions. That is not to deny some overlap in coverage: The same conduct might violate all three statutes — which is why . . . a plaintiff might seek relief for the denial of a FAPE under Title II and § 504 as well as the IDEA. But still, the statutory differences just discussed mean that a complaint brought under Title II and § 504 might instead seek relief for simple discrimination, irrespective of the IDEA's FAPE obligation.

One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school — say, a public theater or library? And second, could an adult at the school — say, an employee or visitor — have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.

Id. at 755–56. The Court continued: “[a] further sign that the

gravamen of a suit is the denial of a FAPE can emerge from the

10 history of the proceedings. In particular, a court may consider

that a plaintiff has previously invoked the IDEA's formal

procedures to handle the dispute — thus starting to exhaust the

Act's remedies before switching midstream.” Id. at 757.

The Court determined that the Sixth Circuit had erred by

asking whether E.F.’s injuries were, broadly speaking,

“educational” in nature, rather than “asking whether the

gravamen of E.F.’s complaint charges, and seeks relief for, the

denial of a FAPE.” Id. at 758. And, because “[u]nderstood

correctly, § 1415(l) might not require exhaustion of the Frys’

claim,” the court remanded the case to the court below. Id.

Given the intervening Supreme Court precedent since the

Magistrate Judge’s report and recommendation was issued, this

court issued an order on March 10, 2017, asking that plaintiffs

show cause why the case should not be stayed pending exhaustion

of IDEA’s remedies, or dismissed for failure to exhaust those

administrative remedies. At that time, the court denied

defendants’ pending summary judgment motion without prejudice,

pending consideration of the IDEA administrative remedies issue.

Both parties filed legal memoranda in response.

11 Discussion

Plaintiffs argue that the relief they are seeking

(provision of a service dog handler by the District) is not

available to them under the IDEA, because that relief is not

necessary to A.R.’s obtaining an appropriate education. They

say that the requested accommodation relates only to medical

issues, not A.R.’s educational needs. The District argues that

while plaintiffs would not be entitled to the requested relief

on the merits under the IDEA, still, the gravamen of plaintiffs’

complaint is whether the District must provide supportive

services necessary for Carina to attend school with A.R. – a

request unique to the relationship between a disabled student

and a school, and one that falls within the reach of the IDEA.

That is, such relief “could” be obtained under the IDEA if

necessary in a specific case. Therefore, defendants say,

plaintiffs were required to first exhaust their IDEA

administrative remedies before bringing suit.

This case is somewhat unique in that both parties agree,

for different reasons, that plaintiffs cannot obtain the

requested relief under the IDEA, because A.R. is not suffering

educational harm. Neither party argues that Carina is

educationally necessary for A.R., and both parties agree that

12 Carina does not assist A.R. in achieving any of the educational

goals described in his IEP. And, plaintiffs are not alleging

that A.R. is, in any way, being denied the benefit of a free and

appropriate public education. In fact, as the magistrate judge

noted, during the preliminary injunction hearing, A.R.’s mother

testified that she was satisfied with the education that A.R.

was receiving. See Document No. 47-1, at 111:23-112:1.

However, the parties’ agreement with respect to the IDEA issue

is not dispositive: If the gravamen of plaintiffs’ complaint

implicates A.R.’s rights to a free and appropriate public

education, then plaintiffs are required to exhaust their IDEA

administrative remedies.

Distinguishing this case from most of those relied on by

plaintiffs, is the fact that the District readily accommodates

A.R.’s need for a service animal. Several courts have

determined that claims involving a school district’s refusal to

allow a service dog to accompany a student to school do not

implicate the IDEA and its administrative scheme. See, e.g.,

Sullivan v. Vallejo City Unified Sch. Dist.,

(E.D. Cal. 1990). Here, however, plaintiffs are not

complaining that the District is discriminating against A.R. on

the basis of his disability by refusing him access when

13 accompanied by his service dog. Instead, the crux of

plaintiffs’ complaint is that the District discriminates against

A.R. by refusing to pay for and provide a handler for Carina.

So, plaintiffs are not merely asking that the District allow

A.R. to be accompanied by his service dog while he is at school.

Instead, plaintiffs want the District to hire, train and pay for

a handler for Carina.

Plaintiffs argue that the gravamen of their complaint

actually addresses an entirely unrelated issue: the District’s

failure to comply with a settlement agreement the parties

reached in earlier proceedings before the Office of Civil Rights

of the U.S. Department of Education. See Pls.’ Br. at 8. But

that argument is not supported by the filed complaint, which

contains only one passing reference to the settlement agreement,

no discussion of its terms, or the parties’ respective

obligations under it, no specifics concerning how the District

failed to comply with the agreement, and no claims for relief

for its breach. There surely is a venue and a means by which

claims of right arising under an agreement or administrative

consent decree can be resolved, but this lawsuit does not

provide either given the complaint as filed.

14 In their complaint, plaintiffs allege that, through

Carina’s alerts, “A.R. can be directed to a safe location and

decrease the chance that an injury will result,” that Carina

provides “psychological benefit” to A.R. as a constant presence

in his life, and that Carina’s presence at school is necessary

to maintain her bond with A.R. Compl. ¶¶ 11, 16-17. Plaintiffs

allege that A.R. is being denied “equal access” to school

because the school will not provide him with the necessary

handler for Carina.

With respect to A.R.’s IEP, plaintiffs allege in their

complaint that the District refused to include Carina in A.R.’s

IEP. See compl. ¶¶ 18, 20. At the preliminary injunction

hearing, Ms. Riley testified that, at some point, she had asked

to add Carina and a handler to A.R.’s IEP, but was told “no.”

See Document No. 47-1 at 112. On March 6, 2012, plaintiffs sent

a letter to the District indicating that they were not:

currently going to pursue adding Carina to [A.R.’s] IEP. However, if you plan to address a change in [A.R.’s] aide managing Carina in the school settling then I wish to proceed under the ADA.

Preliminary Inj. Hearing, Pls. Exh. 5. Finally, A.R.’s current

IEP notes that his parents will provide him with certain items

and supplies while he attends school, including a seizure alert

15 dog and an adult handler for the service dog. See Document No.

44-7.

So, while plaintiffs insist that they are not taking issue

with the adequacy of A.R.’s education or his IEP, the complaint

discloses that plaintiffs are dissatisfied with the level of

services (or support) the District is providing to A.R. In Fry,

the court noted that the complaint “allege[d] only disability-

based discrimination, without making any reference to the

adequacy of the special education services [plaintiff’s] school

provided.”

. Here, in contrast, plaintiffs do

allege that the level of supportive services provided by the

District is inadequate, because the District refuses to provide

a handler to issue verbal commands to Carina, hold Carina’s

leash while she is with A.R., and employ Carina in accordance

with A.R.’s seizure protocol.

Given the hypothetical questions identified by the Court in

Fry, one must ask: (1) Could plaintiffs bring the same claim if

the alleged conduct occurred at a public institution other than

a school?; and (2) Could an adult at the school have pressed

essentially the same grievance? Fry,

. The

answer to both questions is no. Plaintiffs could not state a

16 cognizable claim for relief under the ADA or Rehabilitation Act

against, for example, a public library based on the library’s

failure to provide a handler for Carina while A.R. was visiting

the library. Nor could an adult state a cognizable claim

against a school based on that school’s refusal to provide a

handler for the adult’s service animal while visiting the

school. That is in part because, under the ADA, “[a] public

entity is not responsible for the care or supervision of a

service animal.”

(e); Cf., U.S. v. Gates-

Chili Central Sch. Dist.,

(W.D.N.Y.

2016) (finding that school district had no obligation under the

ADA or its regulations to “provide handling services” for a

student’s service dog).

Of course, Fry’s hypothetical questions were not meant to

be taken as bright line tests. But the answers here suggest

that the rights claimed by plaintiffs are unique to a student’s

effort to obtain an appropriate public education. And, the

parties’ past relationship plainly suggests that plaintiffs are,

in actuality, seeking relief related to A.R.’s educational

entitlements, notwithstanding their denials in unison. In her

March 6, 2012, letter, A.R.’s mother stated that, rather than

initiating IDEA administrative proceedings to add Carina to

17 A.R.’s IEP, the family would instead be proceeding under the

ADA. While the record is unclear as to whether plaintiffs at

any point did attempt to invoke the IDEA’s formal procedures

with respect to Carina’s services, the March 6, 2012, letter

lends some support to a finding that the gravamen of plaintiffs’

suit concerns the denial of a FAPE.

Finally, plaintiffs seem to argue that exhaustion of their

IDEA remedies would have been futile. They contend that, even

if they were to seek relief through the IDEA’s administrative

remedies, the hearing officer would have no authority to order

that relief because A.R.’s FAPE is not affected by the purported

discrimination at issue. Plaintiffs’ expectations about what a

hearing officer might determine with respect to whether

providing A.R. with a handler for Carina is necessary for a FAPE

are of course not dispositive. A hearing officer might

determine that providing a handler for Carina falls within

“related services” that the District is required to provide to

A.R. under the IDEA.

As the magistrate judge fully explained in her order on

their motion for preliminary relief, plaintiffs are not entitled

to the relief they seek under either the ADA or the

18 Rehabilitation Act. See Document No. 39 at 21-30; 32-37; see

also Alboniga v. Sch. Bd. of Broward Cty. Fla.,

(S.D. Fla. 2015) (“Turning to the specific regulatory

provisions at issue,

(d) provides that ‘[a]

service animal shall be under the control of its handler.’ By

implication, requiring a public entity to act as handler for and

to control the service animal would not be a reasonable

accommodation mandated by the ADA.”) (citations omitted); U.S.

v. Gates-Chili Central Sch. Dist.,

. To

the extent the relief sought by plaintiffs might be available at

all, it is only available under the IDEA. Accordingly,

plaintiffs’ claims fall within the reach of the IDEA, and Fry

requires that they be dismissed for failure to first exhaust

available administrative remedies.

CONCLUSION

For the foregoing reasons, as well as those set forth in

defendants’ briefing (document no. 55), plaintiffs’ claims

against the defendants are dismissed, albeit without prejudice.

The Clerk of Court shall close the case.

19 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 12, 2017

cc: Kirk C. Simoneau, Esq. David P. Slawsky, Esq. Melissa A. Hewey, Esq. Dona Feeney, Esq. Jeanne M. Kincaid, Esq. Joshua S. Hilliard, Esq.

20