Bardelli v. Allied Servs. Inst. of Rehab. Med.

TRACI BARDELLI, et al., Plaintiffs v. ALLIED SERVICES INSTITUTE OF REHABILITATION MEDICINE, Defendant

CIVIL ACTION NO. 3:14-0691

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

September 30, 2016

(JUDGE MANNION)

MEMORANDUM

Plaintiffs Traci and Joseph Bardelli, individually and on behalf of their minor daughter M.B., filed this action asserting claims under the Americans with Disabilities Act and the Rehabilitation Act as well as state law claims regarding their attempt to have M.B. attend the dePaul School with her service dog Buddy, trained to identify seizures in M.B. and to alert others when she has a seizure. M.B., a 12-year old student with severe epilepsy who was previously enrolled at the dePaul School, was prevented from attending the school with Buddy. After M.B. was barred from attending the school with Buddy and she was forced to miss school, her parents enrolled her in the Dunmore School District where they lived. Defendant Allied Services Institute of Rehabilitation Medicine ("Allied") then offered several accommodations to M.B., including to allow Buddy in the school wearing a dander control t-shirt, and M.B. returned to the dePaul School for a short period of time from January 2, 2014 until January 16, 2014. Plaintiffs then removed M.B. from the school after Buddy failed to perform properly while he was wearing the t-shirt.

Allied filed a motion for summary judgment, (Doc. 43), arguing that plaintiffs failed to dispute its evidence that the accommodations offered to M.B. during her attendance at the dePaul School were reasonable. For the following reasons, the motion for summary judgment will be GRANTED IN PART and DENIED IN PART.

I. MATERIAL FACTS¹

M.B. is 12 years old and is the child of plaintiffs. M.B. has Chiari Malformation, Hydrocephalus, Complex Partial Epilepsy Intractable, Dyslexia and suffers from three types of seizures. In particular, M.B. has absent, complex partial, and full tonic-clonic grand mal seizures. When M.B. has a simple partial seizure she is still conscious but it may progress to a complex partial seizure where she loses consciousness. A complex partial seizure can then progress to a secondarily generalized seizure where M.B.'s body convulses and shakes.

M.B. enrolled in the dePaul School in November of 2011 at age eight without a service dog but was waiting to get a new service dog after her previous service dog became ill. The dePaul School is a division of Allied. Themission of the dePaul School is to teach students with dyslexia and other specific learning differences how to learn, and it is accredited by the Pennsylvania Department of Education. Plaintiffs discussed with the principal of the dePaul School, Suzanne Rickard, why M.B. would need to attend school with her new service dog. In February of 2012, M.B. received Buddy, a certified service dog specially trained to identify seizure activity in M.B., to alert others of seizures, and to stay and provide comfort to M.B. during a seizure. M.B. and Buddy trained together.

M.B. attended the dePaul School during the 2011-2012 school year without Buddy. However, plaintiffs advised Rickard that after M.B. received her new service dog, the dog would be accompanying M.B. to school. Rickard refused to allow Buddy to be at the school with M.B. stating that Buddy would distract other students. During this school year, M.B. missed school when she experienced cluster seizures since she was not allowed to have Buddy at the school.

Similarly, during the 2012-2013 school year, M.B. attended the dePaul School without Buddy. Before this school year started, plaintiffs again asked Rickard to allow M.B. to attend school with Buddy and Rickard again refused repeating that Buddy would be a distraction. Nonetheless, plaintiffs decided to send M.B. to the school without Buddy since "[i]t was important that [M.B.] be well educated to the best of our ability." The dePaul School provided some accommodations to M.B., namely, by agreeing to administer suppository medication if needed and by allowing M.B. to lay down after she had aseizure.

During the 2013-2014 school year, M.B. attended the dePaul School without Buddy after plaintiffs' request to allow M.B. to attend school with Buddy was again denied by Allied. The dePaul School provided some accommodations to M.B. by assisting her with her feeding tube if required, by agreeing to administer suppository medication if needed and by allowing M.B. to lay down after she had a seizure if she was tired. The school also did not require M.B. to take gym class and allowed her to take another class in its place.

At the October 25, 2013 parent/teacher conference, M.B.'s mother asked Rickard to allow Buddy to go to school with M.B. due to the increased seizure activity M.B. was experiencing after she was weaned off her prescribed ketogenic diet and due to the fear and anxiety M.B. was experiencing over the increased seizures. Rickard did not doubt M.B.'s mother that it was medically necessary to allow Buddy to attend school with M.B. and agreed to "check things out to see what, if anything, we can do." Rickard told M.B.'s mother she would get back to her with a response. As research for her response, Rickard reviewed the emergency contact cards of the students at the school and discovered that one student was allergic to dogs.

Buddy attended a Holloween Bingo at the school with M.B. on October 26, 2013. Rickard told M.B.'s mother that she looked into whether Buddy could attend the school and said she discovered that a student at the school(M.H.) was "very, very allergic to dogs." This fact was indicated on M.H.'s student emergency card. Rickard told M.B's mother to keep Buddy far away from M.H. before going into the room for the bingo. Nonetheless, M.H. was unable to stay at the bingo because he had an allergic reaction to Buddy. Buddy was also allowed to attend other functions at the school as well.

Subsequently, M.H.'s parents wanted M.B. to attend the school with Buddy and they also wanted M.H. to be able to visit his friends who had dogs. Thus, they took steps to address M.H.'s allergies, including having him get allergy shots.

M.B.'s mother brought M.B. to school with Buddy on October 28 and October 29, 2013. On both days, Rickard told M.B.'s mother that M.B. could not have Buddy at school, and her mother then left the school with M.B. and Buddy. Nobody at the school told M.B. that she could not stay at school by herself on either day. In fact, Rickard invited M.B. to stay at school without Buddy.

M.B. did not attend the dePaul School at any time between October 29, 2013 and January 2, 2014. The dePaul School sent home the work that the students were doing during the school day, but M.B. was unable to complete this work without teacher instruction. In order to avoid having M.B. deemed as truant, her mother enrolled her at Dunmore Elementary School on November 18, 2013. However, M.B. was still enrolled at the dePaul School and her mother advised Rickard that she intended to have M.B. return to the school.

On November 20, 2013, M.B.'s mother met with Rickard and Rickard asked her to remove M.B.'s possessions from the school. M.B.'s mother refused and told Rickard that she intended for M.B. to return to the school. She also gave Rickard a note from M.B.'s pediatrician, Dr. Martha Sauter, stating that it was medically necessary for Buddy to be with M.B. "24 hours/7 days a week." This letter was the first written documentation plaintiffs provided to the school indicating that it was medically necessary for M.B. to use her service dog at school. Additionally, plaintiffs completed Student Emergency Cards for M.B. for the 2011-2012, 2012-2013 and 2013-2014 school years and these cards did not indicate that M.B.'s epilepsy required her to have a service dog at school. Plaintiffs however had verbalized this fact to the school in the past on several occasions.

On November 25, 2013, plaintiffs' counsel wrote a letter to Rickard demanding that M.B. be allowed to attend the school with Buddy. On November 27, 2013, Allied's counsel responded to plaintiffs' letter stating that M.B. could return to the school at any time but the school could not yet accommodate her to attend the school with Buddy. After receiving Dr. Sauter's and plaintiffs' counsel's letters, Rickard began to discuss with staff at the school how they could accommodate both M.B. and M.H.

The dePaul School changed the home room of M.H. and his schedule so that he would not be in the same room as Buddy. The school also arranged to have housekeeping vacuum and dust the rooms every night in order to reduce animal dander. The dePaul School offered additionalaccommodations to M.B., including rearranging her schedule after her brain surgery, allowing her to pick 2 or 3 buddies to stay in and play cards with her when she could not go outside for recess and excusing M.B. from the punishment of detention or in-school suspension due to absences related to health issues.

Pursuant to Allied's suggestion, plaintiffs' counsel wrote a letter to the dePaul School on December 5, 2013 with proposed accommodations for M.B. to return to the school with Buddy on December 9, 2013. (Doc. 48-1). One of the proposals was that "Buddy will wear a shirt" in the school to reduce the spread of dander and allergens. Counsel for Allied responded in a December 6, 2013 letter stating that the dePaul School agreed to allow M.B. to return to the school on January 2, 2014 with Buddy under the following four conditions:

a. Buddy will wear a shirt at all times that will control his dander. Parents will purchase the shirt and provide proof of the type of shirt to Allied Services and the dePaul School prior to January 2, 2014;

b. Buddy will be restrained on a leash at all times while walking in the hallways of the dePaul School;

c. Parents will arrange for the necessary individuals within the administration of the dePaul School to be trained with Buddy prior to January 2, 2014

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