If you’ve recently taken a flight, you’ve probably noticed that there are more animals in airports and on airplanes. There are other industries that are impacted by the rise in service and emotional support animal use as well. Your approach to them could put you at risk for legal action and bad press. Remember that there are different regulations for animals on airplanes than there are for those of us on the ground.
First and foremost, a service animal differs from an emotional support animal, and the two categories have different engagement guidelines. An emotional support animal may be subject to access restrictions at a place of business, but service animals are not subject to the same restrictions. What distinguishes these two varieties of animals from one another, and what regulations apply to their use in patient care and treatment?
The service animal is not a pet but a working animal. With the exception of miniature horses, only dogs are accepted as service animals under the Americans with Disabilities Act. Service dogs are not defined by breed. A service animal is trained to carry out particular duties for its owners or to treat a condition. Examples of this type of work or tasks include guiding the blind, warning the deaf, pulling a wheelchair, alerting and protecting someone having a seizure, reminding someone with a mental illness to take their medications, and calming someone with Post Traumatic Stress Disorder (PTSD) during an anxiety attack. The emotional support, therapy, comfort, or companion animal stands in contrast to this. This pet does not meet the criteria for a service animal because its only purpose is to offer comfort or emotional support. The mere presence of the animal provides comfort.
Service animals are canines that have been specially trained to carry out tasks or work for people with disabilities, according to the Americans with Disabilities Act. The task the trained animal is to perform must be specifically related to the person’s disability. All businesses and organizations that provide services to the public are required by the Americans with Disabilities Act to permit service animals to accompany people with disabilities in all areas of the establishments where customers are ordinarily permitted. Medical care facilities fall within the purview. The companion animal does not enjoy the same accommodations.
Unless the owner can convincingly claim the support, comfort, or therapy animal is specifically trained to assist with their disability, emotional support animals, comfort animals, and therapy animals are currently not specifically protected under the ADA.
When a new patient arrives at the clinic to sign up for his appointment with his 75-pound Labrador Retriever, Sally, the front desk staff cannot help but notice the animal and ask about same. What then occurs in the clinical setting? The new patient does not appear to be disabled from the outside, and the dog is not wearing any identification. What inquiries are appropriate and inappropriate, and more importantly, what accommodations must be made for this pet and its owner?
*A practice is prohibited from posing these two queries when it is clear that the animal has been trained to perform tasks for a person with a disability (e. g. a seeing e dog).
There may be issues if a patient has a service animal with them throughout all phases of their medical care and treatment. For instance, having a service animal present during a surgical procedure in a sterile setting with gowns and masks would be extremely difficult, if not impossible. The law requires that the medical provider provide reasonable accommodation. These animals that accompany patients may be subject to reasonable restrictions in each situation. In addition to the surgical environment, a burn unit is another illustration of a sterile setting where service animals can be prohibited.
Consider a scenario where a patient is having a procedure done in the doctor’s office without the need for a sterile environment but still needs gloves and to have their skin penetrated. Allowing a well-groomed service animal in a clinical setting likely poses no higher risk of infection than having a human present, as long as the dog is under the owner’s control and housebroken. Can this healthcare provider forbid the service animal from accompanying the patient into the exam room where this procedure will be performed? What is the justification and rationale for the exclusion? If the dog is not, access may be denied. Some places have on-site crates where a service animal can be kept while its handler is in a prohibited area, or they can take care of the service animal’s stewardship. Maybe a family member could watch the dog while the procedure is being done.
Tennessee is not the only state experiencing an increase in lawsuits brought by patients who were denied access to medical care because their service animal was present. As with any litigation, it’s important to take into account the stress of the process, attorney’s fees, costs, and potential negative press coverage for the healthcare provider’s business. The issue of service dog litigation is current and is likely to receive press attention. It is important to note that some states (23 out of 50) are passing legislation to penalize people who have phony service animals. At this time, Tennessee is not one of them. See this page for more information.
What compensation could a person denied medical care seek if their rights under the Rehabilitation Act of 1973’s Section 504 or the Americans with Disabilities Act were violated?[i] Those defendants must be ready to claim that their actions were lawful and non-discriminatory and that accommodating this animal would fundamentally change the nature of their services, programs, and activities. Those who have been wronged are likely to claim emotional distress, and if a violation is determined to have taken place, they will be entitled to damages for it as well as possibly the winning party’s legal fees. The Court shall have the discretion to award plaintiff’s counsel fees. These are typically given in instances of willful disregard or reckless disregard The threshold for establishing deliberate indifference is not terribly high. While there may be a small damage award in these cases, the attorney’s fees could very well end up being the tail that wags the dog (pun intended) if they are not reasonable. A 2016 settlement between the U. S. Attorney fees for both Uber and National Federation for the Blind exceeded $2,000,000. 00 awarded to the U. S. National Federation for the Blind. See https://arstechnica. com/tech-policy/2016/12/lawyers-who-sued-uber-over-service-animals-will-get-2-38m-fee-award/.
There isn’t much case law on service animals in healthcare settings, but the few cases that do exist are fact-specific and emphasize the value of individual assessments in each circumstance. For example, in Tamara v. El Camino Hosp. , 964 F. Supp. 2d 1077 (N. D. Cal. In a 2013 lawsuit, a patient claimed that a hospital’s blanket ban on service dogs in the psychiatric ward would fundamentally change the nature of its services because it would cause disruption. In that case, the plaintiff utilized her dog to assist with balance while walking and other physical activities, like picking up dropped objects. Instead of the service dog, the hospital gave the plaintiff a walker, but she claimed that this made mobility more difficult because she was unable to pick up dropped items and fit in the bathroom. The court determined that the hospital’s policy of categorically rejecting service animals without first conducting an individualized assessment violated both the Rehabilitation Act and the Americans with Disabilities Act. The court specifically pointed out that direct threat evidence must be supported by actual risk as determined by an individual assessment, not just conjecture or generalizations. According to the court, the plaintiff’s service dog would not come into contact with the ward’s most unstable patients because they were kept in a locked ward. The hospital should have evaluated the plaintiff’s ability to care for the dog and made appropriate accommodations for this, the court further found, such as allowing a friend or other third party to take the dog out of the ward for care. The court also discovered that an occupational therapist employed by the hospital was frequently permitted to bring her own dog into the ward and that other hospitals had policies permitting service animals in psychiatric wards.
In another example, MCAD v. Unident Dental Center, Docket NO. In the case number 05- BPA- 01057 (Hearing Officer Opinion, February 14, 2014), a dental practice was sued for failing to give Ms. Mahoney to allow her toy poodle, who had been trained to support Mahoney emotionally and help her with her hearing impairments, to accompany her to a double root canal procedure. The choice to forbid the dog from accompanying the patient into the examination room was made in the office in front of other patients. The patient was told to bring the dog home and come back for treatment if she wanted to. The patient claimed that because of how uncomfortable and embarrassing this encounter was, she experienced emotional distress.
The dental office staff discussed the issues with performing a root canal while the patient was holding her dog during that procedure or examination. The surgeon’s dog was in close proximity to the patient’s mouth, and the dentist discussed the increased health and safety risks that this poses for everyone involved. The Tribunal found this testimony to be very credible in this particular case. The dentist was found to have acted appropriately in excluding the dog from the root canal procedure due to the reasonable worries about maintaining a sterile and sanitary operating environment, worries about potential infections, and worries of unexpected movement or reactions of the animal to the noise of drills and machines while sharp instruments were being used. The patient or others may have suffered harm or injury as a result of the dog’s presence.
It is evident in this instance, as well as others, that staff education and patient communication are crucial. This conversation could have been held in private and well before the day of the actual root canal if the patient had informed the dentist office that she wanted to have her service animal present on the day of the procedure or when the procedure was scheduled. This communication issue is instructive to us. It might be beneficial to ask whether a service animal will accompany the patient when scheduling patients, especially new patients. Knowing this information beforehand can inform and prepare both the patient and the physician’s office or facility regarding how each unique situation will be handled. Remember to avoid the “Don’t Ask” questions. Above all, if an employee encounters an animal and is unsure of how to handle the situation, they should seek assistance and avoid any public confrontations that might cause them to experience emotional distress, agony, or embarrassment.
When an unplanned or unexpected event happens, such as a patient demanding to bring their service animal with them during their procedure or examination, problems seem to arise. This can have a negative impact when combined with the employee’s lack of education. Remember that a service animal may not be permitted in places where a patient would typically be permitted if it can be shown that its presence or behavior would fundamentally alter or pose a direct threat to other people or the nature of the goods and services offered. The operating room is a prime example, where sterile conditions prevail and gowns and masks are required to prevent contamination. Until the patient is taken to surgery, modifications may be made to allow the dog to accompany the patient in areas where family members can be present.
Even though the service animal has been trained to perform tasks, can the doctor’s office refuse to let the patient bring it into the exam room? Just having a crate won’t make the issue go away. The correct course of action would be to allow the service animal in the examination room if the location is one where the animal’s presence won’t affect the medical care provided and the animal is actually a trained service animal.
The problems with allowing a service animal are real and may have severe repercussions, including litigation and unfavorable publicity. When addressing genuine service animals, the lines can become blurred due to the rise in emotional support animals. The best practices involve being knowledgeable, ready, and teaching your staff what to ask when a patient is accompanied by an animal and how to handle the situation.
Service animals within health Care Facilities. Strategies for regulatory compliance. Hughes, Patricia A and Rozovsky, Fay A. , ASPR: Recognizing the Need for Service Animal Accommodations in Healthcare Facilities
[i] When a facility accepts Medicare, Section 504 of the Rehabilitation Act of 1973 applies.
Ms. In the company of Ortale, Kelley, Herbert & Crawford, Longmire is a partner. Ms. Longmire is an experienced litigator in jury and nonjury matters. She received board certification in Civil Trial Advocacy in 2000 from the National Board of Trial Advocacy, a body recognized by the American Bar Association. She represents clients in cases involving medical negligence, other types of professional negligence, premises liability, contract disagreements, products liability, and employment litigation. Ms. Longmire frequently gives seminars to different corporate clients about litigation, including medical malpractice and personal injury. Member of the Tennessee Defense Lawyers Association, the American Trial Lawyers Association, the Lawyers Association for Women, and the Nashville, Tennessee and American Bar Associations, Ms. Longmire stays active in the legal community. She has also served as president of the Tennessee Lawyers Association for Women in the past. The Sentinel’s content is for informational and educational purposes only and does not constitute legal advice. Policyholders are urged to seek legal advice from their personal attorney as state-specific legal requirements may differ and/or evolve over time.
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If you’ve recently taken a flight, you’ve probably noticed that there are more animals in airports and on airplanes. There are other industries that are impacted by the rise in service and emotional support animal use as well. Your approach to them could put you at risk for legal action and bad press. Remember that there are different regulations for animals on airplanes than there are for those of us on the ground.
In another example, MCAD v. Unident Dental Center, Docket NO. In the case number 05- BPA- 01057 (Hearing Officer Opinion, February 14, 2014), a dental practice was sued for failing to give Ms. Mahoney to allow her toy poodle, who had been trained to support Mahoney emotionally and help her with her hearing impairments, to accompany her to a double root canal procedure. The choice to forbid the dog from accompanying the patient into the examination room was made in the office in front of other patients. The patient was told to bring the dog home and come back for treatment if she wanted to. The patient claimed that because of how uncomfortable and embarrassing this encounter was, she experienced emotional distress.
Consider a scenario where a patient is having a procedure done in the doctor’s office without the need for a sterile environment but still needs gloves and to have their skin penetrated. Allowing a well-groomed service animal in a clinical setting likely poses no higher risk of infection than having a human present, as long as the dog is under the owner’s control and housebroken. Can this healthcare provider forbid the service animal from accompanying the patient into the exam room where this procedure will be performed? What is the justification and rationale for the exclusion? If the dog is not, access may be denied. Some places have on-site crates where a service animal can be kept while its handler is in a prohibited area, or they can take care of the service animal’s stewardship. Maybe a family member could watch the dog while the procedure is being done.
What compensation could a person denied medical care seek if their rights under the Rehabilitation Act of 1973’s Section 504 or the Americans with Disabilities Act were violated?[i] Those defendants must be ready to claim that their actions were lawful and non-discriminatory and that accommodating this animal would fundamentally change the nature of their services, programs, and activities. Those who have been wronged are likely to claim emotional distress, and if a violation is determined to have taken place, they will be entitled to damages for it as well as possibly the winning party’s legal fees. The Court shall have the discretion to award plaintiff’s counsel fees. These are typically given in instances of willful disregard or reckless disregard The threshold for establishing deliberate indifference is not terribly high. While there may be a small damage award in these cases, the attorney’s fees could very well end up being the tail that wags the dog (pun intended) if they are not reasonable. A 2016 settlement between the U. S. Attorney fees for both Uber and National Federation for the Blind exceeded $2,000,000. 00 awarded to the U. S. National Federation for the Blind. See https://arstechnica. com/tech-policy/2016/12/lawyers-who-sued-uber-over-service-animals-will-get-2-38m-fee-award/.
It is evident in this instance, as well as others, that staff education and patient communication are crucial. This conversation could have been held in private and well before the day of the actual root canal if the patient had informed the dentist office that she wanted to have her service animal present on the day of the procedure or when the procedure was scheduled. This communication issue is instructive to us. It might be beneficial to ask whether a service animal will accompany the patient when scheduling patients, especially new patients. Knowing this information beforehand can inform and prepare both the patient and the physician’s office or facility regarding how each unique situation will be handled. Remember to avoid the “Don’t Ask” questions. Above all, if an employee encounters an animal and is unsure of how to handle the situation, they should seek assistance and avoid any public confrontations that might cause them to experience emotional distress, agony, or embarrassment.
Concerning the kinds of doctors who can issue a prescription or doctor’s note for a service dog, I’ve been getting this question a lot lately. Though they would really like to begin their journey with a service dog, people are unsure of who to ask for their prescription.
Finding a doctor who will prescribe a service dog can feel like trying to find a needle in a haystack. No one wants to go to the doctor once, much less go to several doctors and wasting their time and money only to be told the doctor doesn’t prescribe service dogs.
And more. Almost anyone who is treating your disability and has a license to practice in your state is able to recommend a service dog.
Just keep in mind that finding a doctor who will recommend a service dog for you is well worth the time investment. You won’t regret it.
The FHA law says this: .”…the housing provider may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.”
Once you’ve found a doctor who will prescribe a service dog for you, they might need a little bit of help, especially if they haven’t done it before.
FAQ
What disqualifies a dog from being a service dog?
The dog must be gentle and non-reactive (no barking, growling, etc.); able to maintain behavioral stability in a variety of environments. ). The dog must be able to focus, be quiet, and be obedient to its handler without getting distracted or straying.
What dogs Cannot be a service animal?
Any breed of dog, as long as it has been specially trained to help a person with a disability with certain tasks, qualifies as a service animal.
How can you tell a real service dog from a fake?
- #1 – They’re Being Carried or Pushed in a Cart.
- #2 – They’re Not on a Leash. …
- #3 – They’re Pulling on the Leash. …
- #4 – They’re Barking or Whining. …
- # 5 – They’re Sniffing Everything. …
- #6 – They Have Indoor “Accidents” …
- #7 – They Steal Food. …
- #8 – They Look Nervous.
Can a chiropractor write a letter for a service dog?
Any physician who is caring for a patient with a disability may draft a letter requesting a service dog.