When the Alligator Chomps – wait, what?Guidance on Today’s Comfort & Service Animal Requirements in the Healthcare Industry
This year in York, Pennsylvania, a sixty-five-year-old gentleman, suffering from depression, registered his 5-foot-long alligator with the state as an emotional support animal. With proper registration, he now brings his emotional support alligator with him wherever he travels. If the alligator chomps, are your staff trained to respond in your healthcare facility?
What are my obligations as a Healthcare Provider?
Healthcare providers have a legal obligation to accommodate disabled patients and members of the public. Protections for individuals with disabilities are addressed in Federal and State statutes, including the Patient Protection and Affordable Care Act under Section 1557. The Centers for Medicare and Medicaid Services note in their State Operations Manual that the statutes outlined in Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), along with their implementing regulations require that covered entities administer their services, programs, and activities in the most integrated setting appropriate to individuals with disabilities. The effect of this guidance prohibits covered entities from using criteria or methods of administration that lead to discrimination.
Emotional Support Animals are not the same as Service Animals.
The ADA is a Federal anti-discrimination statute prohibiting discrimination against individuals with a disability. In an effort to achieve this, Service Animals are a protected way of assisting individuals with disabilities in gaining equal opportunity and access to public and private places. Service Animals are dogs or miniature horses “individually trained” to “do work or perform tasks for people with disabilities” – they are not pets. The work or task they have been trained to do must be directly related to the person’s disability. A healthcare facility is required to permit a service animal on site – this requirement does not apply to emotional support animals.
Emotional support animals are more akin to pets. Their sole function is to provide emotional support, comfort, companionship, or to promote well-being. Although an emotional support animal may be able to discern that the individual with a disability (their “disabled owner”) is in distress, the critical question is “what are they trained to do in response to this awareness?” Unless the animal is individually trained to do something that qualifies as work or a task, the animal is simply a pet or emotional support animal and is not considered a service animal.
Healthcare Facility Visits for Life’s Furry Friends??
The ADA is implicated when a patient presents to a healthcare facility with an animal. Service animals are permitted visitors at healthcare facilities – emotional support animals; however, are not guaranteed admission. If a patient presents with an animal in a healthcare facility, staff are permitted to determine whether or not the animal is a service animal. If it is unclear whether the animal would properly be considered a service animal, staff may ask two questions: (1) is this animal required because of a disability; and (2) what work or task has this animal been trained to perform? Caution: these are the only questions staff should ask to assess the animals proper classification. They may not: request documentation proving the animal is a service animal; request that the animal be harnessed; require a “dog and pony show” to illustrate the work or task the animal has been trained to do; isolate where the disabled owner may sit; inquire about the nature of the disabled owner’s disability. Once an individual with a disability answers the staff’s questions in the affirmative with an explanation of the work or task that the animal has been trained to do, the healthcare facility must accommodate the animal.
Under some circumstances the dog, miniature horse, or (in select cases) another type of animal classified as a service animal may need to be removed. A service animal can be removed only if: (1) the animal is out of control and the individual does not take effective action to control the animal; (2) the animal is not housebroken; (3) the animal or the animal’s behavior poses a
direct threat to the health or safety of others; (4) for miniature horses, the facility cannot accommodate the service animal’s type, size, or weight; or (5) admitting the animal would fundamentally alter the nature of a service or program. In each of these situations, the individual should be invited to return without the animal at a later time.
Are Service Animals a Risk in Health Care Settings?
The risks of animals in a healthcare setting are numerous and vary depending on the animal involved. Infections or disease can be transmitted from animals to humans and in patients with compromised immune systems those risks increase. Allergies, bites, falls, kicks, and scratches are some of the potential risks of service animals in healthcare facilities. Service animals must be cared for by their disabled owner at all times, for the benefit of the disabled owner and in an effort to minimize risks. If a hospitalized patient has a service animal and is unable to care for it, they must make arrangements with a family or friend to come to the facility to care for the animal or arrange for it to be removed from the health care facility. Healthcare facilities are under no obligation to care for the service animal’s needs.
In addition to constant care of the service animal, the service animal may also accompany the disabled owner to all public areas of the hospital. This would include patient rooms, clinics, cafeterias, and examination rooms. Assessing where to prohibit the animal should be based on whether or not the animal’s presence would fundamentally alter the nature of the service or program. For example, the service animals presence in a sterile environment, like an operating room, would fundamentally compromise the sterile nature of the procedures undertaken in those areas and the disabled owner is not entitled to take their service animal into these areas.
Healthcare Facility Animal Requirements – acceptable or no?
Healthcare facilities should implement a written policy delineating the steps it will take to report the presence of an animal at the facility, and should notify patients and members of the public who bring animals on site. Service animals that belong to patients admitted to the facility should be reported to the local infection control center or program.
Similar to admission of a patient with a service animal, if a patient is admitted and permitted to keep their emotional support animal with them, the healthcare facility should notify the local infection control center or program. Additionally, healthcare facilities that decide to permit emotional support animals on site should develop a written set of guidelines for what the animal is and is not allowed to do, and any behavior that will not be tolerated. The guidelines should also require that an animal have all appropriate immunizations, and provide and set forth that failure to comply with one of the guidelines will result in the animal’s removal from the facility.
Requirements imposed for emotional support animals may include a monetary fee; however, healthcare facilities may not impose a surcharge on an individual with a disability to cover any costs associated with measures and modifications taken to provide them with nondiscriminatory treatment in their facility.
Odds are an emotional support or service animal is headed your way – be prepared.
The management of service and/or emotional support animals is a surging area within the ADA and non-discrimination areas of law. With the documented increase in use of these animals in public and private quarters, both small and large, healthcare facilities have to prioritize training and increase awareness of what is permitted when encountering patients and visitors with animals.
Gwendolyn W. Lewis is a litigator successfully representing individuals, businesses, and organizations in a wide range of areas including civil litigation, employment litigation, and professional liability litigation at the trial and appellate levels in both North Carolina and U.S. Federal Courts.
Ms. Lewis has experience successfully defending employers, individuals, and corporations in employment litigation and obtaining defense verdicts on behalf of physicians and hospitals in multi-million-dollar medical malpractice cases.