Blanket Bans on Service Animals Disallowed for Psych Wards, Dialysis Units

It has been just over 22 years since the Department of Justice first issued regulations detailing the rights of persons with disabilities who use service animals, yet many issues continue to be addressed and resolved by regulators and courts.  Some of this is due to the fact that there are now a number of types of service animals, such as autism service dogs, that did not exist in 1991, and some is due to the fact that there may be conflicting interests concerning the presence of dogs in certain environments—health care facilities, schools and universities, military bases, various workplace environments—that must be addressed before the application of the law to a particular situation can be clarified. A recent case from a federal district court in California considered whether and when a hospital could preclude a patient from bringing a mobility impairment dog into a psychiatric ward.  One of the documents filed with the court was a memorandum from the Department of Health and Human Services, which has not been widely distributed, but which provides guidelines for dialysis units dealing with patients who have service animals.  Both the case and the memo are important developments in service animal law.

Patient Denied Access for Mobility Impairment Dog in Psychiatric Ward

Abigayil Tamara is seventy years old and suffers from a number of physical disabilities, the primary of which is a mobility disability resulting from surgery for a herniated disk in 1994 and a back fusion in 2009.  She has difficulty walking and maintaining balance and has used a service dog named Inglis since 2010.  Judge Ronald M. Whyte of the federal district court for the Northern District of California elaborates:

“Tamara and Inglis trained extensively when they were matched, and they supplement training daily. She walks with him and balances by leaning on the rigid handle of his harness. Inglis also retrieves things, carries items, opens some doors, pushes handicapped and elevator buttons, helps Tamara take off her jacket, and puts her laundry in the laundry basket. Tamara alleges that her independence and mobility have greatly increased since being matched with Inglis and that it is important for her to take Inglis everywhere, not only because he provides important services for her, but also because this is part of the training and bonding requirement of owning a service dog.”

Tamara also has bipolar disorder and has been on psychiatric medication for 20 years. The Social Security Administration declared her disabled because of the disorder, and she also has a disabled parking placard and a disabled license.  She uses the El Camino Hospital in Mountain View, California, for hospital services.  Her psychiatrist and two of her doctors have privileges there, and she had been hospitalized five times before her case was heard by Judge Whyte.  The case involved the hospital’s refusal to allow Tamara to bring Inglis with her during a stay in the hospital’s locked psychiatric ward in 2011. The judge provided additional detail regarding her admission:

“In December 2011, the medication changes ordered by her psychiatrist began causing Tamara pain. On December 24, 2011, Tamara went to the emergency room of El Camino with Inglis. El Camino admitted her to rebalance her medication and manage her pain. Although her condition was physical, not psychological, El Camino placed her in the psychiatric ward where her practicing psychiatrist worked, so that he could monitor her symptoms. When the orderly came to escort Tamara to the psychiatric ward, he informed Tamara that Inglis was not allowed in the hospital, allegedly stating that dogs have not been allowed since someone was bitten.”

Tamara’s treating psychiatrist wrote an order for Inglis to be admitted with Tamara into the psychiatric ward but this order was ignored until Infection Control, a function that was closed over the Christmas holiday, could consider the issue.  On December 27, Infection Control told Tamara that Inglis could not be allowed to be with her unless he was tested for MRSA (Methicillin-Resistant Staphylococcus Aureus). The next day, however, the manager of the psychiatric ward, according to the complaint, told Tamara that she should transfer to another hospital because Inglis would not be allowed into the hospital under any circumstances.

Tamara used a walker during her 13-day stay.  Inglis was not allowed to enter the hospital during that period.  She claimed that the walker did not allow her to move as well as Inglis did, and she had difficulty using the bathroom without him.  After a time she asked for a portable toilet to use by her bed. She had to wait extended periods for help with small tasks like picking up dropped items. 

Service Animal Policy of El Camino Hospital

El Camino Hospital’s policy was to allow service animals in all areas of the hospital except areas (1) with established traffic control and (2) where the hospital restricted their presence on a case-by-case basis to protect the health and safety of patients.  This policy was changed at some point after Tamara’s stay to allow service animals “in any area of the Hospital that is unrestricted to inpatients, outpatients or visitors such as lobbies, cafeterias and patient rooms provided that the service animal does not pose a Direct Threat to the health and safety of others and would not require a fundamental alteration in the Hospital's policies and procedures.”  Apparently it was determined under this policy that service animals would not be admitted to certain “restricted access areas,” which include Behavioral Health Units (psychiatric wards).  Thus, if Tamara needs to be admitted again, she will still not be able to bring Inglis with her. 

Tamara Seeks Preliminary Injunction

Tamara filed suit in federal court seeking a preliminary injunction to require El Camino Hospital to admit service dogs unless the hospital has substantial evidence the dog is a direct threat to the health and safety of others that cannot be mitigated by reasonable modifications of policies, practices, or procedures. 

To receive a preliminary injunction, Judge Whyte (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)) said that Tamara had to establish four things:

1. She is likely to succeed on the merits.
2. She is likely to suffer irreparable harm in the absence of preliminary relief.
3. The balance of equities tips in her favor.
4. The injunction is in the public interest.

The judge considered each item in turn, but spent most of his attention on the first item. 

Likelihood of Success on Merits

To prevail on a discrimination claim under the Americans with Disabilities Act (ADA), Tamara would have to show:

1. She is disabled under the ADA.
2. The hospital is a private entity that owns, leases, or operates a place of public accommodation.
3. She was denied public accommodations by the defendant because of her disability.

Under 42 U.S.C. 12102, a person with “a physical or mental impairment that substantially limits one or more major activities” has a disability for purposes of the ADA.  That this was true of Tamara was not disputed by the hospital.  Hospitals are listed among places of public accommodation under 42 U.S.C. 12181(7)(F).  A failure to make reasonable modifications in policies, practices, or procedures is a form of discrimination under 42 U.S.C. 12182(b)(2)(A)(ii), though this will not be the case if the modifications involved would fundamentally alter the nature of the facility or service provided. Regulations (28 CFR 36.208) elaborate that a public accommodation may deny services to a disabled individual if “that individual poses a direct threat to the health or safety of others.”  To determine this, according to that regulation:

“[A] public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.” 

An appendix to the regulations states further that “a healthcare facility must also permit a person with a disability to be accompanied by a service animal in all areas of the facility in which that person would otherwise be allowed.”  Judge Whyte states that blanket policies that service animals fundamentally alter the nature of a service “are rarely appropriate.”  Whether a service animal fundamentally alters the nature of a service is, he notes (referring to a case involving an order to the PGA to allow a professional golfer with a mobility impairment to use a golf cart), an “intensely fact-based inquiry.”

The court cites the Centers for Disease Control’s Guidelines for Environmental Infection Control in Health-Care Facilities, which includes three pages of guidance regarding service animals.  The CDC notes that service animals are appropriately excluded from operating rooms and special care areas which are designated as having restricted access to the general public. 

1988 Memorandum of the Department of Justice

El Camino Hospital did find support for its policy of excluding service animals from psychiatric wards in a 1993 letter from the Civil Rights Division of the Department of Justice to Senator John C. Danforth of Missouri, which attached a 1988 memorandum of the Department of Justice that included the following language:

“A medical justification showing that the presence or use of a dog guide would pose a significant health risk in certain parts of the hospital can serve as the basis for the exclusion of dog guides, but only from the hospital areas directly involved. such areas might include operating room suites, burn units, coronary care units, intensive care units, oncology units, psychiatric units and isolation (infectious disease) areas.”

Judge Whyte notes, however, that although the letter to Senator Danforth was written in 1993, after the ADA was passed (in 1990), the attached memorandum dated from 1988 and was based on the Rehabilitation Act of 1973.  The judge acknowledges that “certain principles of the Rehabilitation Act live on in the ADA,” but this particular guideline “apparently did not survive the revisions because there is no mention of psychiatric wards in the sections of the Code of Federal Regulations related to service animals or the extensive explanatory appendixes.”  Thus, he finds that the letter and memo were not persuasive. 

Service Animals in Dialysis Facilities

Tamara found a similar document, a 2010 memorandum from the Department of Health and Human Services regarding service animals in dialysis facilities. The memo was signed by three officials in the DHHS General Counsel offices. These officials found it “very unlikely” that service animals could be appropriately excluded from a dialysis unit though they noted that “while a patient is receiving dialysis and cannot get up to walk or toilet the animal, the hospital is not required to step in.  It is the patient’s duty to arrange for a handler.”  Interestingly, this memo also referred to, and did not notice any conflict with, the letter to Senator Danforth and the attached 1988 memorandum.  (I have reproduced the memorandum below in an appendix because a web search did not reveal it as having been posted anywhere.  It is part of the court record, and could be important, particularly for individuals seeking to take service animals to dialysis facilities.)

Milieu Therapy

The federal district court summarizes the hospital’s argument as to why a service animal should be excluded from its psychiatric ward as follows:

“The El Camino psychiatric ward employs ‘milieu therapy’ which encourages community interaction, and it argues that the presence of an animal ‘may spark a response in [a] patient that is consequential.’ ... El Camino created its service dog policy after a literature search and an extensive approval process.... It argues that the inpatient psychiatric setting is ‘notoriously an area of risk for agitation and stress’ and that the presence of a service animal would fundamentally alter the nature of its service because one of the goals of the wards is to ‘eliminate potential sources of stress and disruption.’ … El Camino's arguments, however, are speculative: patients ‘may be sedated,’ patients ‘often have severe psychosis,’ and ‘it is more likely than not that a number of patients will fixate on the animal.’”

El Camino Hospital Psychiatric Ward

Tamara pointed out, however, that the hospital’s occupational therapist sometimes brought her dog to the ward.  She also noted that if her dog were an annoyance to anyone, it might be possible to solve the problem merely by shutting a door.  The layout of the psychiatric ward was provided in a document filed with the court, which is reproduced here.  

As an aside, I would like to note that one of the hospitals I visit with my therapy dog has a psychiatric ward.  A staff member used to bring his dog to the ward and leave it with the patients for significant parts of many days.  Staff, patients, and visitors all professed to me that they enjoyed the animal’s presence. I avoided that ward with my therapy dog because most of the other wards had no therapy dog visits aside from me and Chloe. 

The court found that the hospital’s arguments only established that the dog “might affect the ward, but not that it will fundamentally alter its nature. This is in contrast to sterile environments, which would be impossible to maintain in the presence of a service animal.”  The court concluded that the hospital had “not met its burden to show that the presence of service dogs within the psychiatric ward is likely to fundamentally alter the nature of the facility….”

Individualized Assessment

To show that a direct threat exists, a public accommodation must, under 28 CFR 36.208, make an individualized assessment to ascertain the “nature duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures or the provision of auxiliary aids or services will mitigate the risk.” There was no such individualized assessment here, only a general hospital policy. 

Such an assessment might result in the exclusion of a service animal, as happened in Roe v. Providence Health System-Oregon, 655 F.Supp.2d 1164 (D.Or. 2009), where a large foul-smelling service animal prone to infections, which the owner refused to bathe, was found to bring a risk of infection. 

Dangerous Harness

El Camino Hospital argued that Inglis’s harness posed a risk.  According to the court:

“El Camino argues that having a dog in the psychiatric unit would be unsafe because its harness could be used as a weapon and the dog might dangerously upset some patients, [but] these accusations are all based upon generalized speculation. Some psychiatric wards contain unstable patients who may be upset by a service animal. But, nothing in the answer, opposition, or any of the papers provided by the defendants allege that El Camino made an individualized assessment as to whether this psychiatric ward, at the time of Tamara's admittance, had such unstable patients, or if it did, a fundamental alteration would have been required to address any concerns. Further, while a locked psychiatric ward may pose problems for some individuals to care for the hygienic needs of their service animals, nothing indicates that El Camino assessed whether Tamara would be capable of caring for her dog or if reasonable modifications could allow this. Moreover, while it is possible a service dog's leash or harness could be used as a weapon, nothing indicates that El Camino assessed whether Tamara and Inglis could use a safer type of harness or whether the harness could be safely locked away when not in use.”

The court correctly observes that the walker that the hospital gave Inglis could just as easily as the harness be used as a weapon. 

Inglis’s Training

Tamara argued that Inglis would not be a risk in the psychiatric ward.  As described by the court:

“[Tamara] asserts that through his training, Inglis has become accustomed to 'loud noises and agitating behavior,” and he has been in situations where there are “loud, unstable people.' ... Inglis is trained to remain calm and obey Tamara, ignoring distractions.... She further asserts that Inglis' harness, given its extensive buckles, would be difficult to remove and use as a weapon. She also provides a layout, from her memory, of the psychiatric ward, asserting that there is a separate locked section for the patients in need of truly intensive care. These patients apparently do not interact with the others or participate in the milieu community treatment, and thus would not interact with Inglis. Tamara further asserts that the Hospital could have considered reasonable accommodations to allow her to care for her dog's hygiene needs: allowing her, with supervision, out of the locked ward to take Inglis into the hospital's outside area, or allowing a third party to take Inglis from Tamara at the door of the ward and do the same. Failure to consider these alternatives was a failure to comply with the ADA's requirement that the public accommodations consider changes in practices or policies that would mitigate any direct threat.”

As indicated on the floorplan reproduced above, it might not be difficult to let Tamara take Inglis out several times a day to the outside area that is next to the psychiatric ward. 

Irreparable Harm, Balance of Hardships, and Public Interest

The court concludes that Tamara was likely to succeed on the merits. A future hospitalization seemed likely, which the hospital did not dispute.  As to the effect of being prevented to bring Inglis with her during a future hospitalization, the court stated:

“Every day Tamara is away from Inglis, she is not only deprived of her independence, but she loses time training and bonding with Inglis, resulting in less future independence. To be dependent on others to perform simple physical tasks is both frustrating and painful. El Camino's refusal to admit Inglis into the psychiatric ward, without substantial evidence of a direct threat to health or safety, is an imminent, irreparable harm.”

As to the third requirement for getting a preliminary injunction, the court states that “El Camino appears to face only an administrative inconvenience mandated by law,” and that the “balance of hardships clearly favors Tamara.” As to the fourth, the public interest in equality also favored Tamara, particularly since she was not requested a blanket injunction that her dog be admitted, regardless of circumstances, only an individual assessment.

Issues for the Hearing

There can be reasons for excluding service animals from areas other than just sterility or space.  A friend of mine, a psychologist, had a patient who wanted to bring an animal to therapy sessions, which he permitted.  He soon realized, however, that the animal was becoming a way for the patient not to deal with those issues that needed to be addressed for the therapy to advance.  The same might be true of therapy sessions in a hospital, whether individual or group sessions.  If the presence of a dog retards an individual’s therapy, this is more than an administrative inconvenience for the hospital, and may be a hardship for the patient.  Certainly society has an interest in the patient getting well enough to leave a locked environment. (In a recent case in Georgia, a patient’s suit against his psychiatrist for refusing to let him bring his service dog to therapy sessions failed, though on procedural grounds and without any discussion of the merits.  Mercer v. Munn, A12A0382 (Georgia Ct. of Appeals, May 6, 2013).)

Tamara’s service animal was a mobility impairment dog.  It is quite likely that she could attend individual psychotherapy sessions with the dog without this impeding the progress of that therapy.  Suppose, however, that the dog was a psychiatric service dog, and a focus on it began to detract from the patient’s progress.  Studies on the effects of dogs on psychological conditions have not always found that they were a force for improvement, as Dr. J.L. Thomas and I observed in our paper for the Journal of Forensic Psychology Practice.  Also, as noted by Winkle, Crow, and Hendrix (discussed in a blog a year ago), there is a need for much more research specifically as to the psychological effects on those who use service dogs.  It is therefore arguable that some individuals with service dogs should be able to bring their dogs into psychotherapy sessions, just as they could bring a walker or a wheelchair, but other individuals should not be allowed to do so. 

Conclusion

I come with my own biases on this.  Early in my legal career I worked for seven years in an impact litigation unit inside of New Jersey state government, frequently suing mental hospitals in right-to-treatment cases.  We continually found that hospitals would use terms like “milieu therapy” and "restful rehabilitation" when in fact all they were doing was tranquilizing patients with as many psychotropic medications as the human body could hold, a practice we labeled as “polypharmacy” in countless briefs.  When that is all a hospital is doing, I am inclined to believe that an effort to exclude service animals is primarily a way of reducing friction with ward staff and janitorial unions.  That admittedly may not be the case here, but I remain skeptical of institutional resistance when it comes to service animals and innovative therapies. 

In a case on which I was consulted recently, I advised the administrator of a facility to think about the dog as a prosthetic device—a walker, a wheelchair—and make decisions based on that perspective unless a solid argument could be made to distinguish the dog from such a device.  This is not a simple issue and the California federal court was right to require that the hospital reconsider its policy on service animals carefully and apply that policy to each situation separately. 

Tamara v. El Camino Hospital, 964 F.Supp.2d 1077 (N.D. Cal. 2013)

Thanks to J. Lawrence Thomas and Leigh Anne Novak for comments. 

APPENDIX: 2010 Department of Health and Human Services General Counsel Memorandum concerning dialysis facilities.  (Note: formatting had to be altered to replace indents with quote marks and to insert footnotes into text.)

Date: July 12, 2010

To: Ginger Odie, Manager, Non-Long Term Care Certification & Enforcement Branch·

From: Office of the General Counsel, Region VI, Dallas, Texas

Subject: Required Accommodations for Disabled Individuals' Service Animals in Dialysis Facilities

I. Background

You asked for our assistance in assessing the accommodations required of health care facilities (specifically, dialysis facilities) for disabled patients' service animals. In response to your request, the Office of the General Counsel has the following interpretations and suggestions.

II. Brief Answer

Generally, it is difficult to exclude a service animal from a hospital or health care setting because the ADA is construed very broadly and with great deference to disabled individuals. With respect to dialysis units, it is very unlikely that a service animal can be excluded unless it presents an individual threat to health and/or safety.

That said, while the hospital must admit service animals, it is under no obligation to supervise or care for them. For example, while a patient is receiving dialysis and cannot get up to walk or toilet the animal, the hospital is not required to step in. It is the patient's duty to arrange for a handler.

III. Legal Analysis

A. In general, a service animal must be permitted in a hospital or health care setting.

The Americans with Disabilities Act provides protection to disabled individuals seeking access to public facilities. The Act, in its entirety, may be found at 42 U.S.C. §§ 12101-12213. In pertinent part, it states:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a)”

The term "disability" encompasses dialysis patients because it includes the limited function of a bodily organ or system. 42 U.S.C. §§ 12102(1)(A), (2)(B). The diminished kidney function of ESRD patients certainly meets this criterion. Moreover, the Act requires the definition of "disability" to be construed generously in order to provide maximum protection. 42 U.S.C. § 12102(4)(A).

A hospital, health care provider's officer, or other similar service facility is a "public accommodation" for the purposes of the Act. 42 U.S.C. § 12181(7)(P). It is therefore required to make "reasonable modifications in policies, practices, or procedures" as are necessary to provide disabled individuals with access to services and facilities. 42 U.S.C. § 12182(2)(A)(ii). The Code of Federal Regulations (C.P.R.) clarifies that permitting a disabled individual's use of a service animal is such a reasonable modification. 28. C.F.R. § 36.302(c)(l) (2010) [fn: All citations to the Code of Federal Regulations in this brief refer to the October 1, 2008 revision of the regulations unless indicated otherwise.] A service animal is defined as "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of a [disabled] individual." 28 C.F.R § 36.104.

As a practical matter, the hospital should be cautious in how it ascertains whether an animal is·a legitimate service animal, rather than.a pet or therapeutic animal. Per ADA informational materials published by the Department of Justice-Civil Rights Division, [fn: 42 U.S.C. § 12206(c)(3) requires federal agencies responsible for implementing and overseeing the Act to make available technical assistance manuals and other educational materials clarifying rights and duties under the Act. Formal publications by federal government agencies are within this category and may be relied upon for guidance. Courts have routinely relied upon such publications and guidance. See e.g., Grill v. Costco Wholesale Corp., 312 F. Supp. 2d 1349 (W.D. Wash. 2004) (citing the "DOJ Business Brief' and "DOJ Guidance" and stating that they are owed deference); Thompson v. Dover Downs, Inc., 887 A.2d 458 (Del. Super. Ct. 2005) (taking into account information received from the DOJ's ADA Information Line).] an establishment may ask either what task or function the animal performs or simply whether the animal is a service animal. It may not ask about the nature of the individual's disability, request  documentation of the individual's disability, or require certification or ID stating that the animal is a registered service animal. [fn: Within a hospital or healthcare setting, the nature of a patient's disability will likely already be known or apparent. However, it is wise to keep these guidelines in mind if a patient's known disability does not seem to relate to the service animal's function. For example, an individual with ESRD is disabled for the purposes of the Act, but it may appear to hospital personnel that the individual's service animal does not perform a task related to that disability. Hospital staff must be careful in how they ascertain the legitimacy of the service animal because the patient may have another, underlying disability that necessitates the use of the service animal.] It is generally best to accept an individual's oral assurances that an animal is a service animal. See DEPT. OF JUSTICE, COMMONLY ASKED QUESTIONS ABOUT SERVICE ANIMALS IN A PLACE OF BUSINESS (1996), http://www.ada.gov/qasrvc.htm [hereinafter, "Service Animal CAQ"]; DEPT. OF JUSTICE, ADA BUSINESS BRIEF: SERVICE ANIMALS (2002), http://www.ada.gov/svcanimb.htm [hereinafter, "Service Animal Business Brief'].

B. A facility is only required to admit a service animal; "reasonable modifications" do not extend to taking responsibility for the animal.

The Code of Federal Regulations explicitly provides that "[n]othing in this part requires a public accommodation to supervise or care for a service animal." 28 C.F.R.§ 26.302(c)(2). That is, the facility is not required to walk, feed, or toilet the animal while the patient is indisposed. Likewise, a facility need not provide a special area for the animal to relieve itself. See Service Animal CAQ; Service Animal Business Brief. It is the responsibility of the patient to make arrangements for a handler.

If a facility feels that it would be beneficial to exceed the requirements and support the presence of its disabled patients' service animals, it may provide for emergency stewardship of a service animal while a patient is indisposed and unaccompanied by a handler. Some facilities have implemented programs wherein volunteers from the community or from within the hospital take charge of the animal while the patient is being treated. See Susan L. Duncan, et al., APIC State-of-the-Art Report: The implications of service animals in health care settings, 28 AM. J. INFECTION CONTROL 170, 176-77 (2000). However, there are legal implications to taking custody of a service animal and consent and waiver forms should be obtained from the owner. Specific language would be dependent upon the kind of program a facility elects to implement; legal counsel should be obtained on a case-by-case basis to formulate appropriate policies and procedures.

The presence of a service animal may raise damage and cleanliness concerns. It should be noted that, while a facility may not charge a disabled individual a maintenance or cleaning fee simply because he/she brings a service animal on the premises, the facility does have the right to bill the animal's owner for any damage it does as long as it is the facility's regular practice to charge non-disabled individuals for the same kind of damage. For example, if a service animal scratches a chair in the dialysis unit, the facility would only be able to bill its owner for the repair/replacement costs if it would bill a non-disabled individual for causing the same damage.

C. In certain, limited instances, a facility may exclude a service animal.

i. The "Fundamental Alteration" Provision

There are a few provisions in the Act which excuse a facility from accommodating a service animal. First, a facility may be excused from modifying its policies to accommodate an animal if it can show clearly that the animal's presence would fundamentally alter the nature of the facility or services it provides. 42 U.S.C. § 12182(b)(2)(A)(ii). For instance, there may be clearly identifiable areas where it would be unreasonable to expect a service animal to be admitted. Operating rooms or other sterile areas where gowns, masks, and gloves are required are good examples; if anti-contamination precautions must be observed by all who enter an area, it would be a fundamental alteration to the nature of the facility to allow an animal to enter. Another instance might be a small area through which personnel must pass in order to exercise their duties where the animal's presence would prevent them from passing. (For example, if a nurse must walk back and forth in a narrow aisle to administer care, a large dog blocking her way might be viewed as a fundamental alteration of the area and the nature of services she is able to provide.) In general though, most areas of a hospital should be open to a service animal. As one article notes, "if persons are allowed to be present without being required to observe special precautions ... it would be difficult to argue that a clean, healthy, well-behaved service animal should be denied entrance." See Duncan et al., supra, at 173. It would appear that a dialysis unit would not fall within the limited class of areas from which a service animal can automatically be excluded.

A hospital should invoke the "fundamental alteration" rationale sparingly to deny admission of service animals; the Act is generally construed liberally in favor of disabled individuals. [fn: In fact, the preamble to the relevant C.F.R. section states that "[i]t is intended that the broadest feasible access be provided to service animals in all places of public accommodation, including ... hospitals .... " 28 C.F.R. pt. 36, app. B (citing Education and Labor report at 1 06; Judiciary report at 59) (emphasis added).] Rather than formulating blanket policies, it is wise to make case-by-case determinations based on the environment, circumstances, and service animal. The Ninth Circuit echoed this sentiment in a 2004 opinion, stating that whether an accommodation causes a fundamental alteration is an "intensively fact-based inquiry" and mere speculation of a disturbance or alteration is insufficient; there must be substantial underlying evidence. See Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 844 (9th Cir. 2004) (citing Crowder v. Kitagawa, 81 F.3d. 1480, 1486 (9th Cir. 1996).

ii. The "Safety" Provision

The regulation at Section 26.301 provides that a public accommodation "may impose legitimate safety requirements that are necessary for safe operation." 28 C.F.R. § 26.301(b). In a hospital setting, "safety" might be a more appropriate basis for excluding a service animal than "fundamental alteration" because jeopardy to health falls within the category of safety risks. However, similar limitations apply to the safety provision as to the fundamental alterations provision; the regulation states that safety assessments "must be based on actual risks and not on mere speculation, stereotypes, or generalizations .... " ld. Generally, hospitals should not assume automatically that an animal will present a threat to hygiene, health, or safety. An Illinois court found that an animal could not be excluded for generalized concerns about health and safety; rather exclusion had to be supported by a qualified medical professional's opinion that the animal presented a threat to the hospital's health and safety that a human being would not. Branson v. West, 1999 WL 1129598 (N.D. Ill. 1999), amended memorandum opinion and order at 1999 WL 1186420 (N.D. Ill. 1999).

There may be areas of a hospital where an animal necessarily presents a safety risk. [fn: This is parallel to the "fundamental alteration" situation, where admitting a service animal in an operating room would fundamentally alter the sterile nature of the facility. Essentially, this is a second, separate basis for upholding the exclusion.] In a technical assistance letter to U.S. Senator John C. Danforth [fn: Technical Assistance Letter from the U.S. Dept. of Justice to John C. Danforth, U.S. Senator (May 10, 1993).], the Department of Justice expressed the view that is best to tailor safety-based exclusions of service animals to as few areas within the premises as possible. Specifically,

“[A] health care facility, such as a hospital is covered by ... the ADA. []A showing by appropriate medical personnel that the presence or use of a service animal would pose a significant health risk in certain areas of a hospital may serve as a basis for excluding service animals in those areas. In developing a list of areas from which service animals may be excluded, a hospital facility must designate only the exact areas where exclusion is appropriate.”

As a whole, it is best to make as few wholesale determinations as possible. Aside from a very narrow class of areas (like operating rooms), there should be very few places from which service animals are automatically excluded. Rather, facilities should try to evaluate safety risks case-by-case, taking into account: (1) the area to be entered; (2) the type of service animal; and (3) the individual animal's characteristics. Courts have held that, under the safety provision, it is reasonable to require an animal has been vaccinated [fn: See Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996).] and to require that an animal not be "dangerous" or "poisonous." [fn: See Assenbergv. Anacortes Housing Authority, 2006 WL 1515603 (W.D. Wash. May 25, 2006).] Hospital personnel may also take into account exceptionally strong odors emanating from an animal and whether an animal causes allergic reactions in patients and staff. [fn: See Roe v. Providence Health Systems-Oregon, 655 F.Supp.2d. 1164, 1167-68 (D. Or. 2009).] As an Oregon court noted, "[a] hospital is charged with keeping all of its patients safe, providing quality health care to all, and providing a safe workplace for its staff." [fn: Id. at 1168.]

The Service Animal CAQ also adds that an animal may be excluded if it displays any threatening behavior (i.e.-growling, snapping, biting) towards other patients or personnel. The animal must actually display vicious behavior; it is insufficient to base a "threat to safety" decision upon past experiences or beliefs about the innate tendencies of certain breeds.

iii. The "Direct Threat" Defense

The Act also provides the so-called "direct threat" affirmative defense, stating that a facility is not required to provide a disabled individual access to its services and facilities if that individual "poses a direct threat to the health or safety of others." 42 U.S.C. § 12182(b )(3 ). "Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures .... " Id.

The direct threat defense follows naturally from the fundamental alteration and safety provisions and often supplements those provisions as a basis for service animal exclusion. In Roe v. Providence Health System-Oregon, the court provided the elements necessary for a hospital to establish a direct threat affirmative defense. They are:

(1) the animal's presence creates a risk to the health or safety of patients, staff, and/or visitors;

(2) the hospital can prove with clear evidence that the risk is significant; and

(3) the direct threat cannot be eliminated by modifying the hospital's policies, practices, or procedures. [fn: Id.]

With respect to the second element, "clear evidence" might include testimony from health professionals as to the risk presented by the animal, visible signs that an animal has a disease or infection, or instances of the animal's vicious conduct.

With respect to the third element, it is important that the hospital evaluate whether a reasonable modification could be made to accommodate the animal and eliminate the perceived risk. For example, if another patient's allergic reaction could be avoided simply by shutting the door between his room and the service animal's owner's room, the hospital would need to do so.

D. Conclusion

In sum, it is very difficult to exclude a service animal from a hospital or health care setting because the ADA is construed very broadly and with great deference to disabled individuals. There are very few areas from which a service animal may be excluded automatically and a case-by-case determination generally needs to be made. With respect to dialysis units, it is very unlikely that a service animal can be excluded unless it presents an individual threat to health and/or safety.

Although the hospital must admit service animals, it is under no obligation to supervise or care for the animals. For example, while a patient is receiving dialysis and is unavailable to move about to walk or toilet the animal, the hospital is not required to take stewardship of the animal. It is the responsibility of the patient to arrange for a handler. If a hospital decides to provide disabled patients with the services of a handler, it should seek the assistance of counsel to formulate clear policies and procedures, specific to the structure of the program it elects to implement. Please feel free to contact Julian Treadwell if you have any questions at (214) 767-2919.

Sincerely,

Mark B. Childress, Acting General Counsel

Delores "Dee" Thompson, Chief Counsel

Julian V. Treadwell, Assistant Regional Counsel, Department of Health and Human Services