This is a page intended for professionals in the healthcare sector. Here you will find details on access to healthcare facilities by service dog teams, particularly in an excerpt from our 2014 advocacy letter regarding VA regulations for VA healthcare facilities. Even more is available in the rest of that letter, which examines topics such as the simultaneous accommodation of those with either disabling allergies or phobias.
Note that technically, the ADA service animal regulations do not apply to federal property, such as a VA hospital. However, §504 of the Rehab Act does, and case law generally interprets service dog team access under §504 to be the same as that granted under ADA regulations. This appears to give the reasoning universal scope in US healthcare facilities.
The link to the CDC “Environmental Infection Control Guidelines” pertaining to service animals in healthcare facilities (mentioned in footnote 7 below) was updated. As of mid-2018, that PDF guide may be found at the following link; see p. 122–124 in the version last updated February 15, 2017.
Here we are most concerned with the blanket prohibition on the use of service animals in locked mental health units. However, many of the points we have to make are more generally applicable. We elaborate on this at the end of this section.
VA rightly leans on the thoroughly vetted reasoning used by the DOJ regarding the use of service animals in healthcare settings. We find this appropriate because a VA hospital does not seem to relevantly differ from an ADA Title III-covered hospital. The DOJ, in turn, has leaned on the Centers for Disease Control and Prevention (“CDC”) as the guiding authority regarding any justification for the exclusion of service animals in particular situations in healthcare settings.6
PSDP’s recommendations below follow the CDC’s in pointing to the need for individualized assessment, rather than blanket prohibitions when it comes to hospital settings that do not necessitate the use of personal protective equipment (PPE) by humans.
It should be clear that justification for a blanket restriction on service dogs in locked mental health units cannot be found in CDC guidance, as opposed to justification for exclusion elsewhere based on infection control. Consequently, it would not be “consistent with Centers for Disease Control and Prevention guidance” to prohibit service animals from locked mental health units on the basis of those units requiring added precautions that are not related to infection control.7
While the CDC provides nothing that specifically addresses service dogs in locked mental health units, it does provide guidance that is clearly applicable to them. The prohibitions the CDC finds justified are either (1) for infection control, where personal protective equipment (PPE) is antecedently required, or (2) based on individualized assessments that determine a particular service animal in question poses a threat to health or safety.8
We have no problem with blanket exclusions of service animals in places where significant PPE measures are required of all non-patient persons in the area (measures well beyond those used in a simple phlebotomy). However, we take strong exception to assumptions that all service animals should be excluded in particular non-PPE areas because VA reasons through what it believes is typical of a situation. This is contrary to the approach recommended by the CDC, which VA claims it is following, and it is contrary to putting patient care over bureaucratic ease.
In addition to the VA proposal being contrary both to CDC recommendations and prioritizing patients, our reasons are twofold for taking exception to this sledgehammer approach. First, we do not concur with the VA assessment of what is typical.9 Second, even if VA were correct about what is typical in a particular setting, this does not indicate that the reasoning that applies to the majority also applies to everyone else. For instance, it may be that most service dog users in recovery settings do not have the ability themselves or ability through friends, family, or charities to take care of their dog’s needs. However, patient A’s lack of support structure is an inexcusably sorry reason to deprive patient B of their support structure.10
As the licensed therapist of one of our community members put it, it doesn’t make sense to take away someone’s psychiatric service dog when they need it most.
Further, VA seems to make two kinds of implicit assumptions in its reasoning toward blanket exclusion policies—and these assumptions do not correspond well with the world. First, that the only kind of person who uses a service dog and may wish to be in a VA hospital is someone who is currently a patient there. Second, that it would be impossible for a service dog user who is a patient to have a friend or family member be responsible for the elimination needs, etc. of the service dog, or to themselves take care of these needs with the reasonable accommodation of minimal modifications to facility practices.
It does not make sense to universally prohibit service dogs in settings where visitors may be allowed without PPE. Those visitors may themselves have service dogs. PSDP community members, including board members, have experience using service dogs while visiting and accompanying friends and family members to hospital visits, including stays in locked mental health units.
In addition, it is possible for a service dog user who is a patient to have a friend or family member be responsible for the elimination needs, etc. of the service dog.
We also have experience wherein a service dog user was in a locked mental health unit, and a family member brought the patient’s service dog every morning and took care of her service dog’s outside needs regularly throughout the day. The family member took the patient’s service dog home at night. Hospital personnel allowed all three parties outside for half an hour at a time when they assessed that there was would be no resulting risk of danger to the patient. This significantly aided her recovery while in the hospital.
The duration of her inpatient stay was reduced and her subsequent recovery was stronger because hospital personnel were willing to honor her rights and her family’s abilities in an individualized assessment.
Finally, it is possible for a service dog user who is a patient to take care of the elimination needs, etc. of the service dog, with the reasonable accommodation of minimal facilitation from staff.
One of our community members worked with her local hospital to produce a tailored plan in case she needed to use their locked mental health unit. She did so because she, like many other service dog users, would not voluntarily use the hospital’s facilities without her service dog, yet she found herself in a position wherein voluntary treatment there with the aid of her service dog would be best for her.
In this type of situation, arrangements include the availability of a staff member to let her and her service dog outside at regular, short intervals during the day for her dog’s needs, as well the availability of a staff member from outside the unit to be called if she needed to attend to any of her dog’s needs during the night.11
This patient does not present a significant flight or suicide risk when she is with her dog, but does otherwise. Her difficulty ambulating long distances and regular use of a wheelchair were additional factors that could be considered, as well as her willingness to sign a release of liability for times she was not physically inside the locked unit.
In the end, putting patient care first necessitates that the minimal accommodations she requested in order to receive care clearly outweigh the risk to her health that would directly result from turning her away. (A blanket prohibition on service dogs is functionally equivalent to turning her away.)
All of this is not to say that there are no situations in which a particular service dog should be turned away. However, those situations are already covered by the proposed regulation § 1.218(a)(11)(ii).
We strongly urge the VA to resist the illusorily easy solution of blanket restrictions. We recommend instead following the right solution, suggested by the CDC and reinforced by those with experience and expertise, which involves individualized assessment for any access restrictions in places not requiring the use of personal protective equipment (PPE).12
6 In explaining its approach, VA offers the following:
[…]In promulgating § 36.302, the Department of Justice (DOJ) considered a substantial number of public comments regarding service animal access during a comprehensive, multi-staged rulemaking process, culminating in the publication of a final rule at 75 FR 56236, Sept. 15, 2010. We agree with the discussion and rationale used by DOJ in their rulemaking to limit the access of service animals in healthcare settings. Particularly, we agree that, consistent with Centers for Disease Control and Prevention guidance, it is generally appropriate to exclude a service animal from limited-access areas that employ general infection control measures and that require persons to undertake added precautions. Id.
7 From the CDC:
If health-care personnel, visitors, and patients are permitted to enter care areas (e.g., inpatient rooms, some ICUs, and public areas) without taking additional precautions to prevent transmission of infectious agents (e.g., donning gloves, gowns, or masks), a clean, healthy, well-behaved service animal should be allowed access with its handler.[…]
Excluding a service animal from an OR or similar special care areas (e.g., burn units, some ICUs, PE units, and any other area containing equipment critical for life support) is appropriate if these areas are considered to have “restricted access” with regards to the general public. General infection-control measures that dictate such limited access include a) the area is required to meet environmental criteria to minimize the risk of disease transmission, b) strict attention to hand hygiene and absence of dermatologic conditions, and c) barrier protective measures [e.g., using gloves, wearing gowns and masks] are indicated for persons in the affected space. No infection-control measures regarding the use of barrier precautions could be reasonably imposed on the service animal. Excluding a service animal that becomes threatening because of a perceived danger to its handler during treatment also is appropriate; however, exclusion of such an animal must be based on the actual behavior of the particular animal, not on speculation about how the animal might behave.
The places covered by “restricted access” are clearly intended only as those based on infection control, not based on worries specific to locked mental health units. This excerpt and all others attributed to the CDC in PSDP’s comment come from pages 108–10 of their “Guidelines for Environmental Infection Control in Health-Care Facilities” (accessed December 23, 2014), available at: http://www.cdc.gov/hicpac/pdf/guidelines/eic_in_HCF_03.pdf
8 From the CDC:
Because health-care facilities are covered by the ADA or the Rehabilitation Act, a person with a disability may be accompanied by a service animal within the facility unless the animal’s presence or behavior creates a fundamental alteration in the nature of a facility’s services in a particular area or a direct threat to other persons in a particular area. A “direct threat” is defined as a significant risk to the health or safety of others that cannot be mitigated or eliminated by modifying policies, practices, or procedures. The determination that a service animal poses a direct threat in any particular health-care setting must be based on an individualized assessment of the service animal, the patient, and the health-care situation. When evaluating risk in such situations, health-care personnel should consider the nature of the risk (including duration and severity); the probability that injury will occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk (J. Wodatch, U.S. Department of Justice, 2000). The person with a disability should contribute to the risk-assessment process as part of a pre-procedure health-care provider/patient conference.
9 VA’s reasoning in the proposed rulemaking includes the following:
Another impossible or impractical requirement to impose upon service animals would be the requirement to remain continuously indoors in intensively monitored settings, such as acute inpatient hospital settings. In such settings, veterans would typically be recovering from an acute medical episode, and would not likely be able to effectively attend to the needs of a service animal (e.g. taking the service animal outside, or feeding or watering the service animal). Staff in these inpatient hospital settings must not be expected to set aside their patient monitoring and care duties to instead attend to the needs of a service animal. Additionally, the immediate needs of veterans in these settings would be most appropriately fulfilled by medical staff and not a service animal (for instance, getting in and out of a hospital bed).
[…]These restrictions would also be consistent with the mandate in section 109 that VA may not prohibit the use of certain service animals, because service animals would not actually be used by individuals with disabilities in a majority of these medical care areas, or in those areas in which public access generally is not granted.
10 As in an earlier footnote, we provide relevant reasoning from the DOJ:
The Department recognizes that there are occasions when a person with a disability is confined to bed in a hospital for a period of time. In such an instance, the individual may not be able to walk or feed the service animal. In such cases, if the individual has a family member, friend, or other person willing to take on these responsibilities in the place of the individual with disabilities, the individual’s obligation to be responsible for the care and supervision of the service animal would be satisfied.
This is excerpted from the section-by-section analysis in “Appendix A to Part 35—Guidance to Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services”: http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=1fcb95e0991fa49ff719bbe362cdddc1&ty=HTML&h=L&r=APPENDIX&n=28y22.214.171.124.126.96.36.199.11 under “Responsibility for care and supervision of service animal.”
The CDC also weighs in on this issue:
Another issue regarding service animals is whether to permit persons with disabilities to be accompanied by their service animals during all phases of their stay in the health-care facility. Health-care personnel should discuss all aspects of anticipatory care with the patient who uses a service animal. Health-care personnel may not exclude a service animal because health-care staff may be able to perform the same services that the service animal does (e.g., retrieving dropped items and guiding an otherwise ambulatory person to the restroom). Similarly, health-care personnel can not exclude service animals because the health-care staff perceive a lack of need for the service animal during the person’s stay in the health-care facility. A person with a disability is entitled to independent access (i.e., to be accompanied by a service animal unless the animal poses a direct threat or a fundamental alteration in the nature of services); “need” for the animal is not a valid factor in either analysis. For some forms of care (e.g., ambulation as physical therapy following total hip replacement or knee replacement), the service animal should not be used in place of a credentialed health-care worker who directly provides therapy. However, service animals need not be restricted from being in the presence of its handler during this time; in addition, rehabilitation and discharge planning should incorporate the patient’s future use of the animal. The health-care personnel and the patient with a disability should discuss both the possible need for the service animal to be separated from its handler for a period of time during non-emergency care and an alternate plan of care for the service animal in the event the patient is unable or unwilling to provide that care. This plan might include family members taking the animal out of the facility several times a day for exercise and elimination, the animal staying with relatives, or boarding off-site. Care of the service animal, however, remains the obligation of the person with the disability, not the health-care staff.
Note VA’s following reasoning in the proposed rulemaking is entirely contrary to the CDC above:
Additionally, the immediate needs of veterans in these settings would be most appropriately fulfilled by medical staff and not a service animal (for instance, getting in and out of a hospital bed).
11 In this case and above, we take this as an extension of the reasoning put forth on page 177 of the article the CDC repeatedly deferred to for guidance in constructing its guidelines:
It would be a reasonable modification of policies and practices to identify an area accessible to the handler where the service animal could toilet and to permit the service animal to be exercised by another person, if the handler was unable.
From Duncan SL, APIC Guideline Committee. APIC State-of-the-art report: the implications of service animals in healthcare settings. Am J Infect Control 2000; 28:170–80. This article, accessed December 23, 2014, is available at: http://www.petpartners.org/document.doc?id=404
[Article taken down by site. Roughly accessible via http://www.ajicjournal.org/article/S0196-6553(00)90025-7/abstract.]
12 In addition to CDC and service dog expert recommendations, case law on service dog access in locked mental health units has also born out this recommendation. See Abigayil Tamara v. El Camino Hospital et al. In this case, the judge found that several factors “suggest that the presence of a service animal might affect the ward, but not that it will fundamentally alter its nature.” (8) In particular, Judge Whyte found (on page 13):
Tamara’s request that the hospital admit service dogs unless it conducts an individualized assessment finding substantive evidence that her dog is a direct threat to the health and safety of the operation that cannot be mitigated by reasonably altering policy is merely requesting compliance with the ADA.
The findings emphatically underscore the need for individualized assessments, noting that blanket prohibitions of service animals are clearly discriminatory. This 2013 case (accessed December 23, 2014) is available at: https://cases.justia.com/federal/district-courts/california/candce/5:2012cv01032/251928/51/0.pdf?ts=1376339564