Open Bar: The Proper Use of Service Animals

Question: Can my practice prohibit dogs from the office?

Response: By law, a doctor’s office is required to permit patients to bring their service animals into the parts of the office that are open to the public.[i] A service animal is a dog that is individually trained to do work or perform tasks for the benefit of a person with a disability.[ii] Under the federal Americans with Disabilities Act (ADA) and New York Civil Rights law, a doctor’s office may not discriminate against individuals with disabilities[iii]. Furthermore, many people with disabilities are not perceived as disabled and are nevertheless protected by this law. When a person presents a dog in the office, and it is not readily apparent that the dog qualifies as a service animal, only certain questions are permitted to be asked.[iv] Those in the doctor’s office may not inquire about that person’s disability, but may ask only:

1. Is the dog required because of a disability?
2. What work or task has the dog been trained to perform?[v] 

Generally, you may not make these inquiries of a person when it is readily apparent the dog is trained to do work or perform tasks, i.e., the dog is guiding a person, pulling a wheelchair, or providing assistance to a person with an observable disability.[vi]  You are not allowed to request documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person’s disability.[vii]  Nor can your office charge a fee for having a service animal on site.[viii] There is no required documentation, such as paperwork, as proof that the animal has been trained, licensed or certified.[ix] Certification is not required.[x] Dogs whose function is to provide comfort or emotional support do not qualify under the ADA as service animals, and thus can be prohibited from entering your office under the ADA.[xi] Fear of dogs or allergies to dogs are not permissible reasons to deny a patient and their service animal entry.[xii]

Notably, service animals are allowed to go where the public is permitted to go.[xiii] Service animals, therefore may be excluded from places in a doctor’s office where the public is not permitted to go, such as a delivery room[xiv] or surgical area or examination room where physical exams are conducted.[xv] The New York Court of Appeals found that an examination room is not a public facility, and therefore, a service animal may not be allowed in them. The court considered hygiene and sanitation as well as safety for the patient and the physician as a basis for its decision. Thus, private medical offices have both private and public areas, indicating that while service animals may be permitted in areas open to the public, they are not permitted in private areas, including exam rooms.

Who handles the service animal while a patient is in an exam room? The ADA requires that service animals be under the control of the handler at all times.[xvi] In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability, and the animal must have “a harness, leash, or other tether” unless the person with a disability is prevented from doing so by his or her disability or if the use of which would interfere with the animals’ ability to safely perform its tasks.[xvii] If a dog behaves in a way that poses a direct threat to the health or safety of others (or is out of control), has a history of such behavior, is not housebroken, or is not under the control of the handler, the animal may be excluded from the premises.[xviii] In this situation, you must offer to treat the patient without the animal present and cannot discharge the patient due to the animal’s behavior.[xix]

It is important to ensure compliance with these laws and regulations. If you violate these laws, your practice can be responsible for monetary damages and civil penalties by the State Division of Human Rights and under the ADA.[xx]

MLMIC policyholders can reach out to our healthcare attorneys for questions about service animals or any other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.

Sources

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[i] 28 CFR § 35.136 (g); 28 CFR § 36.104 (“facility”).

[ii] 28 CFR §35.104; 36.104 (“service animal”).

[iii] ADA title II and III at https://www.ada.gov/resources/service-animals-2010-requirements/#how-service-animal-is-defined; NY Civil Rights Law § 47.

[iv] 28 CFR § 36.302 (c)(6);  https://www.ada.gov/resources/service-animals-2010-requirements/#how-service-animal-is-defined.

[v] 28 CFR § 36.302 (c)(6); § 35.136 (f)

[vi] 28 CFR§ 35.136 (f)

[vii] 28 CFR § 36.302 (c)(6).

[viii] 28 CFR § 36.302 (c)(8).

[ix] 28 CFR § 35.136 (f).

[x] 28 CFR § 35.136 (f).

[xi] https://www.ada.gov/resources/service-animals-2010-requirements/

[xii] https://ag.ny.gov/sites/default/files/service_animals_brochure.pdf

[xiii] 28 C.F.R. § 35.136 (g).

[xiv] See Perino v. St. Veincent’s Med. Ctr. Of Staten Island, 502 N.Y.S.2d 921 (Sup. Ct. Richmond Ct. 1986)

[xv] See Albert v. Solimon, 252 A.D.2d 139 (4^th Dept. 1998) aff’d 94 N.Y.2d 771 (1999).

[xvi] 42 C.F.R. §35.136 (d), (e).

[xvii] 42 C.F.R. § 35.136(d).

[xviii] 42 U.S.C.S. §12111 (3), 28 C.F.R. § 35.139, 35.136(d).

[xix] 28 CFR §35.136 (c).

[xx] 28 CFR § 35.172 (c), (d); § 36.501, 504; 42 USC §12133.