QUESTION:
What are some ADA-specific considerations for allowing patients to bring service animals to the hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Under the American with Disabilities Act (“ADA”), patients who require the services of a service animal are generally permitted to bring their service animal with them to a hospital.  However, the ADA protections granted to service animals do not apply to emotional support animals; therefore, hospitals may prohibit patients from bringing emotional support animals to the hospital.  Hospitals may impose rules and restrictions for managing service animals in their facilities.

Title III of the ADA requires hospitals and other places of public accommodation to modify policies, practices, and procedures to permit individuals with a disability to use a service animal.  Service animals must be under the handler’s control.  The ADA regulations require handlers control their service animals with a harness, leash, or other tether, unless the handler is unable to use said harness leash or tether because of a disability or said harness, leash, or tether would interfere with the service animal’s safe and effective performance of work or tasks.  The hospital may request that the service animal be removed if (1) the animal is out of control and the animal’s handler does not take effective action to control it, or (2) the animal is not housebroken.

Under the ADA, a “service animal” means any dog that is individually trained to do work or perform tasks for the benefits of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.  The “works performed” by a service animal must be directly related the individual’s disability.  For example, a dog who assists an individual who is blind or has low vision by navigating the person throughout a facility, or a dog who helps a person with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors performs works or tasks that meet the service animal requirement.

Importantly, other species of animals are not considered service animals (however, the ADA does require accommodations for people who use miniature horses similarly to service animals in specific circumstances).  Additionally, an animal’s presence or the provision of emotional support, well-being, comfort, or companionship does not constitute works or tasks for the purposes of identifying an animal as a “service animal.” Why? According to the Department of Justice, the difference between a service animal and an emotional support animal is determined by the work or task that the animal performs.  A service animal, unlike an emotional support animal, is trained to respond to an individual’s need.  For example, if a service animal senses a person is about to have a psychiatric episode and it is trained to respond by nudging, barking, or moving the individual to a safe location until an episode subsides, the animal “performs a task” or has “done work” on behalf of the individual with a disability rather than simply sensing that an event has occurred.  Thus, an emotional support animal, which typically is not trained to recognize and respond to an episode, but rather comforts or provides companionship as a result of a person’s episode, does not perform works or tasks and is therefore excluded from the “service animal” definition.

If it is unclear whether someone’s dog is a service animal, a place of public accommodation may only ask two questions pertaining the service animal:  (1) Is the service animal required because of a disability? (2) What work or task has the dog been trained to perform?  Under the ADA, it is unlawful to (1) ask about the nature and extent of the person’s disability, (2) request any documentation that the service animal is registered, licensed, or certified as a service animal, or (3) ask the handler to pay a surcharge where a surcharge would otherwise be appropriate.  The U.S. Department of Justice Civil Rights Division has no shortage of information, including its Service Animals ADA Requirements:  Service Animals, and Frequently Asked Questions about Service Animals and the ADA webpages.

If you have a quick question about this, e-mail Moises A. Tonoc Bonilla at mtonocbonilla@hortyspringer.com.

QUESTION:
We have a patient scheduled for surgery who is deaf and we want to make sure that we are providing reasonable accommodations in accordance with the Americans with Disabilities Act. With that said, do we have to hire an in-person sign language interpreter, or can we rely upon video remote interpreting services to communicate with the patient?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
It’s great that you’re planning ahead to ensure that you can communicate effectively with your patient, especially in situations like these where communication is critical to quality care.  Under Title III of the Americans with Disabilities Act (“ADA”), hospitals and other places of public accommodation are required to provide “auxiliary aids and services” to individuals with disabilities to ensure effective communication.  “Auxiliary aids and services” include qualified interpreters who are either on site or available through video remote interpreting (“VRI”) services.

If your hospital is considering VRI services in lieu of in-person interpreters, please note that, in accordance with the ADA, these services must provide:

• real time, full motion video and audio over a dedicated, high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;

• a sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;

• a clear, audible transmission of voices; and

• adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 CFR § 36.303.

The type of auxiliary aid or service will vary depending on the complexity of the communication involved and the context in which the communication is taking place.  While the ADA encourages consulting with the individual to determine the type of aid needed, it is the ultimate decision of the hospital or public accommodation so long as the chosen method of communication results in effective communication.  Therefore, as long as the VRI services provided meet the requirements listed above, and it is determined that VRI is an appropriate method of communication under the circumstances, then it is likely sufficient for a hospital to offer a patient such services as a reasonable accommodation rather than provide and pay for an in-person interpreter.

If you have a quick question about this, or any other hospital-related ADA issue, e‑mail Mary Paterni at mpaterni@hortyspringer.com.

QUESTION:
We are developing a hospital-wide animal visitation policy. What are some things we need to consider including so that we are compliant with the Americans with Disabilities Act?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
This is a great policy to have. We all love animals, but it’s important to make sure that you take the necessary steps to identify the proper use of service animals and acceptable visitation rules for therapy animals. Today, let’s focus on service animals. Under the ADA, covered entities, like most hospitals, are required to provide reasonable accommodations for people with disabilities. The service animal rule falls under this requirement. In other words, places that have a “no animals allowed” policy provide an exception that allows service animals in their facility.

What is a service animal? Well, it is a dog of any breed that has been trained to work or perform a task for an individual with a disability. For example, a person with a panic disorder may have a dog that is trained to sense an upcoming panic attack and to help lessen its impact.

When building an animal visitation policy, you want to include a section that considers service animals and sets out general rules for your staff to follow. For instance, when it is unclear as to whether a dog in your facility is a service animal, your staff may not inquire into the nature of the person’s disability, may not ask for documentation, and may not require that the dog perform its trained task. Rather, your staff may only ask (1) if the dog is a service animal that is required because of a disability and (2) what work or tasks has the dog been trained to perform.

If the patient requires basic assistance from staff, then staff may be required to accompany the patient while they attend to their service animal (i.e., taking their dog for a walk, but requiring a wheelchair). Under the ADA, the patient, or service animal handler, bears full responsibility for the dog and must be in control of it at all times. This includes making arrangements to pass the dog off to family members, or even boarding the dog, in the event that the patient is unable to provide the necessary care.

Make sure to review the ADA regulations governing service animals in detail, and feel free to reach out to Mary Paterni with any additional questions.