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A Horse Is a Horse, of Course, of Course
Air Medical Journal 35 (2016) 63e64
Contents lists available at ScienceDirect
Air Medical Journal journal homepage: http://www.airmedicaljournal.com/
Legal Matters
A Horse Is a Horse, of Course, of Course John R. Clark, JD, MBA, NRP, FP-C, CCP-C, CMTE
You've probably all heard the joke about the horse that walks into a bar. The health care version goes like this: “A miniature horse walks into the emergency department. The triage nurse asks the horse ‘Why the long face?’” It's funny until you realize that the miniature horse is a service animal under the Americans with Disabilities Act (ADA), and you now have a horse hanging out in the emergency department with the patient. But let's rein this in and talk about that horse later. Joking aside, how do you manage a service animal in the health care setting? In 1990, the ADA became the US law that prohibits discrimination against individuals with disabilities in all areas of public life, including the workplace, schools, transportation, and any public and private place that is open to the general public. Specific to service animals, the ADA states that “individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.”1 The ADA is divided into 5 sections. Title I addresses employment issues and is designed to assist people with disabilities access the same employment opportunities and benefits available to people without disabilities. Often, this is manifested in employers providing reasonable
Editor's Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright © 2016 by Air Medical Journal Associates http://dx.doi.org/10.1016/j.amj.2015.12.002
accommodations to qualified applicants and current employees. Title II prohibits discrimination on the basis of disability by “public entities.” This covers programs, services, and activities operated by state and local governments. The public entity must ensure accessibility to individuals with disabilities. Title III prohibits private places of public accommodation from discriminating against individuals with disabilities. “Public accommodation” means anywhere the public is invited or permitted; this is the section that has the greatest impact on health care because it specifically includes doctor's offices and hospitals.2 Additionally, it establishes the minimum standards for accessibility for renovations and new construction. Title III classifies private health care services as a public accommodation regardless of federal financing status.3 Title IV address telecommunication issues for the disabled and is not directly related to health care, and Title V contains a variety of miscellaneous provisions relating to the ADA as a whole, including its relationship to other laws, state immunity, its impact on insurance providers and benefits, prohibition against retaliation and coercion, illegal use of drugs, and attorney's fees. Title II and III were revised in 2010 with the changes becoming effective March 15, 2011. Importantly, the definition of a service animal was clarified. The revision defines a “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. Out go the ringtailed lemur and prairie dog because the rule states that any other animal, whether wild or domestic, does not qualify as service animals, but all dogs don't get a free pass. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used
purely for emotional support, are not service animals under the ADA. Sometimes it is not obvious that the dog is a service animal. The ADA allows you to ask only 2 specific questions to determine if ADA protections apply: 1) Is the dog a service animal required because of a disability? and 2) What work or task has the dog been trained to perform? You are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or even inquire about the nature of the disability. The ADA does not predicate that the dog wears a vest, identification tag, or specific harness. Naturally, Congress wanted to create a law that had a meaningful impact on the lives of individuals with disabilities and to ensure that they were not separated from their service animals. Congress “intended that the broadest feasible access be provided to service animals in all places of public accommodation.”4 In rare circumstances, places may not have to accommodate service dogs if doing so would cause a fundamental change in the “nature of the goods, services, facilities, privileges, or accommodations offered or provided, or the safe operation of the public accommodation would be jeopardized.”4 If an individual must be separated from his or her service dog for such a reason, he or she is responsible for providing for the dog's supervision and care, and a public accommodation is not responsible for the care or supervision of a service animal.5 An attempt to succinctly summarize the ADA as it relates to service dogs is to say that service dogs are allowed in hospitals, doctor's offices, patient rooms, ambulances, and other health care facilities as long as their presence doesn't pose a threat or danger to standard medical practices and doesn't impede operations of fundamental services and functions and service dogs may
64
accompany their disabled handler into nonsterile, public areas. Service dogs are usually restricted from places in the hospital where other “visitors” are limited like the nursery or neonatal intensive care unit, the burn unit, the operating room, and the cardiac catheterization laboratory. Let's get back to our horse. The ADA affirms that trained miniature horses are allowed as alternatives to dogs.6 There is a specific provision that covers miniature horses that says that reasonable modifications in policies, practices, or procedures must be made to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. The following factors may assist in determining whether miniature horses can be accommodated: Is the miniature horse housebroken? Is the miniature horse under the owner's control? Can the facility accommodate the miniature horse's type, size, and weight? Does the miniature horse's presence compromise legitimate safety requirements necessary for the safe operation of the facility? The rules that apply to service dogs also apply to miniature horses. One of the areas of misuse of “service animals” relates to other animals being used for comfort or emotional support. A commonly reported scenario is that someone has a dog that calms him or her and prevents him or her from having an anxiety attack. Does that make the dog a service animal? The ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog's mere presence provides comfort, that would not be considered a service animal under the ADA.7 Although certain animals are often used for emotional support or comfort animals as part of a medical treatment plan as therapy animals, they are not considered service animals under the ADA and do not enjoy the same protections as dogs and miniature horses. Remember the ADA does not allow you to request documentation that the dog is a service animal; however, there are individuals and organizations that sell service animal certification or registration documents online. These documents do not convey any rights under the
J.R. Clark / Air Medical Journal 35 (2016) 63e64
ADA and the US Department of Justice does not recognize them as proof that the dog is a service animal. If the individual who uses a service dog needs to be admitted or transported to another facility for admission, there is an issue that requires medical attention. The ADA requires the individual must have direct control of his or her service dog and specifies that staff, employees, or other individuals are not expected to take care of the dog. If the individual's mobility is restricted because of the injury or illness, is in an altered state, is unconscious, or is otherwise unable to manage his or her service dog, then the law is clear that the service dog can be removed to the care of the individual's friends or family or can be cared for in a kennel. The hospital issues are well-defined, but are service animals allowed to ride in an ambulance? What about a helicopter or a fixed wing aircraft? The answer is generally yes. Just like in the hospital setting, if the space in the ambulance is crowded and the dog's presence would interfere with the ability of the crew to treat the patient, you can restrict the dog from riding along and make other arrangements to have the dog transported to the hospital. Obviously, in the emergency setting where the individual's ability to control the service animal is in question or because of the safety issues, not taking the service dog along makes sense. In a fixed wing environment or a critical care ground transport where the individual may be in a position to control his or her animal and it doesn't interfere with the care provided or the safe operation of the aircraft or ambulance, you may have to make room for the service dog. When considering aircraft travel, you still have to be careful of where you hook up that pony when considering service animal access. Commercial airlines do not have to comply with the ADA but instead follow the guidance of the Air Carrier Access Act (ACAA).8 The ACAA is not as specific as the ADA, and the general guidance in 14 CFR Part 382 titled Guidance Concerning Service Animals in Air Transportation seems to allow any service animal if the passenger claims he or she needs to be accompanied by the animal. There is also a section titled Special Requirements When Traveling with an Emotional Support Animal. Again, the ADA does not contain a definition of therapy, comfort, or emotional support animals and only defines a “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability.
Under the ACAA, it requires that anyone traveling with an emotional support animal have documentation in the form of a doctor's letter, not more than 1 year old, on letterhead from a mental health professional stating all of the following: 1) that the passenger has a mental healtherelated disability listed in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition; 2) that the presence of the animal is necessary to the passenger's health or treatment; and 3) that the individual writing the letter is a licensed mental health professional and that the passenger is under his or her care. Airlines may also require documentation including the date, type, and state of the mental health professional's license. This provision is to prevent abuse by passengers who do not have a medical need for an emotional support animal and to ensure that passengers who have a legitimate need for emotional support animals are permitted to travel with their animals. Although encountering a service animal is a rare occurrence, understanding the ADA will help keep you out of legal trouble and may make the experience more positive for the patient, the dog, the family, and everyone involved with the case. In summary, remember that the protections under the ADA do not allow an individual with a service dog to fundamentally alter the way a hospital or transport team does business or provides service. The presence of a service dog can't violate standards for patient or staff safety and are medically necessary. What the protections do allow for is to ensure that an individual and his or her service dog are allowed anywhere visitors are allowed without special precautions such as patient rooms, lobbies and waiting rooms, the cafeteria, and even in some laboratory areas. References 28 CFR x36.301(c)7. 28 CFR x36.104. 42 USC x12181(7). 28 CFR x36.301. 28 CFR x36.302(c). ADA Fact sheet on Service Animals. Published July 12, 2011. Accessed October 30, 2015 at http:// www.ada.gov/service_animals_2010.htm. 7. Frequently asked questions about service animals and the ADA page on the US Department of Justice, Civil Rights Division, Disability Rights Section website. http://www.ada.gov/regs2010/service_ animal_qa.html. Accessed October 28, 2015. 8. Nondiscrimination on the Basis of Disability in Air Travel (14 CFR part 382). http://airconsumer.dot. gov/rules/382short.pdf. Accessed October 30, 2015.
1. 2. 3. 4. 5. 6.
John R. Clark, JD, MBA, NRP, FP-C, CCP-C, CMTE is the Chief Operating Officer of the International Board of Specialty Certification (IBSC) and legal advisor to the board of directors for the International Association of Flight and Critical Care Paramedics (IAFCCP).
Contents lists available at ScienceDirect
Air Medical Journal journal homepage: http://www.airmedicaljournal.com/
Legal Matters
A Horse Is a Horse, of Course, of Course John R. Clark, JD, MBA, NRP, FP-C, CCP-C, CMTE
You've probably all heard the joke about the horse that walks into a bar. The health care version goes like this: “A miniature horse walks into the emergency department. The triage nurse asks the horse ‘Why the long face?’” It's funny until you realize that the miniature horse is a service animal under the Americans with Disabilities Act (ADA), and you now have a horse hanging out in the emergency department with the patient. But let's rein this in and talk about that horse later. Joking aside, how do you manage a service animal in the health care setting? In 1990, the ADA became the US law that prohibits discrimination against individuals with disabilities in all areas of public life, including the workplace, schools, transportation, and any public and private place that is open to the general public. Specific to service animals, the ADA states that “individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.”1 The ADA is divided into 5 sections. Title I addresses employment issues and is designed to assist people with disabilities access the same employment opportunities and benefits available to people without disabilities. Often, this is manifested in employers providing reasonable
Editor's Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright © 2016 by Air Medical Journal Associates http://dx.doi.org/10.1016/j.amj.2015.12.002
accommodations to qualified applicants and current employees. Title II prohibits discrimination on the basis of disability by “public entities.” This covers programs, services, and activities operated by state and local governments. The public entity must ensure accessibility to individuals with disabilities. Title III prohibits private places of public accommodation from discriminating against individuals with disabilities. “Public accommodation” means anywhere the public is invited or permitted; this is the section that has the greatest impact on health care because it specifically includes doctor's offices and hospitals.2 Additionally, it establishes the minimum standards for accessibility for renovations and new construction. Title III classifies private health care services as a public accommodation regardless of federal financing status.3 Title IV address telecommunication issues for the disabled and is not directly related to health care, and Title V contains a variety of miscellaneous provisions relating to the ADA as a whole, including its relationship to other laws, state immunity, its impact on insurance providers and benefits, prohibition against retaliation and coercion, illegal use of drugs, and attorney's fees. Title II and III were revised in 2010 with the changes becoming effective March 15, 2011. Importantly, the definition of a service animal was clarified. The revision defines a “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. Out go the ringtailed lemur and prairie dog because the rule states that any other animal, whether wild or domestic, does not qualify as service animals, but all dogs don't get a free pass. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used
purely for emotional support, are not service animals under the ADA. Sometimes it is not obvious that the dog is a service animal. The ADA allows you to ask only 2 specific questions to determine if ADA protections apply: 1) Is the dog a service animal required because of a disability? and 2) What work or task has the dog been trained to perform? You are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or even inquire about the nature of the disability. The ADA does not predicate that the dog wears a vest, identification tag, or specific harness. Naturally, Congress wanted to create a law that had a meaningful impact on the lives of individuals with disabilities and to ensure that they were not separated from their service animals. Congress “intended that the broadest feasible access be provided to service animals in all places of public accommodation.”4 In rare circumstances, places may not have to accommodate service dogs if doing so would cause a fundamental change in the “nature of the goods, services, facilities, privileges, or accommodations offered or provided, or the safe operation of the public accommodation would be jeopardized.”4 If an individual must be separated from his or her service dog for such a reason, he or she is responsible for providing for the dog's supervision and care, and a public accommodation is not responsible for the care or supervision of a service animal.5 An attempt to succinctly summarize the ADA as it relates to service dogs is to say that service dogs are allowed in hospitals, doctor's offices, patient rooms, ambulances, and other health care facilities as long as their presence doesn't pose a threat or danger to standard medical practices and doesn't impede operations of fundamental services and functions and service dogs may
64
accompany their disabled handler into nonsterile, public areas. Service dogs are usually restricted from places in the hospital where other “visitors” are limited like the nursery or neonatal intensive care unit, the burn unit, the operating room, and the cardiac catheterization laboratory. Let's get back to our horse. The ADA affirms that trained miniature horses are allowed as alternatives to dogs.6 There is a specific provision that covers miniature horses that says that reasonable modifications in policies, practices, or procedures must be made to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. The following factors may assist in determining whether miniature horses can be accommodated: Is the miniature horse housebroken? Is the miniature horse under the owner's control? Can the facility accommodate the miniature horse's type, size, and weight? Does the miniature horse's presence compromise legitimate safety requirements necessary for the safe operation of the facility? The rules that apply to service dogs also apply to miniature horses. One of the areas of misuse of “service animals” relates to other animals being used for comfort or emotional support. A commonly reported scenario is that someone has a dog that calms him or her and prevents him or her from having an anxiety attack. Does that make the dog a service animal? The ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog's mere presence provides comfort, that would not be considered a service animal under the ADA.7 Although certain animals are often used for emotional support or comfort animals as part of a medical treatment plan as therapy animals, they are not considered service animals under the ADA and do not enjoy the same protections as dogs and miniature horses. Remember the ADA does not allow you to request documentation that the dog is a service animal; however, there are individuals and organizations that sell service animal certification or registration documents online. These documents do not convey any rights under the
J.R. Clark / Air Medical Journal 35 (2016) 63e64
ADA and the US Department of Justice does not recognize them as proof that the dog is a service animal. If the individual who uses a service dog needs to be admitted or transported to another facility for admission, there is an issue that requires medical attention. The ADA requires the individual must have direct control of his or her service dog and specifies that staff, employees, or other individuals are not expected to take care of the dog. If the individual's mobility is restricted because of the injury or illness, is in an altered state, is unconscious, or is otherwise unable to manage his or her service dog, then the law is clear that the service dog can be removed to the care of the individual's friends or family or can be cared for in a kennel. The hospital issues are well-defined, but are service animals allowed to ride in an ambulance? What about a helicopter or a fixed wing aircraft? The answer is generally yes. Just like in the hospital setting, if the space in the ambulance is crowded and the dog's presence would interfere with the ability of the crew to treat the patient, you can restrict the dog from riding along and make other arrangements to have the dog transported to the hospital. Obviously, in the emergency setting where the individual's ability to control the service animal is in question or because of the safety issues, not taking the service dog along makes sense. In a fixed wing environment or a critical care ground transport where the individual may be in a position to control his or her animal and it doesn't interfere with the care provided or the safe operation of the aircraft or ambulance, you may have to make room for the service dog. When considering aircraft travel, you still have to be careful of where you hook up that pony when considering service animal access. Commercial airlines do not have to comply with the ADA but instead follow the guidance of the Air Carrier Access Act (ACAA).8 The ACAA is not as specific as the ADA, and the general guidance in 14 CFR Part 382 titled Guidance Concerning Service Animals in Air Transportation seems to allow any service animal if the passenger claims he or she needs to be accompanied by the animal. There is also a section titled Special Requirements When Traveling with an Emotional Support Animal. Again, the ADA does not contain a definition of therapy, comfort, or emotional support animals and only defines a “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability.
Under the ACAA, it requires that anyone traveling with an emotional support animal have documentation in the form of a doctor's letter, not more than 1 year old, on letterhead from a mental health professional stating all of the following: 1) that the passenger has a mental healtherelated disability listed in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition; 2) that the presence of the animal is necessary to the passenger's health or treatment; and 3) that the individual writing the letter is a licensed mental health professional and that the passenger is under his or her care. Airlines may also require documentation including the date, type, and state of the mental health professional's license. This provision is to prevent abuse by passengers who do not have a medical need for an emotional support animal and to ensure that passengers who have a legitimate need for emotional support animals are permitted to travel with their animals. Although encountering a service animal is a rare occurrence, understanding the ADA will help keep you out of legal trouble and may make the experience more positive for the patient, the dog, the family, and everyone involved with the case. In summary, remember that the protections under the ADA do not allow an individual with a service dog to fundamentally alter the way a hospital or transport team does business or provides service. The presence of a service dog can't violate standards for patient or staff safety and are medically necessary. What the protections do allow for is to ensure that an individual and his or her service dog are allowed anywhere visitors are allowed without special precautions such as patient rooms, lobbies and waiting rooms, the cafeteria, and even in some laboratory areas. References 28 CFR x36.301(c)7. 28 CFR x36.104. 42 USC x12181(7). 28 CFR x36.301. 28 CFR x36.302(c). ADA Fact sheet on Service Animals. Published July 12, 2011. Accessed October 30, 2015 at http:// www.ada.gov/service_animals_2010.htm. 7. Frequently asked questions about service animals and the ADA page on the US Department of Justice, Civil Rights Division, Disability Rights Section website. http://www.ada.gov/regs2010/service_ animal_qa.html. Accessed October 28, 2015. 8. Nondiscrimination on the Basis of Disability in Air Travel (14 CFR part 382). http://airconsumer.dot. gov/rules/382short.pdf. Accessed October 30, 2015.
1. 2. 3. 4. 5. 6.
John R. Clark, JD, MBA, NRP, FP-C, CCP-C, CMTE is the Chief Operating Officer of the International Board of Specialty Certification (IBSC) and legal advisor to the board of directors for the International Association of Flight and Critical Care Paramedics (IAFCCP).