Service dogs are an immensely valuable resource for disabled persons, allowing them to live more fulfilling lives through their hard-working companions. Disabled persons with service dogs all too often face an impediment to public access with their dogs due to dog owners who insist their untrained, companion dog is a service dog. These attempts to gain access for illegitimate service dogs also creates a hardship for the managers of places of public accommodation, including hospitals. Attempts to pass off illegitimate service dogs as a genuine working service dog also create a hardship for those disabled persons who utilize and rely upon the tasks performed by legitimate service dogs by placing them under greater scrutiny.
Attempting to pass off a pet or companion dog as a service animal can also have dramatic negative effects on public safety. We have all heard the horror stories of a dog biting or attacking another person after the dog was allowed public access by an owner who claimed the dog was a service dog. Less dangerous but similarly intrusive are illegitimate service dogs who eat off the table in a restaurant, chase other animals, growl or jump up on other patrons, all of which creates an adverse reaction to legitimate service dog access.
Service dogs versus emotional support dogs
Service dogs may not be denied access into places of public accommodation absent certain clearly defined exceptions. Emotional support dogs are not permitted this degree of open access. The legal definition of a service dog is a canine who provides work or tasks directly related to an individual’s disability. Service dogs are highly trained canines who perform such tasks as picking up items dropped by a mobility-impaired handler, opening doors, carrying items, indicating a phone or doorbell ringing for a hearing-impaired person, guiding a sight impaired individual, and similarly beneficial specific tasks. Dogs also have a sense of smell that is substantially more acute than that of humans. Hence, their ability to detect via scent when the handler has a drop in medication level and alerting the handler to that fact. All these are examples of work or tasks specifically related to the handler’s disability.
An emotional support dog provides comfort and companionship support to an individual with a psychological disorder but are not trained to perform specific tasks. On the other hand, psychological service dogs perform tasks directly related to the person’s mental health disorder, such as reminding the individual to take medication, keeping a person from engaging in self-harm, and conducting a room search for individuals with PTSD. Psychological service dogs can perform tasks such as detecting an anxiety or panic attack and place their weight on the handler to calm them. They also perform such tasks as alerting an individual to someone approaching from the rear if that is a trigger for the handler’s anxiety response. These are identifiable tasks, and not merely the provision of comfort.
Permissible access for service dogs
With respect to places of public accommodation such as a hospital, only service dogs are permitted access, and not emotional support dogs. As such, when a patient or visitor requests access for their purported service dog, one can permissibly ask what tasks the dog performs. If the owner states that the dog comforts me or provides a sense of security, this is not a service dog task. In those cases, the dog is a pet dog or perhaps an emotional support dog but not a service dog and access may be denied.
Restrictions in the hospital setting
By law, service dogs are not permitted access in certain areas of the hospital such as infection control areas, or when their presence would create a health and safety risk for patients or staff. Presently, the Legislature and the courts are reluctant to implement a requirement for testing and certification for service dogs under the premise that they are advocating for the rights of the disabled. However, many service dog owners and service dog trainers are in favor of mandated certification for service dogs to prevent illegitimate service dog owners’ ongoing interference with permissible access for genuine service dogs. Such a requirement would inhibit the ability of individuals to make false claims that their pet dog or emotional support dog is a service dog.
Healthcare providers should have the right to decide if the presence of a service dog would interfere with the patients’ treatment
In the litigated case of C.L. v Del Amo Hospital, Inc. there were two issues: 1.) was plaintiff’s dog a trained service dog, and 2.) if the dog was a service dog, could the hospital lawfully deny access to the dog based upon her healthcare providers’ determination that the dog would interfere with her treatment. Plaintiff was admitted to the hospital on multiple occasions for treatment of her psychological disorders and related symptoms. After trial, the District Court judge found that plaintiff’s dog was not a service dog. Plaintiff appealed and that determination was opined to be in error by the Ninth Circuit Court of Appeal. The case was then remanded to the District Court to affirm or deny the Ninth Circuit opinion and if affirmed, to decide the second question. The District Court determined that C.L.’s dog was a service dog but entered judgment in favor of Del Amo Hospital on the second issue, that allowing the dog in this case would create a fundamental alternation in the services provided by the hospital to C.L.
If the presence of the dog creates a fundamental alteration in the facility’s operations, this is a complete defense to an allegation of an ADA violation for excluding the dog. In this case, the treating psychiatrist and other members of the patient’s treatment team determined that the presence of the dog would interfere with the treatment modalities being provided to the patient. On remand, the District Court agreed with the defendant that the presence of the dog would create a fundamental alteration in the professional services rendered to the patient. Plaintiff has initialed an appeal on the second issue, so stay tuned. Presently, the District Court decision confirms that a legitimate service dog may be exclude from the hospital if the healthcare providers determine the dog’s presence would impede or interfere with the patient’s treatment. The outcome of this second appeal has ramifications for standalone psychiatric hospitals and inpatient behavioral health units within acute care medical hospitals.
Hospitals may not lawfully make blanket exclusion policies and practices to prohibit all service dogs. There are valid reasons for allowing a patient to be accompanied by their service dog, even in the setting of a locked psychiatric treatment unit. A patient who is mobility or sight impaired may benefit from the presence and assistance of their service dog during the hospital admission. In the case of C.L., the tasks she claimed the dog could perform were related to her psychiatric symptoms, such as grounding the patient when she became anxious, waking her from nightmares, and alerting her to the presence of another individual when coming around a corner. The psychiatrist and others who were treating C.L. explained that in the psychiatric hospital setting, the patient’s symptoms such as anxiety need to arise for the care and treatment to be effective. The healthcare team can then assist the patient in managing the symptoms and provide her with additional tools to alleviate her symptoms. If the dog intervenes to prevent or limit her anxiety, the patient could not receive the benefit, or at least not the full benefit of the treatment program. The symptoms have to come up to be addressed and the dog would interfere with that treatment process.
To require a licensed healthcare provider to implement care in a manner other than the method believed by the provider to be in the best interest of the patent’s treatment would constitute a fundamental alteration of the healthcare provider’s services. Medical doctors and other healthcare providers are in the best position to make a clinical determination of the best care and treatment for their patients. The public interest is not served by limiting the choice of physicians and other members of the healthcare team in providing treatment they feel is in the best interest of their patients. The healthcare provider is the most knowledgeable person to address the modality of treatment for patient. The healthcare provider advises the patient on the recommended course of treatment or treatment options, based upon their knowledge, training, and experience. In the psychiatric treatment setting, patients are often not capable, given their mental state upon admission, to make decisions that are in their best interest. Thus, they rely upon the treatment plan designed by the treating professionals. This autonomy in medical decision-making should not be stripped from those who have dedicated their careers to assisting person reach their optimal health goals, both in their physical and mental health needs.
Footnotes:
[1] 42 U.S.C. § 12182(a); 28 C.F.R. § 35.136(g); Tamara v. El Camino Hospital, 964 F. Supp. 2d 1077, 1083 (N.D. Cal. 2013).
[2] 28 C.F.R. §35.104; 28 C.F.R. §36.104.
[3] 28 C.F.R. secs. 36.302(c) and 35.136
[4] C. L. v. Del Amo Hospital, Inc., 992 F.3d 901 (2021)
[5] 42 U.S.C. § 12182(b)(2)(A)(ii); Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004).
[6] Datascope Corp. v. Kontron, Inc., 786 F.2d 398, 401 (D.C. Cir. 1986); Advanced Cardiovascular Systems v. Medtronic, 579 F. Supp. 554, 561 (Del. 2008).
About the Author
Moira S. Brennan has been with the law firm of Dummit, Buchholz & Trapp for over fourteen years, defending hospitals and other healthcare practitioners in all aspects of litigation through trial. In addition to active litigation, Ms. Brennan advises clients on a formal and informal basis regarding a variety of issues that arise in the operation of a hospital, including acute care medical and psychiatric facilities. Ms. Brennan also serves her clients through consultations and public presentations concerning compliance and recommendations for addressing potential claims in the healthcare industry. She received her undergraduate degree from Brown University, and her J.D. from California Western School of Law. In addition to the practice of law, she is a professional dog trainer and cares for her eight dogs.
