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PSD LIFESTYLE
Service Dog Access in Behavioral Healthcare Facilities By Joan Esnayra, Ph.D. 1 Legal Mandate: When a patient who uses a Psychiatric Service Dog presents at a healthcare facility seeking admission and treatment, and provided that the patient meets established admission criteria, the facility is obligated by federal, and sometimes state law 2, to admit both the patient and her Service Dog. A 1993 Americans with Disabilities Act (ADA) guidance memo written by the U.S. Department of Justice to Senator Danforth of Missouri states, “Unless it is a religious entity or under the control of a religious organization, a health care facility, such as a hospital, is covered by the provisions of Title III of the ADA and the Department's Title III regulation as a place of public accommodation…. According to section 36.302(c), a public accommodation is required to modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. The intent of this regulation is to ensure that the broadest feasible access be provided to service animals in all public accommodations, including hospitals and nursing homes.” 3 In case hospitals or clinics under the control of religious organizations think they are off the hook, it is important to point out that if such a facility is the recipient of any federal monies including Medicare reimbursements then, the institution is subject to Section 504 of the Rehabilitation Act of 1973. This federal law prohibits disability discrimination in any program or activity that receives federal financial assistance. So, these facilities are, in fact, legally required to accommodate disabled patients who utilize Service Dogs. Professional Mandate: Furthermore, the Joint Commission (formerly JCAHO) states that an accredited organization is expected to comply with state and federal regulations and law. Ms. Elizabeth Zhani, who is a Media Relations Specialist at the Joint Commission writes, “ A standard in the Joint Commission’s Comprehensive Accreditation Manual for Behavioral Health Care (CAMBHC) requires an organization to establish a process for permitting animal access to its facility. The standard in the chapter ‘Surveillance, Prevention and Control of Infection’ states, ‘Once the organization has prioritized its goals, strategies must be implemented to achieve those goals.’ An element of performance for this infection control standard specifies that the organization reduce ‘the risks associated with animals brought into the organization (such as management of animal waste).’ The rationale for this standard is to determine a response to the situation, with regards to infection control, prior to the arrival of a patient with a service animal.” 4 Ms. Zhani goes on to say, “The organization is expected to design infection control interventions that incorporate relevant guidelines for infection prevention and control activities. Examples of guidelines include those offered by the Centers for Disease Control and Prevention (CDC), the Healthcare Infection Control Practices Advisory Committee and the National Quality Forum. Please refer to the ‘Guidelines for Environmental Infection Control in Health-Care Facilities’ available on the CDC website.” 5 The CDC guidelines referred to above are recapitulated here for the reader’s benefit:
Susan Duncan, a Registered Nurse, formerly of the Delta Society’s National Service Dog Center, writes in an article titled, “APIC State-Of-The-Art Report: The Implications Of Service Animals In Healthcare Settings” 7 that the vast majority of Service Dogs hospital staff may encounter will be well cared-for and clean. These animals are appropriately vaccinated and do not harbor fleas, ticks, or mites. With this in mind, Duncan explains that the most important staff behaviors for the prevention of zoonosis include frequent hand washing and avoidance of contact with canine urine, feces, saliva, and dander. She explains further, “…persons who are immuno-suppressed or otherwise debilitated are not necessarily pre-empted from being in the presence of a service animal. Likewise, an immuno-compromised client who is permitted to have contact with visitors without requiring them to wear masks or gowns may not be at any greater risk if a visitor is accompanied by a Service Dog.” Ms Duncan’s comments are echoed by the U.S. Department of Health and Human Services (DHHS) in a document that addresses the presence of Service Animals in healthcare facilities. “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. Similarly, if immuno-compromised patients are able to receive visitors without using protective garments or equipment, an exclusion of Service Animals from this area would not be justified.” 8 Real Versus Fake Service Dogs Healthcare facilities “…are advised by the US Department of Justice Civil Rights Division to accept the verbal reassurance of the person that he or she has a disability (and is protected by the ADA), and that the animal is a Service Animal. Unnecessary inquiry into the nature of the disability, or requiring proof, or identification of the person’s disability, or the animal’s training is prohibited by the ADA and other federal nondiscrimination laws. Minimal inquiry is best; this acknowledges the privacy needs of the person with a disability.” 9 Pet dogs fraudulently misrepresented, as Service Dogs will usually give themselves away, because they are not accustomed to the overwhelming stimuli of public access environments. Extensive training is required in order for a Service Dog to function appropriately in places of public accommodation. The complete absence of such advanced training will likely become apparent in the course of admission. Legitimate Exclusions: A Service Dog may be lawfully excluded from a healthcare facility if it poses a ‘direct threat’ to the health and safety of others. Importantly, direct threat does not mean potential threat (i.e., we don’t want the dog on the ward because it might bite someone). Direct threat requires that ability, opportunity and jeopardy are present in the same moment. For example, all dogs with teeth, regardless of size, have the ability to bite someone. An opportunity to bite exists any time a staff member is in close proximity to the dog. Jeopardy means that the dog is actively engaged in behaviors that a reasonable person would construe as immanently harmful (i.e., dog is growling and barking and baring its teeth and lunging at its intended victim). Jeopardy implies that unless the dog is immediately restrained, it will bite. Direct threat is a pretty high standard and since Service Dogs are trained to be non-aggressive the likelihood of these three elements converging in a single moment is slim. The presence of a Service Dog inside a healthcare facility does not, in and of itself, constitute a ‘fundamental alteration’ to the delivery of goods and services. A Service Dog inside a sterile operating room, on the other hand, is a fundamental alteration to the delivery of goods and services. The operating room cannot be used if there is a dog inside it. Therefore, Service Dogs may lawfully be excluded from sterile operating rooms. In contrast, the presence of a Service Dog a room that is used for procedures requiring only a sterile field, rather than an entirely sterile room, is not considered by the U.S. Department of Justice to be a fundamental alteration to the delivery of goods and services. Thus, Service Dogs may not be excluded from patient procedure rooms. In an allergist’s office, where some patients may have life threatening allergies to dog fur or dander, excluding a Service Dog might be legal. Nonetheless, the allergist’s office cannot refuse to treat the Service Dog handler, either. In such situations, the U.S. Department of Justice requires that both disabled patients’ needs be accommodated. One way of doing this may involve the use of an examining room that is not normally used for patients who are severely allergic to dogs. Another strategy is to ask the Service Dog handler how s/he believes the needs of both parties may be accommodated. Some handlers may volunteer to leave their Service Dog in the car (only if it is safe to do so), or offer to bring a friend who will supervise the dog outside the allergist’s office while the handler is receiving care. Disability accommodation is intended to be an interactive process the end result of which is that all disabled parties are accommodated. Courtesy, creativity, and flexibility are requisite in these grey-area situations. 1 President & Founder of the Psychiatric Service Dog Society; www.psychdog.org ; (571) 216-1589; joan.esnayra@mac.com 2 According to the Department of Justice, when federal and state laws conflict with each other, the law that provides greater protection or access to the person with the disability is the law that prevails. 3http://www.usdoj.gov/crt/foia/tal302.txt Accessed on April 29, 2007. 4Personal communication dated April 26, 2007. 5http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm Accessed July 30, 2007. 6 Ibid 7 Duncan SL, APIC Guideline Committee. “APIC State-Of-The-Art Report: The Implications Of Service Animals In Healthcare Settings” (2000) Am J Infect Control, 28:170--80. 8http://www.hhs.gov/ocr/cdcanimals.html Accessed April 30, 2007 9“Commonly Asked Questions About Service Animals In Places Of Business”[brochure], (1998) U.S. Department of Justice Civil Rights Division, Disability Rights Section, Washington, DC; Back to PSD Lifestyle
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