No Shoes, No Shirt, No Service Dogs?

Last week, the Department of Health and Human Service’s (HHS) Office for Civil Rights issued a news release announcing its recent decision that a hospital’s policy not to allow service animals other than seeing eye dogs entrance into its facility did not comply with Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112).  While the violation took place in a hospital receiving federal financial assistance and therefore required to comply with Section 504, the lesson is useful to anyone employed in a public place or privately owned businesses that serve the public because the Americans with Disabilities Act (ADA) (P.L. 101-336) extends service dog requirements to privately-owned businesses.

The allegations stemmed from a complaint that the St. Edward Mercy Medical Center in Fort Smith, Arkansas, had discriminated against an individual on the basis of a disability by not allowing his service animal to enter the hospital with him while seeking treatment for his father, described in both the HHS news release, the Letter of Findings, and the Settlement Agreement between the parties.  The complainant had a lumbar and spinal disability and had a service dog to help stabilize him while walking and to carry and retrieve items for him.  The hospital, however, refused entry to the dog, citing that (1) it was not a seeing eye dog and (2) the individual was unable to produce a tag showing that the dog was healthy or that it was a service dog. The hospital reasoned that it was its policy to only allow dogs used by the visually impaired to enter the facility and that, in the rare situations where pets were allowing into the facility, proof of vaccination must be produced.  The individual brought this claim with the OCR.

The Letter of Findings states that not only is the complainant an individual with a disability (has record of, or is regarded as having, a physical or mental impairment substantially limiting major life activities) and the dog a service animal (trained to perform tasks for the benefit of the disabled person), but the hospital failed to provide the complainant meaningful access to the facility when his service animal was refused entry and denied him a reasonable modification for his disability.  According to the news release, an entity cannot limit access to service animals for the visually impaired or require documentation that it is a service animal or of the animal’s health.  The Settlement Agreement requires that the hospital amend its policies to make them non-discriminatory, give notice of those policies, post the policies in entrances and near admissions for the general public to see, train its staff on providing services without discriminating against those with disabilities and specifically with regard to allowing service animals into the facility, and appoint a Section 504 coordinator and establish a grievance procedure for resolving complaints.  [The Settlement Agreement included as addenda a sample service dog policy and a sample grievance procedures for the hospital to adopt.]

So what should facilities be mindful of when someone tries to enter with an animal?  According to the list of commonly asked questions about service animals in places of business issued by the Department of Justice’s (DOJ) Civil Rights Division, Disability Rights Section, any privately-owned business serving the public cannot discriminate based on disability.  Specific to service animals, the list states that service animals assist individuals with disabilities, and do not have to be licensed or certified as such by a state or local government and do not necessarily wear special collars or harnesses.  If it is unclear that an animal is a service animal, you may ask if the animal is “a service animal required because of a disability” but you cannot ask for documentation or insist on proof of certification.  Therefore, if an individual enters a facility with a Teacup Yorkie or a Chihuahua in their purse, it would be reasonable to ask if this is a service animal; if the individual says it is, however, you cannot ask for proof.  Extra fees cannot be charged to for maintenance or cleaning, etc., related to a service animal.  A facility can still have a no pet policy posted, however, since a service animal is not a pet, allowing entrance by a service animal is simply an exception to the rule.

Both the OCR and the DOJ provides recourse for individuals claiming discrimination with regard to the use of service animals.  A complaint can be filed with the OCR at http://www.hhs.gov/ocr/civilrights/complaints and the DOJ’s has a toll-free ADA information hotline: 800-514-0301 (voice) or 800-514-0383 (TDD).