Urgent message: Helping staff understand the difference between true service animals, vs those that merely bring comfort to patients, is a good first step toward ensuring your waiting room is safe and comfortable for all—and that your urgent care operation is in compliance with applicable laws.

If the emergency department can claim to have seen everything, the urgent care can claim to have seen almost everything. This includes patients who believe it is their right by God and Congress to bring some sort of mammal, reptile, or bird into your waiting room as a means to “comfort” them from the anxiety-causing business model that is medicine.

The front desk and administrative staff, the gatekeepers between patient and provider, are not trained in law, which is to say the law might be violated by the desire to eliminate the collective unease of the other waiting patients being barked at by a drooling pit-bull.

What, then, is the law?

Introduction

According to The Washington Post, therapy, emotional support, and comfort animals are becoming more popular in American culture.1 Walk through any airport today and the foregoing is quickly confirmed. In fact, American Airlines automatically excludes only the following travel companions:

  • Amphibians
  • Ferrets
  • Goats
  • Hedgehogs
  • Insects
  • Reptiles
  • Rodents
  • Snakes
  • Spiders
  • Sugar gliders
  • Farm poultry and other non-household birds
  • Any animal with tusks, horns, or hooves
  • Any animal that is dirty or has an odor2

 

That means that anything else is potentially fair game and may be seated next to you on your next flight!

Emotional support animals are not unique to the travel industry, however. You see them in grocery stores, salons, post offices, and, yes, you have or will see them enter your urgent care offices.

Unfortunately, we appear to be programmed to believe that such animals are necessary and their presence in public legally protected. In other words, a belief that if someone needs the aid of an animal to comfort human anxieties, then of course the law must agree and we, in turn, must withhold objection and obey or risk exposing our business to an unlawful discrimination suit. After all, most commercials aired by the plaintiffs’ bar seem to indicate that rights are being violated all the time; therefore, business owner beware!

So what, if anything, are you allowed to do when Betty Bronchitis brings in an unleashed pink fairy armadillo to comfort her clinic-related nervousness? Let’s figure it out because it appears that American Airlines is perfectly fine with such a passenger—as long as it were clean and odor-free.

 

The Americans with Disabilities Act

The Americans With Disabilities Act (ADA), as amended, mandates accommodation of persons with disabilities in places where the public is invited—including urgent care facilities.3 A disability under the ADA is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment[.]”4

Peeling the onion back, a major life activity according to Congress includes, but is not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”4 In essence, it includes basically everything.

We can keep peeling; however, given the medical expertise of those reading, let’s give the benefit of the doubt and presume that we can probably spot physical impairments without much trouble. Mental impairments are a different “animal” altogether and, frankly, probably beyond the scope of a typical urgent care staff member or provider to immediately recognize. Keeping the analysis as basic as we can, Betty’s extreme anxiety, a potential mental impairment under the ADA, appears to allow the armadillo to calm her nerves.5

 

Animals and the ADA

The German shepherd’s history of service in the military and law enforcement is extensive. In that context, there is no question that such are “service” dogs. With respect to the ADA, however, not quite so fast. Bomb sniffing and criminal apprehension are probably the rare except to what is excluded from the definition of “major life activities.” Or, as stated by the U.S. Department of Justice, “[t]he crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of” the ADA.6

Rather, a “service animal” means “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”6 Further, “other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability.”7

Bad news for Betty. Your urgent care need not allow the armadillo in—as cute, clean, and odor-free as it may be. But let’s change the facts and give Betty a leashed, a toy poodle instead. How will staff know if the animal is a service dog and not an emotional support animal? That’s the tricky part.

The Civil Rights Division of the Department of Justice provides two compliant questions one can ask: 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?8

That’s it. There can be no inquiry as to what the disability is or even if there is a real disability. The service dog’s owner need not produce any documentation with respect to the person’s disability or the dog’s training.8  Let’s play along and see how such a conversation might unfold:

 

FRONT DESK: “Good morning, what a cute dog you have there. What’s its name?”

BETTY: “Sir Elton John.”

FRONT DESK: “What a great name, is Sir Elton a service animal because of a disability?”

BETTY: “None of your business, but yes. And it is Sir Elton John!

FRONT DESK: “I’m sorry, yes, you told me that. I didn’t mean to offend. Would you mind telling me what work or task Sir Elton John has been trained to perform?”

BETTY: “I do mind, nosey. He assists with my, you know, my disabilities.”

 

If Sir Elton John behaves and is controlled by Betty for the duration of the visit, there probably isn’t much that can be done. We simply aren’t allowed to take the inquiry any further—even if we do not see anything other than the dog doing nothing more than sitting on Betty’s lap.

Alrighty then, what if Sir Elton John misbehaves or Betty cannot control him? Game back on.

Under the ADA, service animals must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

A person with a disability cannot be asked to remove his service animal from the premises unless: (1 the dog is out of control and the handler does not take effective action to control it or (2 the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.8

Also note that patients with legitimate service animals, or what appear to be, cannot be treated differently. In other words, they cannot be isolated from other patients, treated less favorably, or charged a fee for the animal.8 However, clinic staff need not provide food or assistance to the animal.

For clinic operators who understand the need not to overwhelm the front desk with policies that may be infrequently relevant, it may be worthwhile to post a sign that prohibits animals generally and alternatively asks the two compliant questions. Something like this:

Welcome to Main Street Urgent Care. No pets allowed unless you have a dog that is a service animal required because of a disability. In such case, please harness, leash, or tether your dog unless these devices would interfere with the work it is trained to perform. Please also maintain control of your dog through voice, signal, or other effective controls.

Such a sign or other patient notice covers all the bases of ADA compliance with respect to service animal rules. It also means that any dog that enters your clinic is considered to be a service animal—at least to the extent the law allows us to inquire. Staff can then focus exclusively on the owner’s ability to control. If it enters the clinic and remains in control, then the animal is also allowed to enter any area of the practice that is open to the public—including exam rooms.

 

Conclusion

It is fully understood that some patients might just feel more comfortable with a pet as a companion. It is doubtful, though, that other patients enjoy sharing your waiting room with comfort parrots and therapy iguanas. Additionally, trying to manage an urgent care petting zoo raises legal questions, such as potential premises liability and other legal theories that are beyond the scope of this article. Whether to allow emotional support animals into your practice is something you can decide at your discretion (and in compliance with your state law). Under federal law, however, service dogs, or purported service dogs, must be accommodated so long as they are under the owner’s control. No other animal need be.

 

References

  1. Brulliard K. Therapy animals are everywhere. Proof that they help is not. The Washington Post. July 2, 2017. Available at: https://www.washingtonpost.com/news/animalia/wp/2017/07/02/therapy-animals-are-everywhere-proof-that-they-help-is-not/?utm_term=.e1dc3885cf18. Accessed January 23, 2019.
  2. American Airlines. Service and emotional support animals. Available at: https://www.aa.com/i18n/travel-info/special-assistance/service-animals.jsp. Accessed January 23, 2019.
  3. 42 U.S.C. § 12181(7)(F).
  4. 42 U.S.C § 12102(1).
  5. Williams v AT&T Mobility Services, LLC. 186 F.Supp.3d 816, 825.
  6. 28 C.F.R. § 35.104.
  7. 28 C.F.R. § 35.136(i).
  8. United States Department of Justice. Civil Rights Division’s Disability Rights Section. ADA 2010 Revised Requirements: Service Animals. Available at: https://www.ada.gov/service_animals_2010.htm. Accessed January 23, 2019.

 

 

Please note: The content of this article is for educational purposes only, and should not be considered legal advice.

 

Eric R. Sloan is general counsel of New Smyrna Beach Urgent Care, LLC and president of Sloan Compliance Advisors, LLC. He can be reached at [email protected]

 

The Comfort Elephant in the (Waiting) Room
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