Service Animals in Nursing Homes
January 2, 2009
For the past six months the Department of Justice, one of the key regulator of the Americans with Disabilities Act, has been holding public hearings as part of a major overhaul of the A.D.A. designed to improve access and protection for the disabled. As mentioned in a recent New York Times Magazine article (available here), some of these proposed changes have to do with the classification and public treatment of “Service Animals.” The debates over which way the revisions will draw are currently ongoing, but I thought it would be instructive to offer a basic primer on the ADA with respect to service animals and the right to have them in skilled nursing facilities.
Service animals are animals that are 1) individually trained, 2) to perform tasks, 3) for people with disabilities. Service animals are working animals, not pets. Though there is no formal licensing or regulatory body, service animals must be trained to accomplish specific tasks, not merely for comfort. Such tasks can include alerting people who are deaf, pulling wheelchairs, guiding people who are blind and alerting and protecting a person who is having a seizure.
Scope of Access
Under the Americans with Disabilities Act, businesses and organizations that serve the public must allow people with disabilities to bring their service animals into all areas of the facility where customers are normally allowed to go. Not only does this include stores and restaurants, but also hospitals, medical offices and nursing homes. The intend here is to ensure that the broadest feasible access be provided to service animals in public accommodations.
However, the scope of this access is not without some limits. Upon a showing that 1) the nature of the goods or services provided would be fundamentally altered; or 2) the safe operaiton of the public accomodation would be jeopardized, a service animal need not be allowed to enter.
Businesses must be very careful when attempting such a showing, however. Only an assessment by appropriate medical personnel (case law suggests doctors, pharmacists and nurses) that an animal would pose a significant health risk may be used as a basis for excluding a service animal. Yet, this cannot be a blanket ban. Instead, facilities must assess whether an animal would pose a significant health risk to the particular area wished to be entered by the owner of the animal and whether that particular service animal poses a risk. Essentially, whether a service animal can be let in the doors and where it can be excluded from must be a case-by-case determination.
Specific Advice for Nursing Home Administrators
Nursing homes must follow the same guidelines w/r/t service animal access as book shops. This goes both for visitors as well as residents of a nursing home. Bascially, all must be allowed unless there is a showing of a significant health risk. Further, regulators have given specific guidance that the potential for animal allergy or fear of specific types of animals (e.g. dogs) is not enough to fundamentally alter the services a nursing home provides so as to justify exclusion of the animal from the facility. Neither can potential residents not be admitted because they use a service animal. However, a facility is under no obligation to feed, groom, exercise, or in other ways care for a service animal of one of its residents.
The proposed ADA revisions will likely make it easier for people with disabilities to find and have a service animal. It may also systematize the process of licensing and training service animals. This means that, everything else being equal, there will likely be more service animals assisting people with disabilities. So, the likelihood that Administrators will have residents who use service animals is going to increase. Ultimately, the ADA is an exceptionally good law, and is beneficial not only to people with disabilities, but to the society as a whole. Administrators must be careful to accept service animals into their homes when appropriate, in protection of the civil rights of people with disabilities.