by Ann L. McNary, JD

Ms. McNary is a Senior Risk Manager at PRMS, Inc.

Innov Clin Neurosci. 2017;15(1–2):49–51

This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.

QUESTIONS

Question 1. A patient of mine recently arrived for an appointment with a mangy, smelly dog in tow. She claimed that the dog was a service animal, so I allowed it to stay. Afterward, other patients and staff complained about the dog. Can I refuse to allow the animal back into the office in the future?

Question 2. A patient recently rescued a dog from a shelter, and she’s grown extremely attached to it. Her mood has vastly improved, and she reports a lessening of her anxiety when encountering unfamiliar situations. She would like me to write a “prescription” stating that the dog is medically necessary so that she can take the dog with her wherever she goes. Should I honor her request? What are my obligations?

ANSWER

We’ve received numerous calls of late from psychiatrists asking about patients and their dogs. Some of the calls concern service animals used to assist those with disabilities and others pertain to emotional support or comfort animals as described in the second question. In order to best clarify your obligations as a psychiatrist, I’ll review the two categories separately.

Service dogs. As defined by the Americans with Disabilities Act (ADA), service animals are dogs (and occasionally miniature horses) that are individually trained to do work or perform tasks for people with disabilities including physical, sensory, psychiatric, intellectual, or other mental disabilities.[1] These animals might perform such tasks as “guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with posttraumatic stress disorder (PTSD) during an anxiety attack, or performing other duties.”[2]

Under the ADA, state and local governments, businesses, and nonprofit organizations that serve the public—including stores, restaurants, airplanes, and physician offices—generally must allow service animals to accompany people with disabilities in all areas where the public is normally allowed to go.[2] A true service dog is a highly trained, well-behaved animal that quietly goes about its job and does not interfere with the businesses or people it encounters, thus becoming “virtually invisible while working.”[3]

Service dogs can be a godsend to people with disabilities, allowing them greater independence, mobility, and security than they might not otherwise have. Accordingly, laws have been written broadly to allow individuals to use service animals without enduring additional burdens. There is no requirement for certification of service dogs, nor is there any requirement that the dogs undergo any type of formal training. Though many do, there is no requirement that service animals wear any special gear or identifiers, such as vests or tags.

Unfortunately, these broadly written laws also make it easier for unscrupulous people to claim that their dogs are service animals, thus allowing them to bring their animals to places the animals would not normally be allowed to go. This isn’t just an issue of someone “getting away with something.” As noted by famed dog trainer Cesar Millan, aka The Dog Whisperer, “[t]his isn’t just about bothering people who might be allergic or who don’t like dogs. It can be a very stressful experience for a dog that isn’t trained to handle crowds or busy public places. It can also harm people with a legitimate need by forcing businesses to question everyone with a service animal.”[4] Fake service dogs can also interfere with the work of true service dogs. There have been reports of actual service animals being attacked by fake service dogs and of fake service dogs biting people.

Fake service dogs have become such a problem that a number of states have made it a crime to pretend a dog is a service animal. For example, Texas imposes a fine of up to $300 and 30 hours of community service work when it is found that a person “uses a service animal with a harness or leash of the type commonly used by persons with disabilities who use trained animals, in order to represent that his or her animal is a specially trained service animal when training has not in fact been provided…”[5]
In California, penalties are even more stringent. “Any person who knowingly and fraudulently represents himself or herself, through verbal or written notice, to be the owner or trainer of any canine licensed as, qualified as, or identified as, a guide, signal, or service dog …shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.”[6]

So how do you know whether the dog your patient brings into your office is truly a service dog? The ADA permits you to ask just two questions of the dog’s handler:

  1. Is the animal a service animal required for a disability?
  2. What work or task related to the individual’s disability has the animal been trained to perform?

If the handler can answer these two questions, you must give him or her the benefit of the doubt and allow the dog into the office. This does not mean, however, that you are required to let animals run loose in your practice. 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.”[7] Also, if a dog is not housebroken or is out of control, and the handler is unable to control it, you may ask that the dog be removed.[7] Bear in mind, however, that you must still offer services to the handler without the dog present if he or she chooses to receive them.

Emotional support animals/comfort animals. An emotional support or comfort animal (ESA), unlike a service animal, is not trained to assist with a disability but rather its function is—as the name suggests—to provide emotional support and comfort to their owners. As the majority of questions posed to PRMS have been about dogs, they are the focus of this article; however, it’s important to note that an ESA can be virtually any type of animal—dogs, cats, hamsters, lizards, even turkeys.[8]
As with service animals, there is no requirement for any type of certification, registration, or specific training, and there is also great potential for fraud. “For those who wish to misrepresent their animals (either deliberately or because of a misunderstanding of its status), there are multiple entities that offer letter templates to provide as proof of ESA status, registrations as a service animal or ESA, official looking vests and harnesses, and other equipment to make an animal appear to be an assistance animal.”[3]

Unlike service dogs, animals whose sole function is to provide comfort or emotional support are not given rights of access under the ADA. However, both the Airline Carrier Access Act (ACAA) and the Fair Housing Act (FHA) require that reasonable accommodation be made for emotional support animals.[9] As a result, more and more patients are seeking their psychiatrist’s assistance in obtaining the requisite documentation to allow them to have pets in their homes or fly with them on airplanes.

Under the ACAA, if a dog (or other animal) is identified as an ESA, air carriers are required to allow the animal to accompany their handler free of charge in the cabin of an airplane.[10] However, the handler must provide appropriate documentation, which may consist of a written letter or completion of a form by a licensed mental health professional. While each airline’s rules (this is from American Airlines) might vary slightly, typically they must state the following:

“I am currently treating _______ for a mental health or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM V). The passenger needs ______ (type of animal) to travel as an emotional support or psychiatric service animal for air travel and/or for activity at his or her destination. My _______ (type of license) license was issued in the state or jurisdiction of ________ in _______ (year). Signature: ______________ Date: ___/___/____11

Under the FHA, service animals and emotional support animals are grouped together under the category of “assistance animals.” Individuals with disabilities may request a reasonable accommodation for any assistance animal.[9] Where the individual’s disability is not readily apparent or his or her disability is apparent but the need for an assistance animal is not, housing providers may ask for documentation of the need for the assistance animal to be provided from a “physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one of more of the identified symptoms or effects of an existing disability.”[9]

Those of us who are dog lovers—myself included—can appreciate a patient’s desire to have his or her best friend with them, particularly in stressful situations. Anyone who’s owned a dog knows that feeling of coming home after a long day and being greeted by a wagging tail. How great is that? And wouldn’t it be even better if we could just take our dogs with us everywhere? Just think about how many of life’s tedious and stressful situations could be improved by the presence of your dog. So, it is understandable that many psychiatrists will want to accommodate patients making these types of requests, but is it really a good idea?

When a patient asks you to write a letter or complete a form attesting to his or her need for an ESA, the first question to ask yourself is, “Do I truly believe that my patient needs an emotional support animal, or am I merely trying to pacify him or her?” If you believe that an ESA would be beneficial to your patient and helpful in achieving your treatment goals, and this is supported by your records, then you might want to consider honoring your patient’s request.

If, on the other hand, you don’t think it would be beneficial but are contemplating writing the letter/filling out the form to keep your patient happy, think very carefully before doing so. By supporting a patient who does not actually need an emotional support animal, you are potentially adding to the problems caused by fake ESAs. And, although it’s highly unlikely that you would in any way be found liable for any damage/harm done by the animal itself, you might still find yourself in a precarious situation if problems occur as a result of the patient having the animal. Consider the doctor who thought he was doing his patient a favor when he wrote a letter that allowed her to bring her dog into a pet-free condo. After repeated complaints by other residents, the patient found herself in litigation with the condo board, and she called upon the doctor to testify that she needed her pet for emotional support. The doctor was forced to take time out of his practice and had to endure the embarrassment of having his credibility attacked on the witness stand when it was determined that there was absolutely nothing in his records to support the letter he had written.

RISK MANAGEMENT TIPS

  • In addition to understanding federal law, check your individual state laws to determine whether your state expands access by service animals and ESAs. For example, 23 states—including Arizona, Florida, and New York—do not specify that a service animal has to be a dog.[3]
  • Educate your staff on what questions may be asked of patients accompanied by animals, and have protocols in place for handling the presence of service animals.
  • Employ strategies to minimize discomfort for patients or staff members who might be allergic to or afraid of dogs, such as scheduling those appointments later in the day so that the office can be cleaned after the dog departs.
  • Consider carefully a patient’s request for a letter attesting to the need for an emotional support animal. Do not provide such documentation unless your records support the need.
  • Never make any attestations regarding the safety of a particular animal.
  • Keep copies of all letters and/or forms prepared in support of your patient’s ESA.
  • Make certain that none of your actions come back to bite you!

REFERENCES

  1. 28 CFR § 36.104
  2. United States Department of Justice site. Civil Rights division. Disability rights section. ADA requirements: service animals.12 Jul 2011. https://www.ada.gov/service_animals_2010.htm. Accessed 29 Jan 2018.
  3. American Veterinary Medical Association site. AVMA Public Policy/Animal Welfare division. Assistance animals: rights of access and the problem of fraud. 21 Apr 2017. https://www.avma.org/KB/Resources/Reports/Documents/Assistance-Animals-Rights-Access-Fraud-AVMA.pdf. Accessed 29 Jan 2018.
  4. Millan C. Doing a disservice: the harm in service dog fraud [blog post]. Cesar Milan site. https://www.cesarsway.com/dog-care/legal-issues/Doing-a-disservice-The-harm-in-service-dog-fraud. Accessed 29 Jan 2018.
  5. TEX. HUM. RES. CODE ANN. § 121.006
  6. CAL. PENAL CODE § 365.7(a)
  7. United States Department of Justice site. Civil rights division. Disability rights section. Frequently asked questions about service animals and the ADA. 20 Jul 2015. https://www.ada.gov/regs2010/service_animal_qa.html. Accessed 29 Jan 2018.
  8. Ferreras J. Delta Airlines allows turkey on flight for ‘emotional support.’ Huffington Post Canada site. 15 Jan 2016. http://www.huffingtonpost.ca/2016/01/15/turkey-delta-airlines-emotional-support-animal_n_8995458.html. Accessed 29 Jan 2018.
  9. Buhai S. Preventing the abuse of service animal regulations. New York University Journal of Legislation and Public Policy. 2016;19(4). http://www.nyujlpp.org/wp-content/uploads/2016/12/Preventing-the-Abuse-of-Service-Animal-Regulations-19nyujlpp771.pdf. 29 Jan 2018.
    14 C.F.R. §382.117(b).
  10. American Airlines. Emotional support/psychiatric service animal authorization form. 7 Dec 2015. https://www.aa.com/content/images/generic/ESAN_Form.pdf. Accessed 29 Jan 2018.