Menu
Image: Kirschenbaum & Kirschenbaum, P.C.
Image: Kirschenbaum & Kirschenbaum, P.C.

Since 1977, Kirschenbaum & Kirschenbaum, has provided the highest quality legal advice and services, whether litigous or transactional.

Header: Shadow

<< Back To Articles

May I ask a disabled patient with a service dog to take the dog out of my practice for sanitary reasons?

Provided by:  Jennifer Kirschenbaum, Esq.

May 25, 2017

 

Question:


Hi Jennifer, 

May I ask an individual with a disability that is accompanied by service dog to leave my private office for health and sanitary reasons? If the answer is no, to what extent may the service animal’s presence be restricted in any manner (e.g., to certain areas of the facility).

Thank you in advance. 

Dr. J


Answer:

This answer was prepared by Attorney Issac Cwibeker - an associate in K&K's regulatory compliance and healthcare litigation department.  

Title III of the ADA prohibits discrimination against qualified individuals with disabilities by places of public accommodation, including private doctors' offices. All such entities must make reasonable accommodations to their “policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” Thus, places of public accommodation must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go, with certain exceptions. For example, a service dog is allowed in the waiting area, but not allowed in the examination room.

LEGAL ANALYSIS

Title III of the ADA prohibits discrimination against qualified individuals with disabilities by places of public accommodation, such as restaurants, movie theaters, and doctors' offices. All such entities must make reasonable accommodations to their “policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” Thus, places of public accommodation must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go.

Exceptions exist. For example, a service animal may be excluded from the premises if it is disruptive to a particular type of establishment (for example, if a dog continuously barks during a movie), or exhibits behavior that poses a direct threat to the health or safety of others. 

However, allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.  When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility. 

In addition, the ADA prohibits one from asking about a person's disability.  Only two questions may be asked: (1) if the animal is required because of a disability, and (2) what work or task the animal has been trained to perform.

Set forth below is New York case law that supports the position that a service dog is allowed in the waiting room, but not in the examination room. 

The seminal case in New York with regard to service dogs in health care facilities and offices is Perino v. St. Vincent's Med. Ctr. of Staten Island, 502 N.Y.S.2d 921 (Sup. Ct. 1986). There, the court held that a blind person was not entitled to bring his guide dog into a hospital delivery room during the birth of his child. The court's rationale was that the delivery room, as well as the labor room and maternity ward, are not public facilities or places where the general public is normally invited or permitted, because of social custom and practice, as well as reasonable health measures, dictate that they are restricted. The court noted that, while the hallways and cafeteria or snack bar of a hospital may be considered public places the same cannot be said for other portions of the hospital where obstetrical or surgical procedures are carried out.

Following Perino, in Albert v. Solimon, the court held that, “[w]hile the waiting room in a physician's office may be regarded as a public place in which the general public is normally invited or permitted to enter, the same may not be said of those areas of a physician's office where physical examinations are conducted. An examination room is restricted to the patient, the physician and the physician's staff. Not only are there serious concerns regarding a patient's privacy but the presence of a dog, even a service dog, in an examination room also raises strong considerations of hygiene and sanitation.” 252 A.D.2d 139, 143, 684 N.Y.S.2d 375, 377–78 (1998), aff'd, 94 N.Y.2d 771, 721 N.E.2d 17 (1999).

RESOURCES

N.Y. Civ. Rights Law § 47
No person shall be denied admittance to and/or the equal use of and enjoyment of any public facility solely because said person is a person with a disability and is accompanied by a guide dog, hearing dog or service dog.

N.Y. Exec. Law § 296(14)
…it shall be an unlawful discriminatory practice for any person engaged in any activity covered by this section to deny access or otherwise to discriminate against a blind person, a hearing impaired person or a person with another disability because he or she is accompanied by a dog that has been trained to work or perform specific tasks for the benefit of such person by a professional guide dog, hearing dog or service dog training center or professional guide dog, hearing dog or service dog trainer, or to discriminate against such professional guide dog, hearing dog or service dog trainer engaged in such training of a dog for use by a person with a disability, whether or not accompanied by the person for whom the dog is being trained.

New York laws and regulations:
•    42 U.S.C. § 12182(a) (2012); 42 U.S.C. § 12181(7) (2012).
•    28 C.F.R. § 36.302(c)(7)
•    28 C.F.R. § 36.302(c)(2)

Criminal Laws
In NY it’s a misdemeanor to misrepresent a pet as a service animal. N.Y. Agric. & Mkts. Law § 118

Further reference for doctor’s offices who have patients that come with service animals:

https://www.ada.gov/regs2010/service_animal_qa.pdf



CONCLUSION

In conclusion, a private doctor’s office is considered a place of public accommodation and therefore cannot prohibit access to an individual with a disability that is accompanied by a service dog. However, service dogs are not automatically authorized in an examination room or other areas not normally accessible to the public. 
 


Looking for the KK Healthcare Exchange?  Click Here. 

MISSED OUR RECENT WEBINARS?  CLICK HERE ANYTIME!
Looking for HIPAA and compliance forms?  
Click here to visit our website.
Have a question or comment for Jennifer?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or  at (516) 747-6700 x. 302.
Interested in having Jennifer speak at an event or
at a residency/fellowship program?
Contact Jennifer directly at (516) 747-6700 x. 302 or at Jennifer@Kirschenbaumesq.com
Click here to learn about
K&K's Prepaid Legal Audit/Investigation Defense Now!

<< Back To Articles