The Honorable John C.

Danforth United States Senator 8000 Maryland Avenue Suite 440 Clayton, Missouri 63105 MAY 10 1993 Dear Senator Danforth: This letter is in response to your inquiry on behalf of your constituent, Sarah Holbert, and her concern about the Americans with Disabilities Act (ADA) and service animals in hospitals. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist Ms. Holbert in understanding the ADA's requirements. This technical assistance, however, does not constitute a determination by the Department of Justice of rights or responsibilities under the ADA, and does not constitute a binding determination by the Department of Justice. Unless it is a religious entity or under the control of a religious organization, a health care facility, such as a hospital, is covered by the provisions of title III of the ADA and the Department's title III regulation as a place of public accommodation (see section 36.104 of the enclosed regulation). According to section 36.302(c), a public accommodation is' required to modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. The intent of this regulation is to ensure that the broadest feasible access be provided to service animals in all public accommodations, including hospitals and nursing homes. This regulation also acknowledges that in rare circumstances, if the nature of the goods and services provided or accommodations offered would be fundamentally altered, or if the safe operation of a public accommodation would be jeopardized, a service animal need not be allowed to enter.

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-2A showing by appropriate medical personnel that the presence or use of a service animal would pose a significant health risk

in certain areas of a hospital may serve as a basis for excluding service animals in those areas. In developing a list of areas from which service animals may be excluded, a hospital facility must designate only the exact areas where exclusion is appropriate. For example, if a hospital facility does not allow the presence of a service animal used by an individual receiving out-patient care, this decision must be based on a medical determination that the presence of the service animal would pose a significant health risk, or that the services provided by the hospital would be fundamentally altered. If a service animal must be separated from an individual with a disability, in order to avoid a fundamental alteration or a threat to safety, it is the responsibility of the individual with a disability to arrange for the care and supervision of the animal during the period of separation. See section 36.302(c)(2). For your information, we have also enclosed a copy of a 1988 memorandum interpreting the application of section 504 of the Rehabilitation Act of 1973, as amended, to the presence of service animals in health care facilities. As you can see, the Federal government's policy on this issue has been consistently applied for a lengthy time period. I hope this information is helpful in responding to Ms. Holbert's concerns. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures (2)

DEPARTMENT OF HEALTH & HUMAN SERVICES Memorandum Date From MAR 24 1988 Audrey F. Morton Director Office for Civil Rights

Subject Clarification of OCR Policy on the Use of Dog Guides by Visually Impaired Persons in Federally Assisted Health and Human Services Facilities To Senior Staff Regional Managers, Regions I - X

The following is a clarification of OCR's policy concerning the use of Dog Guides by visually impaired persons in federally assisted health and human services facilities. While the policy refers mainly to hospitals, it is also applicable to any other recipient of Federal financial assistance from HHS. ISSUE Under Section 504, what are the rights of blind or visually impaired persons to use dog guides in hospitals, nursing homes and other health and human service facilities and what are acceptable circumstances for prohibiting their use? DISCUSSION A number of complaints have been made against hospitals and other health or human services agencies by blind or visually impaired persons who have been denied admission to one or more parts of a recipient's facility because they wanted to be admitted with their dog guides. Some recipients have established total prohibitions against the admission of dogs in any part of their facilities, others have limited dogs to the lobby, cafeteria, gift shop and similar public areas, while yet others have imposed other restrictions. In seeking regulatory authority for a finding of violation of Section 504, OCR staff at both the headquarters and regional offices have looked to Subpart C, Program Accessibility, of 45 CFR Part 84, for support. This Is incorrect. The program accessibility standard was developed for and intended to apply where problems exist in the design and physical structure of a facility. It was intended to insure that handicapped persons could physically get around in a facility and, where architectural barriers prevented this, to develop some administrative or programmatic modification which permitted the handicapped person to participate effectively in the recipient's program. ---------------------------------------Page 2

A dog guide is an auxiliary aid that many blind or visually impaired persons use to permit them independent mobility (45 CFR 84.41(b)(iv)). Any refusal to admit a visually impaired person to a facility because that person is using a dog guide is, in effect, prohibiting the use of an auxiliary aid. There is no question in this situation of the recipient having to provide the auxiliary aid, nor is the matter of whether the aid is or is not appropriate at issue. What is at issue is the establishment of criteria or procedures that limit blind or visually impaired persons from enjoying the same rights and privileges as others because they have chosen dog guides as auxiliary aids. Hospitals, nursing homes or other health and human service agencies that employ the visually handicapped or that permit, invite and regularly encourage visitors to their programs may not establish a policy that, in general, prohibits the use of auxiliary aids by employees and visitors unless it can be shown that the use of the auxiliary aid would endanger others or prevent them from benefitting from the recipient's program. DECISION Unless there is evidence that the presence or use of a dog guide would pose a significant health risk or that the dog's behavior would be disruptive to the recipient's program, the assumption should be made that a clean, well cared for and well-behaved dog guide should be permitted to accompany its owner wherever that person goes. A medical justification showing that the presence or use of a dog guide would pose a significant health risk in certain parts of the hospital can serve as the basis for the exclusion of dog guides, but only from the hospital areas directly involved. Such areas might include operating room suites, burn units, coronary care units, intensive care units, oncology units, psychiatric units and isolation (infectious disease) areas. In developing the list designating those parts of a facility from which dog guides will be excluded, the recipient must specify the exact areas, and clearly identify them. Where the reason for exclusion of dog guides is not self-evident, the recipient must explain what hazards a dog would impose that a human will not. This applies to all areas of the hospital, not just those open to the public. -----------------------------------Page 3 OCR should be aware of, and guard against, the occasional

tendency of medically qualified personnel to take a supercautious approach. In such instances, what is essentially a blanket prohibition is made on the theory that extending as far as possible the areas from which dogs may be barred will minimize difficulties. Cases in which there is doubt on this and other grounds should be referred to Headquarters which will consult the Hospital Infections Program at CDC for an expert opinion. Only medically qualified personnel should participate in the development of the list, and decide, on a case-by-case basis in situations not clearly covered by the list, if dog guides may or may not enter areas where questions of risk to patients arise. Administrators, security personnel and admissions clerks should not make those decisions, but may assist in implementing them. Dog guides may be restricted from rooms of patients suffering from strong allergic reactions to dogs, irrational fears and phobias about dogs, or psychotic or drug related distortions of reality where it is impossible to reassure the patients that the dog is harmless. There may be situations in which a patient with a visitor using a dog guide shares a room with a person to which one of the above circumstances applies. In such instances either person may request and should be granted another room. If a request for a room change is based simply on personal preference, a comparably priced room may be arranged for on a space available basis. If the room change is recommended by a physician for sound medical reasons, the patient changing the rooms may not be charged more if a comparably priced room is not available. All of the foregoing applies to trained dog guides, which have been maintained as dog guides by their users and are clear, well-cared for and well-behaved. Individual dog guides which do not meet these criteria may be restricted or excluded by any reasonable staff member for good cause shown. When a dog is excluded for any of the above reasons, the facility should provide a suitable temporary location where the dog can be secured. ----------------------------------------Page 4 This policy applies primarily to visitors, out-patients, and employees. In the case of in-patients, those who are confined to their beds should ordinarily have no use for dog guides;

the dogs in question should not be kept around just for company. Ambulatory patients whose movement within the hospital is sufficiently varied and distant that significant use of the services of dog guides may be made should have the benefit of this policy. The recipient, however, is under no obligation to feed, groom, exercise, or in other ways care for the animals in question. The foregoing also applies to dogs used by the hearing impaired, when such dogs are being used as auxiliary aids. In some areas, regulations promulgated under State or local authority may prohibit or appear to prohibit a health or human services facility from following this policy. We refer you to 45 CFR 84.10(a) which covers this situation and would require corrective measures to be taken if the State or local agency which has issued the regulation is itself a recipient of Federal financial assistance. If you have any questions, please contact Marcella Haynes on 245-6671 or Frank Weil on 245-6700.

Kansas SPECIALTY DOG Service Inc. 2-2-93 Dear Sen. Danforth, Last Nov. 10, 1992 you received a letter from Mr. B.J. Jones on the Missouri Attorney General's office regarding on of our students, XXXXXX and his service dog. After visiting with Mr. Jones about the correction of his Nov. 10 letter informing you there was not a section in the Missouri law pertaining to access for service dogs, he assured us he would send both you and us a copy of the amendments. Since we have not heard from Mr. Jones, I felt I should follow-up and make sure you had the correct information. I have also enclosed a copy of the policy used in the hospital associated with Mayo Clinic. I can also assure you that XXXXX is in fact XXXXXX service dog and they completed our training with outstanding results. XXXXX has returned to XXXXX

for out-patient care without being able to take XXXXXX Not only is this a violation of the Missouri law, but the ADA as well. We appreciate any and all help you can give us in this matter, since we have other graduates that are also going to XXXXX but not able to take their service dogs. If you would like any other information we have, I would be glad to share that with you. Sincerely, XXXXXXXXXX