Tuesday, May 10, 2016

Transportation Department Gets Specific about Service Animal Relief Areas in Airports

On August 5, 2015, the Department of Transportation published a final rule in the Federal Register regarding service animal relief areas (SARAs) in airports, requiring that most airports have one such area for each terminal and generally inside the sterile section of the terminal.  The requirements of the final rules were described here in a prior blog. 

The Department has now issued a draft of an Advisory Circular “designed to assist airports in complying with the laws and regulations regarding individuals with disabilities,” which includes a set of standards for SARAs. The draft Circular, AC 150/5360-14A, which will cancel and replace a prior Circular that was issued on June 30, 1999, adds significant granularity to the relief area requirements. 

Before making the proposed draft final, the Department “invites interested persons, airport operators, guide dog trainers and handlers, consultants, industry representatives, and all other interested parties to review and comment on the draft.”  Comments may be submitted until June 6 on the regulations.gov website. The specific reference to “guide dog trainers and handlers” may not be an atavistic throwback to the days when most service dogs were guide dogs, but may reflect the Department’s express interest in issues of particular importance to individuals who use guide dogs:

The FAA is also aware that it may be difficult for people with visual impairments to navigate within the SARA. To allow these people to familiarize themselves with the SARA’s layout before entering, the AC recommends placing special signs, maps, and other orienting cues at the entrance to the SARA. In addition, this AC defines the airport terminal for the purpose of helping airports decide on the number and locations of required SARA. To enhance SARAs, the FAA is seeking input on new concept cleaning technology; like nano technology as a potential for self-cleaning SARA.

The draft Circular deserves the attention of the service animal community, particularly when an airport wishes to place a SARA outside of the sterile area of a terminal.  The draft states that when this is the case, the airport must obtain the agreement of a service animal training organization.  Also, “the airport must … document and retain a record of this agreement, including when TSA prohibits location of the SARA in a sterile area.” 

Proposed Standards for Service Animal Relief Areas

The draft SARA Standards in the Circular, printed in full in the Appendix at the end of this blog, provide that a relief area “must be located on an accessible route to each terminal.” Although 49 CFR 27.71(2) specifies that there must be “at least one relief area in each airport terminal,” the draft provides that “[o]ne relief area may serve two or more terminals if travel to and from it meets reasonable transit times…,” which means that the “transit time from any gate to a relief area is no more than 15 minutes, based on a walking pace of 200 ft/min,” with “expected time using transportation vehicles and waiting time for an escort, wheelchair, or elevators” being included in total transit time.

Relief areas “must be designed to accommodate a person using a wheelchair handling a service animal on a six-foot leash.”  In 1991, the Department issued Accessibility Guidelines for Buildings and Facilities that included diagrams indicating such things as turning space needed for wheelchairs, from which the diagram shown here is taken.

The draft provides that in “busier locations, a relief area may be sized to accommodate more than one service animal at one time.”  Presumably in smaller airports, therefore, relief areas may be so small as to only accommodate one animal at a time. Nevertheless that space would have to be large enough for a wheelchair user to enter and turn around.    

Two Surfaces Required in Each Relief Area

A relief area is to have “at least two surfaces.”  The draft elaborates:

One [surface] should be hard and located immediately inside the entrance to allow wheelchair access. This surface should be delineated in a manner to indicate the portion intended to be traversed by people, and the portion intended for animal relief. The other should be an appropriate softer surface, such as gravel or mulch for outdoor areas, and artificial turf specially designed as an animal relief surface, treated to inhibit the spread of disease, for indoor (and outdoor) areas. Other artificial turf is not recommended, as it harbors odors and bacteria. Consider that artificial turf is often perceived as carpet by service animals, making them reluctant to use it. Avoid surfaces such as sand that will stick to paws and be tracked outside the SARA. When using mulch, be sure it is not of a species that can be harmful to animals. Dark colored surfaces should not be used where exposed to the sun, as they can become unbearably hot.

Fencing may be necessary, particularly for SARAs outside of buildings, which will often mean outside of sterile areas. Nevertheless, the draft suggests that outdoor locations are preferred because “some animals are trained not to relieve indoors.”  Also, strong chemicals are often used to clean indoor relief areas, and some dogs may consequently balk at entering them. (Veronica Morris makes the interesting observation that "before 9/11, it was common for individuals with service animals to be allowed to go onto the tarmac from the gate and potty their animals on the tarmac or on nearby patches of grass, which actually worked out pretty well.")

SARAs cannot be co-located with a designated smoking area.  Apparently the Department feared that some airports would try to combine troublesome smells by putting smoke and dog poop near each other.

Water Sources and Fake Fire Hydrants

A SARA “must include a sink and a faucet for hand washing,” with potable water as users can be expected to fill water bowls in the SARA. The SARA must have a separate water source for cleaning and must have adequate drainage so that water used in cleaning can run off.   A SARA must include something like a rock or fake fire hydrant “to encourage urination by male dogs.”  There must also be poop bags and a receptacle for them, and these must be placed so that wheelchair users can get to them. A sign should indicate that users should clean up after their animals (though as already noted the request for comments raised the possibility of self-cleaning SARAs).   

The airport must have signage and maps indicating where SARAs are located. “Braille signing must be installed adjacent to the side of doors and gates opposite the hinges.”  Airports are encouraged “to adopt state-of-the-art technology (e.g., smart phone applications) as it becomes available.” 

Tweaking the Definition of Service Animal

Throughout the Federal Register 2015 release on service animal relief areas no definition of service animals was provided, and I did not think at the time that any definition was particularly needed.  It could be assumed that someone at an airport who would be using a SARA would have a service animal that was going to enter the cabin of an airliner (as an animal going into a pressurized and heated hold would have been checked before the passenger entered the sterile area).  Also, the Department acknowledged that pets and TSA dogs would be using SARAs along with service dogs:

The final rule also offers the benefits of improved convenience to nondisabled persons accompanied by an animal or pet while at the airport. Although these benefits are not encompassed by the rule’s purpose, individuals traveling with pets or security dogs trained to detect security threats may also find it convenient to use service animal relief areas located in the secure area of the airport.

Nevertheless, the draft Circular now provides a definition of service animal:

Service Animal.
Any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, providing emotional support, pulling a wheelchair, or fetching dropped items. (49 CFR § 37.3)

One would expect from the parenthetical at the end of the definition that it follows 49 CFR 37.3 word for word.  It does not.  The regulation does not contain the italicized phrase, “providing emotional support.”  The 1999 Circular that is being replaced had used the exact definition from 49 CFR 37.3, i.e., without that phrase. 

The reference to emotional support appears to have been inserted by the drafters of the proposed Circular not from 49 CFR at all but rather the Air Carrier Access Act releases of the Department.  For instance, in policy guidance issued in 2003, a service animal was defined, for purposes of assisting airline employees in determining whether an animal qualifies, as “[a]ny animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well being of a passenger.” (68 Fed. Reg. 24878, May 9, 2003)  In that definition, however, and generally in the Department’s ACAA guidance, there is no presumption that emotional support requires training. 

The phrase is, in any case, inconsistent with the approach of the Department of Justice, which provides in its basic definition in 28 CFR 36.104 that “the provision of emotional support [does] not constitute work or tasks for the purposes of this definition.” The definition in 49 CFR 37.3 was not original with the Department of Transportation, which adopted it in September 1991 (56 Fed. Reg. 45624, September 6, 1991), but rather was the definition of service animal in the first ADA regulations issued by the Department of Justice in July 1991 (56 Fed. Reg. 35544, July 26, 1991), a definition that for DOJ was superseded in 2010.  Thus by adding the emotional support phrase to a now outdated DOJ definition, the draft Circular has created an illogical hybrid that requires training but allows providing emotional support as sufficient to qualify an animal as a service animal. 

Miniature Horses

This effort by the drafters of the proposed Circular to modify the definition of service animal presents another problem, though this one may be temporary.  The problem comes from a footnote to the tweaked definition, which states the following:

A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. (28 CFR § 35.136). 

Thus, the Department would acknowledge, as did the Department of Justice in 2010, that a miniature horse may, much like a dog, fulfill service animal functions, particularly as a guide (28 CFR 36.302(c)(9), as finalized by DOJ in 75 Fed. Reg. 56236, September 15, 2010). 

The Department of Transportation indicated as far back as 2011 that it might have to consider revising its definition of service animal in light of the revisions made by the Department of Justice in 2010, saying that the “Department will consider whether, in the future, to propose changes to part 37 to parallel the new DOJ definitions.  Meanwhile, the existing DOT definitions continue in effect.”  (76 Fed. Reg. 57924, September 19, 2011)  That may be changing, however.

Neither of the Department of Transportation’s definitions of service animal has a species limitation—either the one in the 2003 ACAA guidance or the one in 49 CFR 37.3.  Referring to miniature horses as an exception only makes logical sense if the Department of Transportation has a species limitation on service animals, which it does not.  In issuing its 1991 rule defining service animals, DOT specifically stated that “[o]ther animals (e.g. monkeys) are sometimes used as service animals as well…. the entity must permit the service animal to accompany its user.” The Department accepts that not all service animals need to be admitted to an airplane cabin, however, and stated the following in 2008:

[T]he Department has added language to the final rule specifying that carriers need never permit certain creatures (e.g., rodents or reptiles) to travel as service animals. For others (e.g., miniature horses, pot-bellied pigs, monkeys), a U.S. carrier could make a judgment call about whether any factors (e.g., size and weight of the animal, any direct threat to the health and safety of others, significant disruption of cabin service) would preclude carrying the animal. Absent such factors, the carrier would have to allow the animal to accompany its owner on the flight. (73 Fed. Reg. 27636, May 13, 2008)

The reason any confusion here may be temporary is that the Department of Transportation has begun a process of revising its service animal airplane access rules, and the possibility of conforming its rules to those of the Department of Justice is clearly on the table. The Department of Transportation’s initiative with regard to service animal access has been discussed extensively in several blogs on this site. Thus, as with the Department of Justice, the Department of Transportation may be moving towards recognizing only dogs, and perhaps miniature horses, as service animals and the footnote reference to miniature horses may be an indication of where the Department expects its revision process to go in this regard.   

Meanwhile, however, the occasional monkey, pot-bellied pig, or miniature horse may, if trained to do so, make use of a SARA. 

Conclusions

No specific mechanism is provided for service animal organizations to engage with airports on the design and implementation of service animal relief areas.  The regulations may consider it the responsibility of an airport to find a guide or service dog organization that will be willing to give a perspective on or approve plans the airport is considering. Individuals with vision impairments and individuals who use wheelchairs will have somewhat different needs when it comes to design of relief areas, so it is to be hoped that a range of organizations will be able to participate in relief area designs. 

Since the Department seeks input from interested parties on the Circular, though allowing only a month to submit comments on the regulations.gov website (by entering Docket No. FAA-2016-4716), a guide dog or service animal organization wishing to be involved in the design and creation of relief areas in an airport should consider submitting a comment expressing this interest and thereby put the airport (through the FAA) on notice of its availability. As previously noted, this must be done by June 6.  

It appears the drafters of the Circular inside the Department of Transportation are hedging their bets by massaging the definition of service animal to take into account changes that may be coming to the Department’s longstanding acceptance of a broad range of species as service animals.  At the moment, however, a service animal relief area cannot be presumed to be one that will only be used by dogs, or even just by dogs and miniature horses. (No miniature horse lobbying group put itself forward to participate in the Reg Neg process for revising the ACAA rules on service animals, though a capuchin monkey group did submit a comment. I am told by someone associated with this group that service monkeys generally wear diapers during flights and do not require a service area.)  

Thanks to Brad Morris for careful review and correction of the legal issues.

APPENDIX: STANDARDS FOR SERVICE ANIMAL RELIEF AREAS

A.1 General.
The SARA standards below have been developed in collaboration with nationally recognized service animal training organizations and groups of users of service animals.

A.2 Number.

SARA must be located on an accessible route to each terminal. One relief area may serve two or more terminals if travel to and from it meets reasonable transit times as defined in paragraph A.3.

A.3 Transit time.  

The design transit time from any gate to a relief area is no more than 15 minutes, based on a walking pace of 200 ft/min. Any expected time spent using transportation vehicles and waiting time for an escort, wheelchair, or elevators is included in this total transit time.

A.4 Size and shape.

The SARA may be of any shape, but must be designed to accommodate a person using a wheelchair handling a service animal on a six-foot leash. In busier locations, a relief area may be sized to accommodate more than one service animal at one time.

A.5 Surfaces.

A relief area should have at least two different surfaces. One should be hard and located immediately inside the entrance to allow wheelchair access. This surface should be delineated in a manner to indicate the portion intended to be traversed by people, and the portion intended for animal relief. The other should be an appropriate softer surface, such as gravel or mulch for outdoor areas, and artificial turf specially designed as an animal relief surface, treated to inhibit the spread of disease, for indoor (and outdoor) areas. Other artificial turf is not recommended, as it harbors odors and bacteria. Consider that artificial turf is often perceived as carpet by service animals, making them reluctant to use it. Avoid surfaces such as sand that will stick to paws and  be tracked outside the SARA. When using mulch, be sure it is not of a species that can be harmful to animals. Dark colored surfaces should not be used where exposed to the sun, as they can become unbearably hot.

A.6 Fencing.

Fencing or another suitable barrier, with an accessible gate/entrance, adequate to contain service animals must be provided.

A.7 Plumbing.

The SARA must include a sink with a faucet for hand washing. Water must be potable, as it will often also serve as a drinking water supply to fill bowls supplied by service animal handlers. A separate water supply must be included for use in cleaning the surface. The surface must be constructed with adequate drainage to facilitate regular cleaning.

A.8 Location.

Outdoor locations are preferred, as all service animals are trained to use outdoor relief areas. While some service animals are trained not to relieve indoors, at some terminals it may not be feasible to establish an outdoor relief area within the sterile area. In such cases, the relief area will have to be constructed indoors. SARA must not be co-located with a designated smoking area.  

A.9 Weather protection.

Outdoor SARA must include weather protection from sun and precipitation. If the SARA is close to operating aircraft, protection from jet blast and prop wash must be provided.

A.10 Scent.

The sense of smell is much more acute in animals than in humans. This can be a help or a hindrance in encouraging service animals to use a relief area. Pheromone-scented surfaces or devices can be beneficial, while disinfecting chemicals with strong odors can be detrimental.  

A.11 Accessories.

The SARA, at a minimum, must include:

1. A three-dimensional device (e.g. rock or fake fire hydrant) to encourage urination by male dogs.
2. Animal waste bags.
3. A waste receptacle.

Note: The disposal bags and receptacle must be located just inside the entrance to the SARA on an accessible route and at a height reachable by wheelchair users.
 
A.12 Wayfinding and Signage

A.12.1 Signage Standardization is desirable. 

The sign shown in Figure A-1, with or without accompanying text, may be used with directional arrows to guide users to the SARA. The signage, when used, must be included in airport layout maps and in wayfinding instructions provided throughout the airport. In addition, signing at the SARA should indicate the following:

1. The need for handlers to clean up after animals; 
2. The location of waste disposal bags, and waste receptacles, hand washing facilities, and any other facilities (e.g. automatic flushing controls);
3. Instructions for the operation of any facilities; and
4. Contact information for maintenance and assistance.

A.12.2 Other guidance.

Signage should be supplemented with means, including auditory announcements, to guide people with vision impairments. Braille signing must be installed adjacent to the side of doors and gates opposite the hinges. Airports are encouraged to adopt state-of-the art technology (e.g., smart phone applications) as it becomes available.

Monday, May 2, 2016

Committee Appointed to Consider Amending Definition of “Service Animal” for Flight Access

A previous blog described the decision of the Department of Transportation last December to initiate a negotiated rulemaking (Reg-Neg) process under which stakeholders would advise the Department on a number of access issues for air travelers with disabilities. The Department had received 68 comments by the closing of the extended comment period on January 21, but has continued to post comments submitted after the deadline. There are now 110 comments on the webpage devoted to the proposal

The rulemaking process has taken a step forward with the appointment of an ACCESS Advisory Committee that will make recommendations with respect to three issues: (1) whether to require accessible inflight entertainment (IFE) and strengthen accessibility requirements for other in-flight communications; (2) whether to require an accessible lavatory on new single-aisle aircraft over a certain size; and (3) whether to amend the definition of “service animals” that may accompany passengers with a disability on a flight.  The following individuals and organizations have been appointed to the Committee:
  1. Michelle Albert, Boeing Commercial Airplanes
  2. Zainab Alkebsi, National Association of the Deaf
  3. Mary Barnicle, United Airlines
  4. Kelly Buckland, National Council on Independent Living
  5. Curtis L. Decker, National Disability Rights Network
  6. Parnell Diggs, National Federation of the Blind
  7. Paul Doell, National Air Carrier Association
  8. Geoff Freed, National Center for Accessible Media at WGBH
  9. Brian Friedman, JetBlue Airways
  10. Laurie A. Gawelko, Service Dog Express, LLC
  11. Lise Hamlin, Hearing Loss Association of America
  12. Dr. Katherine Hunter-Zaworski, Oregon State University
  13. Candace Kolander, Association of Flight Attendants
  14. Doug Lavin, International Air Transport Association
  15. Russ Lemieux, Airline Passenger Experience Association
  16. Lorne Mackenzie, WestJet Airlines
  17. David Martin, Delta Air Lines
  18. Orit H. Michiel, Motion Picture Association of America
  19. Bradley W. Morris, Psychiatric Service Dog Partners
  20. Lawrence Mullins, Lufthansa Group
  21. Lee Page, Paralyzed Veterans of America
  22. Deborah Lynn Price, Frontier Airlines
  23. Roser Roca-Toha, Airbus
  24. Alicia Smith, National Alliance on Mental Illness
  25. Anthony Stevens, American Counsel [sic] of the Blind
  26. Jennifer Sunderman, Regional Airline Association
  27. Blane A. Workie, U.S. Department of Transportation (Designated Federal Officer)
Thus, two participants are from service dog organizations, though others are from disability rights groups that will undoubtedly have perspectives on the service dog mandate of the Committee. Other service and guide dog groups had put themselves forward as potential participants but were not chosen. 

First Meeting of Committee Announced, Public Invited

The first meeting of the Committee will be held on May 17 and 18 at the Omni Shoreham Hotel, 2500 Calvert Street NW, Washington DC 20001 (202-234-0700).  Although the meeting is open to the public, the size of the room only allows for 150 attendees, so those wishing to attend are advised to contact Alyssa Battle (Abattle@linkvisum.com; 703-442-4575) or Kyle Illgenfritz (kilgenfritz@linkvisum.com; 703-442-4575, ext. 128) to reserve a space.  The Committee will terminate upon submission of its recommendations or after two years, whichever happens sooner.  The Federal Register release states:

The Committee will dedicate a substantial amount of time at the first meeting to establishing the rules, procedures, and process of the Committee, such as outlining the voting rights of the Committee members and defining the meaning of “consensus.”

Additional tentative dates for Committee meetings are June 14-15, July 11-12, August 16-17, September 22-23, and October 13-14. Notices of future meeting locations, and firm dates, will be announced in the Federal Register at least 15 days prior to each meeting.

Members of the public may submit written comments on the three topics to be considered by the Committee through the regulations.gov website, referencing Docket No. DOT-OST-2015-0246. This means that other individuals and organizations interested in being heard on the issues that will be discussed by the Committee have additional time to comment.  Department of Transportation, Negotiated Rulemaking Committee Membership and First Meeting, RIN 2105-AE12, 81 Fed. Reg. 26178, May 2, 2016.

Sunday, April 24, 2016

Dog Parks Become a Permanent Feature of the American Landscape

Interstate 40 Rest Stop Rules
In 2011, Fran Breitkopf and I drafted model dog park code provisions and rules for an article that was posted on the website of the Animal Legal & Historical Center of Michigan State University’s College of Law.  The article proved useful to the creators of a number of parks, but we became increasingly nervous about not updating it to take into account legal and social developments in the last five years.  We have now revised the article to take into account developments into 2016 .

Hundreds, perhaps thousands, of new parks have been created since our article was first posted and we expected that legal developments, both legislative and judicial, would mean the original article was seriously out of date.  To our surprise and admittedly our relief, the number of legal developments we needed to incorporate in our discussion was less than we had anticipated. 

Most recent disputes we found in searching Westlaw and Lexis-Nexis have been about creating parks, particularly situations where one group of citizens opposed a municipality granting another group of citizens the right to establish a park on a particular site, which the first group of citizens found offensive because of noise, potential pollution from dog waste, proximity to a school or medical facility, or merely because a dog park would be of no interest to the majority of the inhabitants of a community.  Most of these lawsuits failed to stop the creation of a dog park for the simple reason that too many people saw the need for one and citizen groups were often willing to take on sanitation and other responsibilities to assure the success of the park. 

Lawsuits in tort because of injuries from poor design proved to be rare, as were conflicts between users that lasted long enough or became serious enough to result in litigation.  Dog bites happen but, since many users take their dogs to the parks in order to provide socialization for their animals, the number of serious bites—again, reaching reported litigation—has been fairly low.  Users of dog parks are often successful in shaming those who do not know how to control their animals into keeping them away from the park. (It would be an interesting sociological study to analyze whether dog park users are more likely to train their dogs than dog owners generally.) 

Selling Fence Space for Advertising Can Be a Source of Funds
Obtaining adequate police and animal control coverage for dog parks continues to be a problem for some communities, and may indicate that some states should take a closer look at whether enforcement authority over dog parks is clearly assigned to state or municipal police or to a county sheriff's department. Related to this are situations where animal control authorities have declined to respond to incidents, perhaps because of some doubt as to their enforcement authority inside of dog parks. Here also, however, few such problems have come to our attention.

In other words, dog parks are working, and we believe that society is increasingly recognizing their usefulness, just as other public places, like graveyards, flower gardens, monuments, town squares, playgrounds, and recreational areas have been part of our landscape since the settling of North America. We believe this trend will continue.

We received the help of many parks and citizen groups around the country in writing the piece for the Animal Legal & Historical Center, many of which are referred to in the footnotes to the article. We invite readers who become aware of developments they believe should be included in our discussion to email us. Thanks again to everyone who has helped with this project and good luck to those who are attempting to build new parks in their communities. 

Monday, March 28, 2016

If Your Dog Doesn’t Alert, We Can’t Search the Car, So Let's Call that Jump an Alert: Florida v. Harris Doesn't Throw Out Many Sniffs, but This One Had Too Many Flaws

Gregory Heald was stopped for a traffic infraction on July 16, 2015.  During the stop, a K-9 team performed a sniff of the vehicle, which led to a search during which police discovered narcotics, paraphernalia, a firearm, and a cell phone with incriminating information. Heald moved to suppress the evidence found in his vehicle as fruit of an illegal search. Although the federal court for the Western District of Arkansas determined that the officer stopping Heald had reason to prolong the stop, the court also determined that the search of the vehicle violated the Fourth Amendment. U.S. v. Heald, No. 5:15-CR-50064-001, 2016 WL 797587 (WD Ark., February 25, 2016). 

A concerned citizen of Springdale, Arkansas, began calling police to tell them about suspicious activity at a neighbor’s house, activity that suggested the occupant might be engaging in drug trafficking. The police put the house under surveillance. The police followed a silver Toyota Camry that had been parked in the driveway of the house, and which the concerned neighbor said she may have seen loaded with several bags taken from the house. After stopping at a market, the driver of the Camry committed several minor traffic infractions, for which the police stopped the car. Equipment in the police car captured both video and audio of the stop. 

After calling dispatch with license and registration information on the driver, Gregory Heald, Officer Guillermo Sanchez asked to search the Camry, but Heald denied the request. Sanchez asked if Heald had anything illegal in his vehicle, which according to Sanchez made Heald nervous. Sanchez asked the dispatcher to send a K-9 team but was told that the on-duty team was busy and that he would have to wait for an off-duty team to arrive. One of the other detectives on the scene suggested that Sanchez get Heald out of the car and engage him in small talk until the K-9 team could arrive. The K-9 team arrived about 26 minutes after the stop began. 

During the interval before the K-9 team arrived, Sanchez asked Heald why he was sweating so much and Heald replied that it was hot and that he smoked two packs a day. Heald acknowledged that he had been charged in Colorado with “conspiracy for meth.’” Heald declined to grant permission for a search of his person. Sanchez eventually told Heald that they were waiting for a K-9 unit. At 4:22 p.m., Officer Edgar Hernandez arrived with his K-9 partner, Bosco, and within two minutes they began their open-air drug sniff. 

Bosco

Bosco’s history is described by the federal district court as follows:

Bosco is a 3 or 4 year-old German Shepard [sic] that was imported from Hungary by Criss Gardner, the owner of Von Klein Stein Working Dogs in Sherwood, Arkansas. Bosco attended Gardner’s Working Dogs school beginning in February or March of 2015 to learn to be a narcotics detection dog. After 8 to 10 weeks of training, Bosco’s handler, Officer Hernandez, began training with him at the Working Dogs school. Their training together included detection of methamphetamine, in addition to other types of drugs. Bosco was trained to signal the presence of narcotics with a passive alert. This means that when Bosco detects the scent of drugs, he is supposed to sit or lie down. Bosco and Officer Hernandez both performed well at the school. Consistent with this performance, Bosco’s SPD training records from April 20, 2015 and May 27, 2015 indicate that he correctly located methamphetamine during training, and his training logs from the months of June and July of 2015 show satisfactory performance across the board.

Bosco generally worked at night.  In ten situations in which he had alerted, drugs were found nine times.  The one time nothing was found involved a driver who admitted that he had recently smoked marijuana in his vehicle.  The afternoon that Bosco and Hernandez were called to perform a sniff, despite the fact they were off-duty, is described by the court as being very hot. 

On July 16, 2015, Officer Hernandez was off-duty at Wal-Mart when he was asked whether he and Bosco could perform an open-air drug sniff on Heald’s vehicle. While Officer Hernandez was at Wal-Mart, Bosco was in the backyard at Officer Hernandez’s house, in over 90-degree heat. Officer Hernandez drove home from Wal-Mart, parked in his driveway with his windows rolled up, turned off his vehicle, and went inside to change into his police protective gear. After he changed into his gear, he brought Bosco out to his vehicle and put him in the back seat. He noticed that the vehicle was hot, and that Bosco was hot. Additionally, the air conditioning did not work well in his vehicle, so the ride from Officer Hernandez’s house to Heald’s vehicle was hot for Bosco as well. In short, Bosco was very hot by the time he got to Heald’s vehicle, and he was not accustomed to working in such conditions, as all of his previous shifts were during the cool of night.

Although 90 degrees is hot, the dog was in a back yard and not working, and it would not automatically be expected that this should have prohibited working.  If it did prohibit working with this particular dog, the handler’s knowledge of this limitation should have been explored further. 

The Long Sniff

The court notes that when Hernandez and Bosco arrived at the location where Heald’s car had been stopped, Bosco was panting and his tongue was “drooping out of his mouth.”The court gives additional detail:

The sniff begins on the front driver side of the vehicle. Officer Hernandez—at this point and frequently throughout the search—uses his hand to guide where he wants Bosco to sniff. As he later testified, this is a method to keep the K-9 focused, and whenever he employs the method, it means that Bosco is not focused on the sniff….  On the first pass by the driver side, Bosco pays no attention to the car. On the second pass, Bosco follows Officer Hernandez’s hand when he flicks his wrist through the open front driver-side window, and briefly places his front paws on the window opening. Officer Hernandez next leads Bosco on an uneventful trip around the back and passenger side of the vehicle, then takes him off camera to down him in the shade. After another brief pass by the passenger side about 30 seconds later, Officer Hernandez again downs Bosco in the shade.

A handler guiding a dog’s sniff with his hand for a detailed sweep is sometimes an indication that a dog is not fully trained.  After spending a minute in the shade, the following happens:

Officer Hernandez brings Bosco to the passenger side of the vehicle. On this pass, Bosco places his paws on the rear passenger side door, again after Officer Hernandez places his hand there. The team continues around the front of the vehicle, and along the driver side a few times. On the second pass by the driver side, Bosco again puts his paws on the front window opening after Officer Hernandez points to it. On the fourth pass, Bosco does the same thing, again after Officer Hernandez places his hand in the area. After a few more uneventful passes by the rear and passenger side of the vehicle, Officer Hernandez takes Bosco into the shade at the 16:28:20 mark of the video.

Hernandez told one of the officers on the scene that Bosco was “burning up.” Some effort to find water was made but it is not stated that any was found. Three minutes later Hernandez again led Bosco to the Camry.

Officer Hernandez reinitiates the sniff on the passenger side of the vehicle. Moving around to the driver side, Bosco again places his paws on the window opening. This time, while Officer Hernandez’s hand is tracking along the top portion of the side of the vehicle, he does not motion up towards the opening. After a couple more passes by the rear of the vehicle, Officer Hernandez brings Bosco to the shade again. Around the same time, at 16:32:11, Officer Sanchez’s in-car audio recording picks up a conversation between two unidentified persons. The first asks “did they get an indication yet?” and the second responds that it “doesn’t appear so.”

Hernandez tries yet again:

Officer Hernandez reinitiates the sniff on the passenger side of the vehicle at 16:32:16. On his second run down the passenger side of the vehicle, Officer Hernandez keeps his hand low, apparently as a guide to get Bosco to focus on the lower portion of the vehicle. At 16:32:30, while Officer Hernandez’s hand is low, Bosco lies down for an instant. He does this again five seconds later. Officer Hernandez then takes Bosco to the shade, and at 16:33:00 says “he’s not even looking, he’s fucking burning up ... let me run him one more time, but he’s burning up.” Following this statement, the conversation becomes difficult to hear. But, listening in Chambers with noise-cancelling headphones, the Court believes that Officer Sanchez says something along the lines of “I thought it was an alert, like right there” or “I thought it was—what happened right there?”—a reference to Bosco having just lied down twice at the passenger side. It sounds to the Court like Officer Hernandez then responds “well, that’s just to kind of to get him to check [inaudible for a couple of seconds] the car, so it’s not a—not an alert.”

The description indicates that Bosco may have been lying down from both the fact Officer Hernandez was keeping his hand low, almost like a hand signal to lie down, and perhaps partially from the heat. In any case, there is no indication this was taken as an alert by the handler. The court's description also shows how badly some of the officers involved wanted something to be called an alert, even though Hernandez, as the handler, was the only one who should have been able to call an alert.  Hernandez tried one last time:

Officer Hernandez begins the final run on the driver side of the vehicle at 16:34:40. On the first pass, Bosco does not pay attention to the vehicle. Officer Hernandez then jerks his leash a bit, and runs Bosco down the driver side again, this time using his hand as a guide. As Officer Hernandez passes by the open front window, he again flicks his hand in the window. After a short pause, Bosco jumps into the vehicle through the window. This happens at 16:34:49. At 16:34:55, Bosco honks the vehicle’s horn. Bosco jumps back out the window at 16:34:59. This essentially concludes the open-air drug sniff.

After this, Hernandez can be heard in the audio saying, “I’m fucking debating it because he’s not suppose to jump in cars like that—nunca,” using the Spanish word for never.  Nevertheless, a minute later Sancez announced that “we’re gonna search,” and he proceeded to do so.  The court noted that “Officer Hernandez chose to omit Bosco’s jump from his written report and instead wrote that Bosco provided a final indication on the passenger side of the vehicle,” which was not a reference to the jump but rather to the dog’s lying down several minutes earlier, which the audio indicates was not being recognized as an alert at the time it happened. 

The search revealed:
  • two plastic baggies with methamphetamine
  • one meth pipe
  • syringes
  • one scale
  • firearm (in trunk)
  • cell phone (in trunk)
Heald was arrested at the scene. Subsequently he was indicted by a grand jury for intent to distribute methamphetamine and for being a felon in possession of a firearm. A superseding indictment added a charge of possession of a firearm in furtherance of a drug trafficking crime.

Bosco’s Alert Insufficient to Create Probable Cause

The federal district court found that Officer Sanchez “had the reasonable suspicion of criminal activity necessary to prolong the duration of Heald’s seizure beyond the time necessary to investigate a traffic infraction.”  The case, however, fell apart because of the circumstances of Bosco’s sniff.  The court began its analysis of the sniff by reviewing the U.S. Supreme Court’s decision in Florida v. Harris, 133 S.Ct. 1050 (2013), noting that Justice Kagan had allowed that “circumstances surrounding a particular alert may undermine the case for probable cause.” 

The district court found no fault with “Bosco’s (or Officer Hernandez’s) training and certification records,” but it did have a problem with “the circumstances surrounding Bosco’s supposed alert….”

To begin, Bosco had never conducted a single sniff in the field during the day time, let alone in over 90-degree heat…. Add to this the fact that Bosco had been in Officer Hernandez’s backyard in the heat for some time that day, and then travelled in a hot car before arriving to the scene, and any reasonable person would begin to question Bosco’s ability to reliably perform. Indeed, Officer Hernandez himself testified that on a scale of 1 to 10, with 10 being concerned that Bosco was about to die, he was at a 7 that day…. Moreover, Officer Hernandez knew that the heat was in fact affecting Bosco’s performance. He stated at the time that Bosco was “fucking burning up” and “not even looking.” … This cause for concern was, ironically, at least somewhat corroborated by the Government’s own expert. Criss Gardner testified that, in viewing the MVR, he “immediately could see a dog that was overheated,” and that the high heat would “absolutely” affect Bosco’s performance or actions…. Remarkably, after Mr. Gardner had commented that Officer Hernandez appeared frustrated with Bosco, he stated that “most dogs that get frustrated or really want to get out of the heat, they will give you a sit response in some cases. Again, you know, they will try to sit to appease the handler.” … In other words, an overheated and frustrated dog, like Bosco was that day, is prone to giving false alerts.

The court noted that the duration of the sniff was “unusually long,” and said that while this was “normally an innocent factor,” here it indicated that “as the minutes passed, Bosco’s exposure to the heat became prolonged, and so his ability to perform continued to diminish.” 

Training May Not Have Been Adequate

Jumping through a window was not how Bosco was trained to alert.  Rather “he sits or lies down to display final indication when he detects the presence of narcotics.” 

Officer Hernandez was uncertain about whether Bosco’s leap even constituted an alert. He stated to Officer Sanchez that he was “fucking debating it” because Bosco is never supposed to jump in cars…. The Court believes that a reasonable person would no doubt share Officer Hernandez’s skepticism. An overheated dog exhibiting a new and untrained behavior is not a shining example of reliability.

Defense counsel, in moving to exclude the canine evidence, had correctly noted that the jump through the window might have been an indication the dog was not properly trained:

Additionally, it appears that the K-9 was not adequately trained. According to Officer Hernandez, “Bosco” jumped inside the vehicle through the open driver’s side window. As Officer Hernandez noted, “Bosco” was not trained to jump inside cars. This activity calls into questioning the K-9’s training. Moreover, while the K-9 in this matter appears to have received training approximately three months prior to participating in this case, the training logs do not appear to log any false detections which is suspicious. The records do not reflect the amount of substances the K-9 is trained in. The records also appear to show that the K-9 only logged two days of training in narcotics detection on the exterior of vehicles prior to participating in this case, with only one of those days involving methamphetamine detection. (brief in support of motion retrieved from Pacer)

The failure of the dog to alert to methamphetamine should also have received more analysis.  A dog trained on methamphetamine produced by one cooking method will sometimes not alert to methamphetamine cooked another way. It is advisable to train on pharmaceutical grade materials when possible, but Bosco may have been trained on batches of methamphetamine cooked in the same way. 

Handler Changes Position on Alert

Because the microphone was briefly obstructed, the court noted that it could “not know how Officer Hernandez went from ‘debating it’ to determining that Bosco’s jump was an alert creating probable cause.” This, of course, assumes that the Hernandez had not changed his mind about the dog lying down when he was pointing low, though this is unclear.  Because the court’s description of the circumstances around declaring an alert might be seen as suggesting that Officer Hernandez had changed his opinion in hindsight, perhaps under pressure to create a reason for a search, the court felt obliged to defend the officer’s behavior:

None of this is to say, or suggest, that Officer Hernandez’s conduct was dishonest. Rather, the Court agrees with his own assessment—that he was “not on his game” that day—and further believes that he was not on his game when he later wrote his report…. Thus, to an overheated K-9 working in unfamiliar conditions, exhibiting a behavior that he was not trained to exhibit, the Court can add an understandably distracted handler, who, to boot, flip-flopped on how and whether Bosco alerted: In the moment, Officer Hernandez was debating whether Bosco’s jump was an alert. And then later, he identified as an alert a behavior (Bosco’s lying down) that he said in the moment was not an alert.

Although the court may have inserted such a comment to shield Officer Hernandez from administrative criticism or sanctions, in the context of a criminal prosecution this also limits the defendant’s ability to call into question the actions of an officer who is providing evidence to be used against him. Clearly Hernandez was addled and feeling pressure to justify a search from the other officer’s present.  Nevertheless, he should not have responded to that pressure by calling an alert from behavior that the dog had not been trained to use as an alert, as the court believes he had done.

Cueing

The court then considers “unintentional cueing.” 

The Court cannot help but observe that whenever Bosco was focused on the vehicle, he followed Officer Hernandez’s hand almost the entire time. When Officer Hernandez had his hand low, Bosco sniffed low; when he had his hand high, Bosco sniffed high. When he flicked his wrist towards the open window, Bosco jumped on the window opening, or jumped through that opening.

The expert witnesses for the prosecution and defense disagreed as to whether the handler’s conduct could lead to unintentional cueing, but the court concluded it was a “possibility.” Given the number of passes and the amount of pointing, the dog's thirst and likely desire to get water or be somewhere else, it is perhaps interesting that there was not more alerting behavior.  Thus, to say that cueing was only a possibility, and to say that it was unintentional, is to give some slack to Officer Hernandez.

Combination of Factors Undermine Reliability of Alert

The court did not think any single problem with the circumstances of the alert meant that probable cause was not established, but felt the combination of the problems did:

Any one of the above factors alone would not be sufficient to render Bosco’s supposed alert unreliable. The mere fact that it was hot out is alone not enough; that Bosco previously only worked in the cool of the night is alone not enough; that the heat admittedly affected Bosco’s performance is alone not enough; that Bosco was often not paying attention is alone not enough; that his supposed alert was not how he was trained to indicate is alone not enough; that Officer Hernandez was off his game and distracted is alone not enough; that he could not readily determine whether Bosco alerted is alone not enough; that he later changed his version of how Bosco alerted is alone not enough; that there was some possibility of unintentional cueing is alone not enough; and that the sniff lasted an abnormally long time is alone not enough. But, taking all of these facts together, and viewing them in the totality of the circumstances, a reasonable person would not think that Bosco’s actions created a reliable alert, such that a search would reveal contraband.

The court thus concluded that there was insufficient evidence that Bosco had alerted, but that even if he had, the alert “was not sufficiently reliable to establish probable cause.” 

The court ruled that the evidence found as a result of the search had to be suppressed. 

Conclusion

It is our interpretation on the facts as presented by the court that there was no alert, and that the official record thus appears to have been falsified.  This alone should lead to a dismissal.  The entire episode suggests a rather insecure handler, with the repeated association of the neutral stimulus with whatever reward system the handler used creating a strong possibility of cueing an alert to get the reward. For a discussion of relevance of the work of Pavlov and Skinner in this regard, see “Training Fundamentals and the Selection of Dogs and Personnel for Detection Work,” by Minhinnick, Papet, Stephenson, and Stephenson, forthcoming in Canine Olfaction Science and Law.

We have argued in the Journal of Animal and Natural Resource Law that Florida v. Harris comes very close to making dogs “walking search warrants.” It might be argued that this case conflicts with our argument and indicates that courts will continue to be critical of questionable practices during sniffs of vehicles.  Nevertheless, the court required a number of problems to exist before it negated the search here: (1) an overheated dog; (2) a variation in standard work temperatures and time of day for the dog and handler; (3) calling an alert from behavior the dog was not trained to use in an alert; (4) an officer “off his game and distracted;” (5) that officer’s alteration of the official record; (6) the possibility of unintentional cueing; and (7) an abnormally long sniff.  To require that all these circumstances be present would limit the value of the decision to this case alone. To require that more than half of them be present would not widen the applicability of the decision very much. 

It is also to be noted that the defendant would not have been successful in defeating probable cause here without both the video and audio of the stop. Since many stops do not have clear audio (not all the audio was clear here), the defense bar should be pushing for universal use of audio equipment along with video equipment. 

To say, as the court did, that the possibility of cueing would not alone overcome the value of an alert is particularly disturbing.  If the possibility is remote, such a perspective may be justified, but if there are clear indications that cueing is likely (regardless of how much intention was involved), then reasonable cause for a search has not been provided. In no event should a behavior that a dog is not trained to give as a final indication be taken as an alert, even if the handler is the one calling it an alert on the scene. Unfortunately, we believe that the case is such an outlier that it reinforces the defects of Florida v. Harris rather than adding nuance or limitation to that case’s applicability. 

This blog was written by John Ensminger and L.E. Papet.  
© John Ensminger and L.E. Papet 2016.

Monday, March 21, 2016

Child Witnesses on the Stand with Dogs at Their Feet: Judges Deal with Complex Issues While Lawmakers Look for Photo Ops

The law on dogs accompanying children and vulnerable witnesses during testimony continues to develop, both in terms of courts accepting the practice and state legislatures enacting statutes to permit it.  For four years now I have been maintaining an article on this topic on the website of the Animal Legal & Historical Center of Michigan State University and I have just updated that article for the fourth time. 

While the trend towards acceptance of this canine function is a positive one, I continue to be concerned that certain interest groups are having too much influence, particularly with state legislators who are looking for sound bites where they can show their concern for abused children and have themselves photographed with cute puppies.  The approaches of some state legislatures, and some courts, are at risk of creating an unnecessary monopoly on who may train these dogs, with consequent limitations on the number of dogs that can be made available and overly rigid formats on how they can be used in the courtroom.  I believe that this area of law should, at this time, be allowed to develop organically from the cases presented to the criminal courts—that, in other words, the common law tradition should be allowed to develop free of legislative grandstanding. 

Tuesday, March 8, 2016

VA Finalizes Transport Rules for Service Dogs: They Actually Listened to Me (well, sort of)

In May 2015, the Department of Veterans Affairs proposed to amend its regulations concerning transportation of persons for “examination, treatment, and care” under the Veterans Transportation Service (VTS). The proposed regulatory language contained two references to service dogs, the second of which also mentioned guide dogs.  The first mention of service dogs, in proposed 38 CFR 70.71(b), specified that the VA could provide transportation services to veterans when authorized for purposes of training a service dog as defined in 38 CFR 17.148.  That proposal has now been finalized without change. 

The second reference in the 2015 proposal, in 38 CFR 70.73(a), stated that someone requesting transportation services should contact the facility at which the examination, treatment, or care was to be received and provide the facility with the information necessary to arrange transportation.  The facility should be given the name of the veteran or service member involved and any special needs that would have to be accommodated.  Special needs requiring accommodation could include “a wheelchair, oxygen tank, or a service or guide dog.”  That proposal has not been finalized as stated, but rather now reads that a special need about which the facility is to be informed could include “a service animal as defined in 38 CFR1.218(a)(11)(viii).” 

Thus, when transporting a veteran for training of a service dog, the dog must fit within the definition of 38 CFR 17.148, but when transporting a veteran to a facility where the veteran is to receive treatment, the veteran can be accompanied by a service animal as defined under 38 CFR 1.218(a)(11)(viii), a much broader definition.  The proposed rule had not included a definitional reference for  a “service or guide dog” that could accompany a veteran going to a treatment facility and I was concerned about the absence of such a cross-reference. It was too easy to imagine that the reason the rule did not contain such a cross-reference would be interpreted as meaning that the same definition as used earlier in the contiguous set of regulations should apply in the case of a dog accompanying a veteran for treatment. The relevant language of the proposed and the final rules is highlighted in the following table:   

Regulation
2015 Proposed Version
2016 Final Version
38 CFR 70.71 Eligibility.
(b) Enrolled veterans. Regardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 for:
(1) A scheduled visit or urgent care;
(2) Retrieval of, adjustment of, or training concerning medications, prosthetic appliances, or a service dog (as defined in 38 CFR 17.148);
(3) An unscheduled visit; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
(b) Enrolled veterans. Regardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 for:
(1) A scheduled visit or urgent care;
(2) Retrieval of, adjustment of, or training concerning medications and prosthetic appliances, or a service dog (as defined in 38 CFR 17.148);
(3) An unscheduled visit; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
38 CFR 70.73 Arranging transportation services.
(a) Requesting VTS. An eligible person may request transportation services by contacting the facility director or designee at the VA facility providing or authorizing the examination, treatment, or care to be delivered. The person must provide the facility director or designee with information necessary to arrange these services, including the name of the person, the basis for eligibility, the name of the veteran or servicemember they are accompanying (if applicable), the time of the appointment (if known), the eligible person’s departure location and destination, any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog), and other relevant information. Transportation services generally will be provided on a first come, first served basis.
(a) Requesting VTS. An eligible person may request transportation services by contacting the facility director or designee at the VA facility providing or authorizing the examination, treatment, or care to be delivered. The person must provide the facility director or designee with information necessary to arrange these services, including the name of the person, the basis for eligibility, the name of the veteran or servicemember they are accompanying (if applicable), the time of the appointment (if known), the eligible person’s departure location and destination, any special needs that must be accommodated to allow for transportation (e.g. wheelchair, oxygen tank, or service animal as defined in 38 CFR 1.218(a)(11)(viii)), and other relevant information. Transportation services generally will be provided on a first come, first served basis.

Why Two Regulatory Definitions of Service Animals in the VA Regs?

In order to understand the significance of the change the VA made in finalizing its rule concerning a request for transportation services for treatment, one must first understand why the VA rules contain separate definitions for service dogs, in 38 CFR 17.148, and service animals, in 38 CFR 1.218. 

The definition in the historically earlier provision, 38 CFR 17.148 (finalized in 2012) was primarily a funding regulation “to authorize benefits to a veteran with a service dog.”  The benefits that might be provided did not include buying the dog, since “a majority of service dogs are acquired by veterans with little or no out of pocket cost.”  The benefits did, however, include traveling to obtain the dog, as well as “repairing or replacing harnesses or other hardware, providing annual and emergent veterinary care, providing prescription medications, or paying for other services when prescribed by a veterinarian.”  Grooming was not an included benefit, and neither were nonspecialized leashes, collars, or dog licenses.  No expenses would be covered for a service dog that has been retired.  Dogs for which a veteran could receive benefits had to mitigate the effects of a visual, hearing, or substantial mobility impairment, and could not be solely for a mental disability, such as PTSD.  The dogs also had to be trained by full members (i.e., not provisional members) of the International Guide Dog Federation (IGDF) or Assistance Dogs International (ADI).  I have railed against the inequities of this rule for years, but there is no point in dredging that up for the present discussion. 

The second definition, in 38 CFR 1.218, was finalized much more recently in August 2015, in fact after the transport proposal of May 2015, and concerns access to VA property. That provision largely follows the highly reasoned positions of the Department of Justice, allowing dogs trained for mental disabilities and imposing no organizational training requirement. The rule applies to veterans accessing VA facilities, but also to visitors and employees. I have also sung the praises of these well-reasoned rules before.  The following table highlights the language in the two definitions that is important for understanding the cross-references in the now-final transport rules. 

38 CFR 17.148 Service dogs.
38 CFR 1.218 Security and law enforcement at VA facilities. 
(a) Definitions. For the purposes of this section:
Service dogs are guide or service dogs prescribed for a disabled veteran under this section.
(b) Clinical requirements. VA will provide benefits under this section to a veteran with a service dog only if:
(1) The veteran is diagnosed as having a visual, hearing, or substantial mobility impairment; and
(2) The VA clinical team that is treating the veteran for such impairment determines based upon medical judgment that it is optimal for the veteran to manage the impairment and live independently through the assistance of a trained service dog. Note: If other means (such as technological devices or rehabilitative therapy) will provide the same level of independence, then VA will not authorize benefits under this section.
(3) For the purposes of this section, substantial mobility impairment means a spinal cord injury or dysfunction or other chronic impairment that substantially limits mobility. A chronic impairment that substantially limits mobility includes but is not limited to a traumatic brain injury that compromises a veteran's ability to make appropriate decisions based on environmental cues (i.e., traffic lights or dangerous obstacles) or a seizure disorder that causes a veteran to become immobile during and after a seizure event.
(c) Recognized service dogs. VA will recognize, for the purpose of paying benefits under this section, the following service dogs:
(1) The dog and veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation, or both (for dogs that perform both service- and guide-dog assistance). The veteran must provide to VA a certificate showing successful completion issued by the accredited organization that provided such program.
...
(d) Authorized benefits.
...
(2) Hardware or repairs or replacements for hardware, that are clinically determined to be required by the dog to perform the tasks necessary to assist the veteran with his or her impairment....
(3) Payment for travel expenses associated with obtaining a dog under paragraph (c)(1) of this section. Travel costs will be provided only to a veteran who has been prescribed a service dog by a VA clinical team under paragraph (b) of this section.... Note: VA will provide payment for travel expenses related to obtaining a replacement service dog, even if the veteran is receiving under this section for the service dog that the veteran needs to replace.
(4) The veteran is responsible for procuring and paying for any items or expenses not authorized by this section.  This means that VA will not pay for items such as license tags, nonprescription food, grooming, insurance for personal injury, non-sedated dental cleanings, nail trimming, boarding, pet-sitting or dog-walking services, over-the-counter medications,or other goods and services not covered by the policy.  The dog is not the property of VA; VA will never assume responsibility for, or take possession of, any service dog.
(5) Dog must maintain ability to function as a service dog....
(a)(11) Animals. (i) Service animals, as defined in paragraph (a)(11)(viii) of this section, are permitted on VA property when those animals accompany individuals with disabilities and are trained for that purpose. A service animal shall be under the control of the person with the disability or an alternate handler at all times while on VA property. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means). VA is not responsible for the care or supervision of a service animal. Service animal presence on VA property is subject to the same terms, conditions, and regulations as generally govern admission of the public to the property.
(viii) 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. 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. The 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 this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under 38 CFR 17.148.

After the funding rule was implemented in 2012, some VA facilities used it as a limiting provision as to what kinds of service animals could enter VA facilities. Even in 2012 the VA had indicated that it was going to issue additional guidance on service animal access to facilities, but in the absence of more formal guidance, it is not surprising that this confusion continued for three years until the access guidance was promulgated in August 2015.  Unfortunately, I have been advised since posting this blog that some facilities are still adhering to the funding rule as a means of defining access to a facility. Despite the scandal regarding delays in providing appointments to veterans in Phoenix, a change in leadership, and many high-profile announcements about improvements, the incompetence of the VA continues to amaze and appall.  

Although not discussed in the preamble to the final rules, it is important to note that the provision regarding transportation for dog training in 38 CFR Part 70 would only apply to a fully trained service animal, regardless of which cross-reference applied. In 38 CFR 17.148(c)(1), the “dog and veteran must have successfully completed a training program….”  Under 38 CFR 1.218(a)(11)(viii), a service animal is “any dog that is individually trained….”  Thus, transporting a dog for training under 38 CFR 70.71(b)(2) must be interpreted as not taking a dog somewhere to qualify it as a service dog or animal, but rather as taking it to some location where the dog's skills will be sharpened and maintained. Traveling to obtain a dog under 38 CFR 17.148 generally would involve a period of acclimation between the veteran with the disability and the dog, which is often the final stage of the dog's precertification training but, as will be explained below, this is not a stage covered by 38 CFR 70.71(b)(2), but rather under 38 17.148(d)(3).   

Significance of Two Definitions to the Transport Rules

As I already stated, the initial transport proposal in May 2015 only referred to one definition.  In fact, there was only one definition of “service dog” in the VA rules at that point, the funding definition, because the facility access definition was then only a proposal, a possibility.  Nevertheless, there was every indication that the proposal would be largely finalized as written—which happened in August 2015—and I foresaw a problem about which I blogged and concerning which I submitted a comment to the VA. It was, in fact, the only comment submitted by anyone on the VA’s transport proposal. 

I noted that as written the proposed transport rule, referring to only one definition of service dog in the provision regarding transport for training purposes, would likely be the definition relied upon by facilities and transport services in determining what kinds of service dogs could accompany veterans to treatment facilities.  Given that the facility access proposal would allow a much broader group of service animals to come into VA facilities with veterans using them, it would be very odd indeed if transport to a facility was denied to the same veterans and their animals.  Here is how the VA acknowledged and responded to my comment:

As noted by the commenter, the lack of consistency in referencing § 17.148 in both §§ 70.71(b)(2) and 70.73(a) creates confusion as to whether a different meaning of the term “service dog” should be applied when determining VTS eligibility under § 70.71, versus when determining what is required to arrange or request VTS transport under § 70.73. As also noted by the commenter, a proposed revision to another VA regulation would define the term “service animal” in 38 CFR 1.218(a)(11) more broadly than the term ‘‘service dog’’ is defined in § 17.148. See 79 FR 69379. Since VA received this comment, § 1.218(a)(11) has been revised to include this broader definition of “service animal.” See 80 FR 49157 [August 17, 2015]. Ultimately, the commenter asserted that § 70.71(b)(2) should be revised to refer to the broader definition of “service animal” in § 1.218(a)(11).

We agree with the commenter that if a person is eligible for VTS and traveling with a service animal, then the broader definition of “service animal” in § 1.218(a)(11) should be used in VTS regulations. As noted by the commenter, if the broader definition of “service animal” in § 1.218(a)(11) was not used in VTS regulations, then VA may create conflicting situations where a person would be permitted to bring a “service animal” as defined in § 1.218(a)(11) into a VA facility, but would not be able to use VTS to be transported with such an animal to or from a VA facility. We therefore revise § 70.73(a) to add a reference to § 1.218(a)(11). This revision to § 70.73(a) addresses the commenter’s concern that VA’s definition of “service animal” in § 1.218(a)(11) should be applied consistently in the context of service animal access, whether the issue is a veteran getting into a VA facility with their service animal, or a veteran getting to the entrance of that VA facility with their service animal via VA transportation.

On my next suggestion, however, I was not successful.  I had argued that the provision regarding transport for training a service dog should also be changed so that such transportation could be provided to a veteran to obtain training for a service animal that met the broader definition of 38 CFR 1.218, rather than the narrower definition of 38 CFR 17.148.  To this argument, the VA responded:

We do not, however, adopt the commenter’s suggestion to revise § 70.71(b)(2) to reference “service animal” as defined in § 1.218(a)(11). As stated earlier in this final rule, § 70.71(b)(2) as proposed would create VTS eligibility for, among other things, transportation related to training a “service dog” that is recognized under § 17.148. If we revised § 70.71(b)(2) to replace the reference to “service dog” in § 17.148 with a reference to “service animal” in § 1.218(a)(11), we would instead create VTS eligibility for transportation related to training a “service animal” that is recognized under § 1.218(a)(11). However, this would conflict with VA’s service dog benefits standards in § 17.148, because § 17.148(c) has specific training requirements that are not present in § 1.218(a)(11). The commenter’s suggested revision to § 70.71(b)(2) would create scenarios where VA could provide VTS transport to support the non-specific training of a “service animal” that is recognized under § 1.218(a)(11), although VA could not recognize that training under § 17.148(c) for the purposes of providing service dog benefits. Such a practice could be interpreted as VA supporting nonspecific training that is not recognized under § 17.148(c), and would erode VA’s training requirements in § 17.148(c). To avoid this conflict between VA standards related to service animal access in § 1.218(a)(11) and VA standards related to service dog benefits in § 17.148, we do not make the revision to § 70.71(b)(2) as suggested by the commenter.

It is true that there are specific training requirements in 38 CFR 17.148, mostly because the organization providing the training has to be a full member of IGDF or ADI, but there are also training requirements under 38 CFR 1.218. The effect of the rule is that the VA will not help veterans who have dogs for mental disabilities, such as PTSD, get to and from trainers, nor will the VA help a veteran get to and from a trainer who is not a full member of IGDF or ADI, even if the trainer is highly experienced and has been recognized by other organizations and even medical facilities as turning out high quality service animals. This is, as I have argued before, tantamount to the VA investing two organizations with a monopoly on service dog training and designating those organizations as gatekeepers for VA funds.  It is to be noted, however, that the VA would not even help a veteran get to and from a full member of IGDF or ADI if the dog was being used solely for a mental disability (probably impossible with IGDF, which concerns guide dogs, but possible with some ADI members).

Transport to Training Facilities Not Generally Transport to VA Facilities

The VA clarifies transport to and from a training facility is not transport to and from a VA facility because the VA does not provide service dog training, stating: 

We additionally clarify that VTS travel to receive training with approved service dogs under § 17.148 would only be approved travel under § 70.72(d). The types of authorized transportation under § 70.72(a)–(c) must be to or from VA or VA-authorized facilities. However, transportation to participate in ‘‘retrieval of, adjustment of, or training concerning . . . a service dog under § 17.148’’ (as stated in § 70.71(b)(2)) would not be to or from a VA or VA-authorized facility because VA does not conduct, facilitate, or pay for service dog training. While VA does recognize specific training under § 17.148(c) for the purpose of paying service dog benefits, the training facilities themselves are not considered VA or VA-authorized facilities. Section 70.72(d) authorizes VTS transportation between locations other than VA or VA-authorized facilities, and such transportation may only be authorized when a VA clinician has determined that such transportation would be needed to promote, preserve, or restore the health of the individual.

The statement that the “VA does not conduct, facilitate or pay for service dog training” is not quite correct.  Yount et al. (2012) describe a service dog training program that was established at “a large Veterans Administration residential treatment center for posttraumatic stress disorder (PTSD)” (Yount, R.A., Olmert, M.D., and Lee, M.R. (2012).  Service Dog Training Program for Treatment of Posttraumatic Stress in Service Members.  The United StatesArmy Medical Department Journal, April-June 2012). In a legislative hearing of the Subcommittee on Health of the House Committee on Veterans’ Affairs on July 15,2015, Rick Yount, Executive Director of the Warrior Canine Connection, gave a list of facilities at which service dog training programs have been established where Wounded Warriors can train service dogs, one of which was the Palo Alto VA Medical Center.  Presumably the authors of the preamble to the current release would argue this situation is atypical, or accidental, and is an exception to the rule.  

VTS Travel Generally for Short Distances

The preamble to the current rule continues:

We also note that in most cases we anticipate that individuals would use the beneficiary travel benefit instead of VTS to obtain a service dog that is recognized in § 17.148, because VTS travel resources cannot be relied upon to travel greater distances that typically necessitate air travel, for instance, and service dog training organizations recognized under § 17.148 are not located in every State.

Under 38 CFR 17.148(d), listing authorized benefits for a service dog under the funding regulation, the VA provides for payments “for travel expenses associated with obtaining a dog” under 38 CFR 148(c)(1), or for obtaining a “replacement service dog.”  As indicated, the veteran must have been prescribed a service dog by a “VA clinical team” to obtain such a travel benefit.  The preamble is thus clarifying that the travel benefit to obtain a dog under 17.148(d)(3) may have to cover long-distance travel, such as airfare, which is not what the VTS program was generally designed to do. 

I had acknowledged in my comment letter that the reference to 38 CFR 17.148 in the travel-for-training regulation had a certain logic if this travel were being considered an aspect of funding a service dog, but the argument presented in the current preamble is somewhat different.  Rather, the VA is saying that travel to obtain a dog is not part of VTS at all, but rather part of 38 CFR 17.148.  Nevertheless, the VA believes that the travel provided in 38 CFR 70.71(b)(2) should conform to the restrictions of 38 CFR 17.148 because otherwise the VA would have an inconsistent policy on payments for purposes of obtaining a qualified service dog and for purposes of continuing its training, and if the policy on the second were different from the first purpose, that first purpose would be undermined.  Thus, the benefit of providing transport to train a dog is not directly part of funding the service dog's acquisition, but is closer to that provision than it is to taking a veteran to and from a facility for the veteran’s own medical needs.  Put another way, 38 CFR 70.71(b)(2) is more about the dog, while 38 CFR 70.73 is more about the veteran.  

This explains why the VA rejected “the commenter’s suggestion to revise § 70.71(b)(2) to reference ‘service animal’ as defined in § 1.218(a)(11).”  The commenter is disappointed. 

So, I guess I was one for two. 

Periodic Training Programs with the Original Training Organization

There is one situation that the rules do not clearly address. Some service dog training organizations ask those they have paired dogs with to return periodically, often annually, for a refresher course and to evaluate whether the user has kept using the dog as was intended by its specialized training.  Although not specifically discussed by the rules, I believe that this would more easily be considered part of obtaining a dog under 38 CFR 17.148, rather than part of training under the short-term travel coverage conceived of in 38 CFR 70.71(b)(2). Such refresher courses may be a condition of obtaining the dog, particularly from organizations that keep ownership under a formal agreement with the user, who is licensed to use the dog but does not own it. When the issue presents itself, hopefully the VA will define its policy on this question. 

Conclusion

To sum up, a veteran can get a service dog under the broad definition of the Department of Justice into a van to go to a VA facility for an appointment, but if he or she wants to travel to obtain a service dog, or take it to a location for training, there will be no van or other transportation provided unless the dog fits within the narrower definition provided under the VA’s service dog funding regulation. 

The VA’s reluctance to provide funding for service dogs for PTSD and other mental disabilities is at least in part economic. When proposing the service dog funding rule in 2011, the VA indicated that it expected to fund only about 100 dogs each year, most of which would be guide dogs for veterans blinded in combat.  If the VA had to meet the demand for service dogs for veterans with PTSD and other mental disabilities, thousands and thousands of dogs could qualify and the agency’s budget would need a significant boost, something Congress has not been in the mood for for much of President Obama's administration despite all the rhetoric about improving the VA. 

It must be hoped that more programs, such as those established by Rick Yount, will sooner rather than later change attitudes in the upper echelons of the VA.  

Thanks to Leigh Anne Novak for comments. Thanks to Bart Sherwood of Tadsaw for raising the question of how training organization requirements on annual evaluations should be categorized under the two travel provisions.