Friday, August 26, 2011

Is the Bed of a Pickup as Private as the Inside of a Car? Probably, but the Barrier is Imaginary and More Easily Crossed

During a traffic stop in Marysville, California, on May 14, 2009, a Marysville Police Department reserve officer, Matthew Minton, pulled over a pickup because the license plate was obscured by the rear bumper and the license plate lamp was not functioning. The officer saw that the driver, Robin Briggs, had glassy eyes and might be intoxicated. Returning to his patrol car, the officer radioed for assistance from Officer Christopher Miller who “was more familiar with driving under the influence investigations and worked with a narcotics detection dog.” Miller arrived with his dog about two minutes into the initial stop.

Briggs stepped out of the vehicle and was shown the problem with the truck’s license plate. Officer Minton looked at Briggs’s pupils and asked him if he was under the influence of narcotics. Briggs said he had taken methadone earlier. Presumably this was a legal prescription, which meant that Briggs would have received a warning not to drive for a time. Briggs refused Minton’s request to search the truck. Minton asked Miller to have the dog, Tommy, check the exterior of the pickup.

Tommy

Tommy was a dual purpose dog that protected his handler and detected narcotics, specifically cocaine base, cocaine powder, methamphetamine, marijuana, and heroin. Detection of these odors is required by the California State Commission on Peace Officer Standards and Training (POST). Tommy was tested annually for these odors in both vehicles and buildings and had been certified every time he had been tested. The court separately described Officer Miller’s training:

“Officer Miller is ‘trained to read [Tommy], watch his behavior, how he reacts....’ When Tommy is sniffing the air around a vehicle, Officer Miller watches for any change in Tommy's behavior, such as a deviation from his standard high/low search pattern or the use of a ‘cone pattern’ to work back to the source of the odor. Officer Miller's ability to read Tommy's behavior changes comes with hours of training. When Tommy locates the source of an odor, his ‘passive alert’ is to sit and stare at the location where he found the controlled substance. This indicates to Officer Miller that Tommy smells the odor of one of the narcotics Tommy has been trained to detect.”

Sniff and Searches

At the traffic stop, Miller had the dog begin the sniff at the front of the vehicle and moved to the back. Tommy followed Miller but was not on a lead. The court describes what happened next:

“At the rear tire on the driver's side, Officer Miller noticed a change in Tommy's behavior. First, Tommy ‘snapp[ed]’ back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, because he did not want to influence Tommy's decision to redirect the search. Tommy next used a ‘scent cone’ search pattern, working right to left in an attempt to find the odor. Tommy then stood up on his hind legs with his front paws on the side of the truck and sniffed over the bed of the pickup. After sniffing the air in that area, Tommy immediately dropped down into his ‘sit/stare’ alert. Tommy alerted to a black backpack in the bed of the truck. The backpack was the only item in the bed of the truck in that area and was the first thing Officer Miller saw when he went to take a look in the bed after Tommy alerted.”

The description indicates that Miller was an experienced handler using good practices.

Following Tommy’s alert, Miler opened the backpack and found chemical bottles and a bottle with white pills. The chemicals were identified as xylene, denatured alcohol, and acetone. Miller and Minton believed the pills might be ephedrine. Miller went no further:

“After seeing these items, Officer Miller stopped looking through the backpack and did not ‘go hands on’ with the evidence, pursuant to policy. Consequently, Officer Miller could not be certain if the backpack contained any of the narcotics Tommy was trained to detect, and he did not determine if the backpack did contain any of those items at a later date.”

The policy also indicates good practices on the part of the police department.

Officer Minton placed the occupants of the truck under arrest. Officer Joshua Jellsey of the Yuba-Sutter Narcotics Enforcement Team arrived and recognized the items in the backpack as commonly used in making methamphetamine. Jellsey obtained a search warrant for the residence of Briggs and Stillwell, the driver and passenger respectively. Additional ingredients and utensils were found in the house, some of which showed the presence of ephedrine and pseudoephedrine. An additional search of the pickup revealed a pink-stained coffee filter and syringes.

The trial court found the initial traffic stop was justified and that the detention was not prolonged because the dog alerted to the backpack within ten minutes of the initial stop. The trial court was, however, “somewhat troubled by the dog alerting on an item or items which don’t fall within the four categories that the dog is trained to alert on.” The court found that the alert produced probable cause and did not find it “illegal or unconstitutional because the dog’s nose happened to extend into the bed once the dog alerted.”

Reliability

The defendants appealed, contending that the prosecution had not established Tommy’s reliability, noting that no cocaine, methamphetamine, marijuana, or heroin was found as a result of Tommy’s alert. They also argued that Tommy invaded the vehicle by putting his front paws on the truck and sniffing above and inside the truck bed, thereby turning the sniff into a search that violated the Fourth Amendment.

Following Illinois v. Caballes, 543 U.S. 405 (2005) and the California State Supreme Court case of People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982), the appellate court held that “it is clear that a well-trained detection dog’s sniff of the exterior of a pickup truck does not amount to a Fourth Amendment search. The court concluded that substantial evidence at the trial court’s suppression hearing had supported a finding that “Tommy was well-trained and, thus, reliable.” Tommy had been certified annually and was up to date on his certifications. Miller, the handler, was also trained and certified.

As to the argument that Tommy was not reliable because none of the drugs he was trained to recognize were found in this case, the court stated:

“Officer Miller never received any lab results as to the contents of the backpack, and there was no evidence at the hearing as to the complete contents of the backpack. While it is thus true “[t]here was no evidence that the backpack contained contraband,” that does not mean the backpack did not contain contraband. Therefore, no determination can be made as to Tommy's reliability based on his alert in this case…. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable.”

Training and Certification

The defendants cited a Florida case, Florida v. Matheson, 870 So.2d 8 (Ct. App. 2003), which held that training and certification, standing alone, could not provide probable cause, but at most “mere suspicion.” The California appellate court noted, however, that California cases “have not required evidence of a dog’s success rate to establish probable cause.” (Matheson was discussed by us in a prior blog). The court cited another California appellate decision, People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (Ct. App. 2004), where a handler’s knowledge of a pair of detection dogs’ training and experience, and observation of the dogs’ trained behavior, gave probable cause for the issuance of a warrant. Therefore:

“Here, as in Bautista, Officer Miller was aware of Tommy’s training and certification and he observed Tommy change his behavior and alert in a manner consistent with his training. Nothing more was required.” A few paragraphs later, the court adds: “California authority does not support the notion that more than an alert from a trained narcotics detection dog is needed to establish probable cause for a search.”

Scope of the Sniff

The defendants also argued that Tommy exceeded the allowable scope of the sniff when he placed his front paws on the pickup truck and sniffed over and inside the bed of the truck. This led to an analysis of those cases in which dogs have jumped into windows and through open doors. The court stated:

“Tommy's action of standing up on his hind legs and putting his front paws on the side of the truck is almost identical to the behavior the Eighth Circuit found constitutional in Olivera–Mendez [U.S. v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007)] …. If the officer's actions in that case did not amount to an infringement of constitutional rights, then certainly neither did Tommy's when he stuck his nose past the imaginary 'plane' at the top of the truck bed to sniff the backpack. More importantly, the instinctive action of a dog jumping into an open part of a car it is sniffing (assuming that the police officer did not request that the owner of the vehicle open a door for this purpose) does not violate the Fourth Amendment…. Here then, Tommy's instinctive actions of following the odor from the ground up to the source (even though these actions may have caused him to sniff in the bed of the truck) did not violate the Fourth Amendment.”

The defects in labeling as instinctual a dog’s behavior in jumping into a vehicle was discussed by us in the earlier blog on jumping into windows.

Plain-Sniff Doctrine

Although not referred to by the court, the canine team’s actions could be further justified by the plain-sniff doctrine. In Hutchinson v. U.S., 471 F.Supp.2d 497 (M.D. Pa. 2007), an officer had already seen what he believed to be marijuana in a car when the drug dog jumped through an open window and alerted to a backpack in the back seat. The federal district court said that the “plain sniff rule would apply because the dog was not aided in its sniff by an intervening officer and the dog detected the odor in an area in which it was lawfully present.” The federal district court cited cases finding the plain sniff doctrine a logical extension of the plain view doctrine. If the plain sniff (sometimes plain smell) doctrine applies to a dog jumping through a car window when unaided by an officer, it easily applies to the open bed of a pickup truck around which the dog is being led.

This is not to say that a court could not accept a cueing argument in such a circumstance. If the dog’s nose crossed the “imaginary 'plane' at the top of the truck bed” at the behest of the handler, and evidence of this could be provided, the defense might be able to say that crossing the plane was not the “instinctive” action the court here assumed it was. Just as we noted with regard to training windows in our discussion of the District of Maryland case of Batista, police dog training involves dogs’ learning to jump onto platforms. Prosecutors and police should be aware that the increased use of cueing arguments is going to mean that defense counsel are going to be pursuing such possibilities in discovery and cross-examination.

Conclusion

The court’s analogizing the entry of a police dog into the bed of a pickup to jumping through a window is probably sound, though the bed of the pickup will generally be more accessible than the inside of a vehicle so that the dog’s following of the scent would be more difficult to stop. Some courts might say that sniffing in the bed was part of the sniff of the exterior of the vehicle and that as long as the alert was not cued, even a jump into the bed of the vehicle is not constitutionally prohibited. The situation is close to a “plain sniff” situation, the canine analog to “plain sight,” where the dog can be expected to alert to what is before its nose, there being no physical barrier—even a potential barrier beyond the height of the pickup bed—to stop the dog.

The difference between the California and Florida courts on the necessity for the production of training and field records may be ripening into an issue appropriate for guidance from the U.S. Supreme Court.

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

People v. Stillwell, 2011 WL 3035109, 11 Cal. Daily Op. Serv. 9315 (Cal. App. 2011); for a recent Florida case rejecting canine evidence based partly on field records, see Wiggs v. Florida, 2011 WL 3300139 (Ct. App. 2011).

Thursday, August 18, 2011

The Hunting Hounds of Queen Elizabeth I

In 1576, George Turbervile published the Booke of Hunting, being in large part a translation of the work of Jaques du Fouilloux, La Venerie, published in 1562. Turbervile was a poet and fellow of New College, Oxford, where he studied law. He traveled widely, going to Moscow to the court of Ivan the Terrible in 1568.

In translating du Fouilloux, Turbervile copied most of the woodcuts from the Frenchman’s book, though minor changes can be detected even in those plates copied closely. One significant difference between the two authors, which can be seen in the subjects of their respective graphics, was that du Fouilloux published during the reign of Charles IX, though he was perhaps writing during the reign of Henry II (died 1559) and the short reign of Francis II (1559-60), while Turbervile published when Queen Elizabeth was 43 years old.

Turbervile often refers to the presence of the Prince or chiefe, whose position in the hunt involves receiving certain honors and explanations from the huntsman, but the woodcut plates show this position filled by a young woman, and a plate titled, “The report of a Huntesman upon the fight of an Hart,” is followed by a poem beginning, “Before the Queene, I come report to make….”

It might seem that a great deal of animal cruelty was involved in the hunt, but if I had to choose I’d rather have been a deer in Queen Elizabeth’s forests than a calf in a modern feedlot. In a very significant way, however, one’s modern sensibilities must be suspended. Presenting deer turds on leaves to a queen is not something that we now could imagine as anything but an offense, but the responsibility of doing so was a great honor to the huntsman of five hundred years ago, and would have been well appreciated by the monarch.

Kennels

Fouilloux depicts a kennel that is similar to that described nearly two centuries earlier by Phoebus, with two stories and a large yard. This is shown in the second plate. A fountain is near the kennel, from which a spout fills a trough, which in turns empties into a stream. A feeding trough stands in the middle of the yard. A dog uses a post covered with rope and perhaps canvas to scratch, and it appears to invite the dog to urinate. The kennel is described as follows by Turbervile (using the original spelling, though not the long "s", sometimes called the German s):

“A kennel ought to be placed in some orientall [eastern] parte of a house, where there may be a large courte wel playned, being fourscore paces square … but the greater and larger that it is, the better it will be for the Houndes, because they shall have the greater pleasure to play themselves, and to skimmer, through the middest of it, were meete and good to have a little chanell of good fountayne water, neare unto the which you shall lay a great trought of stone to receyve the course of the sayde water, the whiche trough shalbe a foote and a halfe high, to the end the houndes may drinke therat the more easily, and that trought muste be pearced at the one ende, to let out the water, and to make it cleane when you would. In the highest place of the Courte it shalbe good to buylde the kennel or lodging for the Houndes, in the whiche you must have two chambers, whereof the one shalbe larger than the other, and the same should be a chimney, great and large, to make a fire when neede shall require. The gates and windows of the chamber, must be set and situate agaynst the rising of the Sunne and the South: the chamber should be raysed three foote higher than the levell of the ground, and in the floore you shoulde make two gutters and holes to the ende the filthinesse and uryne of the Houndes may thereby avoyde, the walles ought to be well whited, and the plankes well mortified and ioyned, and so shall spyders, flease, punayses and such like, the lesse breede and remaine therein. You must always leave them some little dore or wicket to go out into the courte when they would skimmer or ease themselves, then must you have in the chamber little bedsteads which shalbe raysed a good foote from the ground, and therwithal let every bedstead have under it a roller to remove it where you will when you would make the place cleane: and againe that when they come from the chace, and that it were needefull to warme them, you may rolle them as neare ye fire as you will; also those bedsteads must be covered wt hurdels or plankes pearced, to the end yt when the hounds do pisse, the urine may drayne to the ground.”

Certain substances were not to be used in drinking and feeding vessels:

“You must take heede that you give them no drinke in a vessell of copper or brasse, for those two kindes of metals are venomous of their nature, and cause the water which commeth in them to turne and to stinke, which woulde greatly anoy the houndes.”

Bread, a principal portion of the dogs’ diet was to be broken so that the dogs can eat, even “of evill appetite.” As noted in the picture, Turbervile also recommended that the feeding baskets “should not be emptie at any time.”

Although English kennels may have been as elaborate, the first plate in Turbervile’s book may show a typical country kennel of the sort he was more accustomed to see. The kennel is only one floor, with a row of doors that may indicate separated spaces for the dogs, or may merely suggest that the structure was easily aerated by having multiple openings in the warmer months, while the dogs would be housed somewhere else, perhaps with families, in the winter.

Care of Puppies

Fouilloux and Turbervile describe caring for mothers and their puppies. When dogs are born in winter, particular care is required, which involves keeping the puppies in a barrel:

"Fyrst if they be whelped in Wynter, you shall take a Barrell or a Pype well dryed, and kocke out the heade at the one ende thereof, afterwardes put strawe therein, and set it by a place where there is ordinarily a good fyre, then turne the open ende towardes the fyre, to the ende the whelpes may have the ayre thereof, and you shall feede the damme with good pottage or broth made with Beefe or Mutton... and when you perceive that they beginne to goe, you shall have a net made of strong thread, laced with a thong, and fastned about the Tun or Pype... so that you may kepe them from going out, and that other dogs do not byte them, or that they be troden upon or marred with mens feete."

Apparently the original crate was a barrel with netting over the open end. In depicting this care, Fouilloux places the barrel outside, as does Turbervile in copying him, where no fire is present. Various potions for bathing and anointing the puppies are described, often including spices and nuts.

Training

Hounds were coupled in training, and it was seen as best to couple “yong houndes” with “olde bitches, to teache them to followe.”

The dogs were to be taken through “greene Corne fields and through the medowes,” where they were to learn the huntsman’s voice, and to accustom them to sheep and other domestic animals. If “any dogge that is so il taught as he would runne at a sheepe or any such tame beast, you must couple him with a ramme or a stoute Sheep, and with your wande you muste all to pay him and beate him a good while, crying and threatening to the ende that another time he may know the rate of suche as use it.”

Thus, beating was part of training. The use of a bracing was, however, apparently designed to let the older dog keep the younger one out of trouble. To get rid of “lice fleas, and other vermine and filthie things, and for remedie thereof you must washe them once a weeke in a bath made of hearbes.” Something of a recipe for the bath water is then provided, which includes marjoram, sage, rosemary, and salt.

Dogs were to be trained to swim, since in the hunt they would have to cross rivers and pools. They were often taught to hunt the hare before beginning on deer. Hunting deer began at 17 or 18 months.

The Huntsman’s Skill

The huntsman, in addition to knowing the use of the hounds, had to become familiar with the animals hunted, which involved the ability to read their tracks. An interesting graphic in Fouilloux, picked up by Turbervile, shows the huntsman looking at two tracks but imagining the leg of the hart he will be pursuing. The huntsman also had to know the droppings of the deer, and to be able to tell the size of the animal, when the droppings had been left, what they said about the size of the deer and the direction in which it was moving. There was a specific term for the droppings of deer-like animals, variously spelled, but the Oxford English Dictionary prefers fumet or fumishing, attributing the earliest usage to the papers of Henry VIII, “the scent and femyseshyng of such deir.” Turbervile generally spells the word fewmet. A sampling of such wisdom will no doubt be sufficient:

“You muste understand that there is difference betweene the fewmet of the morning and that of the evenyng, bycause the fewmishings which an Harte maketh when he goeth to relief at night, are better disgested and moyster, than those which he maketh in the morning, bycause the Harte hath taken his rest all the day, and hath had time and ease to make perfect disgestion and fewmet, whereas contrarily it is seene in the fewmishyng which is made in the morning, bycause of the exercise without rest whiche he made in the night to go seeke his feede.”

Both Fouilloux and Turbervile provide sketches of fewmets, the better to educate a junior huntsman, who may one day have to present them to the Prince or chiefe (Fouilloux speaks of the king or lord: "presente ont leurs fumées au Roy, ou au Seigneur a qui ilz seront, les une après les autres, en racómptant chaseun de ce qu’il aura veu”). Turbervile copies Fouilloux's drawing almost exactly, but curiously arranges the turds top to bottom unlike Fouilloux's left to right presentation. (No doubt this reflects a fissure in the Jungian archetype of bathroom practices between the English and the French. Because the French helped us Americans obtain our freedom from the English, I have preferred the Frenchman's presentation. It also looked better in the layout. Besides, how often do you get a highbrow reason to show shit?)

The Formalities of the Chase

A large company would go on a hunt with a monarch or lord, with varying ranks reflected in the clothing of those allowed or required to attend. There were generally around ten stages to a chase, labeled as follows:

1. Unharbouring of the Game. This involved starting the deer running, generally begun by the huntsman sending out a “harbourer” to mark the locations where the deer and returning with some fewmets.
2. The Gathering. The harbourer returned to the waiting party and made his report. This was often done during a meal, and the harbourer would present the fewmets to the lord of the hunt or the most honored individual present. The hunters and the dogs gather in a field
3. Posting Relays. The pack did not all run together, but were stationed in small groups along the route the deer was expected to take. In a large hunt, such as a queen would go on, there would be six to 12 hounds at each relay, with at least three relays along the route.
4. Departure and Laying on the Pack. At this stage the company mounted horses. A scenting hound would be tethered to a tree where he could be brought should the pack go off the scent. Writers of the time disagree as to whether older or younger hounds should be released first, or whether there should be older dogs among the younger to keep them from going in wrong directions.
5. The Change. Pursuing the scent of a different animal than the one being sought was called a Change. It was believed that an intelligent deer could retrace his steps to throw the dogs off the scent and could perhaps cross the path of another deer which the hounds would then follow.
6. The Recheat. This was the procedure, sometimes conducted by taking the dogs on ever-widening circles, to get the hounds back on the correct scent.
7. The Game Exhausted. Various changes in the track and appearance of the game would indicate it had become exhausted, with its toes coming closer together, running into open spaces, and the hair bristling.
8. The Bay. The animal would stop running, but was still dangerous and could kill dogs coming near it or even attack a horse. The dogs should surround the stag and bay.
9. The Death. The huntsman finished the animal by piercing its neck with a knife or sword. The bowmen may have already shot arrows into the animal, but these generally would not kill it.
10. The Quarry. The hunting books describe the breaking of the deer. The forefoot of the game was presented to the most eminent person present.

Turbervile refers to the fewmets in the second stage as involving the droppings being presented on leaves. The harbourer or huntsman kneels in making the presentation, and likely explains as much as can be said regarding the animal that made them, an ability that would be tested when the animal was ultimately captured. Turbervile summarizes the presentation to the queen in a poem:

“Before the Queene, I come report to make
Then husht and peace, for noble Trystrams sake,
From out my horne, my fewmets fyrst I drawe,
And them present, on leaves, by hunters lawe;
And thus I say: my liege, behold and see
An Hart of Tenne, I hope he harbord bee.
Fir if you marke his fewmets every poynt,
You shall them finde, long, round, and well annoynt,
Knottie and great, withouten prickes or cares,
The moystnesse shewes, what venysone he beares.”

The most honored personage had the authority to choose between the possible prey based on the presentation:

"Afterwardes when all the huntsmen be come together, they shall make their sundry reports, and present their fewmyshings unto the Price or master of the game in field, one after another, every man rehearsing what he hath seene. And when the Prince or other chiefe hath hard them and seene their fewmishings, he or she may then chose which of the Hartes he will hunt, and which he or she thinkes most likely to make him or hir best sport."

After the animal had been killed, one aspect of the Quarry stage was the presentation of the foot to the most eminent person present. Turbervile also describes the first cut as being reserved for this person, and shows the queen being presented with the knife:

“The deare being layd upon his backe, the Prince, chiefe, or such as they shall appoint, comes to it: and the chiefe huntsman (kneeling, if it be to a Prince) doth holde the Deare by the forefoote, whiles the Prince or chief, cut a flyt drawn alongst the brisket of the deare, somewhat lower than the brisket towards the belly. This is done to see the goodnesse of the flesh, and how thicke it is.”

Notice that no two of the queen's costumes are the same. This might support an argument that the cartoons were drawn from life (but I leave such questions to art historians).

Other Game

In addition to deer, Fouilloux and Turberville describe hunting of reindeer, wild goats, boar (which are carefully distinguished from domestic hogs), hare, cony (a type of rabbit), fox, badger (hunted with terriers), otter, wolf (including a discussion of werewolves, which eat man flesh), and bear. Towards the end of his book, Turbervile gives a unique account of coursing with greyhounds, a practice not held in as high an estimation in France as in England, and describes how wagers may be made in competitions.

Thanks to Richard Hawkins and Brian Duggan for sources, thoughts, and corrections.

Additional Sources: M. Thiebaux, The Medieval Chase (1967). Speculum, 42(2), 260-274; Queen Elizabeth I had a hunting lodge that is preserved by the City of London. For brief mention of the forest laws, which would have applied to the Queen's forests, see my piece on Robin Hood.

Bringing Service Dogs Into Schools: Different Facts, Different Courts, Different Results

Two recent cases involving school systems that refused to allow children to attend classes with service dogs produced different results, one court ordering the dog admitted and one court requiring that the parents continue to pursue remedies in an administrative setting before the case would be deemed ripe for a federal trial. The first case, in California, drew a Statement of Interest—effectively an amicus brief—from the Department of Justice. That Statement was cited in the second case, in North Carolina.

The cases have elements other than the law that distinguish them and which might arguably justify different results, but as more cases of this sort reach higher courts, the broader questions may become appropriate for Supreme Court review.

California School District Ordered to Admit Autism Service Dog

In C.C. v. Cypress School District, Case No. 8:11CV352-AG (C.D. Cal. June 2011), a federal district court in California granted a preliminary injunction requiring the Cypress School District to accommodate the use of a service dog by a six-year-old boy diagnosed with autism. The boy was nonverbal, had a low cognitive level, and had great difficulty interacting with others. His autism was regarded as severe. When he became anxious, he would often shriek, pace, plug his hears, laugh inappropriately, and flap his arms. He had begun pinching and scratching people, and started to wet himself at school.

The court maintained the child’s anonymity but press reports have shown him with Eddy, a golden retriever.

In May 2010, C.C. was paired with Eddy, a service dog from Autism Service Dogs of America (ASDA). Eddy had been trained for nearly two years, beginning when he was eight weeks old, and had developed skills specifically relating to C.C., such as interrupting impulsive and destructive behavior, preventing C.C. from running away or wandering off (sometimes called “elopement”). C.C.’s condition was described in testimony of Dr. Stephen M. Shore.

C.C.’s mother requested that the Cypress School District allow C.C. to use Eddy at school, but the District refused the request. Fearing the connection with Eddy might be lost, the parents kept C.C. at home during the last two weeks of the 2009-10 school year, but in the 2010-11 school year C.C. went without Eddy.

C.C. was in a classroom of ten students, all with autism, each of whom had individualized educational goals as required by the Individuals with Disabilities Education Act (IDEA). There were five adult educators in the room, four of whom were Applied Behavioral Analysis-trained aides.

The mother, on behalf of C.C., sued under the ADA, the Rehabilitation Act, the California Unruh Civil Rights Act, violations under various California statutes, and negligence, and moved for a preliminary injunction requiring the school to accommodate C.C.’s request. The federal district court concluded that a preliminary injunction was warranted because of possible irreparable harm in the absence of preliminary relief, the balance of equities, and the public interest.

To determine if the Cypress School District failed to make a reasonable accommodation, the court considered whether Eddy was in fact a service dog, and whether the school’s educational program would be fundamentally altered if Eddy accompanied the child to school. The court reviewed the federal regulations on service dogs, 28 CFR 35.104, and noted that the issue was whether Eddy’s work or tasks were directly related to C.C.’s disability.

The School District argued that Eddy was primarily present to comfort C.C. and that this was not enough to make Eddy a service dog. While there was no doubt that Eddy calmed C.C., the court determined that although this function alone might not qualify Eddy as a service dog, “it certainly does not foreclose the possibility.” Eddy prevented C.C. from elopement and helped prevent him from shrieking and throwing tantrums, both of which, according to the court, qualify as “preventing or interrupting impulsive or destructive behaviors,” under 28 CFR 35.104.

The School District argued that allowing the dog in the classroom would fundamentally alter the nature of the school’s program, but the court found “scant evidence” for this. The school noted that aides in the school would have to learn the commands that Eddy was trained to obey, hold the dog’s leash when navigating the campus, provide Eddy with water, and tether and untether him throughout the day. The court conceded that these requirements might impose some additional expenses on the school but concluded that the School District had “not currently shown that such changes are so drastic that the accommodation request would be unreasonable.”

The court also noted that (1) Eddy did not need to be given water during the school day, (2) was trained not to relieve himself while in school, (3) would only need his leash held when moving from one part of the school to another, and (4) generally required only two commands during the day—“Down Stay” and “Eddy, Okay.” The School District argued that it might be forced to hire additional staff, but the court noted that plaintiff had provided “evidence that no school in which an ASDA dog has been placed has ever had to hire such additional staff.” Presumably the dog was trained to poop and pee on command in the morning before going to the school, so a half-day or slightly longer program would not have required his being taken outside to relieve himself.

The School District argued that having Eddy in the school would impede C.C.’s educational process and independence. The court cited Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947 (E.D. Cal. 1990), which held that whether a service dog enhanced a student’s educational opportunities was irrelevant under the Rehabilitation Act. (Sullivan concerned a student with cerebral palsy, learning disabilities, and right-side deafness.) The court noted that issue of fundamental alteration concerned whether the school would be forced to alter its educational program for the other students with autism. The school argued that it would have to teach the remaining students to ignore the dog and referred to possible canine aggression, but the court described this “fleeting discussion of the impact on other children” insufficient to show that admitting the dog would produce a fundamental change to the school’s program.

The federal court described the School District as appearing to argue that “because Plaintiff is making substantial progress in the program, Plaintiff will not suffer any irreparable harm even if he continues in this program without a service dog,” but the court found this argument unpersuasive. The court noted that C.C.’s “key argument concerning irreparable harm” concerned the bond the child was forming with the dog, which if broken could destroy the potential benefits of the service-dog relationship. As will be discussed below in a case arising in North Carolina, another federal court was less impressed with this argument than the California federal court here.

Nevertheless, the court imposed a $50,000 bond on C.C. before the preliminary injunction became effective. The plaintiff had argued that no bond should be required, and the School District did not address the issue, but the court concluded that there could be costs associated with allowing Eddy into the school. This financial requirement is unfortunate as it would preclude many families from obtaining the relief granted under the principles enunciated in the case.

Department of Justice Files Statement. The Department of Justice filed a Statement of Interest because the suit “implicates the proper interpretation and application of the ADA, Section 504, and related statutory provisions, regulations, and technical assistance materials it has issued, including its regulation defining the term ‘service animal,’ 28 C.F.R. § 35.104, and requiring public entities, including schools, to make reasonable modifications in rules, policies, and practices that are necessary to avoid discrimination, including reasonable modifications to permit the use of service animals by individuals with disabilities.”

The DOJ noted some facts that did not make it into the federal court order:

“C.C.’s life has been filled with isolation, anxiety, and fear, not just for C.C., but for his parents, too…. C.C. became extremely anxious at everyday places, such as the beach, aquarium, stores, or the airport…. Family outings with C.C. required hyper-vigilance to ensure that the manifestations of his disability did not result in injury. After C.C. fled the house and required police assistance to be located and returned home, his parents decided to get C.C. an autism service dog, an investment that cost $14,000, to protect C.C. and help him manage the manifestations of his autism.” (citations to court record omitted)

As to the dog’s training, the DOJ adds:

“Eddy is trained by ASDA to (1) resist by tether when C.C. attempts to elope or bolt; (2) redirect or ground his focus; (3) apply deep pressure when C.C. begins stimming [engaging in repetitive behaviors]; (4) nudge, lick, or otherwise redirect C.C.’s attention when he becomes anxious; (5) remain near C.C. to carry his communications cards; and (6) assist C.C. in his ability to communicate and socialize.”

As to Eddy’s success with C.C., the DOJ noted:

“Eddy enabled C.C. to visit the beach with his family, redirecting much of C.C.’s anxiety…. Eddy also calmed C.C.’s customary anxiety caused by a visit to the doctor…. Even a trip to the airport, an unfamiliar environment that would normally have triggered severe manifestations of C.C.’s autism, occurred with little ordeal due to Eddy’s work…. After years of indecipherable vocalizing, including the inability to say ‘Mom’ or ‘Dad,’ within three months of being matched with Eddy, C.C. said ‘Eddy.’”

The Statement of Interest noted that the ASDA trainer had planned to conduct training for the school’s staff on autism service dogs but the school declined to permit Eddy inside. The court observed that because “Cypress refused to allow Eddy in school, Cypress has no knowledge of how C.C. uses Eddy or how Eddy would behave in school.” Refusing to even let staff learn about the dog, as I discussed in Service and Therapy Dogs in American Society, often influences courts.

The DOJ then describes harm from the separation resulting from the school’s actions:

“In the end, C.C. went to school while Eddy stayed home, and the harm caused by this separation was immediately apparent.... For example, in the first three days, Eddy fled from a school aide and nearly succeeded in boarding the wrong school bus…. Moreover, since school began, the bond between C.C. and Eddy has deteriorated because of the separation…. C.C. is becoming more distant with Eddy and requires more prompting.... Every school day, C.C. loses valuable time when he could be continuing to work and bond with Eddy to increase his safety and quality of life. Because C.C.’s work with Eddy is limited to after school, the bond between the two is dissolving, making the assistance less effective.”

The DOJ observes that C.C. may use a service animal for the rest of his life. Therefore, the failure to form the best bond possible may affect C.C. not only as a student, and while he is going to school, but even afterwards. The Statement of Interest summarizes research on the value of using service dogs with autistic children, and argues that C.C. was discriminated against and a preliminary injunction should issue. The school has remedies in the event that a service animal is out of control or not housebroken.

As to the School District’s fundamental alteration argument, the Statement notes:

“Cypress speculates – since it has not experienced Eddy’s presence in the classroom – that presence of the service animal would fundamentally alter the Individualized Education Programs of other students. This type of reasoning would lead to the erroneous conclusion that a fundamental alteration in the nature of a school’s special education program results whenever one student’s circumstances are significantly modified, in an IEP [individualized education plan] or otherwise, such as a child coming to school for the first time using a wheelchair. This wide-ranging argument is not supported by the ADA. It is hard to imagine any alteration relating to C.C.’s use of a service animal that might be so fundamental that it would alter the nature of Cypress’ special education program, since the program is designed to be highly flexible and tailored so as to meet the needs of individual students with disabilities.”

The DOJ’s Statement is worth reading not only for its significance in this case, but to show what the agency is likely to argue in other service animal situations involving school children.

Failure to Exhaust (Temporarily) Derails Parents’ Efforts to Get School to Admit Service Dog

A four-year-old boy living in Vale, North Carolina, had been diagnosed with “static encephalopathy due to fetal alcohol exposure, Fetal Alcohol Spectrum Disorder (FASD), mild developmental delay, sensory integration difficulties, sleep apnea, insomnia, obsessive-compulsive traits, and some features of pervasive developmental disorder.” The child was also described as having “aggressive and self-injurious behaviors, hyperactivity, lack of impulse control, elopement, and other problematic and dangerous conduct.” As in the preceding case, the child’s initials are used by the court, but press have further identified the child and the parents who adopted him.

As described by the federal district court in A.S. v. Catawba County Board of Education, 2011 WL 3438881 (W.D.N.C. 2011), A.S. began working with Chatham, a service animal, in September 2009. North Carolina provides for registration of service animals and issues registrations to “a person with a disability who makes application for registration of an animal that serves as a service animal or to a person who is training an animal as a service animal.” The law, N.C. General Laws 168-4.3, also provides that the Department of Health and Human Services, which maintains the service animal registry, may itself issue a certification or “accept the certification issued by the appropriate training facilities.” Chatham was Service Animal # 296 in the North Carolina registry, having been trained for 11 months for 4 to 6 hours a day to provide Deep Pressure Therapy through actual physical contact with A.S. “as well as other techniques for redirection.” The court cited documents submitted that A.S. was “generally aversive to human touch” even from his parents and other adults.

A.S. was attending a pre-kindergarten program at Mountain View Elementary School in Catawba County, A group of school personnel and professionals collaborated with A.S.’s parents to devise an Individualized Education Plan (IEP) for A.S. The parents brought Chatham to the attention of the school, but to their disappointment, they were notified six days before the beginning of the 2010-11 academic year that A.S. would not be allowed to have Chatham present with him during the school day. The Catawba County Board of Education apparently questioned whether Chatham was, in fact, a service animal.

The parents alleged that the Board never told them why their request that A.S. be accompanied by Chatham at the school was denied and never spoke to Chatham’s trainer. They then requested a modified schedule to mitigate the “ongoing harmful effects” of A.S.’s separation from Chatham. The Board allowed a pickup of A.S. at noon so that A.S. could nap at home with Chatham.

At some point after the school year began, the IEP team at the school reported that A.S. “made a nice adjustment” and was able to access the programs, facilities, and services of the school to the same extent as the school’s nondisabled children, and that A.S. did not need the service dog in order to benefit from the special education services he was being provided.

The parents sued on behalf of A.S., alleging discrimination under the Rehabilitation Act, the Americans with Disabilities Act, and regulations issued under those Acts. They sought monetary damages for training costs incurred to restore and maintain the service animal’s training during the period of separation.

The school responded by arguing that the parents had not exhausted administrative remedies, as required under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1415(l). Administrative remedies to be exhausted under this provision include an impartial due process hearing to be conducted by the State or local educational agency.

The district court noted that an exhaustion requirement serves two main purposes: allowing an administrative agency an opportunity to correct its own mistakes while discouraging disregard of the agency’s procedures, and resolving disputes much more efficiently and inexpensively than is the case with litigation. Exceptions are allowed by courts to exhaustion requirements if the administrative effort would be futile or would cause severe harm. The court summarized the issue of possible harm as follows:

“The Plaintiff argues hardship in that according to Plaintiff the all important relationship between A.S. and Chatam [the name is usually spelled with an ‘h’ in the case and press reports], established during lengthy training, would be doomed if the dog continues to be excluded from the Plaintiff's presence during school hours commencing with the next school year. The Plaintiff argues that the service dog's presence for A.S. is the only treatment which worked to ameliorate the child's disability, at least in his home environment, in particular to address the problem of his repeated ‘meltdowns.’ It may be that the effectiveness of Chatam as a service dog for Plaintiff's neurological problems would tend to be degraded by the absence of the dog during school hours. It is, however, on the showing before the Court, insufficient as a claim of hardship. In particular, it is insufficient to overcome the evidence supporting the very successful educational program put into place thus far for A.S. The latter has resulted in his marked progress educationally and socially by way of the current Individualized Education Plan (‘IEP’) put into place under the IDEA.”

The meltdowns referred to by the parents involved such behaviors as A.S. banging his head against the floor and other hard objects, biting himself and his clothing, drooling, and pulling his own hair as hard as possible. The court noted, however, that there was evidence that the meltdowns were “subject to successful management by techniques currently applied in the school setting.”

The parents argued that part of the harm coming from A.S.’s separation from Chatham resulted from an increased attachment between A.S.’s mother and Chatham. The parents produced an expert, but his testimony on the issue was that research was conflicting as to whether increased bonding between the mother and the dog might detract from the dog’s benefits to A.S. The court also noted there were five other siblings living in the home, making this environment different from that of the school. Autism service dogs are somewhat atypical in that the commands of a handler, usually a parent, must direct the dog, but the commands of the child must often be ignored.

The parents argued that exhaustion arguments had been denied by two other courts, Sullivan v. Vallejo City Unified School District and C.C. v. Cypress School District, the first case discussed above. The federal district court in North Carolina, however, found that both these California cases “fail to adequately address how a litigant escapes the express mention of claims brought under the ADA and Section 504 within § 1415(l) [of the IDEA].” The North Carolina federal district court also referred to the Statement of Interest filed by the Department of Justice in C.C. v. Cypress School District, but noted that DOJ’s filing had to do with the merits of the cause of action there, not the procedural issue before it regarding A.S.

The district court granted the school board’s motion to dismiss, but without prejudice, meaning that this case may continue after an administrative hearing (or potentially an appeal to the Fourth Circuit).

Can the Cases be Distinguished?

It could be argued that the two cases present largely identical facts that were decided differently because of the effectiveness of the lawyers or because of differences in the philosophies of the judges before whom the matters were brought. That might, however, be somewhat simplistic. The first case refers to a clear decline in the student’s mental condition as a result of his not being able to attend school with his dog, while the second case appears to involve a student who improved despite the absence of his service dog.

The federal court in North Carolina saw the issue before it as primarily procedural, while the federal court in California looked directly at the child and the harm suggested by the evidence. Since the North Carolina case, at least as described in the court’s opinion, involved a child who continued to improve despite the separation from his service dog, the court apparently felt that some delay was acceptable. The Department of Justice would disagree, having argued in California that the use of a service dog was, as with other aids available to a disabled person, up to that person or his guardians. The fact that the child might improve scholastically without the dog was irrelevant given that the child’s ability to use the dog outside the school, or to use dogs in the future after the individual was finished with school, would be harmed by the increased difficulty in forming the necessary bond from being deprived of a relationship with the the dog in the classroom. This argument, clearly stated in the DOJ’s Statement of Interest, essentially applies the general principles of access law for service animals to schools. The approach of the federal court in North Carolina allows the possibility of distinguishing school environments from most places of public accommodation.

It must be doubted whether the North Carolina court would have taken the same approach with a guide dog. The regulations issued by the Department of Justice put all service dogs, even psychiatric service dogs, on the same plane when it comes to assessing access provisions. Yet the North Carolina school was permitted to make such a distinction, even if only for a procedural reason. Nevertheless, the court must have considered that the hearing was not useless, that it could somehow justify continued separation of the boy from the dog. It seems unlikely that this result can be justified under any current interpretation of the relevant disability law. A specialized school for the blind might insist that students use white canes instead of dogs, but this would presumably not occur without the possibility of a reasonably accessible school permitting guide dogs. Such a situation would involve a fundamental alteration and would not be analogous to that in the North Carolina school.

Regardless whether comparing these two cases is a matter of apples to apples or apples to oranges, the California federal court has the better reasoning. Having been consulted in other cases (none of which reached trial), I have come to believe that the disputes often arise when a school district’s administrators, or those influencing those administrators, have a knee-jerk skepticism about the benefits of service dogs. When the initial presumption is that the parents are trying to send a pet to school, the reaction will often be negative since some administrators do not understand that service animals are not pets. A school that does not even allow its staff to encounter the dog and its trainer in advance of a placement is prejudging the value of the dog.

The fact that these courts are not agreeing, and others are facing similar issues, may mean that this will eventually become a matter for the U.S. Supreme Court.

For a recent article about ways dogs are helping in schools, see the piece posted on the website of Online Colleges, 9 New Ways Schools Are Using Dogs. Thanks to Jasmine Hall for bringing this to my attention.

Wednesday, August 3, 2011

VA Plans Outsourcing Service Dog Certification, Ignores PTSD Dogs, Will Fund Only 100 Dogs a Year

Reference Note: This blog was cited by Alma Nunley in an article criticizing the VA's decision not to provide service dogs for veterans with mental disabilities.Service Dogs for (Some) Veterans: Inequality in the Treatment of Disabilities by the Department of Veterans Affairs. Quinnipiac Health Law Journal, 17, 261-291 (July 2014). 

Update: Final rules were posted in the Federal Register of September 4, 2012.  The VA made only cosmetic changes to its initial proposal, but did indicate that the rules were not intended to provide access procedures to VA facilities.  Whether VA hospitals and Army posts that used the proposed rules as access guidance will reconsider this approach remains to be seen. As noted by Christine Stapleton in The Palm Beach Post of September 4, none of the major problems with the original issuance were seriously dealt with. The final rules will be analyzed in detail here in the next week.  

The Veterans Administration has proposed rules that would define the circumstances under which a veteran may qualify for VA funding in obtaining and maintaining a guide dog, hearing dog, or mobility impairment dog. The dog would, in the future, have to be trained by a member organization of either Assistance Dogs International (ADI) or the International Guide Dog Federation (IGDF). Considering that the VA is anticipating only funding 100 dogs a year, this means that only a negligible number of veterans in need of service dogs are actually going to get them with VA financial support.

The VA puts off consideration of whether it will approve service dogs for veterans with PTSD and other mental illnesses, but the parsimony displayed here is likely to mean that few veterans will in the end receive financial support for such dogs.

Many providers of service dogs to veterans, including members of ADI and IGDF, depend primarily on private donors for the funds to train service dogs and to adapt them to their veteran handlers, and the low level of VA funding assures that this will continue to be the case. Providers not accredited by ADI and IGDF should not assume, however, that the VA’s blessing of these two accreditation groups will not have an impact on their funding sources. Donors, health care professionals, and even other federal agencies may be influenced by the VA’s determinations in choosing beneficiaries for charitable donations and in awarding grants.

History of Service Dogs and the VA

The Veterans Administration was empowered by Congress (38 U.S.C. 1714) to provide guide dogs for blind veterans in 1958 (PL 85-857). In 2002 (PL 107-135), this authority was expanded to included “service dogs trained for the aid of the hearing impaired” and “service dogs trained for the aid of persons with spinal cord injury or dysfunction or other chronic impairment that substantially limits mobility to veterans with such injury, dysfunction, or impairment.” In 2009 (PL 111-117), the VA’s authority was expanded to include the ability to provide veterans with “service dogs trained for the aid of persons with mental illnesses, including post-traumatic stress disorder.”

As early as 1961 (26 Fed. Reg. 5872, June 30, 1961), VA regulations stated:

“Blind ex-members of the Armed Forces entitled to disability compensation for a service-connected disability may be furnished a trained dog-guide. In addition, they may be furnished necessary travel expense to and from their places of residence to the point where adjustment to the dog-guide is available and meals and lodging during the period of adjustment, provided they are required to be away from their usual places of residence during the period of adjustment.” (38 CFR 17.154)

The VA is also authorized to provide mechanical and electronic equipment to recipients of guide dogs, which has included hardware required by the dog, such as a halter.

VA Inspector General 2010 Reports

In the VA Inspector General’s Semiannual Report to Congress for the period ending September 30, 2010, the IG noted the VA’s difficulties in getting non-guide service dogs to veterans:

“OIG evaluated VHA’s progress in providing guide and service dogs to qualified Veterans. While VHA has assisted visually impaired Veterans in obtaining guide dogs for several decades, VHA only began assisting mobility and hearing impaired Veterans with service dogs in 2008—6 years after originally being authorized. Since 2008, VHA’s authorization of service dogs has been limited to only eight Veterans. VAMCs lack sufficient guidance to ensure consistent decisions on Veterans’ requests for service dogs. Additionally, VHA is unsure of the actual demand for service dogs and is in the process of determining the appropriateness of using service dogs to assist Veterans with mental impairments. OIG recommended that VHA issue comprehensive interim guidance until VHA’s draft regulation addressing service dogs is finalized. The Under Secretary for Health agreed and stated that immediately after the draft regulation is published, VHA will issue a directive defining VHA’s policy on issuing service dogs.” (emphasis added)

An audit report published July 7, 2010 (10-01714-88) states that from October 1, 2008, through March 31, 2010, VA “paid for veterinary care and equipment for over 230 guide dogs for visually impaired veterans…. VA medical center PSAS staff authorizes guide dogs for the visually impaired veterans. If authorized, the veteran obtains the dog from an accredited, nonprofit organization with no charge to VA or the veteran for the dog. Eligible expenses are billed directly to the veteran’s VA medical center. From October 1, 2008 through March 31, 2010, VHA paid about $243,000 for eligible expenses or about $870 per dog in FY 2009.”

The national director of PSAS (Prosthetics and Sensory Aids Service, a VA unit) told the IG’s staff “he was not receiving many requests for service dog benefits, no wait list for authorization existed, and he was not sure what additional demand for service dogs existed. Also medical center personnel could not provide us the number of veterans who were previously denied a service dog, or an estimate of veterans who may benefit from the assistance of a dog in the future.”

The VA IG contacted four organizations and found that they had provided 72 veterans with service dogs, as follows: Canine Companions for Independence (CCI) (28), America’s VetDogs (25), Paws With a Cause (12), and Kansas Specialty Dog Service (KSDS) (7). CCI, Paws With a Cause, and KSDS are full members of Assistance Dogs International; Amerca’s VetDogs was founded by the Guide Dog Foundation, a member of the International Guide Dog Federation. The IG’s report notes that it did not verify whether the veterans being provided dogs by the programs actually qualified for benefits.

The Inspector General detailed the following situations indicating problems with the VA’s provision of service dogs:

• Two veterans applying for benefits for a seizure alert dog to treat epilepsy received different results. A veteran at the Indianapolis VA Medical Center received approval for a seizure alert dog in January 2010. The approval record stated that a seizure alert dog is “a reasonable treatment option.” However, that same month, a veteran at the Washington DC VA Medical Center received a denial for a seizure alert dog because epilepsy did not result in mobility limitation and seizure alert dogs “do not meet criteria for VA support.
• A mental health coordinator at the Columbia VA Medical Center suggested to mental health patients that getting a service dog would be beneficial and that VA could pay for some of the expenses. However, in March 2010, the PSAS coordinator at that facility told veterans not to apply for benefits because he had received guidance from VHA stating that VHA was not authorizing service dogs for mental health disabilities.

Proposed Regulations

Now, the VA is proposing rules that would flesh out the meaning of its statutory authority to provide service dogs other than guide dogs (76 Fed. Reg. 35162, June 16, 2011). The VA emphasizes that it may provide service dogs to veterans, “but is not required to do so.” The VA estimates that only about 100 veterans will obtain service dogs each year and expects that submitting certification information will require “5 minutes per veteran.” This is wildly optimistic, even excluding the time the veteran must take to obtain the information that is to be sent to the VA. (As someone who commented on IRS regulations while Chair of the Banking and Savings Institutions Committee of the American Bar Association Tax Section, I am well aware that time estimates in proposed federal compliance regulations are always low and generally fanciful.)

In an effort at regulatory efficiency, the VA will remove the current regulation on guide dogs and combine everything into a single service dog regulation, 38 CFR 17.148. The proposed rule would offer the same travel benefit as was previously offered for veterans going to get guide dogs, and would clarify the VA’s interpretation of its statutory authority as including the provision of veterinary benefits for veterans receiving qualified service dogs.

Qualification for Service Dog Benefits. The VA establishes clinical requirements for service dog benefits. A veteran would have to have a visual, hearing, or substantial mobility impairment supported by a VA clinician’s medical judgment that “it is optimal for the veteran to manage such impairment and live independently through the assistance of a trained service dog.” The VA clinician would have to assess whether there were other means for providing such independence, such as technological devices or rehabilitation techniques. If such means are available, the VA states without hesitation that it “will not authorize benefits under this section.”

This observation must be correlated with the VA Inspector General’s July 2010 audit of the guide and service dog program, which quoted the PSAS national director as stating that, prior to 2008, VA guidance “to medical center personnel was to deny requests for service dog benefits. Since 2008, VHA’s guidance has been to use service dogs after considering other options.” The VA will, apparently, only approve a service dog if the dog can “effectively perform a task that cannot be achieved through assistive technology or daily living aids.” Even though the Chief Medical Officer in a conference call of February 2010 encouraged directors to inform clinicians that the VA supports service dogs, minutes of the call indicate that no definitive criteria existed and the CMO reiterated prior guidance indicating that other options should be considered first.

Mobility Impairment. A substantial mobility impairment would, under the proposed rules, be a spinal cord injury or dysfunction or other chronic impairment substantially limiting mobility, analogizing this to the requirements for providing a guide dog:

“In providing guide-dog benefits, Congress intended to assist a group of veterans whose visual impairment prevents them from physically moving about in society. In providing service-dog benefits for veterans with hearing or spinal cord injuries or other chronic impairment that substantially limits mobility, Congress intended to help veterans with physical limitations. Both of these benefits increase a veteran’s overall ability to move independently and safely in his or her home, community, or both. However, the statute is silent as to a veteran who can see and who does not have an injury that prevents full range of motion but who nevertheless cannot move independently and safely in his or her home, community, or both. Therefore, we would interpret chronic impairment that substantially limits mobility to include, but not be limited to, disabilities such as a traumatic brain injury that compromises the ability to make appropriate decisions based on environmental cues such as traffic lights or a seizure disorder that renders a veteran immobile during and after a seizure event.”

Specific Accreditation Organizations Approved. The VA specifies that it would only recognize service dogs obtained through organizations accredited by Assistance Dogs International (ADI) or the International Guide Dog Federation (IGDF). The two organizations have a joint protocol, as the preamble to the proposed regulations explains in detail:

“ADI does not accredit organizations that provide guide dogs— ADI only does so for service-dog organizations that train dogs to perform services for individuals with conditions other than blindness. Accreditation of guide-dog programs is done by IGDF, with whom ADI has a joint protocol. ADI will only accredit guide-dog programs if they are also involved in training service dogs, and even then ADI accredits only that portion of the training related to service dogs—IGDF accredits the guide-dog portion. IGDF does not accredit any non-guide dog programs.”

The VA explains its deferral to these private organizations as being due to the absence of federal regulations governing guide or service dogs and its own lack of expertise in the area. The absence of federal regulations may be a criticism of the Department of Justice, which specifically avoided choosing outside help in this manner, going rather towards a functional approach (75 Fed. Reg. 56272):

“Certain commenters recommended the adoption of formal training requirements for service animals. The Department has rejected this approach and will not impose any type of formal training requirements or certification process, but will continue to require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability. While some groups have urged the Department to modify this position, the Department has determined that such a modification would not serve the full array of individuals with disabilities who use service animals, since individuals with disabilities may be capable of training, and some have trained, their service animal to perform tasks or do work to accommodate their disability. A training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources.”

Since the VA continually emphasizes the discretionary aspect of its authority, it is apparently less concerned with limitations on service dog benefits that might result from its approach. The release states that the VA believes “most service-dog providers that provide dogs to veterans are already accredited in accordance with the proposed rule.” The Secretary of Veterans Affairs, to meet Regulatory Flexibility Act (5 U.S.C. 601-612) requirements, certified that the proposed rule “would not have a significant impact on a substantial number of small entities as they are defined” in that Act. The definition of “small entity” includes small businesses and small organizations. Since ADI does not include for-profit organizations, it must be questioned if this certification could withstand scrutiny. One organization that trains dogs for veterans calculated that there are no ADI programs in 22 states.

Service Dogs Obtained Prior to Current Regulations. Veterans who obtained service dogs before the current regulation is finalized could keep their dogs, and such benefits they qualify for, by providing a certificate showing the veteran and dog completed a training course with an organization in existence at the time:

“We would allow veterans who obtained dogs through such non-accredited organizations up to 1 year after the effective date of this rule to obtain the required certification. Alternatively, the veteran and dog could obtain the certification from ADI or IGDF….”

This seems to mean that a non-ADI-or-IGDF organization could retroactively certify a service dog, but that if this avenue was not open (say the organization no longer exists), the veteran could obtain a certification by going to an ADI or IGDF organization. This would obviously involve some testing and the VA should make sure that ADI and IGDF provide mechanisms for such shortened certification procedures.

The VA estimates that about 600 existing service dogs will need to be certified. Given the VA Inspector General’s finding of 230 guide dogs and eight non-guide service dogs since 2008, it must be assumed that almost all of these 600 applicants will have guide dogs. It is not clear where the number 600 came from, though if 230 is the number of guide dogs provided over a two-year period and the working life of a guide dog is somewhere around eight years, the estimate seems reasonable.

Expenses VA Will Cover, and Expenses It Will Not Cover. Although the VA will cover veterinary treatment and hardware related to the service dog, and travel expenses associated with obtaining the dog, it does not intend to provide assistance for “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 expressly prescribed by regulation.”

Insurance Policy for Veterinary Care. Veterans would be able to obtain insurance to cover veterinary care for service dogs as the VA acknowledges that it lacks “the resources to review whether a veterinarian is appropriately licensed or charges appropriate fees for veterinary care.” The VA would pay “any premiums, copayments, or deductibles associated with the insurance policy,” and the VA would be billed directly for these expenses. Policies would be subject to an annual cap:

“Annual caps are a common limitation on insurance policies for service dogs, and we intend to rely on the reasonable cost-control methodologies calculated by experts in the field of veterinary insurance. When determining which companies to form relationships with, of course, VA will carefully review the maximum amounts authorized for particular procedures, as well as any annual caps on expenditures, to ensure that our veterans are getting the best insurance plan possible. To further protect veterans, we would require that the policy ensure advance notice whenever reasonably possible that a particular treatment may exceed the policy’s limits. Obviously, it may not be possible to provide advance notice when an animal requires emergency care; however, where a veterinarian prescribes a future treatment event or an ongoing course of treatment, the insurer should be expected to notify the veteran that he or she may have some financial responsibility. Proposed paragraph (d)(1)(ii) would require that the policy guarantee coverage for all treatment, subject to any annual caps that may be in place under the policy, including euthanasia, so long as it is determined to be medically necessary by a veterinarian recognized by the insurance carrier. This is to ensure that the policy does not exclude medically necessary treatment. Proposed paragraph (d)(1)(iii) would bar policies from excluding dogs with preexisting conditions that do not prevent the dog from being a service dog.”

The VA states categorically that, no matter what happens, it “will not take possession of, or responsibility for, the dog under any circumstances.” With many organizations providing service dogs this will not be a problem as they retain ownership of the dog during its service life.

Dog Not Performing as Service Dog. The VA is concerned about being hoodwinked, and requires that if the VA learns from any sources that the dog is not performing an assistive role, or that the veteran no longer needs the dog from a clinical perspective, it will give the veteran a 30-day notice of termination of benefits. The VA will not provide benefits for two dogs simultaneously, so the VA must first terminate coverage for a dog no longer performing service dog duties before it will cover the training of a new dog to perform those services.

Effects of Blessing Two Umbrella Accreditation Organizations

The VA Inspector General, in July 2010, stated that the VHA signed a Memorandum of Understanding with Assistance Dogs International “to gain their assistance in preparing educational materials for providers and veterans.”

Assistance Dogs International lists about 80 organizations as accredited members and even more than that as candidates. Candidates have seven years to satisfy ADI that they should become full members, after which they must, according to the ADI website, “show due cause to the Board of ADI as to why they should remain a Candidate and outline a clear timetable of how and when they will be ready for accreditation.” The International Guide Dog Federation lists ten organization members in the U.S., but does not list any organizations seeking admission, though the IGDF website does provide a membership application on the FAQ page.

The VA’s rulemaking will create pressure on ADI candidate organizations providing service dogs to veterans to become full members, since lack of accreditation will mean ineligibility to receive payments from the VA. ADI candidates would be well advised to seek a letter from the VA stating their qualification for VA support as long as their candidacy remains active.

One comment received by the VA on its rules release is the Educated Canines Assisting With Disabilities (ECAD), a 501(c)(3) organization and member of ADI for 12 years. (The ADI website apparently lists the organization under East Coast Assistance Dogs but with the same acronym.) ECAD’s comment states that “at this point ECAD has placed seventeen Service Dogs with Veterans, some with loss limb/s, back injuries, TBI, and/or PTSD. The VA has paid for only one Veteran, after which the VA informed ECAD not to apply again, because they are not paying for Service Dogs.” ECAD notes that its placements exceed the total number of non-guide dog placements funded by the VA.

Organizations that have not applied for recognition by ADI may nevertheless find it difficult to remain outside of the ADI system. Philanthropists who give to service dog organizations may be influenced by the VA’s actions, particularly if support of veterans is important to them. Even organizations not looking for VA support for their work may feel pressured to join ADI because of donor concerns and the possibility that other federal agencies may (officially or not) be inclined to follow the VA’s lead in relying on these two umbrella organizations.

The ADI Accreditation Procedures posted on the organization’s website provide for appeal of a failure to pass the accreditation survey to the ADI Board, but the Procedures state that the decision of the ADI Board is final. While it must be assumed that the two organizations operate honorably and efficiently, the organizations are international and it would appear to be difficult for the VA to audit those procedures either on a regular basis or in following up on a complaint by an organization that was denied approval. There would apparently be no separate evaluation in such a situation by VA personnel, and it is not clear that the VA has required or asked for any authority to investigate a Board decision. Any memorandum of understanding between the VA and either ADI or IGDF should be made public and should be posted on an easily accessible section of the VA's website.

Exclusion of Psychiatric Service Dogs

The proposed regulations provide no mechanism by which veterans can obtain psychiatric service animals. The VA feels no need to deal with this now, however, and explains:

“In 2009, Congress authorized VA to provide service dogs for the aid of persons with mental illnesses by amending section 1714. Although VA welcomes the possibility that trained dogs may provide valuable services to veterans diagnosed with certain mental illness, at this time we do not have any scientific data to determine, from a purely clinical standpoint, whether or when service dogs are most appropriately provided to veterans with mental illness, including post-traumatic stress disorder. In the National Defense Authorization Act for Fiscal Year 2010, PL 111–84 (2009) [§ 1077] , Congress mandated a 3-year study on the effectiveness of dogs for mental health purposes. The results of this study will help us learn more about the services that trained dogs can provide for veterans diagnosed with mental health conditions. Upon the completion of the study and analysis of its results, VA may revise its regulations in order to provide this service to our veterans.”

The rules release makes no mention of the statement of the Senate Appropriations Committee directing “the Department [of Veterans Affairs] to continue assisting those veterans with mental illnesses, including Post Traumatic Stress Disorder, who would benefit from having a service dog.” The Appropriations Committee, unfortunately, may in the next sentence have given the VA the excuse for delay: “The Committee urges the Department to consult with nonprofit organizations with expertise in the training and provision of service dogs and education in the use of service dogs in order to review current policies and regulations.” (Senate Report 111-226, July 19, 2010, at 50).

The House Committee on Appropriations, also not mentioned in the VA release, was more emphatic:

“The Committee is disturbed by the Department’s slow pace in implementing its new authority to provide service dogs to veterans with mental impairments, including post-traumatic stress disorder. The Committee understands that the VA is providing fewer than ten guide dogs to veterans and no service dogs for veterans with mental impairments. The Committee directs the VA to finalize regulations governing such a program by September 1, 2010 and to report to the Committee the operational details of the program established.” (House Report 111-559, July 22, 2010, at 46)

The PTSD Research Quarterly, 22(2) (2011), described one study finding a rate of 21.8% of PTSD in veterans of Operations Enduring Freedom and Iraqi Freedom. The proportion of vets who would be helped by service dogs would only be a guess, but I suspect few would put this as low as 100 per year. (See statement of Senator Charles Schumer regarding the VA "dragging its feet in providing disabled vets with service dogs.")

The VA’s decision on psychiatric service dogs has already caused consternation among veterans. As one organization commenting on the proposed rules, Educated Canines Assisting With Disabilities, stated: “Veterans with whom we work say they do not need three years for the survey—they know the Service Dogs work and they need these Service Dogs now.”

What Commenters Are Saying

One organization commenting on the proposed rules, Happy Trails Service Dogs, Inc., states that it was a member of ADI for over ten years, but chose to terminate its membership after the ADI administration changed and the accreditation manual was developed. The executive director of this organization, Joyce Weber, notes that restricting veterans to ADI and IGDF “would be like telling someone they are eligible for Food Stamps but are only able to spend them at one particular store no matter how convenient or inconvenient that may be.” Another commenter argues that the ADI application fee and the expenses for completing the application process will often be prohibitive for a small organization placing perhaps six to ten dogs per year.

A number of commenters on the proposed regulations observe that for-profit organizations are not eligible for ADI membership. One commenter notes that for-profit groups do not necessarily charge more for service dogs than not-for-profit organizations, and another commenter argued that for-profit groups often charge less. It is to be noted, however, that not-for-profit groups will not at least directly have costs covered by charitable donations.

One commenter suggests that the VA provide some mechanism by which the VA should approve self-trained service dogs. Presumably, this might be possible were the VA to expect ADI and IGDF organizations to provide certifications to previously trained dogs, much as is suggested in the preamble regarding dogs trained by non-ADI and non-IGDF organizations. Again, it would be important for the VA to be capable of auditing such procedures. Several comments note that the VA’s approach is not going to reduce the long wait time most applicants endure before they get a service dog.

It is not clear that the VA previously considered a number of issues raised by commenters, such as the capacity of for-profit groups to train service dogs and the fact that many smaller service dog training organizations will find membership expenses of ADI prohibitive. Whether the agency will look at these issues may depend on the number of comments received, or not.

Comments, including one by me, may be accessed on the regulations.gov website.

Conclusion

The VA is seeking comments on the proposed rules by August 15. Although the two organizations blessed by the VA are likely to be happy with a recognition not granted by the Department of Justice, if only 100 veterans a year get dogs with VA support, it is something of a Pyrrhic victory. Presumably about half of those dogs or more will be guide dogs, given the pride of place that such dogs and their organizations have in the service dog world. That means that organizations within the ADI can expect no more than one or two veteran placements, and most will get none at all. Organizations not full members of ADI and IGDF will likely be left out from VA support in the future, and may find it increasingly difficult to get private donations even if they have no expectation of VA support.

Worse, the rule does not bode well for veterans themselves. VA clinicians will be under pressure to limit service dog approvals, and veterans will find themselves obligated to go outside the system. Even when regulations for service dogs for PTSD and other mental illnesses are eventually issued, the number of vets getting the dogs will almost certainly be a small fraction of those needing them.

The proposed regulation is reproduced in full below.

§ 17.148 Service dogs.
(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) A VA clinician determines based upon medical judgment that it is optimal for the veteran to manage such 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.
(2) Dogs obtained before [date of publication of final rule in the Federal Register] will be recognized if a guide or service dog training organization in existence before [date of publication of final rule in the Federal Register] certifies that the veteran and dog, as a team, successfully completed, no later than [date 1 year after date of publication of final rule in the Federal Register], a training program offered by that training organization. The veteran must provide to VA a certificate showing successful completion issued by the organization that provided such program. Alternatively, the veteran and dog will be recognized if they comply with paragraph (c)(1) of this section.
(d) Authorized benefits. VA will provide to a veteran enrolled under 38 U.S.C. 1705 only the following benefits for one service dog at any given time in accordance with this section:
(1) A commercially available insurance policy that meets the following minimum requirements:
(i) VA, and not the veteran, will be billed for any premiums, copayments, or deductibles associated with the policy; however, the veteran will be responsible for any cost of care that exceeds the maximum amount authorized by the policy for a particular procedure, course of treatment, or policy year. If a dog requires care that may exceed the policy’s limit, the insurer will, whenever reasonably possible under the circumstances, provide advance notice to the veteran.
(ii) The policy will guarantee coverage for all treatment (and associated prescription medications), subject to premiums, copayments, deductibles or annual caps, determined to be medically necessary, including euthanasia, by any veterinarian who meets the requirements of the insurer.
(iii) The policy will not exclude dogs with preexisting conditions that do not prevent the dog from being a service dog.
(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. To obtain such devices, the veteran must contact the Prosthetic and Sensory Aids Service at his or her local VA medical facility and request the items needed.
(3) Payments 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 clinician under paragraph (b) of this section. Payments will be made as if the veteran is an eligible beneficiary under 38 U.S.C. 111 and 38 CFR part 70, without regard to whether the veteran meets the eligibility criteria as set for in 38 CFR part 70.
(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, petsitting 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.
(e) Dog must maintain ability to function as a service dog. To continue to receive benefits under this section, the service dog must maintain its ability to function as a service dog. If at any time VA learns from any source that the dog is medically unable to maintain that role, or VA makes a clinical determination that the veteran no longer requires the dog, VA will provide at least 30 days notice to the veteran before benefits will no longer be authorized. (Authority 38 U.S.C. 501, 1714)

§ 17.154 Equipment for blind veterans.
VA may furnish mechanical and/or electronic equipment considered necessary as aids to overcoming the handicap of blindness to blind ex-members of the Armed Forces entitled to disability compensation for a service-connected disability.