On January 30, the Army Medical Command at Fort Sam Houston, Texas, issued a memorandum to provide guidance on the use of service animals, animal assisted therapies, and animal assisted activities in healthcare settings. The memo applies to “all medical treatment facilities (MTF) using animals in healthcare setting (Service Dog programs, Animal Assisted Therapies (AAT) and Animal Assisted Activities (AAA).”
The memo is not just medical or institutional in its applicability, however, since it also specifies that it applies to “recovering service members, Warriors in Transition, eligible members with disabilities, and all other applicable beneficiaries treated within Army MTFs [family members of active duty personnel, etc.], regardless of component or duty status.” The concluding phrase means that just about anyone in the Army with any condition being treated is covered by the policy. The policy memo states that policies and procedures are to be established by local commanders “that are commensurate with this memorandum.” It thus appears that some variation in the application of the policy may be acceptable, and the recent reports about Fort Bliss may not be found at other military bases. (Since this blog was originally posted this morning, I have been advised that there have also been incidents at Fort Carson, Colorado, and Fort Benning, Georgia.)
The “proponent” of the policy is the Chief, Clinical Services Division, Office of the Assistant Chief of Staff for Health Policy and Services. This position is filled by, and the memo is signed by, Herbert A. Coley, who holds a Masters in Health Administration from Baylor University.
The effect of the policy memo is to limit the availability of service animals to returning soldiers and other military personnel by making the process of obtaining a service dog overly complicated and burdensome, as well as severely restricting the channels through which service animals can be obtained. There are many people now trying to help soldiers returning from war zones to obtain service animals to help them deal with physical and psychological injuries, and their efforts are already being made more difficult because of this policy memo.
Defining Service Animals
The memo appropriately begins with a definition of “service animals/service dogs,” stating:
“As defined by 42 USCS §§ 12101 et seq., a service animal is “any dog (the Americans with Disabilities Act [ADA] specifically defines service ‘animals’ as ‘dogs’) 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.”
The definition is correct, but is taken from a regulation (without the parenthetical), not the U.S. Code. The full definition is perhaps worth considering:
“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 purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. 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.” (28 CFR 36.104)
The policy memo specifically cites the italicized language in the last sentence of the definition. It is to be noted, however, that the Department of Justice contemplates service dogs, not just emotional support animals, for individuals suffering from PTSD, noting in the preamble to the above regulation (75 Fed. Reg. 56269) that tasks performed by psychiatric service animals include “providing safety checks or room searches for persons with PTSD.”
Applicability of Americans with Disabilities Act
The memo states that neither the federal government nor the Army are covered under the regulations issued with regard to service animals, but insists that “it is the commander’s intent that MEDCOM facilities abide by these provisions to as great a degree as is practicable and when such adherence does not hamper readiness.”
The memo then states that designating a dog as a “service animal” or “service dog” has “significant implications.” It should be noted that the ADA regulations, though specifying that service animals are dogs, did not adopt the term “service dog” to replace “service animal.” This may be due to the fact that the Department of Justice recognizes that certain miniature horses perform guide functions, much like guide dogs, and though not labeling them service animals, the Department has provided for their being treated in most respects as service animals and may ultimately designate them as such in a future revision of its regulations.
The significant implications of a service animal designation are then specified in the Army memo:
(a) It invokes the protections of the ADA, as well as the rights of access to public buildings and programs conferred by federal statute. Within the MEDCOM, it is the commander's intent that such access include (but not be limited to) hospitals, treatment facilities, recreational facilities, barracks, and other structures.
(b) It implies that the individual (service member or beneficiary) maintains possession of the dog, which has been "individually (specifically) trained" to assist with the needs of that particular individual. Therapy animals and activity animals remain within the possession of therapists, providers, and third-party owners; animals that do not meet the definition of a "Service Animal" yet remain in the possession of an individual service member or beneficiary are defined as "Companion Animals" or "Pets" for purposes of this policy.
(c) Individuals requiring a Service Dog generally are expected to require such dog for an extended period of time (typically for life). Such a requirement renders a service member non-deployable.
The first paragraph would seem to mean that access rules for service animals would apply to health care facilities, barracks, and anywhere else. So far so good.
The second paragraph (b) is more problematic. The second sentence refers to therapy animals and activity animals that “remain within the possession of therapists, providers, and third-party owners.” These are not service animals. From my own experience with a therapy dog, I am aware that the ADA does not require that a hospital admit me with Chloe, though most are more than happy to do so. Later paragraphs in the memo elaborate on therapy animals and animal-assisted therapy, but I will not discuss this category further.
The last sentence in (b) is arguably correct, but neglects to consider that emotional support animals under certain circumstances, such as housing situations under the Department of Housing and Urban Development, entitle their owners to access rights that would not apply to pets. A later paragraph provides a comprehensive definition of “companion animals, emotional support animals, pets” and states that these do not meet the definition of a service animal and that the “terms are synonymous for the purposes of this memorandum.” Thus, the fact that the Department of Housing and Urban Development and the Department of Transportation separate emotional support animals from pets is ignored. (The Fair Housing Act applies to off-base housing, so presumably some Army commanders are familiar with its requirements.)
The third paragraph (c) appears to be a military decision. One would not expect service members with service animals to be deployed for combat duty, but it is not clear that service members could not perform many responsibilities despite having service animals. That is a major reason for the ADA rules on service animals in the first place.
The policy memo also defines “service-dogs-in-training” as dogs “undergoing a period of training designed to lead to their ultimate employment as Service Animals.” The memo provides that service-dogs-in-training “may be granted access to barracks facilities associated with MTFs on a case-by-case basis in order to facilitate goal-oriented therapy for Warriors anticipating discharge.”
Responsibilities of Regional Medical Commands
The policy provides that medical treatment facilities are to establish and monitor policies regarding the use of animals, and to “[m]onitor and track service animal employment.” Data is to be collected “in order to gauge the effectiveness of animals on patients’ quality of life and therapeutic success.” MTFs are to quantify the demand for service, AAT, and AAA animals, and also record complaints regarding animal behavior. They are to record the “disposition of service members following prescription of a service dog (discharge from or retained on active duty).” It is not clear if this is deemed consistent with the prior non-deployment language for individuals with service animals.
The policy memo provides that the U.S. Army Public Health Command is to provide “authorized veterinary care for privately-owned service dogs in accordance with (IAW) AR 40-905.” Army Regulation 40-905 lists authorized veterinary health services for, among other animals, Military Working Dogs and Military Working Horses. It is not clear whether a service member with a dog that was obtained without going through the Army’s procedures could get any assistance for the animal, but given the tone of the memo, this does not appear to be assured.
Service Dogs for Active Duty Service Members
For service members on active duty, command approval is necessary to obtain a service dog. In the PULHES categories (an acronym for: Physical capacity/stamina, Upper extremities, Lower extremities, Hearing/ear, Eyes, Psychiatric (military physical profile)), an active duty service member must have a Permanent 3 profile. Thus, the individual must have “significant defect(s) or disease(s) under good control, not requiring regular and close medical support,” and more importantly, “capable of all basic work commensurate with grade and position.” Again, deployment of some sort seems possible.
The Army wants to make it clear that personnel cannot judge for themselves that they need a service animal, stating:
“Further suitability of an eligible beneficiary for a Service Dog will be determined by a multi-disciplinary team (MDT) led by the beneficiary's primary care manager (PCM). This team would ideally include other healthcare professionals such as (but not limited to) behavioral health providers, physical therapists, occupational therapists, Physical Evaluation Board liaison officers, Veterans Affairs Military Services coordinators, veterinarians, and WTU staff.”
The multi-disciplinary team is to consider “whether a Service Dog would likely mitigate a specific disability.” If this determination is made, the “beneficiary” is to be referred to “an accredited service animal provider.” The primary care manager is to prescribe the service dog for the service member.
Obtaining a Service Dog
To get a service dog, an eligible service member—i.e., one who meets the qualifications and has gone through the procedures described in the previous paragraphs—must receive orientation and training from “approved providing/procurement organizations prior to taking possession of a Service Dog.”
The U.S. Army Medical Command is not responsible for getting service dogs for service members, but the policy memo requires that they may be obtained from “accredited private service animals organizations,” which are those approved by the International Guide Dog Federation as to guide dogs, and Assistance Dogs International, as to other “service, assistance, or alert dogs.” One wonders what policy justification can be given for insisting that the Army will not supply service animals, yet also insisting that a channel inadequate to supply enough animals be used.
Injured Service Members Training Service Animals
The policy memo acknowledges that injured service members “may realize therapeutic benefit from the human-animal bond formed in the training of animals to provide services to others.” This is acceptable if part of a service member’s treatment plan. As to training one’s own animal, the memo states:
“MEDCOM requires that Service Dogs be trained by relevant licensed entities. MEDCOM does not authorize, nor will it reimburse any service member or beneficiary for the costs incurred in training his/her own animal.”
Training standards are those established by Assistance Dogs International. As will be discussed below, the italicized language is inconsistent with ADA policies of the Department of Justice.
Animals in Medical Treatment Facilities
For service dogs in medical treatment facilities, the owner/handler is responsible for care, including veterinary care, feeding, watering, exercising, toileting, and waste removal for the dog. Service dogs are to wear a special vest or harness identifying them as service animals. Owner/handlers must maintain proof of certification, as well as documentation of immunization. Personnel of medical facilities can “request such documentation from owner/handlers as a condition of their entry into healthcare facilities.”
“Service Dogs will remain on leash and under the direct control of the owner/handler at all times with the exception that another person may be designated to care for a Service Dog when the owner/handler must enter a portion of the MTF where the health of other patients might be compromised by the animal's presence or where service animals are otherwise unauthorized.”
Service animals may accompany individuals visiting patients, but “the ward staff, patient, and any roommate(s), if applicable, must all grant permission” for the visit.
Warriors in Transition
There are specific policy requirements for Warriors in Transition:
“Service Dogs will not be issued to Warriors until they have achieved sufficient level of independence to reside off post in private housing. On a case by case basis, a Warrior's MDT may approve the Warrior to begin training with a service dog while residing at a Warrior Transition Battalion (WTB)IWTU in coordination with the WTB Command and the non-governmental organization providing the training.”
Service dogs cannot reside with Warriors in Transition assigned to the Warrior Transition Unit of a medical treatment facility.
VA Proposed Rules
Rules proposed by the Veterans Administration were published in the Federal Register on June 16 (76 Fed. Reg. 35162), and as of this writing have not been finalized. Those proposed rules provided something of a model for the Army’s policy, including restricting recognition of service dogs to those trained by the International Guide Dog Federation and Assistance Dogs International. Many defects to those rules were pointed out by commenters (I commented myself, as well as writing a blog on the VA release), but their damage was, at least in one sense, fairly limited. The VA’s proposal had to do with what dogs would be funded by the agency, and specified that only about 100 a year would receive VA funds, perhaps the majority of which would be guide dogs. Although not a good outlook, the VA’s rules did not preclude a veteran from getting a service dog from other sources, or from getting financial assistance from other sources.
The Army policy, however, gives Army commanders the authority to restrict access of service dogs if medical personnel have not approved the assignment of a service dog to the service member, and to restrict the sources from which a service member can obtain a dog. Given the massive need for service dogs particularly for soldiers returning from war fronts with PTSD, the Army policy is already wreaking havoc at Fort Bliss, where news reports have described soldiers forced to move out of barracks because the base does not recognize their need for a service dog, or does not recognize that the dog a soldier has is in fact a service dog because of how it was trained or who trained it.
Although I believe the VA policy is not well designed, it has something of the nature of an accounting decision to set a priority on a particular source to provide a specific item, with the priority justified by the fact that very limited funds are being made available. Here, the issue is not primarily funding, and a soldier who uses his own funds, or receives help from someone else, is being penalized for trying to satisfy a need outside of official channels when the official channels are woefully inadequate to assist in satisfying that need.
It is also to be noted that the VA proposes a mechanism by which someone who has obtained a service animal outside of the channels proposed by the regulations could nevertheless get the animal qualified by having some additional training or testing. No such mechanism appears to be offered by the Army.
Department of Justice Perspectives
The policy memo’s statement that “it is the commander’s intent that MEDCOM facilities abide by these provisions [Americans with Disabilities Act] to as great a degree as is practicable and when such adherence does not hamper readiness,” is made ridiculous by the policy that is actually outlined by the Army. With the VA’s 2011 proposed rules I was not certain whether the agency failed to analyze and understand the ADA service animal rules issued by the Department of Justice, or simply decided that they were overly complex when making limited funding decisions. With the Army, the VA’s limited understanding has been magnified into a horribly inappropriate Catch 22 quagmire from which soldiers returning from Iraq and Afghanistan will be unable to extricate themselves without a great deal of effort and a not inconsiderable amount of luck.
Several passages in the preamble to the Department of Justice regulations (75 Fed. Reg. 56722) covering service animals are worth noting:
“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.”
The Army has gone contrary to this flexible approach by limiting service members’ access to service animals to member organizations of two umbrella groups and precluding the possibility of service members training their own service animals. The policy memo also fails to consider that there are many highly qualified training organizations and individuals that are either for-profit or simply not members of the umbrella groups, which can be due to many reasons, yet trainers in such businesses and organizations, or volunteers doing this work because they believe in it, will not be able to help service members seeking service dogs.
Another passage in the same preamble is also important:
“The Department recognizes that there are situations not governed by the title II and title III regulations, particularly in the context of residential settings and transportation, where there may be a legal obligation to permit the use of animals that do not qualify as service animals under the ADA, but whose presence nonetheless provides necessary emotional support to persons with disabilities.”
This has also been ignored by the Army. Although an emotional support animal may not be appropriate in certain military operational settings, it is unclear why military barracks, hospitals, and other environments could not allow dogs providing emotional support that are not trained to the level of service animals.
An emotional support animal for someone with PTSD would not be the same as a trained service animal for someone with PTSD. It is not at all clear whether the Army understands the distinction. PTSD is not mentioned in the policy memo at all. The Department of Justice, on the other hand, did discuss this difference in the preamble to its final rules:
“Many commenters requested that the Department carve out an exception that permits current or former members of the military to use emotional support animals. They asserted that a significant number of service members returning from active combat duty have adjustment difficulties due to combat, sexual assault, or other traumatic experiences while on active duty. Commenters noted that some current or former members of the military service have been prescribed animals for conditions such as PTSD. One commenter stated that service women who were sexually assaulted while in the military use emotional support animals to help them feel safe enough to step outside their homes. The Department recognizes that many current and former members of the military have disabilities as a result of service-related injuries that may require emotional support and that such individuals can benefit from the use of an emotional support animal and could use such animal in their home under the FHAct [Fair Housing Act].”
The Department of Justice stated separately that tasks performed by psychiatric service animals may include “providing safety checks or room searches for persons with PTSD.” Further:
“Commenters stated that there appears to be a broadly held misconception that aggression-trained animals are appropriate service animals for persons with post traumatic stress disorder (PTSD). While many individuals with PTSD may benefit by using a service animal, the work or tasks performed appropriately by such an animal would not involve unprovoked aggression but could include actively cuing the handler by nudging or pawing the handler to alert to the onset of an episode and removing the individual from the anxiety-provoking environment.”
One wonders if the individuals behind the Army’s policy memo are among those with such misconceptions about service animals for persons with PTSD.
The Army’s service dog policy memo is ill-considered and poorly drafted. On its face, it will continue to apply until early 2014, during which time countless more returning soldiers and service members will find their efforts to temper the effects of PTSD stymied by the Army’s restrictive attitude as to who can have a service animal and who can provide one.
Although the Army is not covered by the Americans with Disabilities Act, it appears to feel that ADA policies should be implemented to the extent practicable. The drafters of the policy memo, however, have paid only lip service to ADA concepts, in the end setting up so many roadblocks that many injured and traumatized service members will not be able to obtain service animals in any reasonable time frame, and probably in many cases not at all.
1. Department of the Army, Headquarters, United States Army Medical Command, Fort Sam Houston, Texas: MCHO-CL-C, OTSG/MEDCOM Policy Memo 12-005, January 30, 2012 (to expire January 30, 2014).
2. Department of Veterans Affairs, Proposed Rule: Service Dogs, 28 CFR Part 17, 76 Fed. Reg. 35162 (June 16, 2011).
3. Debbie Kandoll. Simplified Explanation of Army’s New Service Dog Policy.
4. An ABC affiliate station, KVIA in El Paso, Texas, has been following incidents arising from the implementation of the Army service dog policy at Fort Bliss, straddling the Texas/New Mexico border.
Thanks to Jan Moury for providing materials used in drafting this blog. Thanks to Debbie Kandoll and Joan Esnayra for corrections and suggested revisions. The Psychiatric Service Dog Society has provided detailed talking points for those affected by the policy.
Additional Note. The link in the first comment below to 28 CFR Part 35 concerns state and local governments. It would apply to state and local agencies that service members might deal with, but not the Army. I also received a request for information on emotional support animals in housing law. See particularly the prior blog on tenants with PTSD, and links therein, including Service and Therapy Dogs in American Society, Chapter 10: Service and Support Dogs as Tenants.