The U.S. Army policy on service animals, which I described in a prior blog as a poorly considered adaptation of the VA’s poorly considered, though somewhat harmless, service animal policy, is now rippling down the command and across military bases in the United States. I have been able to review the policies of Fort Campbell and Fort Bliss.
On February 21, the Commanding Officer of Fort Campbell, Kentucky, issued a memorandum on service animals at his base, adapting Policy Memo 12-005, issued three weeks earlier. The Fort Campbell policy reiterates the Army’s contention that the Americans with Disabilities Act is not binding on military but will be followed to the extent practicable. Here, as with the general policy, the statement does not ring true to anyone who has the slightest familiarity with the ADA.
William G. Howard, the Commanding Officer at Fort Campbell, states:
“This policy provides guidance regarding ownership and accompaniment of animals while attached or assigned to Fort Campbell, KY (FTCKY) WTB [Warrior Transition Battalion] regardless of location. While each situation will be evaluated on a case-by-case basis, individuals attached or assigned to the WTB, will not be approved for a service animal until the Soldier reaches their highest level of independence and is living off post.”
This makes the curious assumption that the soldier can reach his or her highest level of independence without a service animal in the first place. The memo says that soldiers residing at medical treatment facilities or on-base members of the base’s Warrior Transition Battalion will not be approved for a service animal “until they have achieved a sufficient level of independence to reside off post in private housing.” Thus, the memo assumes that a service animal—even in the unnaturally narrow definition the Army is now giving the term—is not to be considered part of a treatment regimen. It may be that the Army feels that occasional visits from therapy dogs are all that wounded soldiers should expect in early recuperative phases. The memo elaborates:
“A service animal issued prematurely may not be appropriate since a Soldier’s functional needs may change throughout the rehabilitation process.” Further, soldiers “in the initial phase of rehab may not be able to provide the daily care a service animal[‘s] needs.” But they may be, so the fact that the statement is true for some becomes true for all. (Perhaps I should note here that the memo is full of grammatical errors, some of which I have taken the liberty of correcting in quotations here so as to make passages more understandable.)
The memo insists that a soldier’s superiors should not be required to take care of a service animal if the soldier returns to inpatient status or declines “in mental status.” It does not seem to matter that returning to inpatient status or declining in mental status may be increased because a soldier cannot have a service animal.
The memo requires that soldiers “must have command approval in order to obtain a service animal.” Approval must also come from a multi-disciplinary team led by the soldier’s primary care manager. Policy Memo 12-005 had described this team as also “ideally” including other healthcare professions, behavioral health providers, physical therapists, occupational therapists, Physical Evaluation Board liaison officers, Veterans Affairs Military Services coordinators, veterinarians, and warrior transition unit staff.
If this gaggle of officials and professionals agree that the soldier can have a service dog, then he must receive “requisite orientation and training from approved providing/procurement organizations prior to taking possession of a service dog.” This means the soldier must receive training in use of a service dog from an organization approved by the International Guide Dog Federation (for a guide dog) or by Assistance Dogs International (for “other service, assistance, or alert dogs”).
The Warrior Transition Battalion is not responsible for procuring service animals, so an “[a]ccredited private service animal organization will be permitted to provide service animals on a voluntary basis.” Organizations not approved by the International Guide Dog Federation or Assistance Dogs International will thus not be permitted to provide service animals, whether on a voluntary basis or otherwise.
On April 4, Major General Dana J. Pittard, Commanding, issued a memo entitled Command Policy Letter #9, Guidance for Acquisition and Use of Service Dogs by Service Members (SMs) Assigned to Fort Bliss and William Beaumont Army Medical Center (WBAMC). Fort Bliss is a large post covering 1,700 square miles in both New Mexico and Texas.
The memo refers to Policy to Army Policy Memo 12-005 and tracks it more closely than the Fort Campbell memo. While acknowledging the general coverage of the ADA, it specifically mentions that service dogs “will not be allowed into public pools or their surrounding enclosed areas.” This is presumably imposed on a fundamental alteration to the environment argument and is appropriate. It is such a specific rule, and so unique, that I suspect someone claiming to have a service dog was actually insisting on bringing it into a pool at Fort Bliss.
The memo refers to the service member having a permanent profile with a condition that would benefit from having a service dog “as well as exhausted all other treatment modalities for that condition. A Service Dog is considered a palliative or a treatment of ‘last resort.’” This is explicit in rejecting service animals as being part of a treatment regimen as early as possible.
The soldier’s Primary Care Manager is to document “at least 3 potential tasks that the Service Dog will perform mitigating specific disabilities.” This is probably taken from Assistance Dogs International’s Minimum Standards for Training Service Dogs. It is not clear that many Primary Care Managers in the Army will have a sufficient background in the use of service animals to know what sorts of tasks would be most appropriate for a soldier. Presumably Fort Bliss is planning some educational seminars for medical personnel that will cover such topics.
Curiously, the three-tasks requirement is often taken as law though, in a review of federal and state service dog laws conducted by me and Fran Breitkopf several years ago, we discovered that only one state had a law that might possibly be interpreted as requiring three tasks. The Department of Justice, in the most widely copied definition of service animal allows that though training is required, the dog can “do work or perform tasks.” Consider, for instance, a seizure alert dog that alerts to a single condition of its master. Nevertheless, the three-task requirement is consistent with the Army’s recognition of only entities approved by ADI, even if it flies in the face of the ADA.
The Fort Bliss memo requires that the “annual care plan must include primary and secondary powers of attorney to designate someone to care for and assume all of the owner’s legal rights over the animal, if the owner is incapacitated or otherwise unable to care for the Service Dog.” A microchip must be put into the dog “whether or not residing on post.” The dog is to have an identification number on its badge that matches the microchip identification number.
Service dogs may “be allowed access to all duty areas, to include formations. On a case by case basis, if the presence of the Service Dog disrupts the mission, the Brigade commander can disallow the Service Dog’s presence at duty locations. All efforts should be made to find an appropriate duty location for the SM [service member] and his/her Service Dog.” This is appropriate, and shows that the base command actually considered how service animals might co-exist with military activities.
The memo deals with dogs that do not act like service animals:
“Service Dogs found to be aggressive towards humans or other animals will lose their recognition from the [William Beaumont Army Medical Center Multi-Disciplinary Team] and be counseled by their unit commander on the ramifications on the loss of loss of recognition. The Service Dog will revert to a pet status and fall under applicable post pet policies.”
Presumably, the dog could receive additional training and resume service dog status, though this is not stated.
On implementing the policy, soldiers who believe they have service dogs are to provide certain information to their treatment teams, including ADI certification and “[l]iability insurance for harm and damages caused by the dog.” Then there is a very curious provision:
“In the situation where ADI certification is not provided, but it appears that the dog meets ADI standards, the [William Beaumont Army Medical Center Multi-Disciplinary Team], will at its discretion, grant a waiver for the ADI certification. In this case, the [service member] and Service Dog will be required to maintain all standards described throughout this regulation.”
This allows for the possibility that non-ADI service animals may receive official recognition, though probably only for dogs presently being used, since the approval process in the future would not come under this grandfathering provision. Still, this is a recognition that some dogs on the base may be acting as service dogs without the specific training and certification path that will be required in the future.
It was pointed out to me by a reader that the Army Medical Command Policy discussed in the prior blog specifically mentioned mascots, saying that they may be maintained “for the purpose of advancing esprit de corps.” Such animals receive full medical care as government-owned animals. In a Technical Bulletin issued by Army Headquarters in 2003, DoD Human-Animal Bond Principles and Guidelines (TBMED 4), it is stated:
“Mascots, when utilized properly, can greatly enhance the functioning of individuals and groups. General Eisenhower once said of his Scottish Terrier mascots that were with him during part of World War II, ‘I especially appreciate my Scotties because they are the only “people” I can turn to without the conversation returning to the subject of war.’ Obviously, we see therapeutic relief for an individual in this instance.”
Unfortunately, the proliferation of service animal types had not happened while General Eisenhower was still alive (much less still in the Army), or this problem might not have arisen since the architect of D-Day obviously had more sense about animals than many current Army brass. The DoD Technical Bulletin has some additional language of significance:
“Certain specialty animals are essential to the improved functioning of some military family members. These specialty animals include guide dogs for the blind, hearing dogs, and other handicap assistance and/or service animals. The military medical departments of all branches of service should provide leadership in gaining proper recognition, acceptance, and support of these animals throughout the DoD.”
The link between war dogs and service dogs should perhaps receive more attention. In World War I, an ambulance dog that was injured dragging a German soldier to safety was allowed to convalesce with the soldier, and both received the Iron Cross together. The training German ambulance dogs received in the war, which included learning to guide wounded soldiers off battlefields, was adapted by members of the Society for the German Shepherd Club (Verein für Deutsche Schäferhunde) after the war to train dog guides for the blind. Dorothy Harrison Eustis, an American, began working with guide dogs in Switzerland, then brought the technique to the U.S. where she founded The Seeing Eye. In a Marshall Plan-sponsored tour of Germany after the Second World War to find ways to improve agricultural production in Europe, my father met one of the veterans who had begun using a guide dog in Potsdam after WWI. The USDA had chosen my father as a representative because he had grown up in a German American enclave in Missouri and was relatively fluent in the language. The German veteran he met was on his fifth dog. The veteran told my father that his fourth dog had been killed beside him by Russian shrapnel in the final days of WWII.
In the prior blog on Army Policy 12-005, I also raised the issue of whether unapproved service animals could receive veterinary care on military bases. The Policy instructs medical treatment facilities to “[a]ddress veterinary exams and certification, as well as guidance on reasonable precautions to ensure that an animal’s behavior and health are appropriate.” This statement is made with respect to therapy animals. The Policy also states that the U.S. Army Public Health Command is to “[p]rovide authorized veterinary care for privately-owned service dogs in accordance with” the Army’s policies on veterinary health services.
Army Regulation 40-905 provides the following as to service/assistance animals:
“Service/Assistance animals owned by, and essential to, the improved function of a military family member enrolled in any of the Services’ Exceptional Family Member Programs (EFMP), or those animals belonging to veterans entitled to animals trained in the DOD AIM HI program or its civilian equivalent training organization, may be provided the same medical/surgical care as provided for DOD-owned animals. These animals include guide dogs for the blind, hearing dogs, and other assistance animals for the physically-impaired that have been trained and certified by an approved organization. However, these animals will be provided such care only as time and resources permit, and charges for supplies and services will be at the same fee schedule as for privately owned animals.”
More generally, the Regulation provides that emergency medical treatment may be provided to privately owned animals “and medical care with the emphasis on veterinary preventive medicine and diseases that present a community health threat.” The Regulation also states that commanders are to “[c]ontrol privately owned and stray animals at large on military installations through capture, impoundment, disposal, or other physical means.” Hopefully no commander will go to such lengths with respect to service animals that the Army does not recognize as service animals, but I wouldn’t count on it.
One commenter on my previous blog on this topic noted that some sort of uniformity in certification of service animals could be useful. Fran Breitkopf and I had explored this idea in an article appearing in the Journal of Animal Law in May 2010. We noted that it might sometimes be appropriate to acknowledge the certifications of non-governmental groups, but we warned against giving any single group a monopoly on standard setting and testing. Assigning to one organization, even an umbrella organization, the ability to set certification standards for guide dogs as well as the ability to approve organizations that test trainers and dogs for qualification under those standards, and another organization for other service dogs, is precisely what the VA and the Army are now doing. This cannot be justified as a cost-cutting measure since many organizations would be willing, indeed anxious, to participate, at no cost to the government, in preparing uniform thresholds for service dog certification, and also willing to develop a fair testing environment that avoids the dangers attendant in privatizing government responsibilities. Also, the Army should clearly seek input from the Department of Justice, which has considered service animal issues extensively and which has rejected any specific certification regimen, or any task-based qualification system (much less a specific number of tasks), looking instead to a functional determination of what a service animal is.
I have been advised that once a trainer leaves an ADI member organization, the trainer retains no residual authority from ADI because of prior employment by the member organization. That means that a number of independent and volunteer trainers working with wounded soldiers will not be qualified under the new Army policy. So even if a trainer is following ADI standards, if he or she does not currently work for an ADI member organization, the trainer will not be able to train dogs that will be accepted by the Army for soldiers who need them. This will force many trainers to create nonprofit organizations and apply for ADI membership, even though their training procedures will not vary if they succeed in becoming members of ADI, a multi-year process. Federal agencies should not be able to provide such an economic benefit to a certifying organization when the Army will not be paying for the acquisition or training of service animals.
I appreciate the communications I have received from various individuals affected by or concerned with the Army’s ill-conceived service animal policy. It is not clear why the Veterans Administration and the Army have gone so far in a direction that is clearly incompatible with the ADA as developed by the Department of Justice and other federal agencies. For the Veterans Administration it appears to be primarily an issue of limited resources. For the Army, I’d have to guess that some officials have come to believe that soldiers finding service animals for themselves will somehow lead to a breakdown of discipline among those returning from the front with physical and psychological wounds, perhaps because Army medical personnel are reluctant to admit that a service dog, or even an emotional support animal, may be the best possible adjunct to other therapies. If the issue is that some individuals are claiming that untrained pets are service animals, and such animals are aggressive or otherwise behaving inappropriately on bases, there are many less draconian ways of dealing with such situations.
Thanks to Debbie Kandoll, Jan Moury, Joan Esnayra, and Fran Breitkopf for thoughts and suggestions.