VA to Allow More Service Dogs in Facilities; Therapy Dog Access Rules Also Proposed

Update: The comment period on the proposed regulations described below closed on January 20, 2015. 112 comments were submitted by individuals and organizations, of which 97 were posted in the docket folder on regulations.gov. Many comments make extremely useful points that should be considered by the VA before finalizing the regulations. 

In the Federal Register for November 21, the Department of Veterans Affairs proposed regulations on animal access to VA facilities.  The proposal is a considerable expansion of the current access rule, which has remained unchanged for 29 years:

“Dogs and other animals, except seeing-eye dogs, shall not be brought upon property except as authorized by the head of the facility or designee.”

This one-sentence rule had become so inadequate, in only referring to "seeing-eye dogs," that most facilities were using a rule regarding what service dogs the VA would provide reimbursement for as an access rule. This funding rule, 38 CFR 17.148, states that the VA will generally pay benefits only if the dog and the veteran "have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation...."  Benefits, according to the preamble to the final rules, are not provided "for a dog to mitigate the effects of  a mental illness that are not relate to visual, hearing or mobility impairments," which excludes most service dogs for PTSD. Applying this rule as an access rule meant that many veterans could not bring legitimate service dogs into VA facilities, and could not keep them in VA residential and inpatient facilities.  This was causing a great deal of pain. 

When it finalized the funding rule in 2012, the VA had stated that it was in the process of revising the service dog access rules to make them “fully compliant with 40 U.S.C. 3103(a).”  That section provides that guide dogs "or other service animals accompanying individuals with disabilities and especially trained and educated for that purpose shall be admitted to any building or other property owned or controlled by the Federal Government on the same terms and conditions, and subject to the same regulations, as generally govern the admission of the public to the property."  In addition, legislation enacted in 2012, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, P.L. 112-154, section 109, which is titled Use of Service Dogs on Property of the Department of Veterans Affairs, amended 38 U.S.C. 901 to include a subsection reading:

“(f)(1) The Secretary may not prohibit the use of a covered service dog in any facility or on any property of the Department or in any facility or on any property that receives funding from the Secretary.

(2) For purposes of this subsection, a covered service dog is a service dog that has been trained by an entity that is accredited by an appropriate accrediting body that evaluates and accredits organizations which train guide or service dogs.”

It was conceivable, particularly under 38 U.S.C. 901(f)(2), that the VA would use its accredited-organizations only funding rule as the basis for an access rule, and many VA facilities and even the U.S. Army assumed that this would be the case. 

The proposal released on November 21 actually goes much further than these statutes might together require and in fact would make the VA's rules on service dog access largely if not entirely consistent with rules issued by the Department of Justice in 2010.  Even more surprising, the VA is now the first federal agency to consider carefully what sort of access rules should apply to therapy dogs coming into VA facilities, either for specifically designed therapy programs or as visitors to cheer up patient and resident populations.

Written comments are being sought and can be submitted until January 20, 2015. The easiest place to submit comments is upload them on the regulations.gov website.

Defining “Service Animal”

The proposed rules largely replicate the definition of “service animal” adopted by the Department of Justice in September 2010 (amended in 2011 to change the phrase “handler’s disability” to “individual’s disability,” presumably in recognition that some service dogs, such as autism service dogs, may not be handled by the person with the disability).  The Department of Justice made clear in 2010 that a service dog could be trained for a range of mental disabilities, which the VA now accepts for purposes of access, explaining:

“We explained in the proposed rulemaking associated with 38 CFR 17.148 that VA does not yet have sufficient evidence to prescribe mental health service dogs as part of a veteran’s treatment plan, and therefore cannot at this time offer benefits to support the use of such dogs. 76 FR 35163, June 16, 2011. However, the issue of whether the prescription of mental health service dogs is clinically appropriate to necessitate the provision of benefits under § 17.148 is much narrower than the issue of whether we should allow mental health service dogs to access VA facilities while accompanying individuals with disabilities. Therefore, we believe it is consistent to permit the presence of mental health service dogs on VA property for purposes of ensuring access for individuals with disabilities, while still (at this time) restricting the provision of benefits to support mental health service dogs in § 17.148.”

The VA also states that the DOJ definition is “the most relevant source for consideration of the issue of service animal presence on VA property….” The following table places the definition now proposed beside the DOJ’s definition and the prior definition used for the funding regulation.  Language not found in more than one definition is in italics. Key words are in bold. Notice the considerable overlap between the newly proposed VA access language and the 2010 DOJ language for ADA purposes. 

Comparison of Definitions of “Service Animal” under VA Rules (Access and Funding), and Department of Justice Rules under the ADA
Proposed 38 CFR 1.218(a)(11)(viii) (VA access)	28 CFR 36.104 (ADA per DOJ)	38 CFR 17.148 (VA funding for service dogs)
A service animal means any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under § 17.148 of this chapter.	Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. 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.	(a)(1) Service dogs are guide or service dogs prescribed for a disabled veteran under this section. * * * (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 September 5, 2012 will be recognized if a guide or service dog training organization in existence before September 5, 2012 certifies that the veteran and dog, as a team, successfully completed, no later than September 5, 2013, 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.

As does the DOJ, the VA definition excludes an animal whose only function is providing crime deterrent effects, emotional support, well-being, comfort, or companionship, as these do not constitute work or tasks.  This would not, however, exclude psychiatric service dogs that perform tasks specific to a mental condition since "disability" is defined to include a “physical or mental impairment.” 

Inquiries and Documentation

Following the DOJ rules, “an individual with a disability must not be required to provide documentation, such as proof that an animal has been certified, trained, or licensed as a service animal, to gain access to VA property accompanied by their service animal.” The individual may be asked if the animal is required because of a disability, and what work or task the animal has been trained to perform.  The preamble acknowledges that “in most instances, it is apparent that an animal is trained to do work or perform tasks for an individual with a disability.”  Emphasis is added to the “or” between “work” and “task” in this passage from the preamble because the proposed regulatory definition of service dog itself uses “do work and perform tasks,” as noted above.  The significance of the conjunction will be discussed further below. 

Proof of vaccinations and veterinary examinations must, however, be available “if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program.”  This is to include proof of a current rabies vaccination, as required by local law, and proof of “a comprehensive physical examination by a licensed veterinarian within the last 12 months that confirms immunizations with core canine vaccines (in addition to the required rabies vaccine) distemper, parvovirus, and adenovirus-2, and screening for and treatment of internal and external parasite[s] as well as control of such parasites.”

“Additionally, the individual with a disability would be asked to confirm in writing that at least seven days have elapsed since the dog recovered from (as applicable), any of the following: vomiting, diarrhea, urinary or fecal incontinence, sneezing or coughing, open wounds, skin infections or mucus membrane infections, orthopedic or other conditions that may interfere with ambulation within the VA facility, and estrus in intact female dogs.”

Any documentation that could be requested “would only be related to the health and wellness of the animal, and would not be related to an animal’s level of training or other certification that the animal was a service animal.”

No Specific Training Organization Designated

The preamble states that its new definition of service animal is consistent with the definition in the funding rule: 

“We reiterate that we do not interpret section 109 to require that a service dog must be trained by any specific entity, and that section 109 does not prohibit VA from granting access to a broader group of service animals than those trained by accredited entities generally. We would not impose an accreditation requirement to verify that a service dog has been trained appropriately to gain access to VA property.”

The only way that section 109 can be interpreted as not requiring training by “any specific entity” involves some casuistry, and many VA facilities have been limiting access to dogs trained by member organizations of ADI or IGDF, but let us accept that access and funding can certainly be distinguished. 

Service Dogs in Training Excluded

While the DOJ definition’s use of “trained” might be assumed to mean that a dog “in training” is not a service dog, the VA has chosen to emphasize this by adding a sentence to this effect in the definition.  This is probably an effort to give VA facilities an argument for excluding poorly trained, as yet untrained, or just bogus service dogs.  (The Department of Transportation, in service animal regulations, allows airlines to choose their own policy on whether to admit service animals in training. See discussion at 73 Fed. Reg. 27659, May 13, 2008; discussed in Service and Therapy Dogs in American Society at pages 129 to 131.)

Miniature Horses

The VA does not follow the DOJ in granting a sort of provisional status to miniature horses, which can be trained to perform guide and mobility functions:

“After some consideration, we would exclude the access of miniature horses in this proposed rule because we find their larger size would make them more difficult to control within a facility or remove from a facility as needed. Horses are prey animals and thus have a heightened flee response when they perceive things in their environment as a threat. Coupled with this heightened response, VA healthcare facilities typically have smooth flooring that is able to withstand industrial cleaning and polishing (e.g. vinyl composite tile, polished concrete, etc.), which is difficult for hooved animals to walk on and may contribute to horses having difficulty ambulating or even falling. The presence of a miniature horse in VA facilities is also more likely to be disruptive and may result in egress issues because large numbers of people would likely congregate to see the miniature horse. Additionally, we are not aware that miniature horses generally can be reliably trained to be housebroken in the same manner as service dogs trained to hold their waste until it could be eliminated in outdoor areas. For instance, it would not be appropriate, especially in VA health care facility settings, to permit a miniature horse to eliminate its waste in a specialized waste bag the horse might wear while indoors. All of these factors present too high of a risk to legitimate safety concerns, both to persons and the animal, especially in VA health care facilities, to permit the presence of a miniature horse as a service animal.”

The miniature horse lobby, such as it is, should consider commenting on these observations in the preamble. 

Access Requirements for Qualifying Service Animals

Merely because a dog fits within the definition provided in the rules does not guarantee access.  The proposed rules require that it “must be in a guiding harness or on a leash, and under control of the individual with the disability at all times while on VA property.”  The VA is not responsible for the care of the animal, so if the handler is present for a procedure that will require separation from the dog for a time, the animal should not be brought in the first place as it will not be “under the control of the individual with the disability at all times.”  This point is emphasized:

“Another impossible or impractical requirement to impose upon service animals would be the requirement to remain continuously indoors in intensively monitored settings, such as acute inpatient hospital settings. In such settings, veterans would typically be recovering from an acute medical episode, and would not likely be able to effectively attend to the needs of a service animal (e.g. taking the service animal outside, or feeding or watering the service animal). Staff in these inpatient hospital settings must not be expected to set aside their patient monitoring and care duties to instead attend to the needs of a service animal. Additionally, the immediate needs of veterans in these settings would be most appropriately fulfilled by medical staff and not a service animal (for instance, getting in and out of a hospital bed).”

The preamble provides a list of hospital and facility locations from which service animals should be excluded:

• Operating rooms and surgical suites
• Areas where invasive procedures are being performed
• Acute inpatient hospital settings (e.g. intensive care units, stabilization units, locked mental health units)
• Decontamination, sterile processing, and sterile storage areas
• Patient rooms or patient treatment areas where it is indicated that a patient has animal allergies, or has fear or phobia(s) of animals
• Food preparation areas
• Any area where personal protective equipment must be worn.

Restricting dogs from these areas makes sense, of course, and the VA notes that such restrictions are consistent with CDC guidance that it is generally appropriate to exclude a service animal from areas that employ general infection control measures and that require persons to undertake added precautions. Service animals can also be excluded from cemeteries, construction and maintenance sites, and grounds keeping and storage facilities, though as to cemeteries permission may be granted to service animals and even pets under certain circumstances that will be discussed below. 

A service dog can be denied access or removed “to maintain the general health and safety of veterans, VA employees, other VA stakeholders, and other service dogs.”  The preamble indicates that the VA is not restricting service dog access to those trained “by accredited entities,” but that it will “only guarantee access to VA property for those service dogs that can dependably behave in accordance with typical public access standards for public settings.”  Thus, “a service animal will be removed from VA property if the animal is not housebroken.” Other reasons for removal include acts of aggression, including “growling; biting or snapping; baring its teeth; and lunging.” Also, “disease or bad health … would warrant a service animal being removed from VA property, such as external signs of parasites on a service animal (e.g. fleas or ticks), or other external signs of disease or bad health (e.g. diarrhea or vomiting).” 

If a service animal is excluded or removed, the VA emphasizes that the handler can still obtain medical treatment and other services, just without the animal. 

Police Dogs, Research Animals, Animals at Funerals and Parades

The VA’s regulation which covers service dog access is technically included in a section entitled “Security and Law Enforcement at VA Facilities” and the proposed regulations specify that animals with law enforcement functions may be admitted to VA facilities with the approval of the facility head or a designee.  The preamble uses the example of an explosives detection dog.  The regulation also permits “[a]nimals under the control of the VA Office of Research and Development may be permitted to be present on VA property,” which would apply to certain research hospitals and other research environments. 

Pets and other animals can come onto VA property or on property under control of the National Cemetery Administration “for ceremonial purposes during committal services, interments, and other memorials, if the presence of such animals would not compromise public safety, facilities and grounds care, and maintenance control standards.”  The preamble notes that this is in line with the longstanding military tradition of having horse-drawn caissons at funerals. 

Therapy Animals

Perhaps the most surprising aspect of the proposed regulations is the reference to “nonservice animals” involved in therapy, i.e., therapy animals, which are specified as appropriate for both structured therapeutic interventions (animal-assisted therapy, or AAT), as well as for visiting patients (animal-assisted activities, or AAA).  The proposed rule does not specifically state that such animals must be dogs, though that may be generally assumed.  AAT is—

“a goal-directed intervention that incorporates the use of an animal into the treatment regimen of a patient, as provided or facilitated by a qualified VA therapist or VA clinician. AAT is designed to improve human physical, social, emotional, and cognitive function, and is provided in a variety of settings and may be group or individual in nature. Clinical disciplines such as physical, occupational, recreational, and speech therapies use AAT animals to perform tasks that facilitate achievement of patient-specific treatment goals and objectives.”

Paperwork is necessary for such an animal to be used in that “an AAT animal may be present on VHA property if the animal is used to facilitate achievement of patient-specific treatment goals, as documented in the patient’s treatment plan.”  Such documents would have to “be kept in the areas where patients receive AAT, as it is [in] these areas that an AAT animal would be exposed to patients as well as others.” 

Therapy animals not involved in goal-directed interventions can also be admitted if they “provide opportunities for patients to experience benefits.”  Required vaccination records and other health documents on AAA dogs would also have to be kept in the wards and areas where patients encounter them.The requirement that documents be kept where dogs visit makes sense, though in my experience the documentation is often kept in a central volunteer office and not on wards.  I always carry such documents with me during visitations in any case.  

I have been advised by Pet Partners that some of their registered teams involve horses.  The proposal does not discuss therapy horses, though presumably the same objection to service miniature horses might be raised with regard to therapy horses in VA facilities.  Therapy horses, however, are sometimes used in outdoor events and the objects to having them in facilities perhaps should not apply to events taking place outside of VA facilities, say in parks or gardens.  Therapy horse handlers should consider commenting on this issue. 

Residential Animals in Nursing Homes and Mental Health Facilities

The proposed rules allow VA Community Living Centers (CLCs) or Mental Health Residential Rehabilitation Treatment Programs (MHRRTPs), on approval of the head of a facility or designee, for “nonservice animals to be present on VHA property if those animals were present for purposes of a residential animal program….”  Here, it appears that animals other than dogs would be acceptable since there is no specified restriction and cats and birds might, if properly cared for, also be a good fit in residential animal environments. 

CLCs are long-term care settings that provide nursing home care services to veterans.  MHRRTPs are mental health care treatment facilities.  Both, according to the preamble, “have experienced a significant change in philosophy of care, which has resulted in an initiative to transform the culture of care in VA from a medical model where the care is driven by the medical diagnosis, to a person-centered model where the care is driven by the needs of the individual as impacted by medical conditions.”  This includes making these environments more homelike.  As with therapy dogs, documentation would be required:

“We would state that any VA CLC or MHRRTP residential animal present on VHA property must facilitate achievement of therapeutic outcomes (such as described above), which would be documented in patient treatment plans. We believe this requirement ensures that animals would not be merely residing on a VA CLC or MHRRTP, but rather would be permitted extended access to VHA property only for the therapeutic benefit of veterans.”

The animal would also have to pass all health requirements specified for other animals in VA facilities. 

VA’s Proposed Rule Is Broad, but Is It as Broad as DOJ’s?

The statutory requirements for access regulations would have only required that the VA broaden its access rules to include service dogs beyond guide dogs.  Service dogs would have to be trained, but the VA could have easily imposed a requirement regarding an “appropriate accrediting body,” as specified in 38 U.S.C. 901.  Instead, the VA determined that the section “does not prohibit VA from granting access to a broader group of service animals than those trained by accredited entities generally.  We would not impose an accreditation requirement to verify that a service dog has been trained appropriately to gain access to VA property.” No cognate of “accredit” appears in the proposed regulation. 

Indeed, the VA has largely adopted the position of the Department of Justice in its service animal access rules for public accommodations and for state and local governments.  There are two exceptions. As already noted, DOJ allows that a service animal must be “individually trained to do work or perform tasks for the benefit of an individual with a disability,” whereas the VA’s proposal requires that the animal be “trained to do work and perform tasks….”  This is not likely an oversight as DOJ included an extensive discussion of why it did not require that service dogs always be able to perform tasks, stating that doing work is a somewhat broader aspect of the definition “encompassing activities that do not appear to involve physical action.”  An example would be a psychiatric service dog that “can help some individuals with dissociative identity disorder to remain grounded in time or place.”  DOJ stated:

“It is the Department’s [DOJ’s] view that an animal that is trained to ‘ground’ a person with a psychiatric disorder does work or performs a task that would qualify it as a service animal as compared to an untrained emotional support animal whose presence affects a person’s disability. It is the fact that the animal is trained to respond to the individual’s needs that distinguishes an animal as a service animal. The process must have two steps: Recognition and response. For example, if a service animal senses that a person is about to have a psychiatric episode and it is trained to respond, for example, by nudging, barking, or removing the individual to a safe location until the episode subsides, then the animal has indeed performed a task or done work on behalf of the individual with the disability, as opposed to merely sensing an event.” (75 Fed. Reg. 56267, September 15, 2010)

At the very least, the VA should explain why it chose “and” where DOJ used “or” in defining what a service animal is.  The other distinction between the two definitions was that the VA did not include the examples inserted in the DOJ definition section:

“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.”

It may be that the VA regarded these as examples, not necessary for the definition, but it also may be that the VA is not certain it wants to sign onto “doing work” as sufficient in itself to label a dog a service animal.  Thus, the italicized language about helping persons with psychiatric and neurological disabilities by preventing…” might include non-task work under “preventing,” thus opening the door for service dog functions that the VA ultimately disagrees with DOJ as appropriate.  There is no indication that the VA is attempting to exclude psychiatric service dogs as long as they “do work and perform tasks” with regard to a mental disability.  The definition of disability specifically states that for purposes of the rules, “a disability means a physical or mental impairment that substantially limits one or more major life activities of the individual; a record of such an impairment, or being regarded as having such an impairment.” 

Will U.S. Army Change Its Access Policies?

First Page of Army Directive 2013-01, signed by Secretary of the Army John M. McHugh

In a letter sent to a service dog trainer in 2012, the subject of a prior blog,  and in Army Directive 2013-01, also the subject of a prior blog, Army Secretary John McHugh stated that the Army’s access policy was following the lead of the VA in terms of only acknowledging dogs accepted as service dogs by the VA, i.e., dogs trained by organizations belonging to Assistance Dogs International or the International Guide Dog Federation.  In the Directive, McHugh states that if the VA policy changes, the “Surgeon General will review and propose amendments to this directive for my approval.”  Since the Army’s policy related to access, not funding, the VA’s policy has indeed changed and it must be presumed that the Surgeon General is reviewing possible changes to make recommendations to the Secretary of the Army. 

Conclusion

The VA is to be commended for going much further than the mandate of the statutes that directly apply to its service dog policies, and for following the sophisticated lead of the Department of Justice, at least in most regards.  The agency is to be particularly praised for providing a regulatory framework for the admission of therapy dogs, both for AAT and AAA, to VA facilities, as well as for allowing for residential pets in certain VA facilities. 

The regulations on their face only limit service animals to dogs, following the Department of Justice.  It appears that therapy animals and residential animals could be of other species, but it might be best to clarify this.  Service miniature horses are not accepted, but horses are specifically mentioned as having been used at funerals in military tradition.  (When I was a child, my father took me to a funeral of a friend of his and I still remember the old soldier’s horse with the saddle on backwards following the hearse.)  In any case, the final rules should specify what breadth the VA is allowing here, unless the VA wants to leave this issue open for further experience and reflection. 

Veterans with service dogs who have been having access problems with non-ADI trained dogs should consider commenting to support the VA’s broad access concept.  Veterans with service dogs that are trained to “do work” but do not “perform tasks” should consider asking for clarification on the status of their dogs under the proposal.  Therapy dog handlers should consider commenting to support the regulatory access that is being proposed.  Veterans in residential facilities should consider commenting to reinforce the acceptance of the concept of “residential animals.” Comments on the proposal are publicly available. 

This is a major and welcome development for veterans, as well as for service dog users generally, for therapy dog handlers and their organizations, and for all Americans concerned with the abuses that the VA has been known for in its treatment of veterans.  The VA has done something right for a change. 

I want to particularly thank Bart Sherwood of Train a Dog, Save a Warrior (TADSAW) for carefully reading a draft of this blog and making many important observations.  Also thanks to Leigh Anne Novak and Dennis Civiello for comments.  

Appendix 1: Proposed Regulation

§ 1.218. Security and law enforcement at VA facilities.

(a) * * *

(11) Animals. (i) Service animals, as defined in paragraph (a)(11)(viii) of this section, are permitted on VA property when those animals accompany individuals with disabilities and are trained for that purpose. A service animal must be in a guiding harness or on a leash, and under control of the individual with the disability at all times while on VA property. VA is not responsible for the care or supervision of a service animal. Service animal presence on VA property is subject to the same terms, conditions, and regulations as generally govern admission of the public to the property.

(ii) A service animal will be denied access to VA property or removed from VA property if:

(A) The animal is not under the control of the individual with a disability;

(B) The animal is not housebroken. The animal must be trained to eliminate its waste in an outdoor area; or

(C) The animal otherwise poses a risk to the health or safety of people or other service animals. In determining whether an animal poses a risk to the health or safety of people or other service animals, VA will make an individualized assessment based on objective indications to ascertain the severity of the risk. Such indications include but are not limited to:

(1) External signs of aggression from the service animal, such as growling, biting or snapping, baring its teeth, lunging; or

(2) External signs of parasites on the service animal (e.g. fleas, ticks), or other external signs of disease or bad health (e.g. diarrhea or vomiting).

(iii) Service animals will be restricted from accessing certain areas of VA property under the control of the Veterans Health Administration (VHA property) to ensure patient care, patient safety, or infection control standards are not compromised. Such areas include but are not limited to:

(A) Operating rooms and surgical suites;

(B) Areas where invasive procedures are being performed;

(C) Acute inpatient hospital settings (e.g. intensive care units, stabilization units, locked mental health units);

(D) Decontamination, sterile processing, and sterile storage areas;

(E) Patient rooms or patient treatment areas where it is indicated that a patient has animal allergies, or has fear or phobia(s) of animals;

(F) Food preparation areas; and

(G) Any areas where personal protective equipment must be worn.

(iv) Service animals will be restricted from accessing certain areas of VA property under the control of the National Cemetery Administration (NCA property) to ensure that public safety, facilities and grounds care, and maintenance control are not compromised. Such areas include but are not limited to:

(A) Open interment areas including columbaria;

(B) Construction or maintenance sites; and

(C) Grounds keeping and storage facilities.

(v) If a service animal is denied access to VA property or removed from VA property in accordance with (a)(11)(ii) of this section, or restricted from accessing certain VA property in accordance with paragraphs (a)(11)(iii) and (iv) of this section, then VA will give the individual with a disability the opportunity to obtain services without having the service animal on VA property.

(vi) Unless paragraph (a)(11)(vii) of this section applies, an individual with a disability must not be required to provide documentation, such as proof that an animal has been certified, trained, or licensed as a service animal, to gain access to VA property accompanied by their service animal. An individual may be asked if the animal is required because of a disability, and what work or task the animal has been trained to perform.

(vii) An individual with a disability will be required to comply with the following requirements, if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program:

(A) The individual with a disability must provide VA with documentation that confirms the service animal has had a current rabies vaccine (one year or three year interval, depending on local requirements);

(B) The individual with a disability must provide VA with documentation that verifies the service animal has had a comprehensive physical exam performed by a licensed veterinarian within the last 12 months that confirms immunizations with the core canine vaccines distemper, parvovirus, and adenovirus-2, and that confirms screening for and treatment of internal and external parasites as well as control of such parasites; and

(C) The individual with a disability must confirm in writing that at least seven days have elapsed since the dog recovered from any instances of vomiting, diarrhea, urinary or fecal incontinence, sneezing or coughing, open wounds, skin infections or mucous membrane infections, orthopedic or other conditions that may interfere with ambulation within the VA facility, and estrus in intact female service dogs.

(viii) A service animal means any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under § 17.148 of this chapter.

(ix) Generally, animals other than service animals (“nonservice animals”) are not permitted to be present on VA property, and any individual with a nonservice animal must remove it. However, a VA facility head or designee may permit certain nonservice animals to be present on VA property for the following reasons:

(A) Animals may be permitted to be present on VA property for law enforcement purposes;

(B) Animals under the control of the VA Office of Research and Development may be permitted to be present on VA property;

(C) Animal-assisted therapy (AAT) animals may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. AAT is a goal-directed clinical intervention, as provided or facilitated by a VA therapist or VA clinician, that incorporates the use of an animal into the treatment regimen of a patient. Any AAT animal present on VHA property must facilitate achievement of patient-specific treatment goals, as documented in the patient’s treatment plan. AAT animals must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible in the area(s) where patients receive AAT.

(D) Animal-assisted activity (AAA) animals may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. AAA involves animals in activities to provide patients with casual opportunities for motivational, educational, recreational, and/or therapeutic benefits. AAA is not a goal-directed clinical intervention that must be provided or facilitated by a VA therapist or clinician, and therefore is not necessarily incorporated into the treatment regimen of a patient or documented in the patient’s medical record as treatment. AAA animals must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible in the area(s) where patients may participate in AAA.

(E) Animals participating in a VA Community Living Center (CLC) residential animal program or a Mental Health Residential Rehabilitation Treatment Program (MHRRTP) may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. A residential animal program on a VA CLC or a MHRRTP is a program that uses the presence of animals to create a more homelike environment to foster comfort for veterans, while also stimulating a sense of purpose, familiarity, and belonging. Any VA CLC or MHRRTP residential animal present on VHA property must facilitate achievement of therapeutic outcomes (such as described above), as documented in patient treatment plans. Residential animals on a VA CLC or MHRRTP must be up to date with all core vaccinations and immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible on the VA CLC or MHRRTP.

(F) Animals may be present on NCA property for ceremonial purposes during committal services, interments, and other memorials, if the presence of such animals would not compromise public safety, facilities and grounds care, and maintenance control standards.

(x) For purposes of this section, a disability means a physical or mental impairment that substantially limits one or more major life activities of the individual; a record of such an impairment; or being regarded as having such an impairment.

* * * * *

Appendix 2: My comment letter to the VA...

December 2, 2014

William F. Russo, Acting Director

Regulation Policy and Management

Department of Veterans Affairs

810 Vermont Ave. NW, Room 1068

Washington, DC 20420

Re: RIN 2900-AO39, Animals on VA Property, 79 Fed. Reg. 69379-69387

Dear Director Russo:

These comments are submitted regarding proposed revisions to 38 CFR 1.218, Security and law enforcement at VA facilities, (a)(11) Animals, as published in the Federal Register on November 21, 2014.  I am an attorney in private practice, licensed in the State of New York and admitted to practice before the United States Supreme Court.  I have written a book, Service and Therapy Dogs in American Society (CC Thomas 2010), which describes access rules in various contexts, and also maintain a blog that regularly covers legal issues regarding dogs where I have discussed access rules issued by various agencies, including those of the VA. Finally, in the interest of full disclosure, I have been taking my registered therapy dog to many types of facilities and institutions for over six years, including on one occasion to a VA facility in Phoenix. On that visit, several veterans informed me that having to give up a dog in order to enter the facility was among their saddest moments.      

The Department of Veterans Affairs and the Office of Regulation Policy and Management are to be commended for proposing regulations that would in large part make VA facility access policies identical with public accommodation and state and local government access policies as required by the Department of Justice in 2010 (28 CFR 36.104, 35.104, etc.).  The Department has also shown considerable foresight in proposing rules that would define access for therapy animals, an issue that has not received sufficient attention from other federal agencies to date. 

The majority of my comments concern apparent differences between the VA’s proposed regulations and those of the Department of Justice, as well as suggested modifications on the provisions specific to therapy animals. 

“Work and Tasks” v. “Work or Tasks”  

The VA’s proposed regulations, at 1.218(a)(11)(viii), would define a service animal as “any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability….”  The Department of Justice, in 28 CFR 36.104 and 28 CFR 35.104, defines a service animal as “any dog that is individually trained to do work or perform tasks….” I emphasize the conjunctions in the otherwise identical phrasing because the difference could be significant in the application of the law.  I also note that the preamble to the proposed regulations (79 Fed. Reg. 69382, left column) uses “or” in discussing the DOJ’s rule, and uses “work or tasks” (id., middle column) in discussing proposed 1.218. 

Even more confusing is that proposed 1.218(a)(11)(viii) is internally inconsistent in that the first sentence, as quoted in the preceding paragraph defines service animal using “and,” but a subsequent sentence states that the “work or tasks performed by a service animal must be directly relate to the individual’s disability.” Further, the same provision states that crime deterrent effects, emotional support and companionship “do not constitute work or tasks for purposes of this definition.”  These subsequent sentences in the definition provision suggest that “work” may be sufficient without tasks.  Also, under proposed 1.218(11)(vi), an individual seeking access to a VA facility “may be asked if the animal is required because of a disability, and what work or task the animal has been trained to perform.”

It might be suggested that I am making too much of a variation in conjunctions were it not that in the preamble to its final regulations (75 Fed. Reg. 56267, September 15, 2010), DOJ clarified the distinction between work and tasks regarding what a service dog may be trained to do, and specifically rejected arguments that its definition should only require tasks.  DOJ noted: “Although the definition of work includes the performance of tasks, the definition of work is somewhat broader, encompassing activities that do not appear to involve physical action.”  Thus, defining a service animal as one that does work and performs tasks may, if tasks are a subcategory of work, mean that service animals under the VA definition must perform tasks.  This would mean that “work” may even be an extraneous word in the definition. 

This matter should be clarified, and the inconsistencies in use of the conjunction in the proposed rules should be eliminated. 

Need for Examples

The VA’s definition of service animal also differs from that of DOJ in not including examples.  In 28 CFR 36.104 and 35.104), the following sentence appears:

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.

Admittedly these are examples and could be eliminated from the definition without changing the meaning of the regulation, but such examples, whether included in regulatory language or discussed in the preamble, help those who will be implementing the regulations understand what sorts of responses service dog users might give.  I do not believe that the VA should be required to use the same examples, but I submit that DOJ has provided more guidance here than has been given by the VA.  When security guards and others meet service dog or alleged service dog users at the entrances to VA facilities, they will look to the VA’s own rules, whether the regulations directly or some distillation thereof, to understand what they may ask and what sorts of responses they should expect.  It would be useful to provide examples in the same manner as has been done by DOJ.

Also, I note that one of the clauses in the DOJ examples is “helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”  The wording here is likely intentionally meant to cover “work” that some DOJ-recognized service dogs do in “grounding” individuals with mental disabilities, work unaccompanied by any specific physical action, i.e., task (75 Fed. Reg. 56267, left column).  If the VA is rejecting the concept that work can be performed without tasks, examples would appropriately only involve trained physical actions by service dogs.  Although this would, in my opinion, be unnecessarily restrictive, the matter should be clarified. 

Applicability to VA Employees

The proposed regulations on service animals are drafted explicitly to apply to patients and residents of VA facilities who have disabilities.  Nevertheless, there are employees of the Department of Veterans Affairs who work in facilities to which the access rules would otherwise apply—indeed, I have been advised that there are many individuals who are simultaneously employees and patients at VA facilities—who will want to bring their animals to work under the same conditions as would apply to patients and residents of facilities.  Naturally, certain locations will be inaccessible to the service dogs of employees as they are to the service dogs of patients and residents.  While the language of the proposal may be sufficiently broad to cover employees, clarifying this in final regulations would avoid needless disputes. 

Therapy Animals

As I noted above, the VA is to be commended for defining by regulation access for animals involved in animal-assisted therapy and animal-assisted activities.  The parameters for having residential animals in certain types of nursing and mental health facilities will also help administrators of VA facilities deal with the needs and requests of residents in such facilities.  As to the latter, animals such as cats and birds might appropriately fit within the guidelines contained in the proposed regulations.  For AAT and AAA work, however, it must be assumed that most of the animals involved will be therapy dogs registered or certified by organizations after having passed tests that encompass a range of obedience commands and which replicate situations therapy dogs are likely to encounter when visiting facilities.  Such testing situations require that successful candidates remain calm with loud noises like dropped pots and pans, yelling children skipping around them, and that the dogs follow commands important in medical and educational environments, such as obeying a command to leave items on the ground untouched (the “hot dog test”).  Passing the test and joining the organization brings the therapy dog team under liability coverage of insurance policies issued to therapy dog organizations for teams operating within an organization’s guidelines.  Most facilities that I have ever visited would not have admitted me and my dog without such coverage. 

Therefore, I suggest that it would be advisable to indicate whether animals other than dogs are appropriate for AAT and AAA work, and under what circumstances they could be admitted to facilities or recommended for therapeutic activities.  Although the VA followed the lead of DOJ in limiting service animals to dogs (though rejecting the somewhat provisional status of miniature horses), the VA is breaking new ground in its coverage of therapy animals and some discussion of the species that can be involved would be helpful. I have learned that one therapy animal organization, most of whose members have therapy dogs, registers miniature horses for this kind of work and does provide insurance coverage for miniature horse therapy teams.  Presumably the same issues raised in the preamble regarding miniature horses as service animals would apply in the therapy animal context, though this is not necessarily the case.  For instance, miniature therapy horses might be regarded as appropriate for outdoor events. 

It would be no more appropriate to limit therapy dog teams to members of any particular organization or set of organizations than it would be in an access rule to limit service dogs to those trained by a specific set of organizations.  Nevertheless, it might be appropriate to limit access of therapy dog teams to those with a specific level of liability coverage, say $1 million per incident.  Since therapy dogs are intended to interact with patients and residents, they may unwittingly be put in situations where they feel threatened. Biting incidents, though extremely rare, are known to have happened. (See, e.g., Bermudez v. Hanan, 2013 NY Slip Op 51610(U), 2013 WL 5496124, Civil Court of the City of New York, Kings County, though this did not involve a bite at a facility.)  Probably all national, regional, and perhaps even smaller therapy dog organizations would satisfy an insurance coverage requirement. Such a requirement might allay certain concerns of VA facility heads and designees who retain authority to exclude therapy animals under the proposed rules.   

Army Follows VA’s Lead

My final observation steps beyond the authority of the VA, but I think it important to note that the U.S. Army has specifically cited the VA’s funding rules as authority for its service animal acquisition and access policy. In Army Directive 2013-01 (Guidance on the Acquisition and Use of Service Dogs by Soldiers), Secretary of the Army John M. McHugh, acknowledging the VA’s lead on access, stated that if VA policy changes, the “Surgeon General will review and propose amendments to this directive for my approval.”  The Army Directive does not concern funding or reimbursement, stating: “Soldiers are responsible for obtaining their service dogs, including any associated expenses.” Presumably, therefore, the Surgeon General will, at least if these rules become final if not before, review Army policy on this matter. 

Conclusion

The drafters of the VA’s proposed rules are to be commended for not taking a minimalist approach in interpreting the requirements for access in the directly applicable statutory provisions, 40 U.S.C. 3103 and 38 U.S.C. 901, but for instead seeing in “28 CFR 36.104 the most relevant source for consideration of the issue of service animal presence on VA property….”  Where VA facility administrators have applied the funding regulations regarding service dogs as also applicable for access to facilities, this extension of the use of those rules as an access policy has caused a great deal of pain that will now apparently no longer be inflicted on veterans whose dogs are not trained and certified by trainers that are members of two specific umbrella organizations.

Please contact me with any questions regarding this submission.  I can be reached at jensminger@msn.com or at 917-613-4960.

Respectfully submitted,

John J. Ensminger