AKC Test Qualifies Emotional Support Animals for VA Study: Is the VA Considering New Policies on Service Dogs and ESAs?

In a "Sources Sought/Request for Information" posted on the federal business opportunities website, FedBizOpps.Gov, where government contracts are announced, the Department of Veterans Affairs says it is looking for suppliers of dogs “to determine the efficacy of service dogs in the treatment of Posttraumatic Stress Disorder (PTSD).”  The study began two years ago, but is now to be revised and expanded to include emotional support dogs as well as service dogs. 

The dogs for this study must be provided by nonprofit 501(c)(3) organizations, in accordance with Public Law 111-84, the defense appropriations act of 2009.  At § 1077, that legislation provided that the Secretary of Veterans Affairs was to begin “a three-year study to assess the benefits, feasibility, and advisability of using service dogs for the treatment or rehabilitation of veterans with physical or mental injuries or disabilities, including post-traumatic stress disorder.”  The appropriations act allows the VA to “reimburse partners $10,000 for each dog provided to a veteran who enrolls in the study and successfully completes a training program offered by one of the partners.” 

Public Law 111-84 stated that the VA was to partner with 501(c)(3) organizations that “are accredited by, or adhere to standards comparable to those of, an accrediting organization with demonstrated experience, national scope, and recognized leadership and expertise in the training of service dogs and education in the use of service dogs.”  As I noted previously, the VA has generally chosen to ignore the “standards comparable to those of” language in the appropriations act and prefers to designate full member organizations of Assistance Dogs International as the sole source of service dogs for veterans.  (ADI candidate members are not acceptable to the VA, as stated at 77 Fed. Reg. 54372, middle column.)

Assistance Dogs International Public Access Test

In the Request for Information, the VA indicates that it is now going to be conducting a “revised study” and that for this study service dogs “will be required to meet Assistance Dogs International (ADI) Public Access Testing criteria.”  This wording is curious, in that it appears to allow for the possibility that a dog could meet the ADI’s Public Access Test, which is posted online by ADI, without necessarily being administered by anyone affiliated with ADI.  That, however, does not square with what ADI indicates on its website (last checked 11/11/2013), where the organization states that the “test was designed to be administered by professional Assistance Dog Trainers,” and cautions:

“Administering this test by non members of Assistance Dogs International is not authorized by Assistance Dogs International nor would completion of this test be considered certification by Assistance Dogs International.” 

ADI also places a copyright notice on its Public Access Test, meaning that it might claim a copyright violation against someone printing out and using the test without its permission.  I venture to note, in any case, that most therapy dogs, including mine, would have no problem passing the Public Access Test. 

American Kennel Club (AKC) Community Canine Standard

The reason for writing this blog are the references in the VA’s Request for Information regarding emotional support dogs.  Emotional support dogs are not mentioned in the 2009 defense appropriations act.  Neither are they mentioned in 38 U.S.C. 1714, which provides that the VA may provide “service dogs trained for the aid of persons with mental illnesses, including post-traumatic stress disorder.”  Two current House bills deal with veterans' service dog issues but also do not mention emotional support animals (H.R. 183 and 2847, both of which are hold-overs from the 112^th Congress and neither of which has a good shot of passing at the moment). 

The VA states that “emotional support dogs will be required to meet the new American Kennel Club (AKC) Community Canine© standard, which is an advanced extension of the AKC Canine Good Citizen© testing.”  Many therapy dog handlers in the United States, including me, have dogs that have qualified as Canine Good Citizens. 

The AKC announced in the akcgazette of July 2013 (vol. 130, no. 7), that its Board had “VOTED to approve the creation of an advanced CGC testing program called AKC Community Canine.”  Dogs that pass the test are awarded the title of “Community Canine (CMC).” The test was officially available on October 1, 2013.  That I could find, the AKC website does not seem to indicate that the organization sees this particular test as a means of verifying that a dog qualifies as an emotional support animal.  Rather, the organization describes the title as testing a dog’s skills in natural settings, rather than in a ring isolated from real world situations.

So why does the VA see such a function for the test?  It may be, that as with choosing ADI to bless service dogs, the VA has chosen the AKC to consecrate emotional support dogs.  There are differences here from the service dog situation, however.  By saying that only an ADI organization can create a service dog, the VA has allowed that organization and its full members to hold a monopoly on training service dogs for veterans.  The AKC tests, on the other hand, are administered by a broad system of evaluators for dogs trained by anyone.  In New York State alone there are more than 400 AKC Evaluators according to a search engine provided by the AKC, many within a short drive of where I live in Ulster County.  The Evaluators charge a small fee, but are generally only marginally remunerated for performing the tests.  Many tests may be parts of other testing programs, such as for therapy dogs.  If there is a monopoly, it seems to be a fairly harmless one. 

Comparing the ADI Public Access Test, the AKC Tests, and Therapy Dog Qualification  

Many animals that qualify under the AKC tests might be trained at levels, at least as to behavior in public settings, not much different from what is expected of service animals.  The following table roughly attempts to correlate the testing requirements of ADI’s Public Access Test, the AKC’s CGC and Community Canine tests, and a standard therapy dog test.

ADI Public Access Test	AKC CGC Test	AKC Community Canine Test	Therapy Dog Test
Vehicle requirements: remaining until release, waiting beside, under control while another dog walks past.	Two handlers get within 10 feet, but dogs should show no more than casual interest in each other and neither dog should go to the other or its handler.	Dog walks past distraction dogs within 2 feet while on trail, sidewalk, hallway, etc.	Dog performs group sit-stay and down-stay; dog and handler meet another dog and dog remains in handler’s control.
Dog stays in relative heel position, calm around traffic, stops when individual comes to halt.	Dog remains in control while walking with handler, but need not be perfectly aligned with handler.	Dog remains under control while handler fills out paperwork, visits with another person.	Dog remains under control at entry table for testing.
Dog waits at door until commanded to enter, waits inside until able to return to heel position.	Dog remains with handler while walking.	Dog enters/exits a doorway or narrow passageway in a controlled manner.	Dog walks through hospital environments without being distracted under control of handler; dog remains at sit, stand, or down stay on command before door to facility.
Dog within “prescribed distance” of individual; ignores public, remaining focused on individual; adjusts to speed changes; readily turns corners without being tugged; maneuvers through tight quarters.	Dog walks through pedestrian traffic under control in public places passing close to at least three people; dog stays at heel during right turn, left turn, and about turn.	Dog walks on loose leash in natural situation, does not pull, makes left and right turns, stops, goes at fast and slow paces;  dog walks on loose leash through a crowd.	Dog moves through people in hallway; dog remains calm upon approach of several people at once; dog makes left and right turn and about-turn after encountering distractions.
Dog responds to recall command on 6-foot lead, does not stray away or seek attention from others or trudge slowly; remains under control and focused on individual; comes within prescribed distance on recall and comes directly to individual.	Handler walks 10 feet from dog, faces the dog and calls it; handlers may use “stay” or “wait” command or simply walk away to put dog in place.	Dog performs recall on 20 foot lead.	Dog commanded to stay and handler moves to end of 20 foot lead, turns around, and on command recalls the dog.
Dog responds promptly to sit command; remains under control around food, not trying to get it and not needing repeated corrections; dog remains composed while shopping cart passes; dog remains at sit-stay while petted by stranger.	Dog accepts friendly stranger without showing resentment or shyness; dog accepts petting from friendly stranger; dog accepts being groomed by evaluator; dog responds to sit and down commands and remains in place on 20-foot lead.	Dog performs sit-stay in group of 3 other people with dogs; handler leaves dog on 20 foot lead, picks up item, returns to dog.	Dog performs sit-stay in group; handlers leave the dogs and move to end of 6 foot leads and wait for evaluator’s command to return to dogs; also a group down-stay; dog is readily accessible for petting by patient; can approach wheelchair.
Dog responds to down command; remains under control around food; remains in control while child approaches (but child should not taunt dog or be overly dramatic)		Dog obeys “leave it” command around food on floor or ground.	Person with walker offers dog a treat, but handler instructs dog to leave it and dog must do so; dog passes food on floor and must walk a straight line and leave it; dog remains calm around playing children.
Dog should remain composed during noise distractions.	Dog should be confident with distractions such as dropping a chair, rolling a crate dolly, having a jogger run in front of the dog, etc.		Dog keeps on straight line walking past distractions, including person on crutches, person running, bicycling, rollerblading; loud noises from dropping something such as can filled with rocks, vacuum cleaner.
Dog is unobtrusive and out of way of patrons and employees in restaurant; dog ignores food and remains quiet.			Dog remains calm in crowds and obeys command to leave food alone.
Dog remains under control when lead is dropped.
Dog taken by another person and dog’s partner can move away without aggression or undue stress.	Another person takes dog and handler goes out of sight for 3 minutes; dog should not bark, whine, or pace unnecessarily.		Helper takes hold of dog’s leash but handler can put dog at stay before; handler moves out of sight; dog can move within confines of lead.
Dog loads into vehicle on command.
Handler praises dog when dog does well; dog consistently relaxed, confident, friendly; partner consistently has dog under control.			Good presentation of handler and dog.

The differences are relatively minor.  ADI looks at dogs getting in and out of vehicles.  This recognizes that a disabled handler is often going to need to be able to get a dog into and out of a car without any physical effort.  People who travel with dogs to any degree will teach them to jump in and out of a vehicle, as I and most people I know have done with our dogs.  There is also an emphasis on going through doors in the ADI test.  People with disabilities may have trouble going through doors, and will need to be confident that, if they cannot go through a door simultaneously with the dog, the dog will catch up or wait for them. I do not know anyone with a therapy dog who has any difficulty with this. 

Potential Significance of the VA’s Approach to Emotional Support Animals

The VA provides a table regarding the distinctions between service dogs and emotional support dogs, indicating that, although emotional support dogs qualify for accommodations in housing and air travel, they do not qualify for entry into places of public accommodation.  The table is reproduced below:

	Service Dog	Emotional Support Dog
General Definition	A dog that is individually trained to perform work or tasks for the benefit of a person with a disability.	A dog that provides comfort or support for a person with a disability, but does not have any individualized training to perform work or tasks.
Reasonable Accommodation in Housing?	Yes. Housing provider may ask for documentation that owner has a disability and there is a disability-related need for a service animal.	Yes. Housing provider may ask for documentation that owner has a disability and there is a disability-related need for an emotional support animal.
Reasonable Accommodation in Places of Public Accommodation and Public Entities?	Yes. Public accommodations and public entities may not ask for documentation, but can ask if the animal is a service animal and what it is trained to do.	No.
Reasonable Accommodation for airline travel?	Yes. Airline may ask whether the animal is a service animal and what it is trained to do.	Yes. Airline may ask for a signed note from a licensed mental health professional, not more than 1 year old, that states that owner has a psychiatric disability and a disability-related need for an emotional support animal.

While this may be a serviceable summary of the general requirements of the Departments of Justice, Transportation, and Housing and Urban Development, it must be noted that the definitions of those agencies make no mention, and would often be inconsistent with the tests that the VA is using to qualify service and emotional support animals.  The VA knows this.  An article posted on a VA website states that:

"One assistance dog advocacy organization, Assistance Dogs International (ADI), has promoted definitions of assistance dog and service dog that are widely cited and accepted by many service dog trainers, but the definitions are not universally used among laypeople or healthcare personnel nor are they aligned with definitions that appear in Federal or state laws." L. Parenti, A. Foreman, B.J. Meade, and O. Wirth (2013). A Revised Taxonomy of Assistance Animals. Journal of Rehabilitation Research & Development, 50(6), 745-756. 

So why was this table included in a Sources Sought/Request for Information? It may have been a way of indicating to prospective emotional support dog providers that they should not expect that dogs they supply would qualify for the access that service dogs receive.  This raises the question, however, of what exactly the VA may be planning for emotional support dogs that are used by veterans with PTSD. A VA webpage on “Dogs and PTSD” also describes the difference between the two types of specialized dogs, but says that generally “a regular pet can be an emotional support dog if a mental health provider writes a letter saying that the owner has a mental health condition or disability and needs the dog’s help for his or her health or treatment.”  Certainly this does not suggest the level of training or obedience required for an AKC Community Canine. 

Is it possible that the VA is considering a change in policy that would allow emotional support dogs to live with veterans in VA or VA-supported facilities, but only if the dogs have a level of training that will avoid their becoming problems for VA administrators?  Could emotional support dogs travel in buses and vans that serve VA hospitals?  Would emotional support dogs have access to VA hospitals where therapy dogs are already being used? 

An even bigger question involves the U.S. Army.  As I have noted before, the Army and the VA have always seemed to be joined at the hip with regard to service dog policies. A major source of pain for enlisted Army personnel with service dogs trained for PTSD has been that the Army has put a ban on dogs for PTSD, stating in Army Directive 2013-01, signed by Secretary of the Army John McHugh, that the “psychological service dogs are not considered service dogs” by the Army.  If the VA is considering recognizing emotional support dogs, will the Army also take this step?  If so, could soldiers live on base with emotional support dogs, and perhaps fly them on military transports?  Presumably they would not be able to take them into base canteens, on the analogy to the ADA requirements with regard to service animals, but even this is not clear. 

Conclusion

Is the idea of using an American Kennel Club standard to determine qualification of an emotional support animal a good one?  It has the advantage of being readily available, and the AKC website says that the cost includes a $20 processing fee.  Test-giving organizations may also charge a fee for conducting the test.  AKC Approved CGC Evaluators administer the test.  When I and Chloe took our therapy dog test, we had such an Evaluator, who was also a therapy dog tester. AKC evaluators will not be hard to come by anywhere in the U.S.  In my case, though going back over five years, the Evaluator charged nothing for the CGC aspect of the test beyond what was forwarded to the AKC, which then sent me and Chloe a certificate. 

This is a much less radical degree of privatization than has occurred with service dogs under VA and Army rules, and could be justified in contexts where an emotional support animal must be firmly in a handler’s control.  There is the additional policy question of whether some greater access to public accommodations and public transportation should be granted a dog with such a high degree of control by a handler, though without specifically individualized training for a disability.  This would require a major policy shift by the Department of Justice, however, and seems unlikely.  Still, it has to be acknowledged that the VA, whether seeking to or not, has brought forth a new idea that might provide a mechanism for dealing with the problem of bogus service animals in public accommodations and transportation.  

There is another policy question that must be asked.  If the VA thinks that testing can qualify dogs to be either service or emotional support dogs, why does the agency not insist that ADI open up its Public Access Test to non-members?  The test would seem to be sufficiently similar to the AKC tests that it could be administered by AKC Evaluators or other neutral testers.  Testing would not need to be restricted to dogs trained by ADI organizations, which would significantly expand the potential sources of service dogs for veterans.  Alternatively, the VA and the Army could ask the AKC to develop a public access test for service dogs, taking into account issues appropriate for service animals, such as getting into and out of cars and going through doors separately from handlers. Solutions exist to the current bottleneck created by VA and Army policies.  It is only a matter of making the effort to find and implement them.   

But I have expressed optimism that the VA and the Army would take intelligent directions in their canine policies before, only to be disappointed, so I advise readers to remain skeptical.  

Thanks to Michael Arnold and Leigh Anne Novak for suggestions that vastly improved this piece.    

Additional Notes.  It has been brought to my attention that, on September 23, 2013, Senator Charles Schumer of New York requested an update on the VA study of service dogs for veterans. He stated: "I feel strongly that the VA should provide service dogs to eligible Veterans with PTSD."  This undoubtedly increased the pressure on the VA to do something, but it does not explain why emotional support animals are suddenly in the picture.  

Someone suggested to me, I think with some degree of cynicism, that the VA may accept that psychiatric service dogs are really only emotional support animals, i.e., that it is impossible to individually train a dog to do work or tasks for a non-physical disability.  While I prefer to believe that this level of ignorance does not control thinking inside of the VA, neither can I rule it out.   

An anonymous commenter below correctly refers to the Clinical Trials site maintained by NIH with reference to the study discussed above.  The site contains several pages devote to a study that is labeled: Can Service Dogs Improve Activity and Quality of Life in Veterans with PTSD? (SDPTSD).  The description of the clinical trial defines an emotional support dog as one "that has earned AKC Good Canine Citizen certification and provides emotional support and comfort to the Veteran."  Curiously, the definition of service dog does not mention ADI, saying only that this is "an assistance dog specifically trained to perform tasks that are specific to the person's disability and has public access privileges."  The final clause presumably refers to the access rules of the Department of Justice.  Why ADI is not mentioned here is not stated. 

Law on Facility Dogs as Aids to Vulnerable Witnesses Continues to Develop

An adult man, Douglas, is retarded but able to hold down a job.  He meets the girl next door, Alesha Lair, who soon moves in with him, and moves in three members of her family as well.  Alesha begins to drain Douglas’s bank accounts and max out his credit cards on presents for her family and friends, including another boyfriend, Timothy Dye.  She sets up an apartment using more of Douglas’s money, then moves out.  But she hadn’t taken everything, so Timothy comes back to get what’s left from Douglas.  He enters the house when Douglas is there and takes things despite Douglas’s protests.  The next day, when Douglas is at work, Dye again returns and takes everything left of any value, leaving the door open as he leaves.  Finally the law gets involved.  Alesha pleads guilty to theft in the first degree with the aggravating circumstance that Douglas is a vulnerable victim.  Timothy Dye fights the charge and is prosecuted.

Douglas has trouble facing Timothy in court and asks to be able to come to the witness stand with a “facility dog” named Ellie. The trial court allows it.  A Washington State Appellate court affirms.  Now the Supreme Court of the State of Washington has also affirmed, making this one of the most important cases in this developing area of the law.   

To know more, read the article below on the website of the Animal Legal and Historical Center of Michigan State University.  Use of facility dogs is an important trend, but I fear that some courts are not being careful to limit the prejudice that might be involved.  I have no sympathy for people like Alesha Lair and Timothy Dye—the facts speak for themselves—but courts should attempt to limit the impact of the presence of the dog as much as possible.  The innocence of the dog must not become proof of the victim’s honesty.  The dog is a way to let the victim to tell his side of the story in a setting that is, for many victims, terrifying, but the dog should not by its mere presence establish that what the victim says is true.  Certain precautions to limit the impact the presence of the animal might have should be considered by courts in these cases.

Recent Cases on the Use of Facility Dogs by Witnesses While Testifying (originally written in 2012 and updated periodically since then). 

Hearings on Taking Gray Wolves off Endangered List Rescheduled

Perhaps gray wolves were the only beneficiaries of the government shutdown because prior announced hearings on taking them off the endangered species list had to be rescheduled.  Also, the comment period, previously set to end on October 17, has now been extended to December 17, 2013.  A two-month reprieve, for what it's worth.  New hearing dates were announced on the website of the Fish and Wildlife on October 23 and in the Federal Register on Monday, October 28. 

Mexican Wolf Pup in Gila National Forest

The new hearing dates are:

• November 19 from 6 pm to 8:30 pm in Denver at the Paramount Theatre, 1621 Glenarm Place: (808) 405-1245.
• November 20 from 6 pm to 9 pm in Albuquerque at the Embassy Suites, Sandia Room, 1000 Woodward Place NE: (505) 245-7100.
• November 22 from 6 pm to 8:30 pm in Sacramento at the Marriot Courtyard Sacramento Cal Expo, Golden State Ballroom, 1782 Tribute Road: (916) 929-7900.
• December 3 from 6 pm to 8:30  pm in Pinetop, Arizona, at the Hon-Dah Conference Center, 777 Highway 260, which is three miles outside of Pinetop at the junction of Highways 260 and 73: (929) 369-7625.

Both the proposal to delist the gray wolf and the proposal to list the Mexican wolf as an endangered subspecies were discussed here in some detail on July 8.  Fish and Wildlife has already said that these hearings are for commenters to vent, not for its representatives to subject themselves to explaining their weak-kneed wildlife preservation philosophy.  That is, they'll try to look interested even though they've made up their minds. 

Curiously the December 3 meeting in Pinetop, Arizona, “will provide the opportunity for interaction with Service staff, who will be available to provide information and address questions on the proposed rule.”  Apparently, Fish and Wildlife feels obligated to explain why it is trying to help a remnant of the Mexican wolf population, which, as I noted on July 8, it holds out little hope for in the long run.   

Department of the Interior, Fish and Wildlife Service, RINs 1018-AY00 and 1018, AY46, 78 Fed.Reg. 64192 (October 28, 2013). Photograph taken from U.S. Fish and Wildlife Service, Mexican Wolf Recovery Program: Progress Report # 15.

Additional Note.  In the Federal Register for Halloween, the U.S. Fish and Wildlife Service requested a five-year renewal of its permit to export and re-export live Mexican or lobo wolves (Canis lupus baileyi) for breeding and reintroduction, as well as the export and re-export of biological samples for genetic studies.  The Pinetop hearing might be the place to ask how many wolves the agency plans to bring into the area where the Mexican wolves can still be found.  78 Fed. Reg. 65353 (October 31, 2013)    

Qualifying for Disability Benefits: Applicant's Need for a Service Dog Must Be Taken into Account

In Service and Therapy Dogs in American Society, I describe (pp. 235-6) how expenses for a service dog are taken into account in determining whether an applicant is below the income threshold for certain types of benefits, including disability insurance benefits.  The expenses for the service dog are deducted from the applicant's income in determining whether he or she has too much income to qualify.

Another aspect of qualifying for disability concerns the applicant’s capacity to work.  Generally, applicants must establish that it would be very difficult to perform or find a job. A recent federal district court refined this issue by holding that, when determining whether there are jobs available for an applicant, the fact that he will be bringing a service dog with him to the job must be considered. Thus, an applicant with the mental and physical capacity to work in a laundry may not be able to take such a job if the environment would not be a safe place for his service dog.  On the other hand, working as a filing clerk in an office, where the dog could lie under a desk most of the time and keep the applicant from having panic attacks, might be just fine. 

Determination of Administrative Law Judge in Washington State Case

Alexis Santos applied for disability insurance benefits in May 2012, citing major depression, hypertension, anxiety, panic attacks, and carpal tunnel syndrome in both hands.  The application was denied in August 2010 and on reconsideration in January 2011.  A hearing was held before an administrative law judge in October 2011, who determined in a decision issued in January 2012 that Santos was not disabled.  Santos filed a complaint in the federal district court for the Western District of Washington in September 2012.  That court has now reversed the ALJ’s decision and remanded the matter for further administrative proceedings. 

The administrative law judge (ALJ) determined that Santos could perform “medium work,” which might include occasionally climbing ladders, ropes, and scaffolds, and  could “perform frequent handling and fingering with both hands and should avoid concentrated exposure to vibrations and hazards.”  Further, he could “perform simple, repetitive tasks with no public interaction and without a requirement to perform teamwork with co-workers.” 

The ALJ based these conclusions on the testimony of psychologists employed by or consulting with the Washington State Social Security office, but Santos argued to the federal district court that the ALJ had failed to include mental functional limitations mentioned by the psychologists. The federal district court agreed and said that if a claimant such as Santos cannot perform work of a sort that he had previously done, the ALJ “must show that there are a significant number of jobs in the national economy the claimant can do.  One vocational expert had indicated that given his “residual functional capacity,” Santos could be a laundry worker, warehouse laborer, mailroom clerk, or office helper. 

Federal District Court Analysis

Santos argued that the ALJ had also failed to take into account his use of a service dog.  The state Social Security administration responded that the record did not indicate that Santos’s use of a service dog had been of significant benefit to him in terms of his mental health symptoms. (As Dr. Thomas and I have pointed out, there is almost no evidence that service animals have curative powers, but some evidence that they make having a disease or condition more tolerable.) 

The federal district court noted that the record indicated that Santos’s panic attacks appeared to be controlled with the help of his service dog, and there was evidence that there had been no panic attacks or agoraphobia since Santos got the dog.  A service dog was not originally prescribed for him, but Douglas Green, MD., subsequently did provide a letter for one.  (A search of the PACER system database indicated that most documents in the federal district court record were sealed for privacy reasons and the letter was not available.) The court noted:

“[T]he vocational expert testified that in regard to the warehouse laborer and laundry worker jobs, having a service dog in the workplace ‘would probably be an accommodation,’ and that it would ‘[n]ot likely [be allowed] in a warehouse or a laundry.’ … Thus, to the extent that plaintiff would be required to have a service dog at work both of those jobs likely would be eliminated. The vocational expert went on to testify that it was ‘not impossible to consider the mailroom clerk [job] as a possibility for’ use of a service dog, and that ‘[o]ther work’ in that respect ‘would be something like an office helper’ … but clearly this testimony is less than conclusive in that regard. Nor did the vocational expert, as plaintiff also points out, testify as to how many of the mailroom clerk and office helper jobs she identified would accommodate use of a service dog.”

The court noted that a mailroom clerk would not be appropriate for another reason, namely that Santos did not have the needed reasoning level.  The court concluded:

“[T]here is at least some evidence in the record that plaintiff’s use of a service dog is medically necessary. There also is evidence in the record that failure to accommodate the use thereof may have a significant adverse impact on the ability of plaintiff to function mentally, including in the workplace.  Such evidence constitutes significant probative evidence that the ALJ should have discussed in her decision, but failed to do so…. This failure on the part of the ALJ thus constitutes reversible error.” 

Conclusion

Because of the remand, Santos could still lose the case if the Washington Social Security agency determines that, even taking the service dog and other factors into account, he could still find work.  More and more work environments are getting used to the idea of having employees who come with service dogs, so it is not impossible that Santos will still be denied disability benefits. 

The case is important in showing that an applicant for disability benefits has the right to have the use of a service dog taken into account in determining the availability of potential jobs.  There are a number of situations where the work environment would be fundamentally altered by the presence of a dog, even a service dog, and equipment and other factors might actually be dangerous for the animal, but there are also many office and other jobs where a service dog could and should be easily accommodated.

Santos v. Colvin, 3:12-cv-05827-KLS, 2013 U.S. Dist. LEXIS 130810 (W.D. Wash. 2013)

Sniffing Car Trunks and Tennis Shoes: How an Arson Dog Helped Catch a Serial Arsonist

Accelerant detection dogs are usually used at fire scenes to make an initial—sometimes the only—determination that gasoline or another accelerant was used to start a fire.  In a case coming out of Maryland in September, however, the dog was used to identify accelerants on and inside a car belonging to a suspect, in his bedroom, and on shoes he wore when attempting to set fire to a car in the driveway of the house where a former girlfriend lived.  Although a Maryland appellate court determined that the testimony of the handler of the arson dog was improperly admitted—because he had given expert opinions without being qualified as an expert under Maryland evidentiary procedures—the court excused this as harmless error. 

Fires in the Night

At about 1 a.m. on the morning on November 15, 2009, Jeffrey Byers saw fire coming through the front of his detached, two-car garage and its three-bedroom loft.  He alerted his wife and daughter and called the fire department.  The garage was engulfed by the blaze but the firemen who arrived kept the fire from spreading to the main house.  The police were informed because the fire was deemed suspicious.  A fire official concluded that the fire was probably set by human hand and the fire department installed surveillance cameras around the home, but subsequently removed them on April 3, 2010.

On April 4, 2010, Byers awoke around 3 a.m. and found his house full of smoke.  He saw the roof above the dining room on fire in two places and his wife called 911.  Byers got a water hose and attempted to extinguish the flames.  A fireman who arrived detected a strong smell of accelerant.  Law enforcement officials collected samples of burned wood, tar paper, pieces of roofing, soil, and debris for testing.  Unburned roofing was taken as a control.  Everything but the unburned roofing contained gasoline. 

A scriptwriter turning this case into a segment of, say, Rizzoli and Isles, would make much of the fact that the cameras came down on April 3 and the horror resumed on April 4, but the court does not.  Presumably the perpetrator was watching the house, though for plot structure I suspect that he would be found to have a friend in the fire department, or even be in the fire department himself. 

What the family did next is described by the court as follows:

“Following the fire of April 4, 2010, the Byers family replaced the two-camera surveillance system they originally used at their residence with an eight-camera system and a built-in DVR. Mr. Byers purchased an additional four cameras, resulting in a twelve-camera surveillance system that monitored the entire perimeter of the Byers' residence. The system was equipped with infrared motion detection and recording capabilities that enabled the Byers to remotely survey the home. Additionally, Mr. and Ms. Byers began sleeping in shifts to monitor the security of their home.”

On May 16, at approximately 1 a.m., Yolanda Byers, Jeffrey’s wife, was watching the surveillance camera when she saw someone walking go from the street into the driveway.  The individual was wearing a hood and a mask and carrying a container.  He began dousing the vehicle with liquid.  The family gathered at the living room window and began shouting at the man to leave, but he gave them the finger.  He initially dropped a bag and the container but then picked them up and began running away.  Jasmine, the Byers’ daughter, based on the man’s posture, walk, and body frame, thought that he was a former boyfriend from high school.  When the police arrived, they saw the family’s car had been doused with gasoline.  The family gave the police the name and address of the person they suspected. 

Police Pursue Lead with Arson Dog

Investigator Robert Kaleda and another officer drove to the suspect’s house and performed “an exterior canine scan” of the suspect’s vehicle.  The dog, Joy, “had two positive alerts to the presence of accelerants: (1) at the driver’s door handle, and (2) at the trunk’s keyhole.” 

The officers could have applied for a warrant because of the dog’s alerts to the car, but decided to knock on the door of the house.  The suspect answered the door.  When the officers entered the house, they smelled a strong odor of gasoline and placed William Simpson III under arrest. The suspect consented to a canine search of his person and a canine and physical search of his vehicle.  The dog alerted to the presence of accelerants in the trunk and underneath the driver’s seat. 

The suspect and his father also consented to a canine search of the suspect’s bedroom and the laundry room.  The dog alerted to a pair of athletic shoes in the suspect’s closet.  An analysis by gas chromatography-mass spectrometry indicated the presence of gasoline on the shoes.  (It would seem that gasoline might also have been detected on the suspect’s mask and other clothing but the opinion makes no further mention of these items.) 

After being read his Miranda rights, the suspect admitted he had poured gasoline on the Byers’ vehicle and was going to ignite it with a lighter in his front pocket.  He also admitted setting the prior fires.  In addition he wrote a statement about the crimes.  At trial he was convicted of attempted second degree arson and sentenced to ten years in prison. 

Various issues were raised on appeal, and the Maryland Special Court of Appeals reviewed trial evidence.

Canine Training

Investigator Kaleda testified regarding the training he received with Joy, his canine partner.  Their initial training was at the BATF Canine Academy in Front Royal, Virginia.  He testified:

“The initial training is pretty much cans, similar to these, and there is substances put in the cans. Some have odor on them and some do not. And when I say ‘odor,’ of hydrocarbon-based fuel. The dog repetitively goes over them hundreds of times a day to distinguish between the products and the products with fuel.”  

Officer Kaleda explained that Joy had completed BATF training before she was assigned to him.

“[W]hen we receive the dogs, they are already imprinted, which is the process of where they are trained to the odors. They know that before we get there. They, indeed, have -- and the ATF training staff does that for about 8 weeks, I believe, before we get there. So our six-week program is just pretty much acclimating, and being able to learn how to distinguish what the dog is doing.”

He also explained what Joy does when she detects a target odor:

“[H]er behavior will change when she gets in the area of an odor, and she will sniff more rapidly, she'll move around a little more quickly.  When she finds the highest concentration of odor, she will sit and she'll put her nose on it, and then she'll be fed. I will ask her to show me the location and she'll put her nose on the highest concentration of odor.”

Was the Handler an Expert?

When Officer Kaleda began to testify regarding use of the dog in the case at trial, the defense objected that he had not been qualified as an expert.  Although overruled, the trial court allowed a standing objection to be recorded.  The appellate court concluded that it was, in fact, error to admit the officer’s testimony without qualifying him as an expert, but determined that the error was “harmless beyond a reasonable doubt.”  The appellate court stated that “an officer’s observations of his/her detection canine qualifies as expert testimony.”  A significant part of the court’s analysis concerned a previous Maryland case, Terrell v. Maryland, 3 Md. App.340, 239 A.2s 128 (1968), an important tracking case because of its extensive discussion of the history of tracking law (referred to numerous times in Police and Military Dogs). 

Conclusion

The failure to qualify the arson canine’s handler as an expert was an oversight that should not be waived in subsequent trials of this sort in Maryland, but is the correct decision here.  The appellate court included long excerpts from the trial transcript, probably to demonstrate that if the prosecutor had made the effort, Officer Kaleda could have been qualified as an expert by the trial judge. 

The case is important for showing that arson dogs may provide valuable evidence when deployed at locations other than the location of a fire.  Whether the canine evidence would have held up without laboratory confirmation of the presence of gasoline on the defendant’s car and his shoes is a separate issue, but fortunately for the prosecution was not in question here. 

Simpson III v. State of Maryland, 2013 Md. App. LEXIS 134 (Ct. of Special Appeals, 2013)

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

More on the Cancer Sniffers: Dogs vs. Electronic Noses

Dogs have been taught to screen for cancer, alerting to individuals who may have a cancer but whose diagnosis will have to be verified by biopsy and histopathology.  A review article recently appearing in The Netherlands Journal of Medicine (Bijland et al., 2013) finds that electronic noses, at least as to the detection of some cancers, may be better than dogs.  Nevertheless, recent studies on lung and ovarian cancer found dogs uniquely effective, and able to detect smaller concentrations of cancer odors than any other technique.  While most studies continue to suggest that clinical deployment of cancer-smelling canines remains a possibility, researchers continue to emphasize that only more research can make dogs a clinical diagnostic tool.  Also, deploying dogs in medical environments faces hurdles that will not be presented to electronic noses. 

How Cancers Produce Unique Odors

An editorial by three scientists (Leja et al. 2013) regarding using scent as a diagnostic tool explains that volatile organic compounds (VOCs) are released from cancer cells or metabolic processes associated with cancer growth.   “These VOCs are transported with the blood to the alveoli of the lung from where they are exhaled in measurable odorants.”  Thus, cancer has a smell, and “at least in theory, different cancers have different smells.”  The editorial describes an electronic nose as follows:

“The olfactory receptors of the mammalian nose are mimicked by an array of highly sensitive gas sensors.  Like biological receptors, these sensors can each absorb a wide variety of VOCs from the gas phase. The collective sensing signals are statistically analyzed, using pattern recognition algorithms that have previously been trained how to identify a particular smell by controlled exposures in the laboratory. Once established, the electronic patterns of disease allow classifying unknown breath samples from patients or healthy subjects. However, the development of suitable gas sensors for breath testing is technically challenging, because the sensors should be able to detect the delicate smell of diseases such as cancer in the humid atmosphere of exhaled breath albeit strong individual variations of the breath-humidity levels between persons.” (Leja et al.)

Comparing E-Noses and Animals in Disease Identification

Bijland et al. searched various databases for “key studies in scent detection” and found 168 papers, some of which involved electronic noses (e-noses) and other non-canine detection approaches for diseases.  They reviewed studies where scent was used in the detection of lung, ovarian, breast, bladder, colorectal, and melanoma cancers.  This review article compared e-nose studies with studies involving animals, particularly dogs.  As shown in the following table, adapted from the study, in some cancers, such as bladder cancer, e-noses outperformed dogs, but in others, such as breast cancer, dogs were more successful.

Cancer	Type of Nose	Type of Sample	Sensitivity/Specificity
Lung	Dog	Breath	71%/93%
	E-nose	Breath	71%/100%
	E-nose	Breath	85%/100%
	E-nose	Breath	94% success rate
	E-nose	Breath	71%/92%
Ovarian	Dog	Tissue and blood	Tissue: 99%/97% Blood: 100%/98%
	E-nose	Tissue	84%/87%
Breast	Dog	Breath	88%/98%
	E-nose	Breath	94%/74%
	E-nose	Breath	75%/85%
Bladder	Dog	Urine	41% success rate
	E-nose	Urine	100%/100%
Colorectal	Dog	Breath and feces	Breath: 91%/96% Feces: 97%/99%
Melanoma	Dog	Tissue	75-86% success rate
	E-nose	Tissue	70%/90%
Tuberculosis	Rats	Sputum	74% accuracy
	Rats		68%/87%
	E-nose	Sputum	85% accuracy

The tuberculosis study with rats determined that these animals were able to process over 40 times as many sputum samples a day than a lab technician.  Such an ergonomic advantage has not been found in other studies with animals as cancer sniffers, however. 

The review paper noted that dogs have been able to detect certain kinds of intestinal infections.  E-noses have been used to detect diabetes, liver cirrhosis, asthma alone, asthma and COPD, and COPD alone.  E-noses can distinguish different stages of COPD.  This study noted that humans have been able to detect certain diseases with their own noses, though this skill has seldom been the subjected to quantitative study.  Tuberculosis was detected by the ancient Greeks and Chinese by heating the patient’s sputum and smelling the fumes.  As compared to e-noses, the researchers noted the following concerning dogs:

“Dogs … require an average VOC concentration of less than 0.001 part per million.  Enoses on the other hand have a detection threshold of 5 to 0.1 parts per million (ppm), although like animals different types of Enoses have different affinity for different volatiles. In comparison, humans have a detection threshold, on average, ranging from 0 to 80 ppm, again depending on of the type of substance. For example, ammonia cannot be perceived by humans until it reaches 50 ppm. Taken together, many animals smell up to 100 times better than humans and Enoses, and it may well be worth making appropriate use of this superior technology.”

Thus, dogs may be able to detect smaller amounts of cancer-produced chemicals than current e-noses.  The researchers suggested that dogs might be particularly useful for colorectal cancer where other methods, where blood work is uncertain and colonoscopies are much more invasive.  They conclude that “scent detection holds promise for the future and should receive higher priority in terms of research effort and funding.”  

Chemical Means of Analyzing VOCs

The VOCs in the breath can also be analyzed by chemical techniques, but since they appear in the breath in such low concentrations, they must be enriched before analysis.  Buszewski et al. (2012a) note that the “most common method of enrichment of VOCs is solid-phase microextraction (SPME) and sorption on solid sorbents followed by thermal desorption (TD),” after which the enriched VOCs can be subsequently analyzed by gas chromatography (GC) or GC-mass spectrometry (GC-MS).  There are variations on these techniques and other chemical procedures under development. 

This research team from Poland and Austria described the connections between the dog’s nose and its brain, beginning with the mucus lining of the nasal cavity where molecules are bound to odorant-binding proteins.  The axons of olfactory cells reach the olfactory bulb and converge in structures called glomeruli.  In the inner layer of the olfactory bulb, mitral cells form glomeruli with axons of olfactory receptor cells and send signals to the olfactory cortex.  Each individual odor produces a specific spatial map of excitation and, through spatial encoding, the brain distinguishes specific odors.  German shepherds have more than 200 million olfactory cells on an area of about 170 square centimeters, whereas humans have about 5 million cells on about 5 square centimeters of olfactory epithelium.  The proportion of active to inactive genes of the olfactory receptor proteins also enters into the calculation of how much more powerful a dog’s sense of smell is than that of a human.  The team summarizes prior research on canine cancer detection as follows:

“The papers published so far demonstrate that dogs, after appropriate training, are able to discriminate breath, urine, feces or tumor-tissue samples of patients with lung, breast, prostate and ovarian cancers from respective samples taken from healthy humans with sensitivity (the true positive) and specificity (the true negativity) exceeding 80%. The canine indications are easily interpretable in terms of calculating the detection sensitivity and specificity, but no information can be obtained on what chemical compounds dogs are responding to or the quantity of those compounds.”

They also argue that analysis “of odor samples by GC-MS carried out simultaneously with tests using trained dogs” may detect which VOCs are the markers of cancer that dogs respond to.  The team has, in fact, begun to work on this idea (Buszewski et al. 2012b).

Recent Lung and Ovarian Cancer Studies

A recent study (Amundsen et al. 2013) using dogs to detect lung cancer in patients who were suspected of having that cancer, but who had not yet undergone bronchoscopy, found that with “99% sensitivity, the dogs were able to distinguish cancer patients from healthy individuals.”  The authors concluded that “the main challenge is to determine whether the test can sufficiently discriminate between patients at risk, patients with benign disease, and patients with malignant disease.” 

Another research group (Horvath et al. 2013) has been studying the ability of dogs to recognize ovarian cancer in the blood of patients with the disease. Their research has indicated that dogs trained to recognize the odor of ovarian cancer did not recognize odors from other gynecological malignancies.  They argue:

“The fact that the dogs could not recognize cancers other than ovarian cancer strongly suggests that different cancers have different characteristic smells, thus enabling both diagnosis and differential diagnosis. Moreover, the characteristic odor of ovarian carcinoma is likely organ-specific.”

This conclusion appears at odds with research involving a cancer sniffing dog in Japan discussed in a blog here several years ago.  In a paper just published in BMC Cancer, this team sought to analyze how surgery and chemotherapy affected the ability of dogs to detect ovarian cancer in the blood of patients.  They found that dogs were almost flawless when it came to recognizing patients with full-blown ovarian cancer, but also made very few mistakes when asked to detect samples of patients that had received five or six chemotherapy treatments and who had significantly lower cancer antigen levels.  They found that one dog, named Hanna, “was repeatedly able to identify with certainty a piece of fatty abdominal wall containing about 20 microscopically-verified ovarian cancer cells. It is impressive how this very low limit of detection allows dogs to signal probable future recurrences that would not be diagnosed by other methods for another 2–3 years. This is the most important result of the present study.”  They conclude that:

“Detection of odor in the blood, currently only possible with trained dogs, can allow for early and long-term prediction of survival. An early diagnosis of primary or recurrent disease may also significantly improve the patient’s survival.”

Conclusion

The recent research and analysis indicates that e-noses may become a valid methodology for detecting some cancers, where samples can be sufficiently large. It is difficult to imagine dogs wandering the corridors of hospitals smelling the rear ends of patients even if this were proven to be a useful diagnostic tool, so clinical deployment would likely involve the creation of separate testing facilities.  Samples would have to be carried to the such facilities, and specialized dog handlers and technicians would have to be employed.  This might be practical for a large centralized medical provider treating a great number of patients, or for a specialized facility serving an array of hospitals and medical centers in a large, perhaps multistate area.  Still, this might for a time remain cheaper than buying electronic noses or developing laboratories with sophisticated extraction equipment.  Almost all papers published in this area emphasize the need for further research along all these lines, but the number of scientists focusing on these approaches is increasing, and we can expect advances to continue.  

Thanks to Tadeusz Jezierski for directing me to some of the research discussed here.  Thanks to Kingsbury Parker, particularly for noting that "the dog's ability to detect .001 ppm is truly amazing.  Since I have done similar quantitative analysis in the lab at the accuracy of 1 ppm I know what sort of effort is required." Thanks to L.E. Papet for additional sources and, as he often does, restraining my more fanciful arguments.  Thanks to Richard Hawkins, also as usual, for catching mistakes.    

Sources:

Altomore, D.F., Di Lena, M., Porcelli, F., Trizio, L., Travaglio, E., Tutino, M. Dragonieri, S., Memeo, V., and d Gennaro, G. (2013). Exhaled Volatile Organic Compounds Identify Patients with Colorectal Cancer.  British Journal of Surgery, 100(1), 144-150. 

Amundsen, T., Sundstrom, S., Buvik, T., Gederaas, O.A., and Haaverrstad, R. (2013). Can Dogs Smell Lung Cancer? First Study Using Exhaled Breath and Urine Screening in Unselected Patients with Suspected Lung Cancer.  Acta Oncologica (posted online ahead of publication August 19, 2013).

Bijland, L.R., Bomers, M.K., and Smulders, Y.M. (July/August 2013). Smelling the Diagnosis: A Review on the Use of Scent in Diagnosing Disease.  The Netherlands Journal of Medicine, 71(6), 300-307.

Buszewski, B., Rudnicka, J., Ligor, T., Walczak, M., Jezierski, T., and Amann, A. (2012a). Analytical and Unconvential Methods of Cancer Detection Using Odor.  Trends in Analytical Chemistry, 38, 1-12.

Buszewski, B., Ligor, T., Jezierski, T., Wenda-Piesik, A., Walczak, M., and Rudnicka, J. (2012b).  Identification of Volatile Lung Cancer Markers by Gas Chromatography-Mass Spectrometry: Comparison with Discrimination by Canines.  Analytical and Bioanalytical Chemistry, 404(1),141-146.

Horvath, G., Andersson, H., and Nemes, S.(2013) Cancer Odor in the Blood of Ovarian Cancer Patients: A Retrospective Study of Detection by Dogs During Treatment, 3 and 6 Months Afterward. BMC Cancer, 13, 396.

Leja, M., Liu, H., and Haick, H. (2013). Breath Testing: The Future for Digestive Cancer Detection.  Expert Review of Gastroenterology and Hepatology, 7(5), 389-391.