VA Issues Final Animal Access Rules for Facilities; Allows Service Dogs for PTSD but Bans Miniature Horses; Rejects Push for Service Dog Training Monopoly

The Department of Veterans Affairs has issued final rules regarding animals, including service and therapy animals, on VA property.  80 Fed. Reg. 49157 (August 17, 2015).  The proposed rules were discussed here in a prior blog, and nearly 100 comments were submitted on various aspects of the rules.  Fortunately, much of what the service dog community said was heard by the VA reg writers, and many veterans whose service dogs for PTSD were being excluded from VA facilities have reason to rejoice.   The final rules, 38 CFR 1.218(a)(11), effective September 16, 2015, are reproduced in an appendix at the end of this blog. 

The preamble to the final rules states that their purpose is to establish “a set of standardized criteria that can be uniformly enforced on VA property, and removes variation amongst individual facilities that existed prior to this final rule.”  The reg writers are to be praised for acknowledging that there has been confusion, particularly with some facilities using the funding rules of 38 CFR 17.148 as access rules as well, while others were using the rules of the Department of Justice as a default. 

Definition of Service Animal: Work or Tasks

The final rules define “service animal” identically to the definition given in the VA's 2014 proposal, with the exception of one word: 

A 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…. The work or tasks performed by a service animal must be directly related to the individual’s disability.

The proposal had used the conjunction “and” instead of “or,” creating the possibility that a dog could not solely “do work,” as is allowed under the rules promulgated by the Department of Justice in 2010. The distinction between work and tasks is perhaps one of the most complicated, if not muddled, issues in the terminology of service animal law.  For an insightful analysis of this issue, see the online article by Bradley Morris, Toward Clarity and Utility in Work vs. Task Distinctions. 

Some commenters, including me, had suggested that examples be provided of what the VA considers to be work or tasks, particularly as to service animals that might assist an individual with a mental disability or illness. The VA has declined to do this, but specifically adds a reference in the preamble to ADA guidance provided by the Department of Justice (75 Fed. Reg. 56236, scroll down to p. 56266 et seq.). Thus, the VA seems to be incorporating by reference the following passages:

The work or tasks performed by a service animal must be directly related to the handler’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.

***

Although the common 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.

***

A pet or support animal may be able to discern that the handler is in distress, but it is what the animal is trained to do in response to this awareness that distinguishes a service animal from an observant pet or support animal.

***

It is the Department’s [i.e., 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.

It is to be hoped that training materials for security personnel and others in VA facilities will specifically include these examples, since the regulatory release provides only a reference.

No Change in Funding Rules

The preamble to the VA's final rules seems not to be wholeheartedly accepting of the DOJ's examples of work and tasks as the final sentence of the discussion states: 

By providing this reference of examples of work and tasks in the context of public access, VA is not expressing a position on the efficacy of such dogs for the treatment of the disabilities of the individuals.

This statement initially struck me as out of place, as a vague if not pointless hedge on the cross-reference to DOJ’s examples, until Veronica Morris pointed out that the VA had a history of questioning the value of service dogs for mental disabilities.  I had forgotten that I had even blogged about this three years ago when the VA finalized 38 CFR 17.148, the VA's service dog funding rule.  In explaining why it would not fund service dogs for mental disabilities, the VA had stated:

We are unaware of similarly vetted and accepted training protocols for mental health service dogs, or how assistance from such dogs could be consistently helpful for veterans to mitigate mental health impairments.

The preamble to the final funding rules had added that "if we ultimately determine that mental health dogs are appropriate treatment tools for mental health impairments, we will amend our regulations to authorize benefits for such dogs."  Thus, it appears that the VA's reiteration of its doubt as to the value of service dogs for mental disabilities is a way of stating it has no current plans, despite allowing such dogs into facilities, to provide funds so that veterans without sufficient resources can purchase or maintain them.  

I had argued in the prior blog that guide dogs do not cure blindness but do help people with vision impairments function in ways they would not be able to do otherwise.  Similarly, a dog that is trained to sit behind a veteran having a panic attack in a movie line and give him some space may not reduce the number or severity of panic attacks (and thus may not “treat” them), but may allow the veteran to stay in the movie line and later enjoy the movie.  The VA’s argument that a medical benefit would have to be demonstrated before it would consider funding psychiatric service dogs is thus based on faulty logic. 

It might also be worth noting that when it was revealed that the access rules were on a fast track for finalization, discussed in a blog posted here on June 1, the slides that revealed this priority referred to the internal process as a “concurrence process.” The phrase struck  me as odd at the time.  I have been involved as the onetime chair of an ABA tax section committee (Banking and Savings Institutions) with a number of Treasury Department regulatory initiatives, yet have never seen any initiative referred to as a concurrence process, as if some set of officials held a veto power they would exercise if their opinions were not respected.  My interpretation of the use of the phrase in the slide is that some faction (it could be a single individual but is more likely a group) inside the VA thinks service dogs for psychiatric conditions are bullshit and would not sign off on the publication of the final rules—“concur”—unless their objections were noted to make it clear that any move by others in the VA to allow funding for dogs used by veterans with PTSD would be met with forceful resistance.   

There is one remote possibility for change in the VA's position, but this depends on research that seems to be making little progress. In 2011, the VA announced its intention to study the benefits of service dogs for veterans with PTSD.  Clinical trials (NCT01329341) are supposedly being conducted at the James A. Haley Veterans' Hospital in Tampa, Florida, with a projected completion date (there have been several, with the first being almost two years ago) now set for October 2017. The success of  the study will apparently be determined for participants by measures of their PTSD symptoms (PTSD Checklist-PCL), depression levels (Patient Health Questionnaire-9, or PHQ-9), and level of alcohol abuse (Audit-C). Presumably if the results under one or more of the measures in these tests indicate improvement of the experimental population, the VA will reconsider its resistance to providing funds for service dogs to veterans with PTSD. 

Individually Trained, but No ADI/IGDF Requirement as to Access

Following the Department of Justice, the emphasis of the VA’s definition of service animal is that it be individually trained, not that it be trained by a specific group.  Some commenters had argued that dogs should be only allowed into VA facilities if trained by member organizations of Assistance Dogs International or the International Guide Dog Federation, as is still required under the funding rules of 38 CFR 17.148. The VA has conclusively rejected such a restrictive approach to service dog access:

VA’s standard for service animal access is consistent with regulations that implement the ADA and is not dependent on how the service animal was trained or by whom, but instead depends on the service animal’s ability to behave in accordance with typical public access standards for public settings.

Health Records Requirements for Service Dogs

The proposed rules appeared to require documentation requirements that might apply for access to VA property, which led to some objections from commenters.  The health records requirement has been bifurcated into access for veterans who will receive treatment in a residential program, and those for general access to VA property, as follows.

1.218(a)(11)…

(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 the service animal. However, 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, if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program, must provide VA with documentation that confirms the service animal has had a current rabies vaccine as determined by state and local public health requirements, and current core canine vaccines as dictated by local veterinary practice standards (e.g. distemper, parvovirus, and adenovirus-2).

The vaccination documentation requirement for residential treatment is necessary, according to the preamble, because in such a situation the “service animal will have routine and constant interaction with employees, veterans, patients, and visitors over the course of an extended period of time … so that VA may ensure patient care, patient safety, and infection control standards are met.”

Emotional Support Animals Not Included

Some commenters had argued that the VA expand its rules to include emotional support animals, or animals that would fit under the definition of “assistance animal” sometimes applied in housing law, but the VA rejected these arguments, even as to VA residential programs:

Regarding VHA’s residential treatment programs, these programs involve shared spaces amongst multiple veterans, where there is an active treatment component that involves the participation of not only the veterans but also treatment providers as well as other members of the public at times. Therefore, we interpret VHA residential programs to be public treatment spaces (just as the other areas of VHA property that are specified in this final rule), rather than a residential space analogous to the HUD public housing context.

Dogs in Training Are Not (Yet) Service Animals

The VA’s definitional section specifies that “[s]ervice dogs in training are not considered service animals.”  In the preamble  to the final rules, the VA acknowledges that some commenters had objected to this policy: 

Some of these commenters reasoned that a service dog in training could be well trained enough to dependably behave safely in public settings, even without having fully completed their training. Other commenters expressed that VA properties could be used as training opportunities for service animals. VA seeks to maintain a safe and therapeutic environment at its properties. In a complex hospital environment, we believe that service animals should be fully trained and a ‘‘service animal in training’’ is not fully trained. We therefore do not revise § 1.218(a)(11)(viii) to permit service animals in training.

The Department of Justice does not have a similar sentence in the definitional section of its 2010 rules, though the use of the adjective “trained” could be interpreted as indicating that an animal in training is not a service dog.  (As I also noted in the 2014 blog concerning the VA’s proposed rules, the Department of Transportation, in its service animal regulations, allows airlines to choose their own policy on whether to admit service animals in training. 73 Fed. Reg. 27659, May 13, 2008.)

Dogs Only, Not Miniature Horses

As did the Department of Justice, so the VA has restricted service animals to dogs:

Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.

The Department of Justice had created a sort of provisional category for miniature horses, which are being trained by certain groups to be guides for the visually impaired.  The VA did not follow the DOJ in this regard, stating the following in the preamble to the final rules:

Several commenters wanted VA to permit miniature horses on VA properties. As discussed in the proposed rule, VA believes the presence of a miniature horse poses legitimate safety concerns, both to people on VA property and the miniature horse, especially on VA healthcare properties. This final rule reiterates VA’s determination from the proposed rule, that, in light of a review of the multiple assessment factors, miniature horses are excluded from VA properties. We restate from the proposed rule that these assessment factors include the larger size of a miniature horse as well as their reduced predictability in behaving in accordance with typical standards of public access required of service animals. Additional factors from the proposed rule that VA considers to support the exclusion of miniature horses include elimination of horse waste, a heightened flee response of a miniature horse, the smooth flooring common to VA properties, and the likely disruptive attention a horse would receive.

Of all the comments received on the VA's proposal, only two mentioned miniature horses.  One was a service dog user who made the offhand but correct observation that some service dogs are larger than some miniature horses, and another, an attorney with Disability Rights North Carolina, noted that the exclusion of miniature horses moves away form a general principle of inclusion.  No guide miniature horse user or advocate submitted any comments.  As I have said before, some vocal miniature horse user or organization needs to step up to the plate if this modality is to be taken seriously in government circles. 

Access Applies to Service Animals of Veterans, but Also Visitors and Employees

Psychiatric Service Dog Partners in its comment had argued that the access rules should also apply to service dogs coming with visitors to see veterans in facilities.  I had noted that some employees of VA facilities also use service dogs (and some patients and residents are also employees).  The preamble states that “this VA regulation applies to everyone seeking access to VA property, to include employees,veterans, and visitors.” 

Harness or Leash Requirement Removed, Alternate Handler Allowed

The 2014 proposed rules had stated that a “service animal must be in a guiding harness or on a leash, under control of the individual with the disability at all times while on VA property.”  This was criticized by various commenters: 

These commenters asserted that multiple disabilities might prevent an individual from physically controlling a service animal via a harness or leash, or that the service animal’s presence on a leash or other tether at all times might prevent that service animal from completing work or tasks they are trained to perform. Further, some commenters urged VA to adopt a standard that mimics that of the regulations that implement the ADA, whereby control over the service animal by the handler can be in the form of voice control. VA agrees with these comments, and amends § 1.218(a)(11)(i) to incorporate comparable language to that used in the regulations that implement the ADA. Cf. 28 CFR 36.302(c)(4).

The final rules thus provide:

A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

“Other effective means” can include an alternate handler, as indicated in the preamble and specified in 38 CFR 1.218(a)(11)(ii)(A), which provides that a service animal will be denied access to VA property or removed from VA property if it “is not under the control of the individual with a disability or an alternate handler….”

VA Employees Not Responsible for Cleaning Up or Temporary Control

The preamble to the final rules emphasizes that VA employees are never to be responsible for controlling a service animal, or for cleaning up after one that relieves “bowel or bladder on VA property.”  This is not stated in the rules themselves, but they do provide that a service animal “must be trained to eliminate its waste in an outdoor area.” An animal can be denied access if it is not housebroken, though there would probably have to be an accident or two before a facility could make such a determination. 

Area Exclusions inside Facilities

As discussed in the 2014 blog, the proposed rules had listed a number of areas in VA hospitals and facilities where service animals were not to be permitted, which I admit did not trouble me, but other commenters disagreed, and were apparently right:

[C]ommenters objected to the categorical exclusion of service animals from inpatient hospital settings to include locked mental health units … and from patient rooms or treatment areas where patients may have an animal allergy or phobia…. VA cited three examples of acute inpatient hospital settings … (intensive care units, stabilization units, and locked mental health units) in a representative but not exhaustive list of areas that could be covered by this exclusion. In light of the comments received, VA revises § 1.218(a)(11)(iii)(C) to remove these examples, and instead qualify the exclusion of service animals in acute inpatient settings to exclude such animals when their presence is not part of a documented treatment plan. VA agrees with the commenters that there are scenarios in which a service animal on  any of the specific areas … may provide its services when the individual being treated or an alternate handler can control a service animal as part of a treatment plan established by the clinical care team.

Thus, if a veteran receiving treatment wishes to have his or her service animal in a particular location of a facility, he or she should inform members of the treatment team of this desire.  Certain locations, “such as operating rooms, surgical suites, areas where invasive procedures are being performed, decontamination, sterile processing, sterile storage areas, food preparation areas (not to include public food service areas), and any areas where protective barrier measure are required,” are still be off limits to service dogs. 

The final rules removed a provision in the 2014 proposal that would have prohibited service dogs from being in patient rooms where a patient may have an animal allergy or phobia. 

Animal Assisted Activities and Therapy (AAA and AAT)

The VA is to be particularly commended for being the first major federal agency to give a coherent perspective on the access that must be provided for therapy animals.  In commenting on the rules I had said 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.”  The preamble to the final rules states:

Unlike service animals under the proposed and final rules, there is no species restriction for AAA or AAT animals, and AAA or AAT animals are permitted on VHA property only at the discretion of the VA facility head or designee. Should an AAA or AAT animal that is not a dog meet the requirements in § 1.218(a)(11)(ix)(C) and (D), a VA facility head or designee may grant that animal access to VA property.

I had also suggested that the VA might want to assure that therapy animals have liability insurance.  To this idea, the preamble replies:

We do not disagree that liability insurance would be a sensible requirement, particularly as AAA is often conducted in group settings. However, VA believes that any liability insurance would be better addressed outside of a regulatory requirement by the VA facility head or designee and the AAA or AAT handler or organization prior to establishing a particular program at a facility.

Animals may also be allowed to remain in Community Living Centers and Mental Health Residential Rehabilitation Programs "to create a more homelike environment."   

Conclusions

The Department of Veterans Affairs has clarified that its definition of service animal, aside from not incorporating examples and the provisional status of miniature horses, is that of the Department of Justice in its 2010 regulations.  The definition clearly allows for psychiatric service dogs that “do work” with regard to such conditions as PTSD without having to perform specific tasks.  This is a welcome clarification, and a considerable departure from the restrictive funding regulations previously adopted in 38 CFR 17.148, as to which there appears to be little hope for early change.  The modifications in the final rules as to a service dog’s required health records, and the fact that the rules apply to visitors to VA facilities as well as employees, are welcome improvements, as is the general easing of the area restriction concept that was envisioned in the proposed rules. 

Those of us who handle therapy dogs must thank the VA for carefully considering the position of such dogs in therapeutic activities and programs at VA facilities.  In this instance, the Department of Justice could learn from the VA, and hopefully will.   

For additional discussion of these final rules, see the discussion provided by Psychiatric Service Dog Partners. 

Appendix: Final Rule: Animals on VA Property, 80 Fed. Reg. 49157 (August 17, 2015).

38 CFR 1.218(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 shall be under the control of the person with the disability or an alternate handler at all times while on VA property. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means). 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 or an alternate handler;

(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 properties) 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 when the presence of the service animal is not part of a documented treatment plan;

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

(E) Food preparation areas (not to include public food service areas); and

(F) Any areas where personal protective clothing must be worn or barrier protective measures must be taken to enter.

(iv) Service animals will be restricted from accessing certain areas of VA property under the control of the National Cemetery Administration (NCA properties) 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, except as approved to observe an individual interment or inurnment.

(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 the service animal. However, 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, if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program, must provide VA with documentation that confirms the service animal has had a current rabies vaccine as determined by state and local public health requirements, and current core canine vaccines as dictated by local veterinary practice standards (e.g. distemper, parvovirus, and adenovirus-2).

(viii) A 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. 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 38 CFR 17.148.

(ix) Generally, animals other than service animals (“non-service animals”) are not permitted to be present on VA property, and any individual with a non-service animal must remove it. However, a VA facility head or designee may permit certain non-service 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 parasite control medications, and regular health screenings as determined necessary by a licensed veterinarian consistent with local veterinary practice standards. 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 parasite control medications, and regular health screenings as determined necessary by a licensed veterinarian consistent with local veterinary practice standards. 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 in 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 in a VA CLC or MHRRTP must be up to date with all core vaccinations and immunizations, prophylactic parasite control medications, and regular health screenings as determined necessary by a licensed veterinarian consistent with local veterinary practice standards. Proof of compliance with these requirements must be documented and accessible in 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, with respect to an individual, 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.

Service Dogs Sometimes Belong in Shopping Carts: Justice Department Amends a FAQ

In a webpage the Department of Justice has posted, Frequently Asked Questions about Service Animals and the ADA, one question and DOJ answer now read as follows:

Q31: Are stores required to allow service animals to be placed in a shopping cart?

A: Generally, the dog must stay on the floor, or the person must carry the dog. For example, if a person with diabetes has a glucose alert dog, he may carry the dog in a chest pack so it can be close to his face to allow the dog to smell his breath to alert him of a change in glucose levels.

Until last week, there was one additional word in the answer to the FAQ, which began with "No."  Thus, the DOJ had been saying that a dog could not be put in a shopping cart, but generally it had to walk on the floor or be carried by the owner. Why the wording was changed in the last week may be due to a dispute that arose between a grocery story in California and a woman with a seizure alert dog.  

FAQ 31 as downloaded by the author on July 20.

The Department’s stance on shopping carts--specifically the No that has now been removed--had received the approval of some service dog users.  An article in The Daily Courier of Prescott, Arizona, on July 17, entitled “No dogs in shopping carts: service dog owners hail clarification of ADA rules," by Nanci Hutson, quotes a service dog user as saying:

"My husband and I have experienced a lot of problems with fake service dogs in the area, usually in grocery stores…. They will start barking from the carts and distract my husband's service dog whose job is to provide a sense of protection and a bubble around my husband."

This undoubtedly reflects the experience of many service dog users whose legitimacy has been questioned by store owners who have encountered people trying to disguise their pets as service animals in order to gain access. 

Butler v. WinCo Foods

In the California case between a shopper and WinCo Foods, LLC, the Ninth Circuit Court of Appeals found that WinCo Foods’ “store-wide policy prohibiting service animals from riding in its grocery carts” was not moot merely because the grocery story had offered the plaintiff an exception to its no-dogs-including-service-dogs-in-shopping-carts policy.  The exception was that Butler could put her dog in a grocery cart while she was shopping as long as the animal was in a carrier.  Butler v. Winco Foods, LLC, No. 13-55862, 2015 U.S.App.LEXIS (9^th Cir. May 8, 2015), on appeal from the Central District of Califoria (CV 12-980 PA).

A Seizure-Alert and Seizure-Response Dog

Lynda Butler, who sued WinCo Foods over its service animal policies, explained in a Declaration filed with the trial court what her dog does for her:

I have a service dog, Coco Beans, who is a Cairn Terrier and who weighs about 15 pounds. I bathe her every two weeks and she is always clean. She does not bark or misbehave in public. She alerts me to the onset of a seizure and she orients me as I am coming out of the seizure. She alerts me by staring at my face, whining and scratching at my arms or chest. She orients me by repeatedly licking both sides of my face. This assists me in understanding that I have had a seizure and allows me to come into focus because my seizures effect my consciousness.

Butler’s Declaration says that the dog “never exhibited these behaviors before my seizures in 2006.”

About a month or two after my hospitalization in 2006 I realized that Coco Beans scratched and whined at me only when I had a seizure. I realized that she would scratch and whine, I would lose consciousness and I would wake up to her licking my face repeatedly. I put two and two together and realized that she was letting me know I was having a seizure even before I knew it. I also realized that her repeated licking of my face helped bring me into focus and to understand what had happened to me. I then began training her to continue these behaviors by praising her when she performed them. Instead of giving her corrections or disciplining her to stop the behaviors as I had been doing, I let her know they were acceptable by giving her positive reinforcement.

Dog’s Alerting Ability Allows Owner to Be in Public

Fearing she would have a seizure in public, Butler was largely housebound and got others to do her shopping for her but she began to trust that the dog could give her sufficient advance warning and she began to go out, including to shop.  She describes an early incident where the dog’s advance warning allowed her to sit down before a seizure struck:

I rely on Coco Beans’ alerting function. She alerted me to a seizure when I was shopping at the Albertsons near my house. She was in the cart seat and she began whining and pawing at my arms. I took her from the cart seat, sat down and placed her on my lap. I awoke to her licking my face repeatedly and there were customers and a store employee around me. If I did not have Coco Beans alert me, I would have fallen to the floor and hurt myself. I told the people around me that I had had a seizure, that Coco let me know about it and I did not need medical help. Coco helped me avoid having to go the hospital, which the people likely would have made me do if I had been injured.

The dog must be close to Butler’s upper body for the dog to alert or for it to be visible to Butler:

Coco Beans has only alerted me when she is in close proximity to my upper body, either when she is on my lap, next to me in a chair or in bed or is in a cart seat. I do not know how she knows to alert me. All I know is that when she is on the ground, she does not alert me or I do not understand the alert. I have fallen three times when Coco Beans did not alert me.

Most stores have not given Butler any difficulty about having the dog in a shopping cart, and neither did WinCo at first:

I shopped at Winco with Coco Beans in the cart seat without a problem until the summer of 2010. A female manager told me I had to remove Coco Beans from the cart seat. I told her that Coco needed to be in the cart seat to alert me to seizures. The female manager told me it was a “health and safety” violation. I did not believe that was true and I contacted the Health Department, which gave me a copy of Health and Safety Code 114259.5. I spoke with the Health Department official who was responsible for the Perris area and he told me that the Code only applied to food preparation workers, not to customers. I then discussed this with the female Winco manager who told me she would discuss it with Winco’s food safety person. After that, I was allowed to continue shopping with Coco in the cart seat.

WinCo Reverses Earlier Position

In 2011, a new manager at the WinCo store reversed the decision of the prior manager and told Butler she could not have the dog in a shopping cart.  This was an economic burden because Butler found WinCo’s prices much lower than other grocery stores in the area.  Alternatives to putting the dog in a shopping cart were not available to Butler:

I cannot carry Coco Beans while doing my month’s shopping at Winco because of my back problems. I also cannot carry her while I shop because I have to hold onto her carrier’s shoulder straps when we walk so that they do not fall off of my shoulder. I cannot hold onto the straps and push a grocery cart with one hand, particularly when it is loaded with groceries.

Thus, the chest pack option suggested by the Department of Justice in FAQ 31 is not available to Butler.  Butler tried once to put the dog in the cart inside the carrier, but again the manager told her that this was unacceptable.  It was not optimal to Butler either, as it left very little room for groceries. 

Hanging Carrier Inadequate for Butler and Coco Beans

WinCo at some point began offering patrons a “hanging carrier” that it deemed acceptable for situations like that of Butler, but this was also inadequate:

I looked at the pictures of the hanging carrier offered now by Winco. I understand the carrier is 13.5 inches long. Coco’s spine alone is 18.5 inches long, from the base of her neck to the base of her tail. Winco’s carrier will not work for me because it is too small for my service dog. Even if I could get her to stay in that small space, she would not fit comfortably in it. She would have to sit up for the whole two hours or so that it would take me to shop. This would be very stressful for her. Also, on the box for the carrier, it says that it is made for dogs up to 14 pounds.  Coco is already above that weight, so the carrier is not only too small, it is unsafe. 

Using the carrier would also put Butler too far from the cart she was pushing, which she needs to be close to for her own support needs. 

Expert Opinion

A witness retained by Butler, Dr. Adam Kirton, also submitted a Declaration on the motion for summary judgment in which he summarized the research on seizure alerting, including his own, and stated that Butler “describes seizure alerting behaviours that directly assist her in managing her seizures.  The descriptions are consistent with those found in multiple published studies.”  Kirton expressed doubt regarding some of WinCo’s reasons for refusing to allow the dog in a shopping cart:

Though I am not an expert in animal behaviour or infectious disease, I believe there is no evidence of anything greater than an extremely remote risk to the individual or public of having such an animal accompany their owner in a store with the service animal located in a cart seat on a blanket or in a carrier. Therefore, it is my opinion that the benefits of the seizure response behaviours offered by this dog clearly and substantially outweigh any risks posed by allowing Ms. Butler's dog in the Winco cart seat. The ability of her service dog to alert her to seizures not only gives Ms. Butler confidence to venture into public places like stores, it allows her to avoid serious injury that can result from a fall caused by a seizure. 

Connecting these observations to the legal questions involved in the case, Kirton states: “Without her service animal, the unpredictability of the seizures makes plaintiff afraid to go into public, which substantially limits her ability to socialize, to shop and to lead a normal life.”

Kirton notes that the “mechanism by which seizure alerting could occur remains speculative and further studies are required to confirm the possibility and understand the mechanism.”   I should note that I have written a chapter in a forthcoming book on canine olfaction that deals with the possibility that the mechanism may be olfactory (though behavioral and “sixth sense” explanations have also been offered).  

Health Regulations Not Implicated
 
A Google search for "shopping carts + service dogs" turned up one discussion regarding the possible application of health regulations prohibiting putting dogs in shopping carts.  This issue has, that I can find, not been raised in Butler v. WinCo, but if it were there would have to be an analysis similar to that in Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052 (5^th Cir. 1997), where a brewery sought to exclude a visitor with a guide dog from taking a tour of the brewery plant. The district court in the case, which was affirmed by the Fifth Circuit, had noted that the "marginal increase in contamination risk associated with over 5,000 annual human visitors to the Spoetzl Brewery is greater than the marginal increase in contamination risk associated with the maximum foreseeable number of annual guide dog visits by an order of magnitude."  People put children with leaky diapers, colds and other contagious diseases in shopping carts, as well as coats, hats, handbags and countless other items, and the health risks from service dogs occasionally riding in carts would, I suspect, be substantially lower than might come from the mass of other items regularly pushed around in carts.

I agree with Veronica Morris of Psychiatric Service Dog Partners that in those rare cases where safety or disability mitigation requires a service dog to be in a shopping cart, the handler should, if possible, bring a towel or blanket so that the dog does not actually come in contact with the cart. Putting the animal inside its carrier into the cart, the exception WinCo offered Butler, creates a similar barrier, but as noted in Butler’s Declaration, the dog was too large for that to be a practical solution. 

Conclusion

The Ninth Circuit remanded Butler v. WinCo to the Central District of California for further proceedings and, as of this writing, there is no indication that the matter will be settled.   At the very least, the facts of the case establish that there are instances where a simplistic statement that dogs do not belong in shopping carts cannot be supported within the framework of the Americans with Disabilities Act.

It appears to this observer that the Department of Justice may have changed the wording to its shopping cart FAQ so as to avoid becoming an unwitting proponent of the store's side in the California case. It would be good if the Department would go the next step and add a sentence to FAQ 31 acknowledging that service dogs sometimes do belong in shopping carts. In any case, the FAQ now only provides a partial answer so without some additional rewording neither stores nor service dog users will know what to do. 

Thanks to Veronica and Brad Morris and Leigh Anne Novak for reviewing and providing comments that vastly improved this blog.

All Major U.S. Airport Terminals Will Soon Have Service Animal Relief Areas

All but the smallest airports will soon have one service animal relief area in each terminal, and most will be inside the secured sections of the airport so that service animal users who have already gone through security will not have to do so a second time just to take a dog to a relief area.  The placement of relief areas will also benefit passengers flying with pets that can be taken into cabins, i.e., generally dogs less than 20 pounds, and will also make life easier for the handlers of TSA bomb dogs who work at the airports. The final rules do not, however, require that airports provide escorts for passengers who need assistance in taking animals to and from relief areas, and do not impose website notice or signage requirements. (As discussed below, there is already an escort requirement, but it applies only to the airlines.)

It has taken four years for the Department of Transportation to get to this point.  On September 29, 2011, the Department proposed rules on service animal relief areas at airports.  On August 5, 2015, final rules were at last published in the Federal Register with significant changes from the earlier proposal. (I had predicted in a 2011 blog that the rules would be fast-tracked.  Obviously I was mistaken.)  Part of the reason for the delay was likely due to the fact that there are already service animal relief area requirements that apply to airlines and the rules to be applied to airports had to take into account the existing rules for airlines. Something had to be done, however, as the rules for airlines were not resulting in enough relief areas, and such as were being created were often very difficult for passengers with service animals to reach. Fortunately, that will now change.

The final rules are effective October 15, 2015, but airports have a year, until August 4, 2016, to meet the new relief area requirements.  The final rules are reproduced in an Appendix at the end of this blog. Additional guidance issued in May 2016 is the subject of an additional blog on this site.

Airports and Service Animal Users Disagree over Location of Relief Areas

In 2011, the Department of Transportation asked for comments on how large service animal relief areas in airports should be, what surface materials would be optimal, the maximum distance service animal users should be expected to have to go to get a dog to a relief area, and what sort of maintenance of the areas should be required.  Commenters who were service animal users and disability organizations favored non-cement surfaces and suggested that outdoors relief areas should have overhangs.  As to where relief areas should be located, most such commenters said there should be “at least one relief area in each airport terminal.”  Some suggested that there should be one service animal relief area for every 15 gates or at every quarter of a mile throughout an airport.

As to whether relief areas had to be available in sterile areas of the airport—i.e., after passengers with service animals had gone through security checkpoints—the Department states the following:

“There is overwhelming support by individual commenters and disability organizations that at least one relief area should be located in the sterile area of each airport terminal.  Airports and airport associations, however, advocate that the rule not specifically mandate that service animal relief areas be located in the sterile area of an airport.”

The Department notes that some passengers with service animals had commented that “they were often forced to create itineraries with longer layover times because of the amount of time it takes for passengers with a disability to locate service animal relief areas and the amount of time it takes to exit the sterile area, relieve a service animal, and pass through security again.”

In general, commenters representing airports and airport organizations wanted the rules to be unspecific as to such details and generally follow the relief-area rules that apply to airlines in 14 CFR 382.51(a)(5), which state only that:

“In cooperation with the airport operator and in consultation with local service animal training organization(s), you must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at an airport on your flights.”

In other words, the airports and their business associations wanted to be able to decide for themselves where the relief areas should be, what they should look like, and how easy they should be to get to.  Although consultation with a local service animal training organization would be required if the airport rules followed the airline rules, the airports wanted the involvement of service dog organizations to be no more than advisory. 

Website Information and Signage  

Service dog users want airports to indicate where relief areas are on their websites, make braille maps available to individuals with visual impairments, and perhaps develop a universal symbol for service animal relief areas, similar to the symbols for men’s and women’s bathrooms.  The Airports Council International argued, in contrast, that additional signage of this sort would overload passengers with information most do not need.  The Council argued that providing escorts for passengers with service animals to get to a relief area, already required of airlines under 14 CFR 382.91(c), should be sufficient. (I had argued in my 2011 blog that there should be signage requirements and that, in any case, "it is difficult to imagine that airports will have any resistance to such requirements."  I said that "airports will not want service animal users constantly asking personnel and other airport users where a relief area is located." As already noted, my crystal ball malfunctioned on this and other matters.)

What the Department of Transportation Has Now Decided

The Department of Transportation has decided not to require specific dimensions, designs, materials, or maintenance requirements for relief areas, though it has determined that they must be wheelchair accessible.  Fortunately, the Department said that this does not mean that airports can do whatever they wanted with respect to relief areas because they must consult with service animal training organizations regarding the designs. The preamble to the final rules states:

“We expect that most airports will likely choose to work with local chapters of national service animal training organizations to comply with this requirement as those organizations may be better suited to make specific suggestions that are tailored to individual airports….”

One Relief Area per Terminal

Under the new rules, there must be at least one relief area for each terminal in an airport.  The Department decided that this requirement was better than setting a maximum amount of time that it would take to get to a relief area from a gate.  A requirement to provide escort services for service animal users was not imposed on the airports because, as noted above, under 14 CFR 382.91(c) this is already required of U.S. and foreign air carriers.  Thus, this remains a responsibility of the carriers, but not of the airports themselves, although the latter are to be consulted.  

(I had argued in my 2011 blog on the proposed rules that there should be an escort requirement imposed on the airports as well as the airlines and still believe this would be preferable.  Airlines have varying degrees of presence in different airports, with ticket counters and boarding gates not always staffed when a service animal user might need assistance.  It will be important for service animal organizations to monitor whether the effectiveness of escort systems changes as the new relief areas are constructed. With the increased number of relief areas, presumably the costs to the airlines of paying staff to provide escort to and from the areas will be reduced.)  

Generally Must Be in Sterile Sections

Generally the airports must also assure that, where possible, relief areas are to be in sterile sections of airports. Acknowledging, however, that the Transportation Security Administration may, on occasion, prohibit a relief area in the sterile section of a particular terminal, the Department states the following:

“Recognizing that the TSA may prohibit a particular airport from locating a relief area in the sterile area of a terminal, the rule provides airports with an exception to this requirement if TSA prohibits a particular airport from locating a relief area in the sterile area of a terminal for security-related reasons. The Department also realizes that, based on an airport’s configuration, a relief area in the non-sterile area of an airport may be more desirable to relief area users. As such, the Department is allowing airports the option of placing a relief area in a location other than the sterile area of a terminal if a service animal training organization, the airport, and the carriers in the terminal in which the relief area will be located agree that a relief area would be better placed outside the terminal’s sterile area instead of inside the sterile area. The airport must, however, document and retain a record of this agreement.”

Thus, a relief area must be inside the sterile area of the terminal unless either (1) the TSA says it cannot be, or (2) a service animal training organization agrees that it would be better located outside the sterile area.  If the latter is the reason for putting it outside the sterile area, the airport must keep documentation of the service animal organization’s agreement to such a placement. 

How Many New Relief Areas Will Be Coming?

The number of relief areas at an airport will vary depending on the number of terminals at the airport.  Large hubs, according to the Department, average about seven terminals, medium hubs about five, small hubs about three, and non-hubs usually one.  Of the 387 airports in the U.S., 29 are large hubs, 35 are medium hubs, 74 are small hubs, and 249 are non-hubs that still have more than 10,000 passenger enplanements per year.  A total of about 849 terminals will have to have service animal relief areas under the new rule, though some already have relief areas that will satisfy the requirements.  The rest have one year to comply.  The Department estimates the overall cost for compliance will be about $88.1 million over 20 years, which includes the cost of construction and maintenance as well as the rent foregone for spaces that might otherwise hold stores and restaurants.  Airports will obviously look for ways to keep relief areas away from businesses that might be affected by the smells, or the thought, of a nearby relief area.

The Department decided not to require relief area information on airport websites, airport maps, or signage throughout the airport.  These decisions are somewhat mystifying since it is easy to bury information in a website, airport maps have lots of other information, and it is not clear how people with service animals will find the relief areas without the signage.  Hopefully most airports will want service animal users to find relief areas as quickly as possible, particularly after long flights, and will put signs up in any case.  The most the Department is willing to say at the moment is that if “there is confusion about the location of service animal relief areas at U.S. airports,” the issue will be revisited.

Conclusion

The Department is to be commended for not backing down on the issues of relief areas in each terminal, and putting them inside sterile areas wherever possible.  The willingness of the Department not to issue rules on website and signage could lead to problems, but given the interest the airports will have in getting passengers with animals to relief areas as efficiently as possible, there will hopefully be no need for such requirements. (I personally expect there will be problems, but hope my defective crystal ball will once again be wrong.)  The major guide and service dog organizations will be involved when airports seek to put relief areas outside of sterile areas and will have ample occasion to represent their members on such issues.  

Thanks to Leigh Anne Novak, Veronica Morris, and Brad Morris, for reviewing a draft of this blog. 

Appendix: Final Regulation

The final rule on service animal relief areas reads as follows:

49 CFR 27.71. Airport Facilities.

(h) Service animal relief areas. Each airport with 10,000 or more annual enplanements shall cooperate with airlines that own, lease, or control terminal facilities at that airport to provide wheelchair accessible animal relief areas for service animals that accompany passengers departing, connecting, or arriving at the airport subject to the following requirements:

(1) Airports must consult with one or more service animal training organizations regarding the design, dimensions, materials and maintenance of service animal relief areas;

(2) Airports must establish at least one relief area in each airport terminal;

(3) Airports must establish the relief area required by paragrah (h)(2) of this section in the sterile area of each airport terminal unless:

(i) The Transportation Security Administration prohibits the airport from locating a relief area in the sterile area, or

(ii) A service animal training organization, the airport, and the carriers in the terminal in which the relief area will be located agree that a relief area would be better placed outside the terminal’s sterile area. In that event, the airport must retain documentation evidencing the recommendation that the relief area be located outside of the sterile area; and

(4) To the extent airports have established service animal relief areas prior to the effective date of this paragraph:

(i) Airports that have not consulted with a service animal training organization shall consult with one or more such organizations regarding the sufficiency of all existing service animal relief areas,

(ii) Airports shall meet the requirements of this section August 4, 2016. 

Department of Transportation, RIN 2105-AD91, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (U.S. Airports).  Final Rule.  80 Fed. Reg. 46508 (August 5, 2015).