In May 2015, the Department of Veterans Affairs proposed to amend its regulations concerning transportation of persons for “examination, treatment, and care” under the Veterans Transportation Service (VTS). The proposed regulatory language contained two references to service dogs, the second of which also mentioned guide dogs. The first mention of service dogs, in proposed 38 CFR 70.71(b), specified that the VA could provide transportation services to veterans when authorized for purposes of training a service dog as defined in 38 CFR 17.148. That proposal has now been finalized without change.
The second reference in the 2015 proposal, in 38 CFR 70.73(a), stated that someone requesting transportation services should contact the facility at which the examination, treatment, or care was to be received and provide the facility with the information necessary to arrange transportation. The facility should be given the name of the veteran or service member involved and any special needs that would have to be accommodated. Special needs requiring accommodation could include “a wheelchair, oxygen tank, or a service or guide dog.” That proposal has not been finalized as stated, but rather now reads that a special need about which the facility is to be informed could include “a service animal as defined in 38 CFR1.218(a)(11)(viii).”
Thus, when transporting a veteran for training of a service dog, the dog must fit within the definition of 38 CFR 17.148, but when transporting a veteran to a facility where the veteran is to receive treatment, the veteran can be accompanied by a service animal as defined under 38 CFR 1.218(a)(11)(viii), a much broader definition. The proposed rule had not included a definitional reference for a “service or guide dog” that could accompany a veteran going to a treatment facility and I was concerned about the absence of such a cross-reference. It was too easy to imagine that the reason the rule did not contain such a cross-reference would be interpreted as meaning that the same definition as used earlier in the contiguous set of regulations should apply in the case of a dog accompanying a veteran for treatment. The relevant language of the proposed and the final rules is highlighted in the following table:
Regulation
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2015 Proposed Version
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2016 Final Version
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38 CFR 70.71 Eligibility.
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(b) Enrolled veterans. Regardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 for:
(1) A scheduled visit or urgent care;
(2) Retrieval of, adjustment of, or training concerning medications, prosthetic appliances, or a service dog (as defined in 38 CFR 17.148);
(3) An unscheduled visit; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
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(b) Enrolled veterans. Regardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 for:
(1) A scheduled visit or urgent care;
(2) Retrieval of, adjustment of, or training concerning medications and prosthetic appliances, or a service dog (as defined in 38 CFR 17.148);
(3) An unscheduled visit; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
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38 CFR 70.73 Arranging transportation services.
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(a) Requesting VTS. An eligible person may request transportation services by contacting the facility director or designee at the VA facility providing or authorizing the examination, treatment, or care to be delivered. The person must provide the facility director or designee with information necessary to arrange these services, including the name of the person, the basis for eligibility, the name of the veteran or servicemember they are accompanying (if applicable), the time of the appointment (if known), the eligible person’s departure location and destination, any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog), and other relevant information. Transportation services generally will be provided on a first come, first served basis.
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(a) Requesting VTS. An eligible person may request transportation services by contacting the facility director or designee at the VA facility providing or authorizing the examination, treatment, or care to be delivered. The person must provide the facility director or designee with information necessary to arrange these services, including the name of the person, the basis for eligibility, the name of the veteran or servicemember they are accompanying (if applicable), the time of the appointment (if known), the eligible person’s departure location and destination, any special needs that must be accommodated to allow for transportation (e.g. wheelchair, oxygen tank, or service animal as defined in 38 CFR 1.218(a)(11)(viii)), and other relevant information. Transportation services generally will be provided on a first come, first served basis.
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Why Two Regulatory Definitions of Service Animals in the VA Regs?
In order to understand the significance of the change the VA made in finalizing its rule concerning a request for transportation services for treatment, one must first understand why the VA rules contain separate definitions for service dogs, in 38 CFR 17.148, and service animals, in 38 CFR 1.218.
The definition in the historically earlier provision, 38 CFR 17.148 (finalized in 2012) was primarily a funding regulation “to authorize benefits to a veteran with a service dog.” The benefits that might be provided did not include buying the dog, since “a majority of service dogs are acquired by veterans with little or no out of pocket cost.” The benefits did, however, include traveling to obtain the dog, as well as “repairing or replacing harnesses or other hardware, providing annual and emergent veterinary care, providing prescription medications, or paying for other services when prescribed by a veterinarian.” Grooming was not an included benefit, and neither were nonspecialized leashes, collars, or dog licenses. No expenses would be covered for a service dog that has been retired. Dogs for which a veteran could receive benefits had to mitigate the effects of a visual, hearing, or substantial mobility impairment, and could not be solely for a mental disability, such as PTSD. The dogs also had to be trained by full members (i.e., not provisional members) of the International Guide Dog Federation (IGDF) or Assistance Dogs International (ADI). I have railed against the inequities of this rule for years, but there is no point in dredging that up for the present discussion.
The second definition, in 38 CFR 1.218, was finalized much more recently in August 2015, in fact after the transport proposal of May 2015, and concerns access to VA property. That provision largely follows the highly reasoned positions of the Department of Justice, allowing dogs trained for mental disabilities and imposing no organizational training requirement. The rule applies to veterans accessing VA facilities, but also to visitors and employees. I have also sung the praises of these well-reasoned rules before. The following table highlights the language in the two definitions that is important for understanding the cross-references in the now-final transport rules.
38 CFR 17.148 Service dogs.
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38 CFR 1.218 Security and law enforcement at VA facilities.
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(a) Definitions. For the purposes of this section:
Service dogs are guide or service dogs prescribed for a disabled veteran under this section.
(b) Clinical requirements. VA will provide benefits under this section to a veteran with a service dog only if:
(1) The veteran is diagnosed as having a visual, hearing, or substantial mobility impairment; and
(2) The VA clinical team that is treating the veteran for such impairment determines based upon medical judgment that it is optimal for the veteran to manage the impairment and live independently through the assistance of a trained service dog. Note: If other means (such as technological devices or rehabilitative therapy) will provide the same level of independence, then VA will not authorize benefits under this section.
(3) For the purposes of this section, substantial mobility impairment means a spinal cord injury or dysfunction or other chronic impairment that substantially limits mobility. A chronic impairment that substantially limits mobility includes but is not limited to a traumatic brain injury that compromises a veteran's ability to make appropriate decisions based on environmental cues (i.e., traffic lights or dangerous obstacles) or a seizure disorder that causes a veteran to become immobile during and after a seizure event.
(c) Recognized service dogs. VA will recognize, for the purpose of paying benefits under this section, the following service dogs:
(1) The dog and veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation, or both (for dogs that perform both service- and guide-dog assistance). The veteran must provide to VA a certificate showing successful completion issued by the accredited organization that provided such program.
... (d) Authorized benefits. ... (2) Hardware or repairs or replacements for hardware, that are clinically determined to be required by the dog to perform the tasks necessary to assist the veteran with his or her impairment.... (3) Payment for travel expenses associated with obtaining a dog under paragraph (c)(1) of this section. Travel costs will be provided only to a veteran who has been prescribed a service dog by a VA clinical team under paragraph (b) of this section.... Note: VA will provide payment for travel expenses related to obtaining a replacement service dog, even if the veteran is receiving under this section for the service dog that the veteran needs to replace. (4) The veteran is responsible for procuring and paying for any items or expenses not authorized by this section. This means that VA will not pay for items such as license tags, nonprescription food, grooming, insurance for personal injury, non-sedated dental cleanings, nail trimming, boarding, pet-sitting or dog-walking services, over-the-counter medications,or other goods and services not covered by the policy. The dog is not the property of VA; VA will never assume responsibility for, or take possession of, any service dog. (5) Dog must maintain ability to function as a service dog.... |
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(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.
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(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.
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After the funding rule was implemented in 2012, some VA facilities used it as a limiting provision as to what kinds of service animals could enter VA facilities. Even in 2012 the VA had indicated that it was going to issue additional guidance on service animal access to facilities, but in the absence of more formal guidance, it is not surprising that this confusion continued for three years until the access guidance was promulgated in August 2015. Unfortunately, I have been advised since posting this blog that some facilities are still adhering to the funding rule as a means of defining access to a facility. Despite the scandal regarding delays in providing appointments to veterans in Phoenix, a change in leadership, and many high-profile announcements about improvements, the incompetence of the VA continues to amaze and appall.
Although not discussed in the preamble to the final rules, it is important to note that the provision regarding transportation for dog training in 38 CFR Part 70 would only apply to a fully trained service animal, regardless of which cross-reference applied. In 38 CFR 17.148(c)(1), the “dog and veteran must have successfully completed a training program….” Under 38 CFR 1.218(a)(11)(viii), a service animal is “any dog that is individually trained….” Thus, transporting a dog for training under 38 CFR 70.71(b)(2) must be interpreted as not taking a dog somewhere to qualify it as a service dog or animal, but rather as taking it to some location where the dog's skills will be sharpened and maintained. Traveling to obtain a dog under 38 CFR 17.148 generally would involve a period of acclimation between the veteran with the disability and the dog, which is often the final stage of the dog's precertification training but, as will be explained below, this is not a stage covered by 38 CFR 70.71(b)(2), but rather under 38 17.148(d)(3).
Although not discussed in the preamble to the final rules, it is important to note that the provision regarding transportation for dog training in 38 CFR Part 70 would only apply to a fully trained service animal, regardless of which cross-reference applied. In 38 CFR 17.148(c)(1), the “dog and veteran must have successfully completed a training program….” Under 38 CFR 1.218(a)(11)(viii), a service animal is “any dog that is individually trained….” Thus, transporting a dog for training under 38 CFR 70.71(b)(2) must be interpreted as not taking a dog somewhere to qualify it as a service dog or animal, but rather as taking it to some location where the dog's skills will be sharpened and maintained. Traveling to obtain a dog under 38 CFR 17.148 generally would involve a period of acclimation between the veteran with the disability and the dog, which is often the final stage of the dog's precertification training but, as will be explained below, this is not a stage covered by 38 CFR 70.71(b)(2), but rather under 38 17.148(d)(3).
Significance of Two Definitions to the Transport Rules
As I already stated, the initial transport proposal in May 2015 only referred to one definition. In fact, there was only one definition of “service dog” in the VA rules at that point, the funding definition, because the facility access definition was then only a proposal, a possibility. Nevertheless, there was every indication that the proposal would be largely finalized as written—which happened in August 2015—and I foresaw a problem about which I blogged and concerning which I submitted a comment to the VA. It was, in fact, the only comment submitted by anyone on the VA’s transport proposal.
I noted that as written the proposed transport rule, referring to only one definition of service dog in the provision regarding transport for training purposes, would likely be the definition relied upon by facilities and transport services in determining what kinds of service dogs could accompany veterans to treatment facilities. Given that the facility access proposal would allow a much broader group of service animals to come into VA facilities with veterans using them, it would be very odd indeed if transport to a facility was denied to the same veterans and their animals. Here is how the VA acknowledged and responded to my comment:
As noted by the commenter, the lack of consistency in referencing § 17.148 in both §§ 70.71(b)(2) and 70.73(a) creates confusion as to whether a different meaning of the term “service dog” should be applied when determining VTS eligibility under § 70.71, versus when determining what is required to arrange or request VTS transport under § 70.73. As also noted by the commenter, a proposed revision to another VA regulation would define the term “service animal” in 38 CFR 1.218(a)(11) more broadly than the term ‘‘service dog’’ is defined in § 17.148. See 79 FR 69379. Since VA received this comment, § 1.218(a)(11) has been revised to include this broader definition of “service animal.” See 80 FR 49157 [August 17, 2015]. Ultimately, the commenter asserted that § 70.71(b)(2) should be revised to refer to the broader definition of “service animal” in § 1.218(a)(11).
We agree with the commenter that if a person is eligible for VTS and traveling with a service animal, then the broader definition of “service animal” in § 1.218(a)(11) should be used in VTS regulations. As noted by the commenter, if the broader definition of “service animal” in § 1.218(a)(11) was not used in VTS regulations, then VA may create conflicting situations where a person would be permitted to bring a “service animal” as defined in § 1.218(a)(11) into a VA facility, but would not be able to use VTS to be transported with such an animal to or from a VA facility. We therefore revise § 70.73(a) to add a reference to § 1.218(a)(11). This revision to § 70.73(a) addresses the commenter’s concern that VA’s definition of “service animal” in § 1.218(a)(11) should be applied consistently in the context of service animal access, whether the issue is a veteran getting into a VA facility with their service animal, or a veteran getting to the entrance of that VA facility with their service animal via VA transportation.
On my next suggestion, however, I was not successful. I had argued that the provision regarding transport for training a service dog should also be changed so that such transportation could be provided to a veteran to obtain training for a service animal that met the broader definition of 38 CFR 1.218, rather than the narrower definition of 38 CFR 17.148. To this argument, the VA responded:
We do not, however, adopt the commenter’s suggestion to revise § 70.71(b)(2) to reference “service animal” as defined in § 1.218(a)(11). As stated earlier in this final rule, § 70.71(b)(2) as proposed would create VTS eligibility for, among other things, transportation related to training a “service dog” that is recognized under § 17.148. If we revised § 70.71(b)(2) to replace the reference to “service dog” in § 17.148 with a reference to “service animal” in § 1.218(a)(11), we would instead create VTS eligibility for transportation related to training a “service animal” that is recognized under § 1.218(a)(11). However, this would conflict with VA’s service dog benefits standards in § 17.148, because § 17.148(c) has specific training requirements that are not present in § 1.218(a)(11). The commenter’s suggested revision to § 70.71(b)(2) would create scenarios where VA could provide VTS transport to support the non-specific training of a “service animal” that is recognized under § 1.218(a)(11), although VA could not recognize that training under § 17.148(c) for the purposes of providing service dog benefits. Such a practice could be interpreted as VA supporting nonspecific training that is not recognized under § 17.148(c), and would erode VA’s training requirements in § 17.148(c). To avoid this conflict between VA standards related to service animal access in § 1.218(a)(11) and VA standards related to service dog benefits in § 17.148, we do not make the revision to § 70.71(b)(2) as suggested by the commenter.
It is true that there are specific training requirements in 38 CFR 17.148, mostly because the organization providing the training has to be a full member of IGDF or ADI, but there are also training requirements under 38 CFR 1.218. The effect of the rule is that the VA will not help veterans who have dogs for mental disabilities, such as PTSD, get to and from trainers, nor will the VA help a veteran get to and from a trainer who is not a full member of IGDF or ADI, even if the trainer is highly experienced and has been recognized by other organizations and even medical facilities as turning out high quality service animals. This is, as I have argued before, tantamount to the VA investing two organizations with a monopoly on service dog training and designating those organizations as gatekeepers for VA funds. It is to be noted, however, that the VA would not even help a veteran get to and from a full member of IGDF or ADI if the dog was being used solely for a mental disability (probably impossible with IGDF, which concerns guide dogs, but possible with some ADI members).
Transport to Training Facilities Not Generally Transport to VA Facilities
The VA clarifies transport to and from a training facility is not transport to and from a VA facility because the VA does not provide service dog training, stating:
We additionally clarify that VTS travel to receive training with approved service dogs under § 17.148 would only be approved travel under § 70.72(d). The types of authorized transportation under § 70.72(a)–(c) must be to or from VA or VA-authorized facilities. However, transportation to participate in ‘‘retrieval of, adjustment of, or training concerning . . . a service dog under § 17.148’’ (as stated in § 70.71(b)(2)) would not be to or from a VA or VA-authorized facility because VA does not conduct, facilitate, or pay for service dog training. While VA does recognize specific training under § 17.148(c) for the purpose of paying service dog benefits, the training facilities themselves are not considered VA or VA-authorized facilities. Section 70.72(d) authorizes VTS transportation between locations other than VA or VA-authorized facilities, and such transportation may only be authorized when a VA clinician has determined that such transportation would be needed to promote, preserve, or restore the health of the individual.
The statement that the “VA does not conduct, facilitate or pay for service dog training” is not quite correct. Yount et al. (2012) describe a service dog training program that was established at “a large Veterans Administration residential treatment center for posttraumatic stress disorder (PTSD)” (Yount, R.A., Olmert, M.D., and Lee, M.R. (2012). Service Dog Training Program for Treatment of Posttraumatic Stress in Service Members. The United StatesArmy Medical Department Journal, April-June 2012). In a legislative hearing of the Subcommittee on Health of the House Committee on Veterans’ Affairs on July 15,2015, Rick Yount, Executive Director of the Warrior Canine Connection, gave a list of facilities at which service dog training programs have been established where Wounded Warriors can train service dogs, one of which was the Palo Alto VA Medical Center. Presumably the authors of the preamble to the current release would argue this situation is atypical, or accidental, and is an exception to the rule.
VTS Travel Generally for Short Distances
VTS Travel Generally for Short Distances
The preamble to the current rule continues:
We also note that in most cases we anticipate that individuals would use the beneficiary travel benefit instead of VTS to obtain a service dog that is recognized in § 17.148, because VTS travel resources cannot be relied upon to travel greater distances that typically necessitate air travel, for instance, and service dog training organizations recognized under § 17.148 are not located in every State.
Under 38 CFR 17.148(d), listing authorized benefits for a service dog under the funding regulation, the VA provides for payments “for travel expenses associated with obtaining a dog” under 38 CFR 148(c)(1), or for obtaining a “replacement service dog.” As indicated, the veteran must have been prescribed a service dog by a “VA clinical team” to obtain such a travel benefit. The preamble is thus clarifying that the travel benefit to obtain a dog under 17.148(d)(3) may have to cover long-distance travel, such as airfare, which is not what the VTS program was generally designed to do.
I had acknowledged in my comment letter that the reference to 38 CFR 17.148 in the travel-for-training regulation had a certain logic if this travel were being considered an aspect of funding a service dog, but the argument presented in the current preamble is somewhat different. Rather, the VA is saying that travel to obtain a dog is not part of VTS at all, but rather part of 38 CFR 17.148. Nevertheless, the VA believes that the travel provided in 38 CFR 70.71(b)(2) should conform to the restrictions of 38 CFR 17.148 because otherwise the VA would have an inconsistent policy on payments for purposes of obtaining a qualified service dog and for purposes of continuing its training, and if the policy on the second were different from the first purpose, that first purpose would be undermined. Thus, the benefit of providing transport to train a dog is not directly part of funding the service dog's acquisition, but is closer to that provision than it is to taking a veteran to and from a facility for the veteran’s own medical needs. Put another way, 38 CFR 70.71(b)(2) is more about the dog, while 38 CFR 70.73 is more about the veteran.
This explains why the VA rejected “the commenter’s suggestion to revise § 70.71(b)(2) to reference ‘service animal’ as defined in § 1.218(a)(11).” The commenter is disappointed.
So, I guess I was one for two.
Periodic Training Programs with the Original Training Organization
There is one situation that the rules do not clearly address. Some service dog training organizations ask those they have paired dogs with to return periodically, often annually, for a refresher course and to evaluate whether the user has kept using the dog as was intended by its specialized training. Although not specifically discussed by the rules, I believe that this would more easily be considered part of obtaining a dog under 38 CFR 17.148, rather than part of training under the short-term travel coverage conceived of in 38 CFR 70.71(b)(2). Such refresher courses may be a condition of obtaining the dog, particularly from organizations that keep ownership under a formal agreement with the user, who is licensed to use the dog but does not own it. When the issue presents itself, hopefully the VA will define its policy on this question.
This explains why the VA rejected “the commenter’s suggestion to revise § 70.71(b)(2) to reference ‘service animal’ as defined in § 1.218(a)(11).” The commenter is disappointed.
So, I guess I was one for two.
Periodic Training Programs with the Original Training Organization
There is one situation that the rules do not clearly address. Some service dog training organizations ask those they have paired dogs with to return periodically, often annually, for a refresher course and to evaluate whether the user has kept using the dog as was intended by its specialized training. Although not specifically discussed by the rules, I believe that this would more easily be considered part of obtaining a dog under 38 CFR 17.148, rather than part of training under the short-term travel coverage conceived of in 38 CFR 70.71(b)(2). Such refresher courses may be a condition of obtaining the dog, particularly from organizations that keep ownership under a formal agreement with the user, who is licensed to use the dog but does not own it. When the issue presents itself, hopefully the VA will define its policy on this question.
Conclusion
To sum up, a veteran can get a service dog under the broad definition of the Department of Justice into a van to go to a VA facility for an appointment, but if he or she wants to travel to obtain a service dog, or take it to a location for training, there will be no van or other transportation provided unless the dog fits within the narrower definition provided under the VA’s service dog funding regulation.
The VA’s reluctance to provide funding for service dogs for PTSD and other mental disabilities is at least in part economic. When proposing the service dog funding rule in 2011, the VA indicated that it expected to fund only about 100 dogs each year, most of which would be guide dogs for veterans blinded in combat. If the VA had to meet the demand for service dogs for veterans with PTSD and other mental disabilities, thousands and thousands of dogs could qualify and the agency’s budget would need a significant boost, something Congress has not been in the mood for for much of President Obama's administration despite all the rhetoric about improving the VA.
It must be hoped that more programs, such as those established by Rick Yount, will sooner rather than later change attitudes in the upper echelons of the VA.
Thanks to Leigh Anne Novak for comments. Thanks to Bart Sherwood of Tadsaw for raising the question of how training organization requirements on annual evaluations should be categorized under the two travel provisions.
Thanks to Leigh Anne Novak for comments. Thanks to Bart Sherwood of Tadsaw for raising the question of how training organization requirements on annual evaluations should be categorized under the two travel provisions.
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