New Definition of "Service Dog" May Get SDs for PTSD into VA Buildings, but Old Defnition May Keep Them off VA Transport Vehicles

Additional Note:  The regulations.gov website now indicates that final rules will be issued in October 2016.  Since I was the only commenter, this lengthy finalization stage is more likely an indication of priority rather than any administrative crush of verifying the utility of comments.  However, a notice regarding information collection posted in the Federal Register of December 31 (80 FR 81883) does indicate that the agency is trying to gather additional data regarding its amendment of 38 CFR 1.218(a)(11).  Since that amendment has been finalized, as discussed in a blog from August 21, 2015, the information collection may actually have something to do with collateral consequences of that regulation as finalized, which could include the issue discussed below. 


Regulations proposed in the Federal Register on May 27 would restrict transport of service dogs to those that have been funded, or at best could have been funded, by the Department of Veterans Affairs.  Such dogs must have been trained by a member organization of Assistance Dogs International or the International Guide Dog Federation, so would not include service dogs trained by other organizations or by the veterans themselves. (Dogs trained by organizations that are candidates for membership in ADI or IGDF would also not satisfy the definition, as stated by the VA at 77 Fed. Reg. 54372, September 5, 2012.) Such dogs would have to be used for visual, hearing, or substantial mobility impairments, so would not include service dogs for PTSD and other psychological conditions.

The problem with this proposal is that once the service dog access regulations proposed by the VA in the Federal Register on November 21, 2014, are made final, as may happen soon, veterans will be able to enter VA facilities with service dogs for PTSD, but unless the transport rules are revised to conform, they will not be able to bring their dogs on vehicles that will take them to the appointments.  While it might be expected that logic will not let this happen, the administrative paralysis that has afflicted operation of the VA in recent years could mean that logic will have little to say about the matter.  We can pray, but we can also write letters, and I submitted the following comment letter concerning the regulatory confusion to the Department of Veterans Affairs.

The letter has now been posted on the regulations.gov website. Thanks to Veronica and Brad Morris of Psychiatric Service Dog Partners for reading an earlier draft of this letter. 

June 4, 2015

William F. Russo, Director

Regulation Policy and Management

Department of Veterans Affairs

810 Vermont Ave. NW, Room 1068

Washington, DC 20420

Re: RIN 2900-AO92-Veterans Transportation Service

Dear Director Russo:

This comment is submitted regarding two provisions in the proposed rules concerning the Veterans Transportation Service as published in the Federal Register on May 27, 2015, 80 Fed. Reg. 30190.  Both provisions refer to service dogs.  I am an attorney in private practice, licensed in the State of New York. I have written a book, Service and Therapy Dogs in American Society (CC Thomas 2010), which describes service animal rules in various contexts, and also maintain a blog that regularly covers legal issues regarding dogs where I have discussed issuances of various agencies, including those of the Department of Veterans Affairs.

Proposed 38 CFR 70.71(b) states that “[r]egardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS [Veterans Transportation Service] to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 [Types of transportation] for: … (2) Retrieval of, adjustment of, or training concerning medications, prosthetic appliances, or a service dog (as defined in 38 CFR 17.148)…” (emphasis added). The other reference to a service dog in the proposed rules occurs at 38 CFR 70.73(a), which provides that in requesting VTS, the requester “must provide the facility director or designee with information necessary to arrange these services, including … any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog)…” (emphasis added). The second provision does not separately reference a definition for “service or guide dog” so it must be presumed that the definition would there also be taken from 38 CFR 17.148.[1]

The preamble to the proposal, at 80 Fed. Reg. 30192-3, elaborates:

Enrolled veterans would be eligible under paragraph (b) [Enrolled veterans] if they are traveling for a scheduled visit or urgent care; for retrieval, adjustment, or training concerning medications or prosthetic appliances; to acquire and become adjusted to a service dog provided pursuant to 38 CFR 17.148; for an unscheduled visit; or to participate and attend other events or functions for the purposes of examination, treatment, or care. (emphasis added)

This paragraph is apparently intended to indicate that if a veteran needs VTS in order to acquire or become adjusted to a service dog, such a dog would have to be one that satisfies the requirements of 38 CFR 17.148, which has a narrower definition of service dog than that contained in proposed 38 CFR 1.218(a), 79 Fed. Reg. 69379, November 21, 2014. If providing transportation services to acquire a service dog is regarded as one of the expenses that the VA will undertake to cover under the general service dog funding regulation, 38 CFR 17.148, then there is some logic to such a restriction.[2]  The phrase “becoming adjusted to a service dog” would seem to be somewhat less easily categorized as an activity that should be restricted to a service dog for which the VA would provide funding.  Although it is not clear how often veterans are provided VTS solely for the purpose of becoming adjusted to traveling with service dogs, all veterans with all service dogs, including service dogs under the broad definition of proposed 38 CFR 1.218(a), must be able to habituate their dogs to transportation vehicles.

The preamble also states that when an eligible person is contacting a VA facility regarding an examination, treatment, or care at the facility, a request may be made for transportation services.  The request may be made to a Mobility Manager in “many cases,” or to someone designated by the facility director.  The request is to contain necessary information for the transportation of the veteran, which can include “special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog) and other relevant information.” 

This clearly indicates that transportation services can be provided to any eligible veteran who is coming to a VA facility for an examination, treatment, or care, and who may need to be accompanied by a service dog.  Such a dog should not be presumed to be restricted to a dog eligible for VA funding under 38 CFR 17.148, but rather to any service dog that can obtain access to VA property under proposed 38 CFR 1.218(a), a much broader definition and one largely if not completely consistent with regulations regarding service animals issued by the Department of Justice (28 CFR 36.104, etc.).  If service animals that could be brought with a veteran on a VTS transport vehicle were restricted to the definition provided in 38 CFR 17.148, the anomalous situation would inevitably arise, upon finalization of 38 CFR 1.218(a), that a veteran could be entitled to bring a service dog for PTSD into a VA facility but would not be able to obtain transportation services in order to get the dog to the entrance of the facility. 

It might be argued that proposed regulations on transportation services should not be required to take into account proposed regulations on another issue, and this argument may as a policy matter have merit.  I note, however, that at a May 19 meeting of the VA Advisory Committee on Prosthetics and Special-Disabilities Programs, slides presented by Joyce Edmondson, Co-Chair of the VHA Animals in Health Care Committee, indicate that proposed 38 CFR 1.218(a) “is currently in the concurrence process with expedited review being completed at request of the Secretary.”  It would, therefore, seem appropriate to anticipate the finalization of those regulations with language to the effect that transportation services should be provided to veterans with service dogs as defined in regulations relevant to the access of animals to VA facilities.

Distinction between Service Dogs under 38 CFR 17.148 and Proposed 38 CFR 1.218(a)

Under 38 CFR 17.148, service dogs are defined as “guide or service dogs prescribed for a disabled veteran….”  Clinical requirements must be met, including that the “veteran is diagnosed as having a visual, hearing, or substantial mobility impairment….”  Even if a veteran is diagnosed as having such a condition, the regulation provides that “[i]f 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.”  I have been informally advised by one group working with veterans that this sentence has on occasion been used to justify medications, often substantial amounts of medications, as a preferable alternative to the use of a service dog. 

In addition to the one sentence definition of service dogs, 38 CFR 17.148(c) defines “[r]ecognized service dogs … for the purpose of paying benefits…” as having to satisfy the following requirement:

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.[3]

Thus, the veteran is to have a document that indicates completion of a training program with one of two organizations, or both.  Such a document might become a means by which employees of transport services would be able to verify that a service dog satisfies the requirements of 38 CFR 17.148 and thereby preclude access to vehicles by service dogs without such documentation.  Indeed, to accept dogs that did not qualify under 38 CFR 17.148 might arguably be a violation of the mandates of the proposed revisions to 38 CFR Part 70.

In contrast, proposed 38 CFR 1.218(a)(11)(viii) defines a “service animal” as follows:

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

There is no specific organizational connection required for a dog to be a service animal under this provision, and there is no reason that a dog could not be trained by a veteran himself.  Indeed, there are programs under which veterans are presently being taught to train dogs, including service dogs.[4]  Also, there is no requirement that the service animal’s function be solely related to a “visual, hearing, or substantial mobility impairment,” as specified in 38 CFR 17.148, and functions related to a “sensory, psychiatric, intellectual, or other mental disability” are specifically allowed for service animals under the proposed provision.  If there were any doubt, the final sentence specifically distinguishes this section from the funding provision. 

Suggested Modifications to 38 CFR Part 70 Proposal

It is, of course, possible that proposed 38 CFR 1.218(a) will be finalized before the proposal under discussion here is finalized.  In that event I respectfully suggest that the parenthetical cross-reference in 38 CFR 70.71(b)(2) to 38 CFR 17.148 be changed to 38 CFR 1.218(a).  If finalization of 38 CFR 1.218(a) does not occur prior to the finalization of the current proposal, I suggest that the parenthetical reference in 38 CFR 70.71(b)(2) be altered to read:

(as defined in 38 CFR 17.148 or in such regulations as apply to the access of animals to VA property) 

Although I do not believe an exception on transportation services should be made based on the VA’s service dog funding policy, if it were deemed necessary to separate general transportation services from transportation specifically to acquire a service dog, the cross-reference to a broader definition could be restricted to proposed 38 CFR 70.73(a), where a sentence could be added after the sentence with the parenthetical reference to “service or guide dog” stating: “For purposes of this provision, a service dog is one defined under such regulations as apply to the access of animals to VA property.”

If an alteration to the effect of one of these suggestions is not accepted, the preamble to the final regulation under 38 CFR Part 70 should advise veterans as to the reason for a policy decision that transportation services will only be provided to service dogs satisfying the restricted requirements of 38 CFR 17.148. 

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

Respectfully submitted,

John J. Ensminger 

---

[1] No provision other than §17.148 in Title 38 of the Code of Federal Regulations defines or even refers to service dogs.  Present 38 CFR 1.218(a)(11) refers to seeing-eye dogs, a provision that would be significantly expanded under the proposed service and therapy dog access regulations referred to at length in this letter.  38 CFR 17.37(h)(i) refers to certain kinds of care which, under special circumstances, a veteran may receive, mentioning “seeing-eye or guide dogs.”  38 CFR 18.444 refers to recipients of funds to provide educational programs for veterans and states that such recipients cannot impose certain kinds of rules on “handicapped students,” an example of which would be prohibiting students from bringing guide dogs into campus buildings. 

[2] Under 38 CFR 70.1, Part 70 “provides a mechanism” under which the VHA is “to make payments for travel expenses incurred in the United States to help veterans and other persons obtain care or services from VHA.”  Although this makes 38 CFR Part 70 itself something of a funding regulation, there is no logical reason to subsume its funding limits under the funding provisions of 38 CFR 17.148.  Obviously, somebody with crutches or a walker that needed transportation, but who did not obtain such items with VA assistance or approval, would not be told to leave their prosthetics at home because they were not or could not be obtained with VA funding. 

[3] A second provision regarding “recognized service dogs” concerns dogs obtained prior to the issuance of the regulation. 

[4] See, e.g., Rick A. Yount, Meg D. Olmert, and Mary R. Lee (2012), “Service Dog Training Program for Treatment of Posttraumatic Stress in Service Members,” pp. 63-69 in The United States Army Medical Department Journal: Canine-Assisted Therapy in Military Medicine (April-June 2012), describing a service-dog training program as “a safe, effective, nonpharmaceutical intervention to treat the symptoms of posttraumatic stress disorder (PTSD) and traumatic brain injury in Veterans and service members undergoing treatment at a large Veterans Administration residential treatment facility.” (available for download at http://www.cs.amedd.army.mil/FileDownloadpublic.aspx?docid=73e8d2aa-1a2a-467d-b6e3-e73652da8622).

VA Secretary Puts Service Dog Rules Revision on Fast Track

Additional Note: The Monday, August 17, 2015, edition of the Federal Register contains the VA's final rules regarding animals on VA property. 80 Fed. Reg. 49157.  Those rules will be the subject of further analysis in this blog.  Also, see the summary of the final rules provided by Psychiatric Service Dog Partners. 

Slides presented at the May 19 meeting of the VA Advisory Committee on Prosthetics and Special-Disabilities Programs indicate that the proposed access regulations on service and therapy dogs, described here last November, have been given an expedited review status by Robert A. McDonald, Secretary of Veterans Affairs. 

Although no date for issuance of the final rules has been announced, presumably the Secretary’s designation will mean that this should occur in the next few months.  One of the slides in the presentation, reproduced to the left, indicates there will be training programs for police service employees of the VA since, often working at the entrances to VA facilities, “enforcement falls largely to them.”  Other affected staff have already participated in conference calls regarding the proposed rules according the last bullet point in the slide.

Leased Facilities Subject to ADA Service Dog Rules 

Another slide from the May 19 presentation, reproduced below, makes the interesting observation that leased facilities used by the VA, which may include outpatient clinics and Vet Centers, "may be covered under the Americans with Disabilities Act for access depending on how lease agreement and what access law applies."  A note under the main bullet point adds: "Care should be taken when negotiating these agreements."  This suggests to me that there has been a problem somewhere, perhaps in a facility where the VA does not have absolute control over the space, but shares it with some other entity or service provider.  

If the lease agreement did not provide that VA policy on service dogs should apply to the facility, it could mean that patients or employees with dogs defined as service dogs by the Department of Justice were bringing in psychiatric service dogs, so veterans began demanding the same privilege, or merely started bringing PTSD dogs with them to appointments or to work. (Many veterans are both VA employees and recipients of medical services at VA facilities.) Someone at the VA who had negotiated such a lease agreement is probably in hot water, though the flame should be lowered when the access rules are finalized.   

Transport Vehicles to Handle Service Dogs

Also, on May 27, the Department of Veterans Affairs issued proposed rules regarding transportation of eligible persons to or from a VA facility for examination, treatment  or care.  The proposal states that, for veterans enrolled in the VA’s health care system who need transportation, adjustments are to be made if the veteran requires transportation with a service dog (proposed 38 CFR 70.71(b)(2)).  In arranging transportation services, the veteran or other individual making the request on behalf of the veteran is to indicate “any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog), and other relevant information.”  Proposed 38 CFR 70.73(a), 80 Fed. Reg. 30190, May 27, 2015.

A service dog, for the purpose of such an accommodation in transportation, is defined under the VA's service dog funding provision, 38 CFR 17.148, so will not include psychiatric service dogs used, for instance, by veterans with PTSD.  The cross reference for the definition of "service dog" should change to 38 CFR 1.218(a), the proposed access regulation, once that is made final. Otherwise, veterans with PTSD dogs, and other service dogs for which the VA does not provide funding, may be able to bring the dogs into a VA facility after the access rule is finalized, but will not be able to take the dogs with them onto VA transport vehicles in order to get to a facility. Ideally, of course, the definition of "service dog" in the funding rule should be changed as well.

Conclusion

One of the slides used at the Advisory Committee meeting is about "pseudo-service dogs," and provides that employees can ask users if a dog is a service dog and what tasks the dog performs for the veteran.  It states that handlers who invite others to pet or play with their dogs probably do not have service dogs.  Also any unruly, unclean, un-house-broken, or generally misbehaving dog is deemed likely to be a pseudo-service dog. It can be expected that such generalizations will be part of the training that security officers and others will be receiving in the future.

The fact that the phrase "concurrence process" is used to describe the completion of the regulatory review (first slide above, second bullet point) may indicate that there have been disputes regarding the proposals within and between some sections of the VA, and that the individuals responsible for finalizing the rules are trying to get some level of cooperation across the agency. If nothing will be released until there is "concurrence," the optimism I expressed in the second paragraph above for a quick finalization may be misplaced. I hope I shall be proven wrong as to this speculation.    

Thanks to Larry N. Long, who works with the Advisory Committee, for providing a copy of the slide presentation of Joyce Edmondson, VHA Animals in Health Care Committee Co-Chair. 

VA Advisory Committee to Discuss Service Dogs on May 19

On May 19 and 20, the Federal Advisory Committee on Prosthetics and Special-Disabilities Programs will hold meetings at the VA Central Office, 810 Vermont Ave. NW, Washington, DC 20420.  Meetings will begin at 8:30 a.m. and adjourn at 4:30 p.m. on May 19 and at 12 noon on May 20.  The meeting is open to the public but members of the public will not be given time to comment. 

On May 19, the Committee will receive briefings on, among other things, service dogs.  It is not indicated whether this will include any update on the status of the VA's proposed revisions to its service animal policies, discussed here in a blog last November. Under 38 U.S.C. 543, the Committee is to advise the Secretary of the Department of Veterans Affairs on prosthetics and special-disabilities programs administered by the VA, including providing advice on the adequacy of funding for special-disabilities programs. The Charter of the Committee, which is posted on the VA's website, indicates that the Committee's advice may concern research on programs that deal with "spinal cord injury, blindness or vision impairment, loss of or loss of use of extremities, deafness or hearing impairment, or other serious incapacities in terms of daily life functions."  The latter phrase would cover mental health disabilities, including PTSD, so any discussion of service dogs should not be restricted to service dogs for physical disabilities. 

Any member of the public wishing to attend should contact Larry N. Long, Designated Federal Officer, at 202-461-7354.  He can also be emailed at lonlar@va.gov. Photo ID will have to be presented at the Guard's Desk of the building. 

Veterans and others concerned with the VA's service animal policies--at least those living in the DC area--should consider attending.  Although they presumably won't be allowed to speak, if Mr. Long receives enough calls from veterans asking about what service dog issues will be discussed, the Committee might allocate more time to those issues.

The VA's announcement is included in the Federal Register for May 4. Department of Veterans Affairs: Advisory Committee on Prosthetics and Special-Disabilities Programs; Notice of Meeting, 80 Fed. Reg. 25362 (May 4, 2015). 

School Board Cannot Require Insurance, Extra Shots, or Separate Handler for Service Dog of Special Needs Child

Some schools have opposed special needs children coming to classes with service dogs, as noted here before, but courts have been generally unsympathetic to such efforts to exclude service dogs.  A recent case from Florida concerns a school that did not prevent a child’s use of a service dog and even allowed the child to come to school with the dog without all of the school’s requirements being satisfied.  The legal dispute arose over whether the school could require that the child’s family provide a handler for the dog when the child was in school, purchase liability insurance for the dog, and obtain more shots than are required under state law for dogs before they can enter a school.  Similar issues are likely to come up in other school districts as the number of service dogs for children with disabilities increases, so the order of the court is an important development in service dog law.

The U.S. Department of Justice filed a Statement of Interest in the matter, responding to an argument that its Title II ADA regulations exceeded the Department’s authority.  Many of the cases and legislative history cited in the DOJ Statement appeared in the Florida federal district court’s order in Alboniga v. School Board of Broward County, Florida, No. 14-CIV-60085-BLOOM/Valle (February 10, 2015).

Seizure Alert and Response Dog for Child in Florida

A.M., whose full name has been revealed in press reports, a six-year-old, lives with his mother, Monica Alboniga, in Broward County, Florida.  A.M. suffers from multiple disabilities, including cerebral palsy, spastic quadriparesis, and a seizure disorder.  He is nonverbal and uses a wheelchair and, according to an order on cross motions for summary judgment issued by the federal district court for the Southern District of Florida, “needs care and support for all aspects of daily living and education.” 

Broward County Service Animal Request, page 1.

In 2013, Monica Alboniga determined that her son required a seizure alert and response dog and obtained a medium-sized terrier named Stevie.  Stevie is tethered to A.M. when they are at home or in public places, and Stevie is able to go outside to urinate even when tethered to A.M.  According to the court’s statement of the facts, Stevie alerts 30 to 45 minutes in advance of a seizure and is trained to step onto A.M.’s wheelchair and lay across his lap in the event of a seizure, a task called “Cover” that keeps A.M.’s head up to “prevent airway distraction or choking on saliva during a seizure episode.”  Cover also helps calm A.M. during outbursts and helps disrupt abnormal behaviors or movements and provides A.M. with a tactile presence that can help bring A.M. out of an episode. The court states that "[c]urrently, A.M. has seizures every other night" but notes that "[n]o school staff at A.M.'s school has observed this behavior from the service dog."

Stevie is also trained to alert human responders if A.M. begins experiencing a medical crisis: 

“This [alerting] includes activating a sensor mat by stepping, jumping on or passing across the mat which sets off an alarm; going for help, physically alerting a human responder, and then returning to and staying with A.M.; or otherwise acting in a way to bring attention to the medical situation…. Stevie was also equipped with a special vest which carried pertinent medical supplies and information important for the care of A.M. in an emergency.”

Uncontroverted documentation was presented to the court indicating that separating Stevie from A.M. would be detrimental to Stevie’s effectiveness, “reducing the animal’s ability to respond and perform tasks for its target, and disrupting the animal-target bond that is important to the effective working connection between members of the service dog team.”  Such negative effects from separation would “carry over even when the service dog team is reconnected.”

Ms. Alboniga spoke to the Education Opportunity Office of the School Board of Broward County regarding her son being allowed to be accompanied by a service dog to school during the 2013/14 school year, and filled out a form labeled Request for Use of Service Animal in School District Facilities (a copy of which is included in the Broward County’s posted Proposal to Adopt a New School Board Policy “Use of Service Animals in School District Facilities” (4001.2)).  The School Board requested information on liability insurance for the service animal that was not provided by Ms. Alboniga.  Also, the vaccinations of the service dog listed in the information she provided did not correspond with those vaccinations required by the School Board.  The two pages of the request form that are to be filled out by an applicant are reproduced in plates here.

Vaccination, Insurance and Handler Requirements

The School Board required vaccinations for distemper, hepatitis, leptospirosis, parainfluenza, parvovirus, bordetella, roundworms, hookworms, and rabies, which are the vaccinations required of a dog transported or offered for sale under Florida Statutes 829.29.  The federal district court noted that owners of dogs are, under Florida Statutes 828.30, only specifically required to obtain rabies vaccinations for their dogs, which is the sanitation standard for K-12 private schools under Florida Administrative Code 6A-2.00400.  In a later letter, the Board also required that Stevie be vaccinated against coronavirus, a vaccine that is not generally recommended by veterinarians. 

The School Board informed Ms. Alboniga that she would need to obtain liability insurance for a professionally trained service animal in an amount determined by the School District’s Risk Management Department. The School District was to be listed as an additional insured in the policy.  Finally, the School Board informed Ms. Alboniga that she would need to provide a handler for the dog. 

School Begins

A.M. began school in August 2013 and was accompanied by Stevie and his mother, who served as the dog’s handler.  She was not paid by the school and did not assist with any care or activities regarding A.M. in the classroom.  The School Board maintained that it was not responsible for the care or supervision of Stevie, but in November 2013 the Board made an administrative decision to provide an employee to serve as the handler for Stevie, who happened to be the school’s custodian.  The custodian received training from the same individual who initially trained Stevie.  According to the federal district court:

“The ‘handler’s’ only responsibilities in school are the following: to walk Stevie alongside A.M. with a leash instead of allowing Stevie to be attached to A.M.’s wheelchair via a tether; to take Stevie outside of the school premises to urinate; and to ensure that other people do not approach, pet or play with Stevie while he is working as a service dog.”

Issues Presented

The Court considered and resolved a number of issues, including whether:

1. The case should be dismissed for Alboniga’s failure to exhaust administrative remedies.
2. The matter is moot because A.M. had been coming to school with A.M. and the school has never tried to stop this. 
3. The School Board is not obligated to adhere to the service animal regulations of the Department of Justice because those regulations exceed the Department’s authority. 
4. The school is not obligated to allow A.M. to come to school with Stevie given that school staff members were trained to provide seizure care measures sufficient for A.M.’s needs.
5. The school could require that Alboniga obtain liability coverage on Stevie.
6. The school could require that Stevie receive vaccinations beyond those required in the Florida administrative code for other animals entering schools, i.e., beyond rabies.
7. The responsibilities the school has undertaken with respect to Stevie—particularly the accompaniment of a staff member with A.M. and Stevie when the dog needed to go outside to urinate—meant that the school was providing care and maintenance to the service dog.  
8. The school could require that Alboniga either serve as or obtain a handler to be with Stevie while A.M. was in school. 

As will be seen below, the court decided all of these issues in a manner favorable to Alboniga and A.M. 

Exhaustion of Administrative Remedies

Failure of students and parents to exhaust administrative remedies has at times led to dismissal of actions regarding the refusal of a school board to allow use of a service dog, as discussed here in a prior blog and in Service and Therapy Dogs in American Society, pp. 180, 182. The Florida federal district court cited with approval, however, prior cases in which exhaustion was not required, including Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947 (ED Cal. 1990), where the federal district court for the Eastern District of California determined that the student was not claiming that the education plan for her was inadequate but rather that the school had “discriminated against her on the basis of her handicap by arbitrarily refusing her access if she is accompanied by her service dog.”  The Florida district court followed the same logic with regard to A.M.’s situation:

“Plaintiff does not claim that A.M. has been denied a free and appropriate public education. Plaintiff does not claim that A.M.’s IEP [Individualized Education Plan] is in any way deficient. Plaintiff does not claim that A.M.’s service animal is educationally necessary, or that the School Board’s provision of A.M.’s education would be impacted by the presence of the service animal. Defendant, in point of fact, agrees. Elsewhere in its submissions, Defendant argues that the service animal is not necessary for or relevant to A.M.’s educational experience – that the services provided by the animal are performed through other means by school staff in order to provide A.M. a FAPE [free and appropriate public education] in accordance with his IEP…. Plaintiff asserts claims for violation of the ADA and Section 504 regardless of Defendant’s compliance with the IDEA [Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.]. The IDEA and its administrative scheme are simply not implicated by Plaintiff’s claims here.  As such, exhaustion of those procedures is not a prerequisite to this action.”

Mootness

Broward County Service Animal Request, page 2.

The School Board argued that summary judgment should be granted because the case is moot as the school has always allowed, and continues to allow, A.M. to come to school with Stevie.  The district court notes, however, that voluntary cessation of allegedly illegal conduct does not deprive it of the power to hear and determine a case.  If the threat of the lawsuit were to be removed, there would be nothing to stop the School Board from enforcing its policy in a manner detrimental to A.M. and Alboniga’s interests. 

Americans with Disabilities Act Regulations Apply

After noting the substantial overlap between the Rehabilitation Act and the Americans with Disabilities Act, and the regulations under the latter that cover, among other entities, public schools, the federal district court focused on the regulations that apply to service animals, specifically 28 CFR 35.136.  The School Board argued that this regulation exceeded the statutory authority of the Department of Justice, but the court held it valid, enforceable, entitled to deference, and a permissible interpretation of the ADA.  

Seizure Detection and Care Measures for A.M.

Accepting that the school might be able to provide seizure detection and care similar to what A.M. receives from Stevie, the court said this was not up to the School Board to insist upon as it would be “akin to allowing a public entity to dictate the type of services a disabled person needs in contravention of that person’s own decisions regarding his own life and care.” 

The court saw an analogy to a housing case it decided recently, Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fischer, 6 F.Supp.3d 1272 (SD Fla. 2014), where a condo association refused a reasonable accommodation request under the Fair Housing Act made by a resident.  The association said the resident had not substantiated her need for a service dog, and even if a dog was reasonable or necessary to secure for the resident an equal opportunity to use and enjoy her dwelling, a dog over 20 pounds, such as the resident used, was not reasonable or necessary.  The court said that it was not up to the association to determine what size of dog the resident needed:

“[T]he most fundamental problem with the argument that a dog over 20 pounds was not necessary is that it gets the law wrong. [The association]’s implied argument – that even if a dog is reasonable or necessary for [plaintiff], a dog 20 pounds or under would suffice – is akin to an argument that an alternative accommodation (here, a dog under 20 pounds), would be equally effective in meeting [plaintiff]’s disability-related needs as a dog over 20 pounds. . . .  Since a dog over 20 pounds is a reasonable accommodation, [plaintiff’s] (commonsense) belief that a dog over 20 pounds – in particular, a dog of [her dog’s] size – is better able to assist her renders the need to evaluate alternative accommodations unnecessary as a matter of law. That a blind person may already have a cane or that he or she could use a cane instead of a dog in no way prevents the blind person from also obtaining a seeing-eye dog as a reasonable accommodation under the FHA. A contrary result is absurd.”

Judge Bloom also notes that the Ninth Circuit, in Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9^th Cir. 2004), had rejected an argument by the defendant arts center that it could provide an able-bodied specially-trained companion for the plaintiff that would obviate her need for her service dog.  

Insurance Is Impermissible Surcharge

As to the requirement that Ms. Alboniga maintain liability insurance for Stevie, the court stated:

“The School Board’s requirement that Plaintiff maintain liability insurance for A.M.’s service animal and procure vaccinations in excess of the requirements under Florida law is a surcharge prohibited by 28 C.F.R. § 35.136(h). The School Board’s policies require what amounts to an extra upfront fee charged to Plaintiff in order for A.M. to use his service animal at school. The insurance costs are over and above what other students are required to expend in order to attend school.”

Requiring Additional Vaccinations Is Discriminatory Practice

The court determined that requiring more vaccinations than are ordinarily required under Florida law, including those required for animals entering schools, constitutes an “impermissible discriminatory practice.” Again, this is the correct conclusion under the relevant law.

In 2000, the Association for Professionals in Infection Control and Epidemiology, Inc. (“APIC”) issued an APIC State-of-the-Art Report: The Health Implications of Service Animals in Health Care Settings, published in the American Journal of Infection Control, 28, 170-180. In listing possible zoonotic risks of dogs, this report specifies rabies and indicates that proof of rabies vaccination may be appropriate “in an area with a high prevalence of dog rabies,” but mentions no other vaccination requirement.  The Centers for Disease Control's Guidelines for Environmental Infection Control in Health-Care Facilities cite the APIC Report in its brief mention of service dogs, and observes that “[n]o reports have been published regarding infectious disease that affects humans originating in service dogs.”

The veterans administration, however, recently proposed rules regarding animals on VA property, 79 Fed. Reg. 69379 (November 21, 2014), which would require more shots than just the rabies vaccine for service dogs in certain situations:

"The individual with a disability must provide VA with documentation that the service animal has had a comprehensive physical exam performed by a licensed veterinarian within the last 12 moths that confirms immunizations with the core canine vaccines distemper, parvovirus, and adenovirus-2, and that confirms screening for and treatment of internal and external parasites as well as control of such parasites...."  Proposed 38 CFR 1.218(a)(11)(vii)(B).

A major organization I contacted in researching this blog indicated that it does not place dogs without an assurance that the dogs will continue to receive a "full array of vaccinations, including canine influenza," and will consider decertifying a team that does not follow this requirement.

A possible area of concern is bordetella.  In 1999, Dworkin et al. identified nine HIV-positive individuals with Bordetella bronchiseptica infections, sometimes verified as coming from household dogs or cats. In 2008, Rath et al. reported on a recurrent bordetella infection in an infant who did not have HIV and was considered immunocompetent.  The initial hospitalization, when the infant was six weeks old, occurred only days after the household dog received an intranasal vaccination with an attenuated live vaccine, but genetic comparison established that the source of the infant's infection was not from the vaccine, though it could have been from a slightly different strain of bordetella that the dog may have passed. The patient was admitted to emergency rooms at four and six months and treated for presumed pertussis with azithromycin by doctors who did not know about the previous bordetella infection.  At eight months, a culture identified that the child was again positive for bordetella and received imipenem therapy and remained symptom-free after that.  In 2014, Yacoub et al. described serious bordetella infections in immunosuppressed patients and stated that such patients should be strongly cautioned "to minimize contact with animals when they are ill." Such reports should receive the attention of medical authorities advising schools regarding the presence of animals with children. Certainly, if any of the children in a school have compromised immune systems, an argument could be made that a dog coming into the school should have previously been vaccinated against bordetella.

It is the author's opinion that vaccination requirements for pet dogs as well as dogs that enter educational, medical, and other facilities should on occasion be reevaluated by medical and veterinary professionals to determine what vaccinations are appropriate. Taylor et al. (2001) noted that 61% of pathogen species causing disease in humans are zoonotic, and 75% of emerging pathogens are zoonotic, indicating that diseases not formerly transmitted across species lines may yet do so in the future.  Nevertheless, unless such modifications are made under Florida law as to all dogs entering schools, no additional vaccination requirement should be asked of A.M.'s service dog. 

School’s Responsibilities Do Not Amount to Care and Supervision of Service Dog

Under 28 CFR 35.136(e), a “public entity is not responsible for the care or supervision of a service animal,” but the School Board contended that leading Stevie outside to urinate constitutes care or supervision.  According to the court’s reading of language in the preamble to the final regulations (75 Fed. Reg. 56197, September 15, 2010, 3^rd column under Responsibility for supervision and care of a service animal), care or supervision refers to routine animal care, “such as feeding, watering, walking or washing the animal.”

Florida Statutes 413.08(3)(d) similarly define "care or supervision of a service animal" as "the responsibility of the individual owner. A public accommodation is not required to provide care or food or a special location for the service animal or assistance with removing animal excrement.” The Florida Department of Education (District Implementation Guide for Section 504, p. 106) states that a school board is not responsible for “training, daily care, or healthcare of service animals.” 

The question then becomes, according to the court, whether assisting A.M. to lead his dog outside the school to relieve itself is part of the “routine overall maintenance” of the dog.  The court concludes it is not, reasoning as follows:

“The School Board is not being asked to provide an employee to walk Stevie. Rather, the School Board is being asked to help A.M. do so. That is, the School Board is being asked to accommodate A.M., not to accommodate, or care for, Stevie.”

The court finds such assistance provided to A.M. to be similar to that provided other children: 

“In the same way a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog—the accommodations here are reasonable.” 

The court finds that it does not need to go as far as the California district court in C.C. v. Cypress School District, discussed in a prior blog, which had held that requiring a school to provide an aide to “hold the dog’s leash when navigating campus, provide Eddy with water, and tether and untether him throughout the day” did not fundamentally alter the school’s educational program, necessarily impose an unreasonable accommodation, or amount to the school providing care and supervision for Eddy.  (The Department of Justice also filed a Statement of Interest in that case.)  The aide's responsibilities in that case amounted to at least temporary handling, which touches on the remaining issue considered by the Florida district court.  

No Obligation on Family to Provide Handler

Under 28 CFR 35.136(d), a “service animal shall be under the control of its handler.” The School Board argued that it was not obligated to provide a handler for Stevie, but that one is necessary because “A.M., due to his disabilities, cannot act as the dog’s handler.”  (A prior blog describes how the regulations were amended by the Department of Justice to take into account the fact that the individual with the disability may not always be the handler of a service dog for that individual.)  

The court disagreed with the School Board, stating that “normally, tethering a service animal to the wheelchair of a disabled person constitutes ‘control’ over the animal by the disabled person, acting as the animal’s ‘handler.’ And, even absent tethering, voice controls or signals between the animal and the disabled ‘handler’ can constitute ‘control.’”  The court concludes that given "the specific facts here, having Stevie tethered to A.M. in school would constitute control by A.M. over his service animal as the animal's handler" under the federal regulations, including 28 CFR 36.302(c)(4), which provides:

"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).”  

In seeking feedback on an earlier draft of this blog I spoke with a number of individuals involved in the training and operation of service animals with special needs children. Several emphasized that a handler should always be present in class when a child with disabilities similar to those described for A.M. is accompanied by a service dog. One major organization that provides service dogs for severely disabled individuals does so by requiring that there be a team consisting of a “Facilitator,” who is the handler, and the “Skilled Companion,” the service dog.  The disabled individual, child or otherwise, is never permitted to handle the Skilled Companion in public, only the Facilitator.  Individuals receiving service dogs are told they must attend school without the dog unless the Facilitator is able to be present in the classroom. Facilitators are often family members.  

Under a two-leash system sometimes used with autistic and other children, described in Service and Therapy Dogs in American Society, pp. 80-82, a service dog is tethered to the child with one leash while a second leash is held by a parent or other handler.  Insofar as I have been in communication with parents using such systems, they generally do not refer to the child as a handler, but only themselves. This is, of course, not a perspective derived from legal analysis.     

The Florida federal district court, however, found the arrangement with the custodian satisfactory under the facts presented. I believe that there could be other situations, however, where more handling by someone other than the individual with the disability would be required, as appears to have been true in CC Cypress. Some minimal handling should be permitted without making the accommodation unreasonable or amounting to impermissible care and supervision. Cases in the future will likely define the limits of a school's responsibilities here.        

Conclusion

The comment of Patty Dobbs Gross below, which came in after this blog was posted, raises important issues with regard to considering special needs children to be handlers.  Ms. Gross is the founder of North Star Foundation and the author of The Golden Bridge: A Guide to Assistance Dogs.  There are gaps between what the law requires and what many service dog organizations consider to be best practice. (When I come to revising Service and Therapy Dogs in American Society, I will deal with such gaps more comprehensively than was done in the first edition.)

 

Nevertheless, I believe that the court's order is correct on the law as it stands. The case is scheduled to have a settlement conference by March 17, when, presumably, remaining issues will be resolved. 

This blog was written with the assistance of Leigh Anne Novak, Veronica Morris, Brad Morris, John Moon, and others who prefer to remain in the background. The opinions expressed in this blog, however, are not necessarily those of these individuals who generously gave me time and help.

Is Expedited Screening Getting Too Much Attention from Bomb Dogs at Airports?

Additional Notes: In testifying before the House Subcommittee on Transportation Security on March 25, 2015, Homeland Security Inspector General John Roth complained that the Transportation Security Administration has been rather dismissive of his office's recommendations:

"We are concerned about TSA's response to our findings.  In the first inspection report, we made 17 recommendations and TSA did not accept the majority of these recommendations.  In the second inspection, we made three recommendations but TSA nonconcurred with two.  We made two recommendations in the third report and TSA concurred with only one.  We are disappointed that TSA did not concur with the majority of our recommendations, and we believe this represents TSA's failure to understand the gravity of the situation."

Although the statement of the IG as released to the press mentions Passenger Screening Canine Teams, there is no indication whether such teams are being specifically targeted for criticism.   It must be hoped that additional information will be released in the future.   

In testimony of Jennifer Grover, Director, Homeland Security and Justice (GAO-15-465T), TSA announced additional testing of canines will begin June 2015 and be completed March 2016, though no details of testing procedures or objectives were released. 

A cousin of mine went to the Phoenix Airport to fly to Newark.  Not a frequent flier, he was in one of the longer boarding lanes when a security officer pulled up a cloth strap between two poles and invited him and his wife to step into the fast lane for pre-screened passengers.  Delighted, they dragged their bags between the poles and were about 20 feet from the x-ray system when they passed a dog that they hardly noticed. My cousin was pulled aside and taken into a room.  He was told to empty his pockets and open up his carry-on bag.  After the initial search he was taken into another room where he had to remove most of his clothing.  He was told that a dog had alerted to the smell of explosives.  My cousin soon remembered that the pants he was wearing for the flight were the same ones he had worn to a firing range several days earlier.  Eventually he was allowed to board but the delay was considerable and they had no choice but to check their carry-ons because there was no space left in the overhead compartments.  Expedited screening had been anything but.

Increase in Expedited Screening from 2011 to 2014

What I did not realize until I read a recent Government Accountability Office Report was that had my cousin and his wife remained in the slow lane they would very likely not have been subjected to a bomb dog sniff.  It may have been because of their gray hair that they got the perk of expedited screening through a process called "managed inclusion," which adds ordinary passengers to the pre-screened system when those lanes have low traffic, and solely because they were moved into a fast lane that my cousin’s habit of frequenting Arizona gun ranges caused him to nearly miss a flight. 

GAO Report

In December, the Government Accountability Office released a public version of a sensitive report that was completed in September 2014.  The report, Aviation Security: Rapid Growth in Expedited Passenger Screening Highlights Need to Plan Effective Security Assessments.  GAO-15-150 (December 12, 2014) looks at how the Transportation Security Administration has implemented and expanded pre-screening to the point where, in April 2014, about 5.6 million individuals were eligible for expedited screening. Because many participating passengers are frequent fliers, the first graph shows that upwards of 15 million pre-screen passes have been issued in some months, amounting to over 40% of passengers nationwide.  The TSA has set a goal of making half of all passengers eligible for expedited screening. 

There are important advantages to being pre-screened:  

“[P]assengers eligible for expedited screening may no longer have to remove their shoes; may leave their permitted liquids, gels, and laptops in carry-on baggage; and are not required to divest light outerwear, jackets, or belts when passing through screening checkpoints unless the walk-through metal detector alarms, in which case these items must be removed.”

Just as there are passengers that qualify for expedited screening, there are passengers who are prohibited from boarding an aircraft because they are on the No Fly List, as well as passengers on a Selectee List who must undergo additional screening before being permitted to board an aircraft.  These individuals are on a Terrorist Screening Database, which is maintained by the FBI but available to multiple agencies. 

TSA Pre✓^TM Program

Paper and Electronic Pre-Screen Boarding Passes

In the summer of 2011, TSA began using expedited screening in standard lanes to passengers 12 and younger, 75 and older, and certain flight crew members.  In October 2011, TSA implemented the TSA Pre✓^TM program under which the agency began to evaluate passengers to determine if they presented a sufficiently low risk to be granted expedited screening. Initially, pre-screening for frequent fliers was implemented with two carriers at four airports, with accepted passengers going through expedited screening lanes known as Pre✓^TM lanes.  The two initial carriers were Delta Air Lines at Detroit Metropolitan Wayne County Airport and Hartsfield-Jackson Atlanta International Airport, and American Airlines at the Dallas-Fort Worth and Miami International Airports. As of April 2014, there were nine carriers participating in the Pre✓^TM program.

The initial pilot program also included certain members of the U.S. Customs and Border Protection’s (CBP) three trusted traveler programs, NEXUS, SENTRI, and Global Entry.  The pilot program transitioned into a formal program in February 2012, and more airlines began to participate. Initially eligible passengers could only use Pre✓^TM lanes for airlines on which they were frequent fliers. 

TSA soon expanded the Pre✓^TM program to include members of the U.S. armed forces, Congressional Medal of Honor Society Members, members of the Homeland Security Advisory Council, and Members of Congress.  In October 2013, TSA began a Pre✓^TM Risk Assessment Program to evaluate passenger risk data to determine the likelihood that passengers on which TSA had sufficient information would likely qualify for expedited screening.  In December 2013, TSA started taking applications for its own Pre✓^TM list.  As to how to get on this list, the GAO explains:

“To apply, individuals must visit an enrollment center where they provide biographic information (i.e., name, date of birth, and address), valid identity and citizenship documentation, and fingerprints to undergo a TSA Security Threat Assessment. TSA leveraged existing federal capabilities to both enroll and conduct threat assessments for program applicants using enrollment centers previously established for the Transportation Worker Identification Credential Program, and existing transportation vetting systems to conduct applicant threat assessments. Applicants must be U.S. citizens, U.S. nationals or lawful permanent residents, and cannot have been convicted of certain crimes.”

List Sources of Pre-Screened Passengers

The various Pre✓^TM lists, the numbers on each, and a description of eligible participants for each list is contained in a table provided by the GAO, included here.  It must be asked whether some of the categories are not sufficiently broad that someone with nefarious purposes could on occasion qualify, say by being in the military—a distinct possibility as demonstrated at Fort Hood in 2009—or by being a frequent flier. 

Secure Flight Program

Under the Secure Flight Program, TSA matches information on every passenger against watchlists, such as the No Fly and Selectee Lists, to check for matches.  TSA then directs the carrier to mark a passenger’s boarding pass for enhanced, expedited, or standard screening, or to prohibit the passenger from boarding.  Passengers designated as low risk are advised by TSA that they are eligible for expedited screening, which also directs the carrier to mark the boarding pass of such a passenger with the Pre✓^TM designation.  (The regulations that apply to the Secure Flight Program are contained 49 CFR Part 1560.  The GAO has reviewed the Secure Flight Program in several contexts, but see particularly its September 2014 report: Secure Flight: TSA Should Take Additional Steps to Determine Program Effectiveness, GAO-14-531.)

Passengers with the Pre✓^TM designation use expedited lanes at some airports and will not have to remove shoes and light outerwear or remove laptops, liquids, and gels from luggage.  If dedicated lanes are not available at an airport because of configuration or passenger levels, such passengers will have to remove liquids, gels, and laptops for the efficiency of screening operations in non-dedicated lanes. The 118 airports with dedicated pre-screening lanes are marked on the map below.  Although TSA operations cover about 450 airports, these 118 airports represent around 95% of enplanements.  

Airports with Pre-Screening Lanes

Managed Inclusion

In November 2012, TSA began a Managed Inclusion system designed to assess passengers who are not on participating or eligible for the Pre✓^TM program but who will nevertheless be moved to a pre-screened lane for expedited screening.  The assessment involves a layered approach including randomization procedures, behavior detection officers (BDOs), and either explosives detection canines or explosives trace detection (ETD) devices.  As to how the randomization procedure works, the GAO explains: 

“When passengers approach a security checkpoint that is operating Managed Inclusion, they approach a TSO [Transportation Security Officer] who is holding a randomizer device, typically an iPad that directs the passenger to the expedited or standard screening lane.” 

Behavior detection officers are to look for certain behaviors that indicate a passenger may be a higher risk and keep such a passenger in a standard screening lane.  The GAO reviewed the analytics used by TSA’s behavior detection officers in a report issued in May 2010: Aviation Security: Efforts to Validate TSA’s Passenger Screening Behavior Detection Underway, but Opportunities Exist to Strengthen Validation and Address Operational Challenges, GAO-10-763.  In the current report, the GAO summarizes its doubts about behavior detection procedures as follows:

“TSA has not demonstrated that BDOs can reliably and effectively identify high-risk passengers who may pose a threat to the U.S. aviation system. In our 2013 report, we recommended that the Secretary of Homeland Security direct the TSA Administrator to limit future funding support for the agency’s behavior detection activities until TSA can provide scientifically validated evidence that demonstrates that behavioral indicators can be used to identify passengers who may pose a threat to aviation security. The Department of Homeland Security did not concur with this recommendation; however, in August 2014, TSA noted that it is taking actions to optimize the effectiveness of its behavior detection program and plans to begin testing this effort in October 2014.”

It can be expected, therefore, that more GAO reports will concern TSA’s behavior detection efforts.  In addition to the behavioral assessment, a passenger in an expedited lane may pass a bomb dog team or an explosives trace detection device. As to when a passenger might encounter various components of the Managed Inclusion Program, the GAO provides a sort of generic floor plan distinguishing between the paths at a security gate of pre-screened passengers, passengers moved to expedited screening under the Managed Inclusion process, and all other passengers. 

Queues for Going Through Security

The GAO provides specific details about canine teams:

“TSA uses canine teams and ETD devices at airports as an additional layer of security when Managed Inclusion is operational to determine whether passengers may have interacted with explosives prior to arriving at the airport. In airports with canine teams, passengers must walk past a canine and its handler in an environment where the canine is trained to detect explosive odors and to alert the handler when a passenger has any trace of explosives on his or her person. For example, passengers in the Managed Inclusion lane may be directed to walk from the travel document checker through the passageway and past the canine teams to reach the X-ray belt and the walk-through metal detector. According to TSA documents, the canines, when combined with the other layers of security in the Managed Inclusion process provide effective security.”

As we discussed in a prior blog, it should not be assumed that anything missed in the security lanes will be caught by canine teams roaming around open areas either before or after the security gates. Two GAO reports (GAO-13-329 and GAO-14-695T) were skeptical about the effectiveness of passenger screening canine (PSC) teams and GAO posted the video below of a PSC team misidentifying the passenger with explosives odor in a test conducted at an airport.   

Nor should it be assumed that checked baggage is being looked at more carefully.  In a memo issued in September 2014 (OIG-14-142), the Inspector General of the Department of Homeland Security stated: 

"We [the Inspector General's staff] identified vulnerabilities ... caused by human and technology-based failures.  We also determined that TSA does not have a process in place to assess or identify the cause for equipment-based test failures or the capability to independently assess whether deployed explosive detection systems are operating at the correct detection standards.  The compilation of the number of tests conducted, the names of  airports tested, and test results are classified, or designated as Sensitive Security Information.  According to TSA, the component [presumably some subdivision of TSA] spent $540 million for checke baggage screening equipment and $11 million for training since 2009.  Despite that investment, TSA has not improved checked baggage screening since our last report in 2009."  

It has been over four years since we wrote a blog about explosives detection for checked baggage. The GAO should be looking into that issue as well.   

Conclusion

GAO notes that “Managed Inclusion passengers are more likely than other passengers to be screened for explosives.” My cousin's experience was apparently not unique. This is disturbing, given that a passenger going through ordinary screening is thus less likely to get near a dog or a device designed to detect explosives.  A terrorist carrying a new type of explosive might increase his chance of success by not being selected for an expedited screening, particularly if the components of an explosive can be made to look harmless enough for a physical inspection. GAO says that "TSA has conducted work to assess canine teams and to ensure that they meet the security effectiveness thresholds TSA established for working in the Managed Inclusion lane...."  GAO has not merely accepted TSA's word about the effectiveness of canine teams, as it did not regarding TSA's claims for the free-roaming PSC teams, and it must be hoped they will have some of their own investigators perform underground work here. 

An overall analysis of the effectiveness of screening should take the configuration of security lanes into account. It must also be hoped that GAO is continuing to test the effectiveness of other canine deployments at airports. The National Explosives Detection Canine Program is slated to get nearly $130 million under the 2015 Department of Homeland Security Appropriations Act. Canine teams must be effective to justify that kind of price tag. 

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