Daily Rules, Proposed Rules, and Notices of the Federal Government
On June 16, 2011, VA published in the
In 1961, VA promulgated 38 CFR 17.118(a) (recodified as current 38 CFR 17.154(a) in 1996) restating the statutory language, which at that time limited VA's authority to the provision of guide dogs for blind veterans. In 2001, Congress amended section 1714 to authorize VA to provide service dogs for veterans with other disabilities. See Department of Veterans Affairs Health Care Programs Enhancement Act of 2001, Public Law 107-135, title II, § 201. This rule implements that authority and establishes a single regulation relating to the provision of guide and service dog benefits by VA.
Interested persons were invited to submit comments to the proposed rule on or before August 15, 2011, and we received 98 comments. All of the issues raised by the commenters that concerned at least one portion of the
Section 17.148(a) defines “service dogs” as “guide or service dogs prescribed for a disabled veteran under [§ 17.148].” Multiple commenters argued that this definition is circular, and further contended that the omission of mental health impairments in § 17.148(b)(1) violates basic protections set forth in regulations implementing the Americans with Disabilities Act of 1990 (ADA). See 28 CFR 36.104 (specifically recognizing service dogs trained to assist individuals with mental impairments and defining “service animal” to mean “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”). These commenters advocated that VA should use the definition of “service animal” set forth in the regulations implementing the ADA. We make no changes based on these comments.
The requirements in the ADA and regulations implementing the ADA are applicable only to “public entities,” and Federal Government agencies such as VA are not included in the ADA definition of a public entity. See 42 U.S.C. 12131(1). Thus, the specific requirements set forth in the ADA are not applicable to VA. Although this does not prevent VA from adopting, through regulation, a definition of “service animal” consistent with 28 CFR 36.104, it would be inappropriate to do so for the purposes of the programs regulated by this rule. The ADA and its implementing regulations exclusively address the issue of access to public facilities by individuals with disabilities, whereas the purpose of this rule is to authorize benefits to a veteran with a service dog. Access is not discussed in § 17.148 or § 17.154. Conversely, the ADA and its implementing regulations are neither controlling nor informative with regard to the administration of benefits to veterans with service dogs. The definition of “service dogs” in § 17.148(a) is reasonable because it is not overly broad for the purpose of the rule, and is appropriate to effectuate Congressional intent. Cf. 38 U.S.C. 1714(c) (providing authority for 38 CFR 17.148 and authorizing VA to “provide service dogs trained for the aid of” those veterans with hearing impairments, mobility impairments, etc., but not addressing access to VA facilities by persons accompanied by service dogs). The concerns from commenters were that § 17.148 “reinvents the wheel” by establishing a new definition for a term that is already defined in Federal regulation, and further that § 17.148 was unlawful under such regulation. However, as discussed above, the ADA definition of “service animal” is not applicable, and also is not helpful in determining the circumstances under which VA will provide the benefits described in § 17.148.
Commenters asserted that VA should use the term “assistance animal” instead of “service dog” because, they assert, the term “service dog” is understood more narrowly in the service dog industry to refer only to those dogs that assist with mobility impairments, whereas § 17.148(a) defines “service dogs” to mean dogs that aid with mobility impairments, visual impairments, and hearing impairments. By contrast, commenters stated that “assistance animal” is an industry term that encompasses dogs that assist with mobility, visual, and hearing impairments, and in turn should be used by VA in § 17.148(a). We make no changes based on these comments.
We disagree that every person in the service dog industry would understand what an “assistance animal” is in the way described by the commenter. Moreover, our regulations are written for a broader audience than those who may own or train service dogs, to include VA employees who administer benefits in accordance with our regulations. We believe that “assistance animal” in fact could be interpreted to have multiple colloquial meanings, and specifically may be likely to suggest that VA will provide benefits for animals other than dogs. We do not believe, as suggested by commenters, that our use of the term “service dogs” to encompass guide dogs for visual impairments and service dogs for hearing and mobility impairments would confuse veterans seeking benefits under the rule. Most importantly, § 17.148(a) clearly defines the term and states that the definition therein applies “[f]or the purposes of” § 17.148. In applying for this benefit, veterans would be expected to understand that the regulatory definition applies, and not any other definition that may be set forth elsewhere or understood in common parlance.
Multiple commenters contended that the certificate requirement in § 17.148(c)(1) as proposed would violate their access rights under the regulations implementing the ADA. See 28 CFR 36.302 (stating that “[a] public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal”). We reiterate that this rulemaking does not address the issue of access to VA health care facilities by individuals accompanied by service dogs, and will not be used to determine whether a particular service dog will be allowed to enter a VA facility. Comments that allege unlawful violations of access rights or raise other issues relating to access to VA facilities, therefore, are beyond the scope of this rule. Therefore, we make no changes based on these comments. A certificate is required under § 17.148(c)(1) only to enable the veteran to receive service dog benefits, but is not required to gain entry to VA facilities. This rulemaking does not permit or prohibit the access of service dogs to VA health care facilities.
Access to VA facilities by service dogs accompanying individuals with disabilities is controlled by 40 U.S.C. 3103, which states: “Guide dogs or other service animals accompanying individuals with disabilities and especially trained and educated for that purpose shall be admitted to any building or other property owned or controlled by the Federal Government on the same terms and conditions, and subject to the same regulations, as generally govern the admission of the public to the property.” 40 U.S.C. 3103(a). The VA regulation that currently controls the access of animals to VA facilities is found at 38 CFR 1.218(a)(11), and we are in the process of amending § 1.218(a)(11) to be fully compliant with 40 U.S.C. 3103(a).
Multiple commenters asserted that the exclusion of benefits to mental health service dogs is unlawfully discriminatory because it creates a different standard for treatment options between those veterans with mental health impairments and those veterans without mental health impairments. One commenter specifically alleged that not providing benefits for service dogs that mitigate the effects of mental health illnesses, while providing benefits for service dogs that mitigate the effects of
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
We agree that the benefits administered under this rule are subject to Section 504, but disagree that not providing benefits for mental health service dogs violates Section 504. VA is not restricting service dog benefits based on disability. VA is providing benefits to both physically and mentally disabled veterans for the same purpose, which is to provide assistance for the use of a particular device (a service dog) when a service dog is clinically determined to be the optimal device to help a veteran manage a visual impairment, a hearing impairment, or a chronic impairment that substantially limits mobility. All veterans will receive equal consideration for benefits administered for these service dogs, provided all other criteria in § 17.148 are met, regardless of accompanying mental health diagnosis. Veterans diagnosed with a hearing or visual impairment will certainly not be deemed ineligible for service dog benefits because they also have a mental health impairment. We also note that mobility impairments under § 17.148 are not specifically limited to traumatic brain injuries or seizure disorders in § 17.148(b)(3). Some commenters misinterpreted the rule to contain such a limitation and argued that other mental impairment may produce mobility impairment. To clarify, if a veteran's mental impairment manifests in symptoms that meet the definition of “chronic impairment that substantially limits mobility” in § 17.148(b)(3) and a service dog is clinically determined to be the optimal device to manage that mobility impairment, then such a veteran will be awarded service dog benefits. The rule does not prevent such individualized assessments of veterans with mental health impairments, as long as the service dog would be evaluated as a device to mitigate the effects of a visual, hearing, or mobility impairment. If this requirement is met, VA would not deny service dog benefits simply because the service dog may also assist with mental impairment that does not cause a limitation identified in § 17.148(b).
The rule prevents the administration of benefits for a dog to mitigate the effects of a mental illness that are not related to visual, hearing, or mobility impairments, but this restriction is not discriminating based on the fact that a veteran has a mental disability. This restriction is based on a lack of evidence to support a finding of mental health service dog efficacy. In contrast, VA's shared national experience has been to directly observe positive clinical outcomes related to the use of service dogs and increased mobility and independent completion of activities for veterans with visual, hearing, and mobility impairments. Our observations are bolstered by the existence of nationally established, widely accepted training protocols for such dogs that enable the dogs to perform a variety of tasks directly related to mitigating sensory and mobility impairments (such as alerting to noise, opening doors, turning on light switches, retrieving the telephone, picking up objects, etc.). We are unaware of similarly vetted and accepted training protocols for mental health service dogs, or how assistance from such dogs could be consistently helpful for veterans to mitigate mental health impairments.
Although we do not disagree with some commenters' subjective accounts that mental health service dogs have improved the quality of their lives, VA has not yet been able to determine that these dogs provide a medical benefit to veterans with mental illness. Until such a determination can be made, VA cannot justify providing benefits for mental health service dogs.
Several commenters asserted that limiting § 17.148 to veterans diagnosed as having visual, hearing, or substantial mobility impairments violates 38 U.S.C. 1714, which was amended in 2009 to authorize VA to provide “service dogs trained for the aid of persons with mental illnesses, including post-traumatic stress disorder, to veterans with such illnesses who are enrolled under section 1705 of this title.” 38 U.S.C. 1714(c)(3). Though multiple commenters stressed that this rule's exclusion of mental health service dogs violates 38 U.S.C. 1714(c)(3), we reiterate as stated in the proposed rule that under the statutory language VA may provide or furnish a guide dog to a veteran but we are not required to do so. See 38 U.S.C. 1714 (c)(1)-(3) (noting that “[t]he Secretary may, in accordance with the priority specified in section 1705 of this title, provide” [service dogs]). As we explained in the proposed rule, this rulemaking expands part 17 of 38 CFR, which already addressed guide dogs for the blind, to now authorize benefits for hearing disabled and substantially mobility impaired veterans, because we have an adequate basis of clinical experience and evidence to suggest service dog efficacy for veterans with these impairments. Therefore, we make no changes based on the above comments.
Commenters contended that VA is acting against its own practices in administering benefits by requiring completion of a congressionally mandated service dog study prior to determining whether to administer mental health service dog benefits. Commenters asserted that while most VA regulations only rely on medical judgment or medical need to justify the provision of medical benefits, in this instance VA is without reason requiring a higher standard of clinical evidence. As stated by one commenter:
VA's position that it can only act here in accord with a solid scientific evidence base is not in accord with its own practice. In most instances involving medical benefits, VA regulations rely simply on medical judgment, “medical need,” or a determination that providing the service is “necessary.”
This is not an accurate statement. Current VA regulations do not discuss whether there is evidence to support the provision of a particular therapy or treatment method, but this does not support the inference that our regulations discount the need for evidence to support the provision of such therapy or treatment. Indeed, if we ultimately determine that mental health dogs are appropriate treatment tools for mental health impairments, we will amend our regulations to authorize benefits for such dogs. VA is currently evaluating the efficacy of mental health service dogs, pursuant to the National Defense Authorization Act for Fiscal Year 2010, Public Law 111-84, § 1077(a) (2009) (the NDAA), which states that “the Secretary of Veterans Affairs shall commence a three-year study to assess the benefits, feasibility, and advisability of using service dogs for the treatment or rehabilitation of veterans with physical or mental injuries or disabilities, including post-traumatic stress disorder.” All participants in this study are veterans with mental health disabilities who are receiving service dog benefits similar to those described in this rulemaking, but the service dogs for these veterans assist specifically with the effects of mental illness.
Though many commenters asserted that there is sufficient clinical evidence that VA could presently use to support administering mental health service dog benefits, the only evidence submitted in support of this assertion were anecdotal accounts of subjective benefits, including: Decreased dependence on medications; increased sense of safety or decreased sense of hyper-vigilance; increased sense of calm; and the use of the dog as a physical buffer to keep others at a comfortable distance. Again, we do not discount commenters' personal experiences, but we cannot reasonably use these subjective accounts as a basis for the administration of VA benefits. This is the precise reason VA is currently gathering evidence in the NDAA study—to determine how, exactly, service dogs may perform specific tasks or work that mitigates the effects of mental health disabilities.
Finally, we respond to multiple commenters' concerns with the manner in which VA is currently conducting the mandatory NDAA study. Essentially, these commenters stated that VA's conducting of the study is unreasonable because either the methodology is flawed, or VA's service dog organization partners in the study are inappropriate. Particularly, commenters alleged that VA has partnered exclusively with Assistance Dogs International (ADI) and ADI-accredited organizations in conducting the study, and further that ADI is not a proponent of psychiatric service dogs; such commenters accused VA of making adverse determinations regarding the efficacy of mental health service dogs before the study is complete. Generally, we find these comments to be beyond the scope of this rule, because VA is not basing any decisions in this rulemaking on any outcomes of the mandatory study, as the study has not yet been completed. However, we will note that VA has not partnered exclusively with ADI or ADI-accredited organizations to conduct the mandatory study. All relevant Federal requirements concerning research studies were followed by VA as relates to this study; an abstract of the study to include listed eligibility and exclusion parameters is available for public viewing at
Multiple commenters argued that VA should remove the requirement in § 17.148(c) as proposed that a service dog complete ADI training and be ADI certified before a veteran with a substantial mobility impairment can begin receiving benefits under § 17.148(d). These commenters put forth many reasons in support of removing this requirement, which we will specifically address in the following discussion. We make no changes to the rule based on these comments. In administering service dog benefits, VA must ensure that tested and proven criteria regarding service dog training and behavior are in place to ensure the integrity of the service dog benefits administered, and the safety of veterans and others who might come in contact with the veteran or the dog. There are no Federal standards for service dog training that we can apply, and VA does not have the expertise to design its own accreditation program or standards. ADI and IGDF are national, industry-recognized organizations with established and proven training criteria. Commenters offered many anecdotal observations concerning the quality and reliability of non-ADI organizations to train service dogs, but no commenters offered concrete, supportive evidence to persuade us that there are any organizations other than ADI or IGDF that have an established history and national credibility such that they should be recognized in § 17.148(c).
The reliance on ADI and IGDF accreditation is no different than our reliance on other nationally standardized criteria to ensure safe, high quality health care across all settings. For instance, VA relies on the Centers for Medicare and Medicaid Services (CMS) Resident Assessment Instrument/Minimum Data Set as the comprehensive assessment for all veterans in VA Community Living Centers (long term care facilities). See Veterans Health Administration (VHA) Directive 2008-007. In addition, VA requires States to rely on this tool for veterans in State homes receiving per diem payments from VA for the provision of nursing home care. See 38 CFR 51.110(b)(1)(i). Similarly, VA relies on and enforces by regulation National Fire Protection Association (NFPA) safety standards in all VA community residential care facilities, contract facilities for outpatient and residential treatment services for veterans with alcohol or drug dependence or abuse disabilities, and State homes. See 38 CFR 17.63, 17.81(a)(1), 17.82(a)(1), and 59.130(d)(1). We rely on various private, State, and local certifications concerning professional expertise. See, e.g., 38 CFR 3.352(b) (predicating aid and attendance allowance on need for care from health-care professional licensed to practice by a State or political subdivision thereof), § 17.81(a)(3) (conditioning VA authority to contract with residential treatment facilities that are “licensed under State or local authority”), § 17.900 (recognizing certification of health care providers issued by, inter alia, The Joint Commission as well as specified government organizations including CMS). Thus, VA reliance on the recognized expertise of a public or private organization is not uncommon, nor is it illegal or questionable, so long as the basis for the reliance is well-reasoned and articulated.
Despite the negative comments that asserted that ADI is an inefficient organization or is inadequate in some respects, other commenters recognized that there are no other national organizations that perform a similar function, and that there are very few individuals who can accurately assess the quality of a service dog's training. Some commenters praised ADI, stating that ADI certification is “the best route to go” and that the requirement will ensure that VA is not paying for dogs of “questionable value to our vet[eran]s.” If at some point in the future we discover an efficient way to assess the quality of training provided by non-ADI
We now specifically address comments that requiring certification from an ADI-accredited organization effectively creates a sole source contract, in violation of the general requirement for open and fair competition in Federal Acquisition Regulations. See 48 CFR 6.101. Multiple commenters further alleged that § 17.148(c) as proposed would violate a “performance-based” assessment requirement under Federal Acquisition Regulations for service contracts, because it emphasizes the source of service dog training rather than the result of that training. See 48 CFR 37.600 et seq. Without discussing under what circumstances VA may be permitted to enter into sole source contracts, we clarify for commenters that VA is not contracting with ADI or IGDF generally or with any ADI-accredited or IGDF-accredited organization to purchase service dogs for veterans under this rule. There is no fiscal conflict of interest or violation of Federal Acquisition Regulations because the rule does not authorize any financial arrangement whatsoever with ADI or IGDF.
Multiple commenters stated that the ADI limitation in § 17.148(c) is inefficient and ineffective for veterans by asserting that, compared to non-ADI organizations: There are not enough ADI-accredited organizations around the United States to meet veteran demand for service dogs; the cost to purchase ADI-certified service dogs is prohibitive; and the wait to receive a service dog from an ADI-accredited organization is too long. We make no changes based on these comments.
We acknowledge that not all States have registered ADI-accredited or IGDF-accredited organizations; however, § 17.148(d)(3) does provide for the reimbursement of travel expenses associated with the training a veteran must complete as offered by an ADI-accredited or IGDF-accredited organization. Therefore, there will be no out of pocket travel costs for veterans who must travel out of state to obtain a dog after a service dog is prescribed. Thus, we do not believe the absence of ADI-accredited or IGDF-accredited organizations in a particular State will serve as a barrier to obtaining a service dog.
Regarding the cost to obtain a service dog, we did not receive any concrete evidence from commenters that non-ADI accredited or non-IGDF accredited organizations are on average less expensive. Rather, commenters offered anecdotal claims that non accredited organizations are less expensive in some cases. A few commenters asserted that non-ADI accredited and non-IGDF accredited providers have less overhead costs because those organizations do not have to spend money to acquire or maintain accreditation. The ADI accreditation fee is $1000.00 paid every 5 years, with annual fees of approximately $50.00. The cost of IGDF accreditation is a one-time fee of $795, with an annual fee of $318 and a per unit fee of $39.45. We do not believe that these costs would necessitate an increased cost being passed to veterans specifically. ADI accreditation and IGDF accreditation are the only reasonable means we have of ensuring that an organization is using tested, standardized training and behavior criteria prior to a service dog being placed with a veteran. We view the cost of ADI and IGDF accreditation, therefore, as necessary and reasonable in order to ensure that we administer benefits in a safe and consistent manner. We clarify for one commenter that VA only intends to recognize those service dog organizations that have full membership in ADI or IGDF, or that are fully ADI or IGDF accredited, versus those organizations in the process of becoming ADI or IGDF accredited. This is consistent with our goal of ensuring VA only administers benefits for use of high quality service dogs that were subject to standardized training protocols.
Regarding the wait time to obtain a dog, commenters did not provide evidence to support that on average ADI-accredited organizations take longer than non-ADI accredited organizations to place service dogs with veterans. Many commenters instead provided anecdotal accounts of non-ADI organizations not utilizing ADI-specific training, and in turn training dogs faster than ADI organizations. Non-ADI organizations that facilitate “owner training” were especially noted by commenters as being faster and more effective for veterans, whereby the veteran would directly train the service dog. Again, we do not believe that we should administer benefits under the rule unless we can ensure that the service dogs for which we pay benefits are all subject to the same set of tested standards, to ensure safety and consistent quality. We do not believe this level of safety and quality can be met without accreditation based on nationally applicable criteria. This practice follows the same process VA uses with every other product, device, or treatment modality provided to our veterans.
Some commenters argued that VA could use other nationally recognized, performance based tests instead of requiring ADI certification to demonstrate that service dogs are safe and appropriately trained to mitigate effects of substantial mobility impairments. These commenters stated that submission to VA of a service dog's performance on a Public Access Test (PAT) or the American Kennel Club's Canine Good Citizen (CGC) test, in combination with statements indicating the level of the service dog's training and confirming the dog's good health, would provide sufficient objective evidence that service dogs are suitable for provision of benefits under the rule. Nationally recognized temperament tests such as a PAT or the CGC may indicate whether a service dog is stable and unobtrusive to the public to justify access (and, again, § 17.148 does not concern access), but these tests do not communicate the level of a service dog's specific training, or whether the service dog should be prescribed for a veteran as an assistive device. An accompanying statement submitted to VA that subjectively attests to a service dog's training is similarly inadequate, as VA seeks to administer benefits uniformly under the rule and therefore must ensure that all service dogs are subject to the same performance based standards. We make no changes based on these comments.
One commenter expressed support of VA's decision to specifically include seizure disorder as a covered impairment, and requested that VA more clearly indicate in the final rule which tasks a service dog may complete for such an eligible veteran. We reiterate that we require ADI and IGDF certification specifically because VA does not have the expertise, experience, or resources to develop independent criteria. For this reason, we make no changes to the rule to provide specific examples of tasks which any service dog may perform for a veteran. ADI has developed training protocols for service dogs to complete work and tasks for impairments as described in the rule, to include seizure disorders.
Finally, multiple commenters contended that VA could adopt independent training programs to internally produce service dogs for veterans, versus relying on certificates from external ADI-accredited service dog organizations. One commenter stated that VA should initiate an independent training program whereby veterans with post traumatic stress
Though VA is not opposed to such training opportunities as a component of a treatment plan for a particular veteran, Operation Freedom is not an example of an independent and internal training program to train or produce service dogs for veterans. As the commenter correctly stated, the dogs involved in Operation Freedom were actually trained to become service dogs by an external ADI-accredited organization, over an extended period of time and subject to ADI standards as adopted and applied by that organization. We additionally clarify that even the initial basic obedience training that veterans assisted in providing to dogs was not provided on VA property, but rather on the property of the ADI-accredited organization, because the goal of Operation Freedom was to provide community reintegration opportunities for participating veterans as part of those veterans' treatment plans. The goal of Operation Freedom was ultimately not to produce service dogs for veterans, and we therefore do not find this example as provided by the commenter to be illustrative as to what VA should enact with regards to independent and internal service dog training programs. As stated previously, because VA does not have the expertise, experience, or resources to develop independent training criteria or otherwise train or produce service dogs for veterans, we require that service dogs be trained and placed with veterans by ADI-accredited and IGDF-accredited organizations. However, this in no way limits any veteran's personal choice to undertake any training experiences with any service dog organization, nor does it prevent VA from conducting programs similar to Operation Freedom. The commenter also noted potential cost savings for VA to conduct internal service dog training programs that employ PTSD veterans, but as explained earlier VA is not purchasing service dogs from ADI-accredited or IGDF-accredited organizations, and such cost comparisons are therefore not relevant. We make no changes based on the above comments.
One additional commenter suggested that instead of requiring ADI certification, that VA should hire professional service dog trainers to join rehabilitation therapy departments (e.g., to join Occupational and Physical Therapy departments) as VA staff, and that this would enable VA to professionally train service dogs at a higher output and with less cost than paying for ADI-certified service dogs. We make no changes based on this comment, as such cost considerations are not relevant because VA is not purchasing service dogs. VA does not have the expertise, experience, or resources to develop independent training criteria, and VA will not adopt or initiate internal training programs, as this would effectively make VA act as a professional service dog certifying body. VA's lack of expertise in this area is exactly why we have mandated ADI or IGDF certification.
Under § 17.148(b)(2), we require that the service dog must be the “optimal” device for the veteran to manage his or her impairment and live independently, and service dog benefits will not be provided if other assistive means or devices would provide the same level of independence as a service dog. Several commenters asserted that the use of one assistive device does not necessarily obviate the need for other assistive devices, and therefore that § 17.148(c) as proposed should not be used to exclude the prescription of a service dog if other devices may assist the veteran. We agree in part with the comments, but make no change to the regulation because the regulation does not prevent veterans from using multiple assistive devices.
For purposes of § 17.148(b)(2), an eligible veteran may be prescribed both a service dog and another assistive device, as long as each provides a distinct type of assistance, or if, without each of the devices, the veteran would be unable to complete tasks independently. For instance, for a veteran with a mobility impairment that is characterized by loss of balance and subsequent falls, both a balance cane and a service dog might assist a veteran with balance and walking; the cane might be optimal for assistance with walking, but the service dog may be the optimal means for that veteran to regain a standing position and stabilize after a fall. In such a case, the service dog may be prescribed to the veteran, as well as the balance cane. Similarly, a veteran with multiple impairments may be prescribed assistive devices to assist with one impairment and a service dog to assist with another. The “optimal” limitation in § 17.148(b)(2) will not limit the prescription of a service dog when necessary for the veteran to manage the impairment and live independently, but it will prevent the provision by VA of multiple assistive devices that serve the same purpose. By avoiding duplication of benefits in this manner, we maximize the amount of resources available to veterans and ensure that benefits are provided in a responsible manner.
Commenters stated that the “optimal” criterion in § 17.148(b)(2) as proposed would be used to ensure that service dogs are prescribed as assistive devices only as a “last resort.” A service dog is not a “last resort” in the sense inferred by the commenters. VA will not use the “optimal” requirement in such a way as to deprive any veteran of an assistive device that would best mitigate the effects of a veteran's impairment and provide the veteran the highest level of independence. The rule is designed, however, to promote the use of service dogs only when it is clinically determined that other devices will not adequately enable the veteran to live independently. This rationale of promoting service dogs secondary to other assistive devices is not without reason. A service dog is a long term commitment that requires tremendous dedication and effort on the part of the veteran, as well as significant costs—only part of which would be paid for by VA under § 17.148. A service dog must be fed, exercised, groomed, nursed when ill, and integrated into the veteran's family as a necessary partner in the veteran's daily life. If the extent of the veteran's mobility impairment is such that the only tasks requiring assistance are picking up or reaching items, then a device that is not a service dog that fully accomplishes these tasks is not only sufficient, but also is not unduly burdensome for the veteran. We
Commenters argued that the rule should contain additional criteria that would objectively measure a veteran's level of independence between different devices, instead of the single “optimal” criterion. We believe, however, that because these are clinical determinations based on “medical judgment” under § 17.148(b)(2), additional criteria are unnecessary and unhelpful. Therefore, we make no changes based on these comments. It is clear in § 17.148(b)(2) that devices, including a service dog, will be clinically evaluated to determine which are necessary and most beneficial for the veteran to manage an impairment and live independently. We stressed the importance of this clinical determination in the proposed rule:
VA does not intend to allow cost or any other factors to discourage the use of new technologies and equipment to maximize the independence of veterans. We believe that providing VA with discretion to choose between a service dog or assistive technology based on medical judgment rather than cost-effectiveness would ensure that VA's patients receive the highest quality of care that the VA-system can provide.
One commenter additionally noted that the above rationale from the proposed rule presumed that higher cost technologies offer a higher standard of care. We clarify that the intent of this rationale was to support VA's use of clinical judgment to determine what device allows the veteran to function most independently, and not have such a determination influenced by factors such as cost.
Some commenters asserted that while another device may provide the exact same functions in mitigating the effects of mobility impairments as a service dog, service dogs nonetheless should be considered optimal and be prescribed because they uniquely provide certain ancillary benefits, including: Subjective feelings of increased personal comfort and understanding; an increased sense of purpose for the veteran in having to care for a living thing; an increased sense of self-esteem and overall psychological well-being; and improved social and community reintegration skills. We do not dispute these subjective accounts from commenters; however, we believe Congress authorized VA to provide service dogs to veterans with disabilities as a means of mitigating the effects of a disability—and not for the purpose of companionship or emotional support. Therefore, we make no changes based on these comments. The authorizing statute links the provision of service dogs to their having been trained “for the aid of” veterans with hearing impairments, mobility impairments, etc.; the statute does not suggest that ancillary benefits are to be considered. 38 U.S.C. 1714(c). Therefore, § 17.148 does not authorize benefits based on ancillary benefits that service dogs may provide but that are not specific to mitigating the effects of a veteran's disability, and which are not the product of specific training. Though dogs may generally tend to engender in their owners subjective feelings of improved well being, this is not the intended effect of service dog assistance under 38 U.S.C. 1714(c) or § 17.148.
As proposed, the determination that the service dog is “optimal” for the veteran under § 17.148(b)(2) was to be made by a VA clinician using medical judgment. Multiple commenters objected to this standard, for various reasons. Chiefly, commenters claimed that a VA clinician would not have the requisite expertise related to service dogs to properly compare their unique characteristics and benefits to other assistive devices. Instead, these commenters asserted that the decision-making process should involve either a local evaluation board or interdisciplinary team, in which prosthetic staff and other rehabilitative therapy staff is represented. We agree, and have amended the first sentence of § 17.148(b)(2) from the proposed rule to require “[t]he VA clinical team that is treating the veteran for such impairment” to assess whether it is appropriate to prescribe a service dog for that veteran. The “VA clinical team” will include, by virtue of being the clinical staff that is treating the veteran for the qualifying visual, hearing, or mobility impairment, the veteran's primary healthcare provider, and any other relevant specialty care providers and professional staff, to include prosthetic and rehabilitative therapy staff. Thus, the first sentence of § 17.148(b)(2) now reads: “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.”
We also recognize that ensuring that VA clinical staff is knowledgeable regarding service dog utilization is critical to the successful partnering of veterans with service dogs. VA is developing and will disseminate educational tools and training opportunities that will assist VA clinical staff to obtain this knowledge. In preparation for the effective date of this rulemaking, we have drafted clinical practice recommendations and have produced a video presentation for dissemination to every VA health facility in the country. Both the clinical recommendations and the video communicate to clinical staff the traits, capabilities, tasks, and utility of service dogs for mobility, hearing, and vision impairments. These and other training materials will include professional education credits, so clinical staff will have incentive to participate, and some training opportunities will be required training for a veteran's clinical team when it is necessary to determine if an assistive device is needed. The training provided at local facilities will ensure the veteran's treatment team will be qualified to evaluate between various assistive means, to include understanding the abilities of service dogs, and then be able to prescribe the most appropriate assistive device.
Multiple commenters criticized the rule for disregarding the expertise of service dog organizations. It is true that for a veteran to receive benefits under the rule, a service dog must be prescribed by the veteran's clinical team, and that decision is made without consulting the service dog organization from which a veteran ultimately obtains a service dog. However, the prescription of a service dog is a treatment decision made by the VA clinical team that is treating the veteran for the qualifying impairment, and we believe that consultation with a private organization that has no clinical expertise as to the medical treatment for a specific veteran is inappropriate. Therefore, we make no changes based on these comments. At the same time, service dog organizational expertise and experience are essential to the process whereby a service dog is placed with a veteran. After a clinical decision is made to prescribe a service dog, a service dog organization will use its professional judgment to make independent decisions concerning whether a service dog will actually be placed with the veteran. The ADI-accredited or IGDF-accredited organization conducts its own assessments based on national criteria and its specialized experience in the field, and the veteran must complete the service dog organization's evaluation and training before that organization will match the veteran with a service dog and place that dog in the veteran's home.
VA's role in the service dog organization's assessment and evaluation is purely supportive. For instance, VA will assist the veteran with obtaining medical and psychological
In response to the same commenter, VA will not develop a standard form to be certified or otherwise completed by the service dog organization, for the veteran to submit to VA under § 17.148(c)(1)-(2) to receive benefits. Instead, VA will accept a certificate as required under § 17.148(c)(1)-(2) in all forms as issued to the veteran from the individual service dog organizations. Such certificates must indicate that an adequate training program has been completed to warrant receipt of benefits under the rule. VA's lack of expertise in certifying whether appropriate training has been completed is the precise reason VA has required ADI or IGDF certification for all service dogs acquired on or after the effective date of the final rule.
Some commenters stated that only the service dog organizations themselves should be the designated decision makers under § 17.148, arguing that only these organizations could properly compare service dogs to other assistive devices and determine what is the most “optimal” means to assist a veteran. We do not believe a service dog organization would be so qualified, as they do not have the expertise of licensed VA clinicians to clinically assess or treat a specific veteran, nor do they have the clinical responsibility of VA clinicians to evaluate assistive device options other than service dogs. Additionally, as the benefits under the rule are to be administered incident to a veteran's medical treatment, only the veteran's clinical team may be designated decision makers regarding the initial clinical assessment. Therefore, we make no changes based on these comments.
Commenters asserted that having VA clinicians make the determination whether a service dog is optimal discounts the veteran's input into their own treatment options, and instead advocated that the decision should be solely between the veteran and the service dog organization. In keeping with VA's policy of providing patient centered care, VA clinicians do not discount the input of veterans regarding treatment options. As with any other medical care VA provides, the prescription of a service dog for a veteran would be the recommended course of treatment only after the veteran's clinical team considers all relevant factors, to include veteran preference in treatment options. A veteran's preference for a service dog, therefore, would certainly be a factor in a determination to prescribe a service dog. We make no changes based on these comments.
Several commenters objected to a basic premise in this rule, which is that VA will assist veterans in determining whether a service dog is an appropriate treatment option and will maintain service dogs through the provision of veterinary and other benefits, but VA will not actually purchase or obtain service dogs for veterans. We make no changes based on these comments. As explained in the proposed rulemaking, we reiterate that we interpret the “may * * * provide” language in 38 U.S.C. 1714(c) to mean that VA need not actually purchase or acquire dogs for eligible veterans. 76 FR 35162. This is consistent with VA policy, extant prior to the promulgation of this rule, concerning guide dogs for the visually impaired; VA does not purchase or obtain such dogs on behalf of veterans under the similar authority (“may provide”) in 38 U.S.C. 1714(b). As stated previously, we simply lack the facilities and expertise to purchase or obtain, or to train service dogs for placement with veterans, and we will continue to rely on independent organizations that have been recognized as having such expertise. VA has opted instead to offer other benefits to facilitate the provision of service dogs to veterans.
One commenter asserted that VA purchases other “devices” for veterans, and further that VA categorizes service dogs as “devices,” and therefore that this rulemaking must address how VA plans to purchase service dogs for veterans from service dog organizations. We make no changes based on this comment. The commenter did not specify what type of “devices” VA purchases for veterans as a comparison to service dogs, but we assume the intended reference was to prosthetic devices or appliances that may be provided to certain veterans under 38 CFR 17.38 and 17.150. Although we have stated in this rulemaking that we view a service dog as a surrogate for another assistive device, we clarify that with regards to VA procurement policy, we do not treat service dogs in the same manner as prosthetic devices that are purchased for veterans. Unlike prosthetic devices that are provided by VA to veterans at VA expense, the actual placement of a service dog with a veteran is not VA's decision, and ultimately is not a clinical decision—the actual placement is the decision of a service dog organization, subject to that organization's own non-clinical assessment and training standards. VA is unable to provide training and fitting of a service dog for a veteran, as we provide for prosthetic devices that are purchased for veterans, again because VA at this time lacks this expertise.
Notwithstanding VA's lack of expertise in purchasing or obtaining service dogs to provide directly to veterans, several commenters asserted that VA should cover a veteran's out of pocket costs to independently purchase a service dog. We reiterate that the rule is designed to support service dogs only when it is clinically determined that other assistive devices will not adequately enable the veteran to live independently, because a service dog is a long term commitment that requires tremendous dedication and effort on the part of the veteran, as well as potentially significant continuing costs for veterans that will not be paid by VA (e.g., non-prescription food, over-the-counter medications). VA will therefore not directly purchase service dogs for veterans. VA will not potentially incentivize the independent purchase of service dogs by veterans by creating an expectation that the purchase costs will be covered.
Another commenter asserted that VA should establish a “fee for service” program to purchase service dogs for veterans, because such remuneration would increase availability of service
Commenters asserted that VA should pay for certain expenses associated with a service dog that would be excluded under § 17.148(d)(4) as proposed. Specifically, commenters argued that VA should pay for grooming, nail trimming, non-sedated teeth cleaning, nonprescription medications, and nonprescription food and dietary supplements, because commenters asserted that these services are directly related to the dog's ability to provide assistive services, and therefore should be considered covered by VA. See 76 FR 35164 (explaining that the restrictions expressed in § 17.148(d)(4) are present to “ensure that the financial assistance provided by VA would not be used to provide services that are not directly related to the dogs' ability to provide assistive service.”). Commenters stated that these excluded services are directly related to the dog's ability to provide assistive services because they are either necessary to ensure a service dog's longevity and reliable working service to the veteran, or are necessary to maintain the higher standards of cleanliness service dogs must maintain. We make no changes to the rule based on these comments, but reiterate our general policy as stated in the proposed rule that we regard the service dog as a surrogate for another assistive device, and require that the veteran therefore utilize the service dog responsibly and provide general care and maintenance. As with prosthetic devices prescribed by VA, the veteran is expected to maintain equipment by ensuring it is cared for, cleaned, serviced, and protected from damage. In the case of prosthetic devices, VA repairs broken equipment, and provides annual servicing and replacement parts such as hearing aid batteries or oxygen tank refills, when needed. In the case of a service dog, VA believes this equates to repairing and 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. In the same way VA would expect a veteran to protect and utilize his or her wheelchair in order to keep it in good working condition, or keep his or her prosthetic limb clean and functioning, VA expects that a veteran will generally maintain the service dog with daily feeding, regular grooming, and by covering any other expenses which are not clinically prescribed by a veterinarian.
Grooming and other excluded services in § 17.148(d)(4) are important for the general health of a service dog as an animal, and may affect a service dog's ability to provide services. However, services excluded in § 17.148(d)(4) are not uniquely required by a service dog to perform the work and specific tasks for which they were trained. Services excluded in § 17.148(d)(4) are general care and maintenance services that all dogs require for general good health and well being, and we therefore do not believe they are directly related to the specific assistance provided by a service dog. For instance, service dogs surely must have their nails maintained at an appropriate length to prevent certain maladies and discomfort associated with overgrowth or damage. However, the exact same need exists for nonservice dogs as well, such that all dogs' general ability to walk and maneuver is affected by maintenance of their nails. Unlike a specialized harness provided by VA, nail grooming is not uniquely required by a service dog to perform the work and specific tasks for which they were trained, and hence is not covered under the rule. We apply this same rationale for other items, such that VA will not pay for standard, nonspecialized leashes and collars, or nonprescription food or medications, or any other basic requirements mandated by State governments for dog ownership generally, such as dog licenses. Again, such standard needs are not unique to service dogs—it is for the overall health and well being of all dogs as domestic animals that they be adequately controlled by their owners, are routinely fed and kept free of pests such as fleas and ticks, etc.
Commenters stated that service dogs are subject to heightened standards of cleanliness by virtue of being permitted access to public areas, which in turn creates a greater need for grooming services. Commenters asserted further that individuals with substantial mobility impairments may not be able to complete necessary grooming to ensure service dogs may gain access to public areas, and specifically stated the inability of these individuals to complete grooming tasks would be exacerbated by the fact that most ADI-certified dogs are large dog breeds with long hair. However, we are not aware of any rules regarding service dog access to public places that hold service dogs to heightened standards of cleanliness that would not otherwise be appropriate for a dog living in a home and assisting a disabled veteran, nor did the commenters offer any specific examples of such heightened standards. Nonetheless, we do not believe that an ADI-accredited or IGDF-accredited service dog organization would place a service dog with an individual who could not demonstrate an ability to provide for the basic maintenance and care of the service dog, to include required grooming sufficient to allow the dog access to a public area. We make no changes based on these comments.
A few commenters noted specifically that many of the services excluded in § 17.148(d)(4) as proposed are discounted for members of the International Association of Assistance Dog Partners (IAADP), and that VA should in turn pay for IAADP memberships for veterans with approved service dogs. We make no changes to the rule based on these comments. The sole cost savings associated with IAADP membership as described by commenters was related to prescription medications, which are covered under § 17.148(d)(1)(ii). Additionally, because the veteran must be generally responsible for expenses related to the nonmedical daily care and maintenance of a service dog, the veteran would also be responsible for membership in any organization that may assist in covering such expenses. One commenter additionally advocated for VA to initiate a service dog support group, and likened the benefits of such a support group to the benefits individuals may receive as IAADP members. For instance, the commenter suggested that such a VA support group should have a membership requirement, and would be a more cost effective way to use VA funds for service dogs as well as promoting socialization and education. Although we do not disagree with the commenter on the potential value of such a support group, we make no changes to this rule based on the same rationale related to IAADP membership as expressed above.
Commenters asserted that a requirement in § 17.148(d) as proposed, that benefits would only be provided for “one service dog at any given time” is too restrictive. Commenters stated that many service dogs continue to live with veteran owners after being replaced by a new service dog, and opined that the veteran should continue to receive benefits to relieve the financial burden of continuing to care for the retired service animal. We make no changes based on these comments. A retired service dog would no longer be providing specific assistance to the veteran to mitigate the effects of a disability, and VA would therefore lack authority to continue to provide benefits to the veteran based on his or her medical need for the service dog. To the extent that keeping a retired service dog could be a financial strain on a veteran, all ADI-accredited and IGDF-accredited organizations offer the option for owners to place retired service dogs in the homes of volunteers.
Commenters also stated that the restriction of benefits to only one service dog at a time does not properly consider the extended training periods often required to obtain replacement service dogs, and will create an undue lapse in service dog benefits for those veterans whose current service dogs will soon be retired. Essentially, commenters asserted that the restriction creates a costly choice for a veteran to either apply benefits under the rule towards obtaining a replacement service dog, or continue to have benefits apply to a current service dog until it is officially retired. We agree that it is important that veterans do not experience a lapse in service dog