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ServiceDogs for Veterans[FederalRegister Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Rulesand Regulations]
[Pages54368-54382]
Fromthe Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR DocNo: 2012-21784
DEPARTMENTOF VETERANS AFFAIRS
38 CFRPart 17
RIN2900-AN51
ServiceDogs
AGENCY:Department of Veterans Affairs.
ACTION:Final rule.
SUMMARY:The Department of Veterans Affairs (VA) amends its regulations
concerningveterans in need of service dogs. Under this final rule, VA
willprovide to veterans with visual, hearing, or mobility impairments
benefitsto support the use of a service dog as part of the management
of suchimpairments. The benefits include assistance with veterinary
care,travel benefits associated with obtaining and training a dog, and
theprovision, maintenance, and replacement of hardware required for
the dogto perform the tasks necessary to assist such veterans.
DATES:Effective Date: This rule is effective October 5, 2012.
FORFURTHER INFORMATION CONTACT: Lynnette Nilan, RN, MN, Patient Care
Services,(10P4), Veterans Health Administration, Department of
VeteransAffairs, 810 Vermont Avenue NW., Washington, DC 20420, (406)
422-4476.(This is not a toll free number.)
SUPPLEMENTARYINFORMATION: On June 16, 2011, VA published in the
FederalRegister (76 FR 35162) a proposed rule to amend VA regulations
tobroaden and clarify current benefits to veterans with guide dogs,
and toestablish new benefits related to service dogs. Pursuant to 38
U.S.C.1714(b) and (c), VA may provide to veterans enrolled under 38
U.S.C.1705 guide dogs trained for the aid of people who are blind and
servicedogs trained for the aid of the hearing impaired or persons
with aspinal cord injury or dysfunction or other chronic impairment
thatsubstantially limits mobility. Under section 1714(d), VA is also
authorizedto provide certain travel expenses related to the provision
of suchdogs.
In 1961, VA promulgated 38 CFR 17.118(a)(recodified as current 38
CFR17.154(a) in 1996) restating the statutory language, which at that
timelimited VA's authority to the provision of guide dogs for blind
veterans.In 2001, Congress amended section 1714 to authorize VA to
provideservice dogs for veterans with other disabilities. See
Departmentof Veterans Affairs Health Care Programs Enhancement Act of
2001,Public Law 107-135, title II, Sec. 201.This rule implements
thatauthority and establishes a single regulation relating to the
provisionof guide and service dog benefits by VA.
Interested persons were invited to submitcomments to the proposed
rule onor before August 15, 2011, and we received 98 comments. All of
theissues raised by the commenters that concerned at least one portion
of the
[[Page54369]]
rulecan be grouped together by similar topic, and we have organized
ourdiscussion of the comments accordingly. For the reasons set forth
in theproposed rule and below, we are adopting the proposed rule as
final,with changes, explained below, to proposed Sec. 17.148(b)(2),
(d),(d)(1)(ii), and (d)(3) and Sec. 17.154.
Definitionof ``Service Dogs''
Section 17.148(a) defines ``service dogs''as ``guide or service
dogsprescribed for a disabled veteran under [Sec. 17.148].'' Multiple
commentersargued that this definition is circular, and further
contendedthat the omission of mental health impairments in Sec.
17.148(b)(1)violates basic protections set forth in regulations
implementingthe Americans with Disabilities Act of 1990 (ADA). See 28
CFR36.104 (specifically recognizing service dogs trained to assist
individualswith mental impairments and defining ``service animal'' to
mean``any dog that is individually trained to do work or perform tasks
for thebenefit of an individual with a disability, including a
physical,sensory, psychiatric, intellectual, or other mental
disability'').These commenters advocated that VA should use the
definitionof ``service animal'' set forth in the regulations
implementingthe ADA. We make no changes based on these comments.
The requirements in the ADA and regulationsimplementing the ADA
areapplicable only to ``public entities,'' and Federal Government
agenciessuch 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
forthin the ADA are not applicable to VA. Although this does not
preventVA from adopting, through regulation, a definition of ``service
animal''consistent with 28 CFR 36.104, it would be inappropriate to do
so forthe purposes of the programs regulated by this rule. The ADA and
itsimplementing regulations exclusively address the issue of access to
publicfacilities by individuals with disabilities, whereas the purpose
of thisrule is to authorize benefits to a veteran with a service dog.
Accessis not discussed in Sec. 17.148 orSec. 17.154. Conversely,
the ADAand its implementing regulations are neither controlling nor
informativewith regard to the administration of benefits to veterans
withservice dogs. The definition of ``service dogs'' in Sec.
17.148(a)is reasonable because it is not overly broad for the purpose
of therule, and is appropriate to effectuate Congressional intent. Cf.
38U.S.C. 1714(c) (providing authority for 38 CFR 17.148 and
authorizingVA to ``provide service dogs trained for the aid of'' those
veteranswith hearing impairments, mobility impairments, etc., but not
addressingaccess to VA facilities by persons accompanied by service
dogs).The concerns from commenters were that Sec. 17.148 ``reinvents
thewheel'' by establishing a new definition for a term that is already
definedin Federal regulation, and further that Sec. 17.148 was
unlawfulunder such regulation. However, as discussed above, the ADA
definitionof ``service animal'' is not applicable, and also is not
helpfulin determining the circumstances under which VA will provide
thebenefits described in Sec. 17.148.
Commenters asserted that VA should use theterm ``assistance
animal''instead of ``service dog'' because, they assert, the term
``servicedog'' is understood more narrowly in the service dog industry
to referonly to those dogs that assist with mobility impairments,
whereasSec. 17.148(a) defines ``service dogs''to mean dogs that aid
withmobility impairments, visual impairments, and hearing impairments.
Bycontrast, commenters stated that ``assistance animal'' is an
industryterm that encompasses dogs that assist with mobility, visual,
andhearing impairments, and in turn should be used by VA in Sec.
17.148(a).We make no changes based on these comments.
We disagree that every person in the servicedog industry would
understandwhat an ``assistance animal'' is in the way described by the
commenter.Moreover, our regulations are written for a broader audience
thanthose who may own or train service dogs, to include VA employees
whoadminister benefits in accordance with our regulations. We believe
that``assistance animal'' in fact could be interpreted to have
multiplecolloquial meanings, and specifically may be likely to suggest
that VAwill 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
forhearing and mobility impairments would confuse veterans seeking
benefitsunder the rule. Most importantly, Sec. 17.148(a) clearly
definesthe term and states that the definition therein applies ``[f]or
thepurposes of'' Sec. 17.148. In applyingfor this benefit, veterans
wouldbe expected to understand that the regulatory definition applies,
and notany other definition that may be set forth elsewhere or
understoodin common parlance.
TheRule Does Not Deny Access of Any Service Dog to VA Health Care
Facilities
Multiple commenters contended that thecertificate requirement in
Sec. 17.148(c)(1) as proposed would violate theiraccess rights under
theregulations implementing the ADA. See 28 CFR 36.302 (stating that
``[a]public accommodation shall not require documentation, such as
proofthat the animal has been certified, trained, or licensed as a
serviceanimal''). We reiterate that this rulemaking does not address
theissue of access to VA health care facilities by individuals
accompaniedby service dogs, and will not be used to determine whether
aparticular service dog will be allowed to enter a VA facility.
Commentsthat allege unlawful violations of access rights or raise
otherissues relating to access to VA facilities, therefore, are beyond
thescope of this rule. Therefore, we make no changes based on these
comments.A certificate is required under Sec. 17.148(c)(1) only to
enablethe veteran to receive service dog benefits, but is not required
to gainentry to VA facilities. This rulemaking does not permit or
prohibitthe access of service dogs to VA health care facilities.
Access to VA facilities by service dogsaccompanying individuals
withdisabilities is controlled by 40 U.S.C. 3103, which states:
``Guidedogs or other service animals accompanying individuals with
disabilitiesand especially trained and educated for that purpose shall
beadmitted to any building or other property owned or controlled by
theFederal Government on the same terms and conditions, and subject to
thesame regulations, as generally govern the admission of the public
to theproperty.'' 40 U.S.C. 3103(a). The VA regulation that currently
controlsthe access of animals to VA facilities is found at 38 CFR
1.218(a)(11),and we are in the process of amending Sec. 1.218(a)(11)
to befully compliant with 40 U.S.C. 3103(a).
TheExclusion of Benefits for Mental Health Service Dogs Is Not
Unlawful
Multiple commenters asserted that theexclusion of benefits to
mentalhealth service dogs is unlawfully discriminatory because it
createsa different standard for treatment options between those
veteranswith mental health impairments and those veterans without
mentalhealth impairments. One commenter specifically alleged that not
providingbenefits for service dogs that mitigate the effects of mental
healthillnesses, while providing benefits for service dogs that
mitigatethe effects of
[[Page54370]]
otherimpairments, may be a violation of Section 504 of the
RehabilitationAct (Section 504). Section 504 provides:
No otherwise qualified individual with adisability in the
UnitedStates, as defined in section 705(20) of this title, shall,
solelyby reason of her or his disability, be excluded from the
participationin, be denied the benefits of, or be subjected to
discriminationunder any program or activity receiving Federal
financialassistance or under any program or activity conducted by
anyExecutive agency or by the United States Postal Service.
29U.S.C. 794(a).
We agree that the benefits administeredunder this rule are subject
toSection 504, but disagree that not providing benefits for mental
healthservice dogs violates Section 504. VA is not restricting service
dogbenefits based on disability. VA is providing benefits to both
physicallyand mentally disabled veterans for the same purpose, which
is toprovide assistance for the use of a particular device (a service
dog) whena service dog is clinically determined to be the optimal
deviceto help a veteran manage a visual impairment, a hearing
impairment,or a chronic impairment that substantially limits mobility.
Allveterans will receive equal consideration for benefits administered
forthese service dogs, provided all other criteria in Sec. 17.148 are
met,regardless of accompanying mental health diagnosis. Veterans
diagnosedwith a hearing or visual impairment will certainly not be
deemedineligible for service dog benefits because they also have a
mentalhealth impairment. We also note that mobility impairments under
Sec. 17.148 are not specifically limited totraumatic brain injuries
orseizure disorders in Sec. 17.148(b)(3).Some commenters
misinterpretedthe rule to contain such a limitation and argued that
othermental impairment may produce mobility impairment. To clarify, if
aveteran's mental impairment manifests in symptoms that meet the
definitionof ``chronic impairment that substantially limits mobility''
inSec. 17.148(b)(3) and a service dog isclinically determined to be
theoptimal device to manage that mobility impairment, then such a
veteranwill be awarded service dog benefits. The rule does not prevent
suchindividualized assessments of veterans with mental health
impairments,as long as the service dog would be evaluated as a device
tomitigate the effects of a visual, hearing, or mobility impairment.
If thisrequirement is met, VA would not deny service dog benefits
simplybecause the service dog may also assist with mental impairment
thatdoes not cause a limitation identified in Sec. 17.148(b).
The rule prevents the administration ofbenefits for a dog to
mitigatethe effects of a mental illness that are not related to
visual,hearing, or mobility impairments, but this restriction is not
discriminatingbased on the fact that a veteran has a mental
disability.This restriction is based on a lack of evidence to support
afinding of mental health service dog efficacy. In contrast, VA's
sharednational experience has been to directly observe positive
clinicaloutcomes related to the use of service dogs and increased
mobilityand independent completion of activities for veterans with
visual,hearing, and mobility impairments. Our observations are
bolsteredby the existence of nationally established, widely accepted
trainingprotocols for such dogs that enable the dogs to perform a
varietyof 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
unawareof similarly vetted and accepted training protocols for mental
healthservice dogs, or how assistance from such dogs could be
consistentlyhelpful for veterans to mitigate mental health
impairments.
Although we do not disagree with somecommenters' subjective
accountsthat mental health service dogs have improved the quality of
theirlives, VA has not yet been able to determine that these dogs
providea medical benefit to veterans with mental illness. Until such a
determinationcan be made, VA cannot justify providing benefits for
mentalhealth service dogs.
Several commenters asserted that limitingSec. 17.148 to veterans
diagnosedas having visual, hearing, or substantial mobility
impairmentsviolates 38 U.S.C. 1714, which was amended in 2009 to
authorizeVA to provide ``service dogs trained for the aid of persons
withmental illnesses, including post-traumatic stress disorder, to
veteranswith such illnesses who are enrolled under section 1705 of
thistitle.'' 38 U.S.C. 1714(c)(3). Though multiple commenters stressed
thatthis 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
underthe statutory language VA may provide or furnish a guide dog to a
veteranbut we are not required to do so. See 38 U.S.C. 1714 (c)(1)-(3)
(notingthat ``[t]he Secretary may, in accordance with the priority
specifiedin section 1705 of this title, provide'' [service dogs]). As
weexplained in the proposed rule, this rulemaking expands part 17 of
38 CFR,which already addressed guide dogs for the blind, to now
authorizebenefits for hearing disabled and substantially mobility
impairedveterans, because we have an adequate basis of clinical
experienceand evidence to suggest service dog efficacy for veterans
withthese impairments. Therefore, we make no changes based on the
abovecomments.
TheExclusion of Benefits for Mental Health Service Dogs Is Not
Unreasonable
Commenters contended that VA is actingagainst its own practices in
administeringbenefits by requiring completion of a congressionally
mandatedservice dog study prior to determining whether to administer
mentalhealth service dog benefits. Commenters asserted that while most
VAregulations only rely on medical judgment or medical need to justify
theprovision of medical benefits, in this instance VA is without
reasonrequiring a higher standard of clinical evidence. As stated by
onecommenter:
VA's position that it can only act here inaccord with a solid
scientificevidence base is not in accord with its own practice. In
mostinstances involving medical benefits, VA regulations rely
simplyon medical judgment, ``medical need,'' or a determination
thatproviding the service is ``necessary.''
This is not an accurate statement. CurrentVA regulations do not
discusswhether there is evidence to support the provision of a
particulartherapy or treatment method, but this does not support the
inferencethat our regulations discount the need for evidence to
supportthe provision of such therapy or treatment. Indeed, if we
ultimatelydetermine that mental health dogs are appropriate treatment
toolsfor mental health impairments, we will amend our regulations to
authorizebenefits for such dogs. VA is currently evaluating the
efficacyof mental health service dogs, pursuant to the National
DefenseAuthorization Act for Fiscal Year 2010, Public Law 111-84,
Sec. 1077(a) (2009) (the NDAA), which states that``the Secretary of
VeteransAffairs shall commence a three-year study to assess the
benefits,feasibility, and advisability of using service dogs for the
treatmentor rehabilitation of veterans with physical or mental
injuriesor disabilities, including post-traumatic stress disorder.''
Allparticipants in this study are veterans with mental health
disabilitieswho are receiving service dog benefits similar to those
describedin this rulemaking, but the service dogs for these veterans
assistspecifically with the effects of mental illness.
[[Page54371]]
Althoughthe NDAA provided that effectiveness of dogs for physical
disabilitiescould additionally be evaluated in the study, we have
chosento limit this study's focus to mental health disabilities.
However,we do not believe this limitation supports commenters'
assertionsthat VA is creating an unreasonable double standard with
regardto the need for clinical evidence, prior to administering
benefitsfor mental health service dogs. The NDAA study is limited to
veteranswith mental health illness because VA has already determined
from aclinical standpoint that service dogs are effective for
assistingveterans with physical disabilities and mobility impairments.
Moreover,we believe that the use of the word ``or'' in the NDAA makes
thefocus of the service dog study discretionary, and further that
Congressclearly intended that VA must specifically evaluate the
efficacyof mental health service dogs: ``The Secretary shall ensure
that atleast half of the participants in the study are veterans who
sufferprimarily from a mental health injury or disability.'' Public
Law111-84, Sec. 1077(c)(4). There is nosimilar criterion in the law
tocompel that any portion of the participants must be veterans who
sufferprimarily from a physical injury or disability.
Though many commenters asserted that thereis sufficient clinical
evidencethat VA could presently use to support administering mental
healthservice dog benefits, the only evidence submitted in support of
thisassertion were anecdotal accounts of subjective benefits,
including:Decreased dependence on medications; increased sense of
safetyor decreased sense of hyper-vigilance; increased sense of calm;
and theuse of the dog as a physical buffer to keep others at a
comfortabledistance. Again, we do not discount commenters' personal
experiences,but we cannot reasonably use these subjective accounts as
a basisfor the administration of VA benefits. This is the precise
reasonVA is currently gathering evidence in the NDAA study--to
determinehow, exactly, service dogs may perform specific tasks or work
thatmitigates the effects of mental health disabilities.
Finally, we respond to multiple commenters'concerns with the
mannerin which VA is currently conducting the mandatory NDAA study.
Essentially,these commenters stated that VA's conducting of the study
isunreasonable because either the methodology is flawed, or VA's
servicedog organization partners in the study are inappropriate.
Particularly,commenters alleged that VA has partnered exclusively with
AssistanceDogs International (ADI) and ADI-accredited organizations in
conductingthe study, and further that ADI is not a proponent of
psychiatricservice dogs; such commenters accused VA of making adverse
determinationsregarding the efficacy of mental health service dogs
beforethe study is complete. Generally, we find these comments to be
beyondthe scope of this rule, because VA is not basing any decisions
in thisrulemaking on any outcomes of the mandatory study, as the study
has notyet been completed. However, we will note that VA has not
partneredexclusively with ADI or ADI-accredited organizations to
conductthe mandatory study. All relevant Federal requirements
concerningresearch studies were followed by VA as relates to this
study;an abstract of the study to include listed eligibility and
exclusionparameters is available for public viewing at
http://clinicaltrials.gov/ct2/show/study/NCT01329341.Therefore, we make no
changesbased on the above comments.
ServiceDogs Must Be Certified by ADI or International Guide Dog
Federation(IGDF) for Veterans With Visual, Hearing, or Substantial
MobilityImpairments To Receive Benefits
Multiple commenters argued that VA shouldremove the requirement in
Sec. 17.148(c) as proposed that a service dogcomplete ADI training
and beADI certified before a veteran with a substantial mobility
impairmentcan begin receiving benefits under Sec. 17.148(d). These
commentersput 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
administeringservice dog benefits, VA must ensure that tested and
provencriteria regarding service dog training and behavior are in
placeto ensure the integrity of the service dog benefits administered,
and thesafety of veterans and others who might come in contact with
theveteran or the dog. There are no Federal standards for service dog
trainingthat we can apply, and VA does not have the expertise to
designits own accreditation program or standards. ADI and IGDF are
national,industry-recognized organizations with established and proven
trainingcriteria. Commenters offered many anecdotal observations
concerningthe quality and reliability of non-ADI organizations to
trainservice dogs, but no commenters offered concrete, supportive
evidenceto persuade us that there are any organizations other than ADI
or IGDFthat have an established history and national credibility such
thatthey should be recognized in Sec. 17.148(c).
The reliance on ADI and IGDF accreditationis no different than our
relianceon other nationally standardized criteria to ensure safe, high
qualityhealth care across all settings. For instance, VA relies on the
Centersfor Medicare and Medicaid Services (CMS) Resident Assessment
Instrument/MinimumData Set as the comprehensive assessment for all
veteransin VA Community Living Centers (long term care facilities).
SeeVeterans Health Administration (VHA) Directive 2008-007. In
addition,VA requires States to rely on this tool for veterans in State
homes receivingper diem payments from VA for the provision of nursing
homecare. See 38 CFR 51.110(b)(1)(i). Similarly, VA relies on and
enforcesby regulation National Fire Protection Association (NFPA)
safetystandards in all VA community residential care facilities,
contractfacilities for outpatient and residential treatment services
forveterans with alcohol or drug dependence or abuse disabilities, and
Statehomes. 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
certificationsconcerning professional expertise. See, e.g., 38 CFR
3.352(b)(predicating aid and attendance allowance on need for care
fromhealth-care professional licensed to practice by a State or
politicalsubdivision thereof), Sec. 17.81(a)(3)(conditioning VA
authorityto contract with residential treatment facilities that are
``licensedunder State or local authority''), Sec. 17.900 (recognizing
certificationof health care providers issued by, inter alia, The Joint
Commissionas well as specified government organizations including
CMS).Thus, VA reliance on the recognized expertise of a public or
privateorganization is not uncommon, nor is it illegal or
questionable,so long as the basis for the reliance is well-reasoned
andarticulated.
Despite the negative comments that assertedthat ADI is an
inefficientorganization or is inadequate in some respects, other
commentersrecognized that there are no other national organizations
thatperform a similar function, and that there are very few
individualswho 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 isnot paying for dogs of ``questionable value to our vet[eran]s.''
If atsome point in the future we discover an efficient way to assess
thequality of training provided by non-ADI
[[Page54372]]
andnon-IGDF dog providers, we will of course amend the rule; however,
at thistime, ADI and IGDF accreditation is the best guarantee we have
thatour veterans will be provided with safe, high quality service
dogs.
We now specifically address comments thatrequiring certification
from anADI-accredited organization effectively creates a sole source
contract,in violation of the general requirement for open and fair
competitionin Federal Acquisition Regulations. See 48 CFR 6.101.
Multiplecommenters further alleged that Sec. 17.148(c) as proposed
wouldviolate a ``performance-based'' assessment requirement under
FederalAcquisition Regulations for service contracts, because it
emphasizesthe source of service dog training rather than the result of
thattraining. See 48 CFR 37.600 et seq. Without discussing under what
circumstancesVA may be permitted to enter into sole source contracts,
weclarify for commenters that VA is not contracting with ADI or IGDF
generallyor with any ADI-accredited or IGDF-accredited organization to
purchaseservice dogs for veterans under this rule. There is no fiscal
conflictof interest or violation of Federal Acquisition Regulations
becausethe rule does not authorize any financial arrangement
whatsoeverwith ADI or IGDF.
Multiple commenters stated that the ADIlimitation in Sec.
17.148(c)is inefficient and ineffective for veterans by asserting
that,compared to non-ADI organizations: There are not enough ADI-
accreditedorganizations around the United States to meet veteran
demandfor service dogs; the cost to purchase ADI-certified service
dogs isprohibitive; and the wait to receive a service dog from an ADI-
accreditedorganization is too long. We make no changes based on these
comments.
We acknowledge that not all States haveregistered ADI-accredited
orIGDF-accredited organizations; however, Sec. 17.148(d)(3) does
providefor the reimbursement of travel expenses associated with the
traininga veteran must complete as offered by an ADI-accredited or
IGDF-accreditedorganization. Therefore, there will be no out of pocket
travelcosts for veterans who must travel out of state to obtain a dog
after aservice dog is prescribed. Thus, we do not believe the absence
ofADI-accredited or IGDF-accredited organizations in a particular
Statewill serve as a barrier to obtaining a service dog.
Regarding the cost to obtain a service dog,we did not receive any
concreteevidence from commenters that non-ADI accredited or non-IGDF
accreditedorganizations are on average less expensive. Rather,
commentersoffered anecdotal claims that non accredited organizations
areless expensive in some cases. A few commenters asserted that non-
ADIaccredited and non-IGDF accredited providers have less overhead
costsbecause those organizations do not have to spend money to acquire
ormaintain accreditation. The ADI accreditation fee is $1000.00 paid
every 5years, with annual fees of approximately $50.00. The cost of
IGDFaccreditation is a one-time fee of $795, with an annual fee of
$318and a per unit fee of $39.45. We do not believe that these costs
wouldnecessitate an increased cost being passed to veterans
specifically.ADI accreditation and IGDF accreditation are the only
reasonablemeans we have of ensuring that an organization is using
tested,standardized training and behavior criteria prior to a service
dogbeing placed with a veteran. We view the cost of ADI and IGDF
accreditation,therefore, as necessary and reasonable in order to
ensurethat we administer benefits in a safe and consistent manner. We
clarifyfor one commenter that VA only intends to recognize those
servicedog organizations that have full membership in ADI or IGDF, or
thatare fully ADI or IGDF accredited, versus those organizations in
theprocess of becoming ADI or IGDF accredited. This is consistent with
ourgoal of ensuring VA only administers benefits for use of high
qualityservice dogs that were subject to standardized training
protocols.
Regarding the wait time to obtain a dog,commenters did not provide
evidenceto support that on average ADI-accredited organizations take
longerthan non-ADI accredited organizations to place service dogs with
veterans.Many commenters instead provided anecdotal accounts of non-
ADIorganizations not utilizing ADI-specific training, and in turn
trainingdogs faster than ADI organizations. Non-ADI organizations that
facilitate``owner training'' were especially noted by commenters as
beingfaster and more effective for veterans, whereby the veteran would
directlytrain the service dog. Again, we do not believe that we should
administerbenefits under the rule unless we can ensure that the
servicedogs for which we pay benefits are all subject to the same set
oftested standards, to ensure safety and consistent quality. We do not
believethis level of safety and quality can be met without
accreditationbased on nationally applicable criteria. This practice
followsthe same process VA uses with every other product, device, or
treatmentmodality provided to our veterans.
Some commenters argued that VA could useother nationally
recognized,performance based tests instead of requiring ADI
certificationto demonstrate that service dogs are safe and
appropriatelytrained to mitigate effects of substantial mobility
impairments.These commenters stated that submission to VA of a service
dog'sperformance on a Public Access Test (PAT) or the American Kennel
Club'sCanine Good Citizen (CGC) test, in combination with statements
indicatingthe level of the service dog's training and confirming the
dog'sgood health, would provide sufficient objective evidence that
servicedogs are suitable for provision of benefits under the rule.
Nationallyrecognized temperament tests such as a PAT or the CGC may
indicatewhether a service dog is stable and unobtrusive to the public
tojustify access (and, again, Sec. 17.148does not concern access),
butthese tests do not communicate the level of a service dog's
specifictraining, or whether the service dog should be prescribed for
aveteran as an assistive device. An accompanying statement submitted
to VAthat subjectively attests to a service dog's training is
similarlyinadequate, as VA seeks to administer benefits uniformly
underthe rule and therefore must ensure that all service dogs are
subjectto the same performance based standards. We make no changes
basedon these comments.
One commenter expressed support of VA'sdecision to specifically
includeseizure disorder as a covered impairment, and requested that VA
moreclearly indicate in the final rule which tasks a service dog may
completefor such an eligible veteran. We reiterate that we require ADI
andIGDF certification specifically because VA does not have the
expertise,experience, or resources to develop independent criteria.
Forthis reason, we make no changes to the rule to provide specific
examplesof tasks which any service dog may perform for a veteran. ADI
hasdeveloped training protocols for service dogs to complete work and
tasksfor impairments as described in the rule, to include seizure
disorders.
Finally, multiple commenters contended thatVA could adopt
independenttraining programs to internally produce service dogs for
veterans,versus relying on certificates from external ADI-accredited
servicedog organizations. One commenter stated that VA should initiate
anindependent training program whereby veterans with post traumatic
stress
[[Page54373]]
disorder(PTSD) participate in training service dogs for the intended
beneficiariesof this rule, i.e., veterans with visual, hearing, or
substantialmobility impairments. This commenter compared such an
internaltraining program to a program developed by the Denver VA
MedicalCenter and Denver VA Regional Office in 2009, called
``OperationFreedom,'' in which veterans assisted in advancing dogs
throughCGC test training for 6 weeks as a component of the veterans'
mentalhealth treatment plans. After completion of this 6 week basic
obediencetraining program, the dogs were trained by an external ADI-
accreditedorganization in a rigorous 7 month regimen to become service
dogs,and were placed with other veterans with disabilities. The
initialpairing of the dogs with veterans during basic obedience
training,as a treatment modality for mental health illnesses, provided
thoseveterans with opportunities in skills development and community
reintegration.Particularly, the program provided a bridge to community
involvementthrough a meaningful volunteer opportunity that served
otherdisabled veterans.
Though VA is not opposed to such trainingopportunities as a
componentof a treatment plan for a particular veteran, Operation
Freedomis not an example of an independent and internal training
programto train or produce service dogs for veterans. As the commenter
correctlystated, the dogs involved in Operation Freedom were actually
trainedto become service dogs by an external ADI-accredited
organization,over an extended period of time and subject to ADI
standardsas adopted and applied by that organization. We additionally
clarifythat even the initial basic obedience training that veterans
assistedin providing to dogs was not provided on VA property, but
ratheron the property of the ADI-accredited organization, because the
goal ofOperation Freedom was to provide community reintegration
opportunitiesfor participating veterans as part of those veterans'
treatmentplans. The goal of Operation Freedom was ultimately not to
produceservice dogs for veterans, and we therefore do not find this
exampleas provided by the commenter to be illustrative as to what VA
shouldenact with regards to independent and internal service dog
trainingprograms. As stated previously, because VA does not have the
expertise,experience, or resources to develop independent training
criteriaor otherwise train or produce service dogs for veterans, we
requirethat service dogs be trained and placed with veterans by ADI-
accreditedand IGDF-accredited organizations. However, this in no way
limitsany veteran's personal choice to undertake any training
experienceswith any service dog organization, nor does it prevent VA
fromconducting programs similar to Operation Freedom. The commenter
alsonoted potential cost savings for VA to conduct internal service
dogtraining programs that employ PTSD veterans, but as explained
earlierVA is not purchasing service dogs from ADI-accredited or IGDF-
accreditedorganizations, and such cost comparisons are therefore not
relevant.We make no changes based on the above comments.
One additional commenter suggested thatinstead of requiring ADI
certification,that VA should hire professional service dog trainers to
joinrehabilitation therapy departments (e.g., to join Occupational and
PhysicalTherapy departments) as VA staff, and that this would enable
VA toprofessionally train service dogs at a higher output and with
lesscost than paying for ADI-certified service dogs. We make no
changesbased on this comment, as such cost considerations are not
relevantbecause VA is not purchasing service dogs. VA does not have
theexpertise, experience, or resources to develop independent training
criteria,and VA will not adopt or initiate internal training programs,
as thiswould effectively make VA act as a professional service dog
certifyingbody. VA's lack of expertise in this area is exactly why we
havemandated ADI or IGDF certification.
ToQualify for Benefits, a Service Dog Must Be ``Optimal'' for the
Veteran
Under Sec. 17.148(b)(2), we require that the service dog must be
the``optimal'' device for the veteran to manage his or her impairment
andlive independently, and service dog benefits will not be provided
ifother assistive means or devices would provide the same level of
independenceas a service dog. Several commenters asserted that the use
of oneassistive device does not necessarily obviate the need for other
assistivedevices, and therefore that Sec. 17.148(c) as proposed
shouldnot be used to exclude the prescription of a service dog if
otherdevices may assist the veteran. We agree in part with the
comments,but make no change to the regulation because the regulation
doesnot prevent veterans from using multiple assistive devices.
For purposes of Sec. 17.148(b)(2), an eligible veteran may be
prescribedboth a service dog and another assistive device, as long as
eachprovides a distinct type of assistance, or if, without each of the
devices,the veteran would be unable to complete tasks independently.
Forinstance, for a veteran with a mobility impairment that is
characterizedby loss of balance and subsequent falls, both a balance
caneand a service dog might assist a veteran with balance and walking;
thecane might be optimal for assistance with walking, but the service
dog maybe the optimal means for that veteran to regain a standing
positionand stabilize after a fall. In such a case, the service dog
may beprescribed to the veteran, as well as the balance cane.
Similarly,a veteran with multiple impairments may be prescribed
assistivedevices to assist with one impairment and a service dog to
assistwith another. The ``optimal'' limitation in Sec. 17.148(b)(2)
willnot limit the prescription of a service dog when necessary for the
veteranto manage the impairment and live independently, but it will
preventthe provision by VA of multiple assistive devices that serve
thesame purpose. By avoiding duplication of benefits in this manner,
wemaximize the amount of resources available to veterans and ensure
thatbenefits are provided in a responsible manner.
Commenters stated that the ``optimal''criterion in Sec.
17.148(b)(2)as proposed would be used to ensure that service dogs are
prescribedas assistive devices only as a ``last resort.'' A service
dog isnot a ``last resort'' in the sense inferred by the commenters.
VA willnot use the ``optimal'' requirement in such a way as to deprive
anyveteran of an assistive device that would best mitigate the effects
of aveteran's impairment and provide the veteran the highest level of
independence.The rule is designed, however, to promote the use of
servicedogs only when it is clinically determined that other devices
willnot adequately enable the veteran to live independently. This
rationaleof promoting service dogs secondary to other assistive
devicesis not without reason. A service dog is a long term commitment
thatrequires tremendous dedication and effort on the part of the
veteran,as well as significant costs--only part of which would be paid
for byVA under Sec. 17.148. A service dog mustbe fed, exercised,
groomed,nursed when ill, and integrated into the veteran's family as a
necessarypartner in the veteran's daily life. If the extent of the
veteran'smobility impairment is such that the only tasks requiring
assistanceare picking up or reaching items, then a device that is not
aservice dog that fully accomplishes these tasks is not only
sufficient,but also is not unduly burdensome for the veteran. We
[[Page54374]]
make nochanges based on these comments.
Commenters argued that the rule shouldcontain additional criteria
thatwould objectively measure a veteran's level of independence
betweendifferent devices, instead of the single ``optimal'' criterion.
Webelieve, however, that because these are clinical determinations
basedon ``medical judgment'' under Sec. 17.148(b)(2), additional
criteriaare unnecessary and unhelpful. Therefore, we make no changes
basedon these comments. It is clear in Sec. 17.148(b)(2) that
devices,including a service dog, will be clinically evaluated to
determinewhich are necessary and most beneficial for the veteran to
managean impairment and live independently. We stressed the importance
of thisclinical determination in the proposed rule:
VA does not intend to allow cost or anyother factors to
discouragethe use of new technologies and equipment to maximize the
independenceof veterans. We believe that providing VA with
discretionto choose between a service dog or assistive technology
basedon medical judgment rather than cost-effectiveness would
ensurethat VA's patients receive the highest quality of care that
theVA-system can provide.
76 FR35163.
One commenter additionally noted that theabove rationale from the
proposedrule presumed that higher cost technologies offer a higher
standardof care. We clarify that the intent of this rationale was to
supportVA's use of clinical judgment to determine what device allows
theveteran to function most independently, and not have such a
determinationinfluenced by factors such as cost.
Some commenters asserted that while anotherdevice may provide the
exactsame functions in mitigating the effects of mobility impairments
as aservice dog, service dogs nonetheless should be considered optimal
and beprescribed because they uniquely provide certain ancillary
benefits,including: Subjective feelings of increased personal comfort
andunderstanding; an increased sense of purpose for the veteran in
havingto care for a living thing; an increased sense of self-esteem
andoverall psychological well-being; and improved social and community
reintegrationskills. We do not dispute these subjective accounts from
commenters;however, we believe Congress authorized VA to provide
servicedogs to veterans with disabilities as a means of mitigating the
effectsof a disability--and not for the purpose of companionship or
emotionalsupport. Therefore, we make no changes based on these
comments.The authorizing statute links the provision of service dogs
totheir having been trained ``for the aid of'' veterans with hearing
impairments,mobility impairments, etc.; the statute does not suggest
thatancillary benefits are to be considered. 38 U.S.C. 1714(c).
Therefore,Sec. 17.148 does not authorize benefitsbased on ancillary
benefitsthat service dogs may provide but that are not specific to
mitigatingthe effects of a veteran's disability, and which are not the
productof specific training. Though dogs may generally tend to
engenderin their owners subjective feelings of improved well being,
this isnot the intended effect of service dog assistance under 38
U.S.C.1714(c) or Sec. 17.148.
As proposed, the determination that theservice dog is ``optimal''
for theveteran under Sec. 17.148(b)(2) was tobe made by a VA
clinicianusing medical judgment. Multiple commenters objected to this
standard,for various reasons. Chiefly, commenters claimed that a VA
clinicianwould not have the requisite expertise related to service
dogs toproperly compare their unique characteristics and benefits to
otherassistive devices. Instead, these commenters asserted that the
decision-makingprocess should involve either a local evaluation board
orinterdisciplinary team, in which prosthetic staff and other
rehabilitativetherapy staff is represented. We agree, and have amended
thefirst sentence of Sec. 17.148(b)(2) fromthe 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 forthat veteran. The ``VA clinical team'' will include, by virtue
ofbeing the clinical staff that is treating the veteran for the
qualifyingvisual, hearing, or mobility impairment, the veteran's
primaryhealthcare provider, and any other relevant specialty care
providersand professional staff, to include prosthetic and
rehabilitativetherapy staff. Thus, the first sentence of Sec.
17.148(b)(2)now reads: ``The VA clinical team that is treating the
veteranfor such impairment determines based upon medical judgment that
it isoptimal for the veteran to manage the impairment and live
independentlythrough the assistance of a trained service dog.''
We also recognize that ensuring that VAclinical staff is
knowledgeableregarding service dog utilization is critical to the
successfulpartnering of veterans with service dogs. VA is developing
andwill disseminate educational tools and training opportunities that
will assistVA clinical staff to obtain this knowledge. In preparation
for theeffective date of this rulemaking, we have drafted clinical
practicerecommendations and have produced a video presentation for
disseminationto every VA health facility in the country. Both the
clinicalrecommendations and the video communicate to clinical staff
thetraits, capabilities, tasks, and utility of service dogs for
mobility,hearing, and vision impairments. These and other training
materialswill include professional education credits, so clinical
staffwill have incentive to participate, and some training
opportunitieswill be required training for a veteran's clinical team
when itis necessary to determine if an assistive device is needed. The
trainingprovided at local facilities will ensure the veteran's
treatmentteam will be qualified to evaluate between various assistive
means,to include understanding the abilities of service dogs, and then
be ableto prescribe the most appropriate assistive device.
Multiple commenters criticized the rule fordisregarding the
expertiseof service dog organizations. It is true that for a veteran
toreceive benefits under the rule, a service dog must be prescribed by
theveteran's clinical team, and that decision is made without
consultingthe service dog organization from which a veteran ultimately
obtainsa service dog. However, the prescription of a service dog is a
treatmentdecision made by the VA clinical team that is treating the
veteranfor the qualifying impairment, and we believe that consultation
with aprivate organization that has no clinical expertise as to the
medicaltreatment for a specific veteran is inappropriate. Therefore,
we makeno changes based on these comments. At the same time, service
dogorganizational expertise and experience are essential to the
processwhereby a service dog is placed with a veteran. After a
clinicaldecision is made to prescribe a service dog, a service dog
organizationwill use its professional judgment to make independent
decisionsconcerning whether a service dog will actually be placed with
theveteran. The ADI-accredited or IGDF-accredited organization
conductsits own assessments based on national criteria and its
specializedexperience in the field, and the veteran must complete the
servicedog organization's evaluation and training before that
organizationwill match the veteran with a service dog and place that
dog inthe veteran's home.
VA's role in the service dog organization'sassessment and
evaluationis purely supportive. For instance, VA will assist the
veteranwith obtaining medical and psychological
[[Page54375]]
reportsand other documentation that the service dog organization may
requestfrom VA (if approved for release by the veteran). VA will
additionallyprovide assistance to veterans in locating a service dog
organization,if requested. In response to one commenter, however, VA
willnot formally refer veterans to specific ADI-accredited or IGDF-
accreditedorganizations, or initiate a process whereby a veteran may
consentto have VA act as an intermediary between the veteran and the
servicedog organization. We believe such a referral system would blur
thedistinct line that should exist between VA's responsibility to
determinewhether a service dog may be clinically necessary for a
veteran,and the service dog actually being placed with the veteran.
Theclinical practice recommendations and other guidance VA has
developedwill alert VA staff to commonly available resources that
wouldaid the veteran in locating service dog organizations, and this
informationcould be provided to the veteran (e.g., the Web site to
findthe nearest ADI-accredited or IGDF-accredited organization). VA
willadditionally assist the veteran in obtaining medical information
theservice dog organization may require.
In response to the same commenter, VA willnot develop a standard
form tobe certified or otherwise completed by the service dog
organization,for the veteran to submit to VA under Sec. 17.148(c)(1)-
(2) toreceive benefits. Instead, VA will accept a certificate as
requiredunder Sec. 17.148(c)(1)-(2) in all formsas issued to the
veteranfrom the individual service dog organizations. Such
certificatesmust indicate that an adequate training program has been
completedto warrant receipt of benefits under the rule. VA's lack of
expertisein certifying whether appropriate training has been completed
is theprecise reason VA has required ADI or IGDF certification for all
servicedogs acquired on or after the effective date of the final rule.
Some commenters stated that only theservice dog organizations
themselvesshould be the designated decision makers under Sec. 17.148,
arguingthat only these organizations could properly compare service
dogs toother assistive devices and determine what is the most
``optimal''means to assist a veteran. We do not believe a service dog
organizationwould be so qualified, as they do not have the expertise
oflicensed VA clinicians to clinically assess or treat a specific
veteran,nor do they have the clinical responsibility of VA clinicians
toevaluate assistive device options other than service dogs.
Additionally,as the benefits under the rule are to be administered
incidentto a veteran's medical treatment, only the veteran's clinical
teammay be designated decision makers regarding the initial clinical
assessment.Therefore, we make no changes based on these comments.
Commenters asserted that having VAclinicians make the
determinationwhether a service dog is optimal discounts the veteran's
inputinto their own treatment options, and instead advocated that the
decisionshould 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
treatmentoptions. As with any other medical care VA provides, the
prescriptionof a service dog for a veteran would be the recommended
courseof treatment only after the veteran's clinical team considers
allrelevant factors, to include veteran preference in treatment
options.A veteran's preference for a service dog, therefore, would
certainlybe a factor in a determination to prescribe a service dog. We
make nochanges based on these comments.
VA IsNot Purchasing or Otherwise Obtaining Service Dogs for Veterans
Underthe Rule
Several commenters objected to a basicpremise in this rule, which
is thatVA will assist veterans in determining whether a service dog is
anappropriate treatment option and will maintain service dogs through
theprovision of veterinary and other benefits, but VA will not
actuallypurchase or obtain service dogs for veterans. We make no
changesbased on these comments. As explained in the proposed
rulemaking,we reiterate that we interpret the ``may * * * provide''
languagein 38 U.S.C. 1714(c) to mean that VA need not actually
purchaseor acquire dogs for eligible veterans. 76 FR 35162. This is
consistentwith VA policy, extant prior to the promulgation of this
rule,concerning guide dogs for the visually impaired; VA does not
purchaseor obtain such dogs on behalf of veterans under the similar
authority(``may provide'') in 38 U.S.C. 1714(b). As stated previously,
wesimply lack the facilities and expertise to purchase or obtain, or
totrain service dogs for placement with veterans, and we will continue
to relyon independent organizations that have been recognized as
havingsuch expertise. VA has opted instead to offer other benefits to
facilitatethe 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,''
andtherefore that this rulemaking must address how VA plans to
purchaseservice dogs for veterans from service dog organizations. We
make nochanges based on this comment. The commenter did not specify
whattype of ``devices'' VA purchases for veterans as a comparison to
servicedogs, but we assume the intended reference was to prosthetic
devicesor appliances that may be provided to certain veterans under 38
CFR17.38 and 17.150. Although we have stated in this rulemaking that
we viewa service dog as a surrogate for another assistive device, we
clarifythat with regards to VA procurement policy, we do not treat
servicedogs in the same manner as prosthetic devices that are
purchasedfor veterans. Unlike prosthetic devices that are provided by
VA toveterans at VA expense, the actual placement of a service dog
with aveteran is not VA's decision, and ultimately is not a clinical
decision--theactual placement is the decision of a service dog
organization,subject to that organization's own non-clinical
assessmentand training standards. VA is unable to provide training and
fittingof a service dog for a veteran, as we provide for prosthetic
devicesthat are purchased for veterans, again because VA at this time
lacksthis expertise.
Notwithstanding VA's lack of expertise inpurchasing or obtaining
servicedogs to provide directly to veterans, several commenters
assertedthat VA should cover a veteran's out of pocket costs to
independentlypurchase a service dog. We reiterate that the rule is
designedto support service dogs only when it is clinically determined
thatother assistive devices will not adequately enable the veteran to
liveindependently, because a service dog is a long term commitment
thatrequires tremendous dedication and effort on the part of the
veteran,as well as potentially significant continuing costs for
veteransthat will not be paid by VA (e.g., non-prescription food,
over-the-countermedications). VA will therefore not directly purchase
servicedogs for veterans. VA will not potentially incentivize the
independentpurchase of service dogs by veterans by creating an
expectationthat the purchase costs will be covered.
Another commenter asserted that VA shouldestablish a ``fee for
service''program to purchase service dogs for veterans, because such
remunerationwould increase availability of service
[[Page54376]]
dogs aswell as decrease potential wait times for veterans to obtain
servicedogs. We do not agree that the availability of service dogs
specificallyfor veterans is impeded by veterans' inability to cover
purchasingcosts, because we understand that a majority of service dogs
areacquired by veterans with little or no out of pocket cost.
Therefore,we make no changes based on this comment. Additionally, we
do notbelieve that a veteran's inability to purchase a service dog
wouldcontribute to any potential wait time for that veteran to obtain
aservice dog. Rather, we believe that the only factors that would
contributeto potential wait times for veterans to obtain service dogs
wouldbe the supply of trained and available service dogs, which is
unaffectedby whether such dogs can be purchased or by whom.
VA WillNot Pay for Certain Expenses Under Sec. 17.148(d)(4)
Commenters asserted that VA should pay forcertain expenses
associatedwith a service dog that would be excluded under Sec.
17.148(d)(4)as proposed. Specifically, commenters argued that VA
shouldpay for grooming, nail trimming, non-sedated teeth cleaning,
nonprescriptionmedications, and nonprescription food and dietary
supplements,because commenters asserted that these services are
directlyrelated to the dog's ability to provide assistive services,
andtherefore should be considered covered by VA. See 76 FR 35164
(explainingthat the restrictions expressed in Sec. 17.148(d)(4) are
presentto ``ensure that the financial assistance provided by VA would
not beused to provide services that are not directly related to the
dogs'ability to provide assistive service.''). Commenters stated that
theseexcluded services are directly related to the dog's ability to
provideassistive services because they are either necessary to ensure
aservice dog's longevity and reliable working service to the veteran,
or arenecessary to maintain the higher standards of cleanliness
servicedogs must maintain. We make no changes to the rule based on
thesecomments, but reiterate our general policy as stated in the
proposedrule that we regard the service dog as a surrogate for another
assistivedevice, and require that the veteran therefore utilize the
servicedog responsibly and provide general care and maintenance. As
withprosthetic devices prescribed by VA, the veteran is expected to
maintainequipment by ensuring it is cared for, cleaned, serviced, and
protectedfrom damage. In the case of prosthetic devices, VA repairs
brokenequipment, and provides annual servicing and replacement parts
such ashearing aid batteries or oxygen tank refills, when needed. In
thecase of a service dog, VA believes this equates to repairing and or
replacingharnesses or other hardware, providing annual and emergent
veterinarycare, providing prescription medications, or paying for
otherservices when prescribed by a veterinarian. In the same way VA
wouldexpect a veteran to protect and utilize his or her wheelchair in
orderto keep it in good working condition, or keep his or her
prostheticlimb clean and functioning, VA expects that a veteran will
generallymaintain the service dog with daily feeding, regular
grooming,and by covering any other expenses which are not clinically
prescribedby a veterinarian.
Grooming and other excluded services inSec. 17.148(d)(4) are
importantfor the general health of a service dog as an animal, and may
affecta service dog's ability to provide services. However, services
excludedin Sec. 17.148(d)(4) are not uniquelyrequired by a service
dog toperform the work and specific tasks for which they were trained.
Servicesexcluded in Sec. 17.148(d)(4) aregeneral care and
maintenanceservices that all dogs require for general good health and
wellbeing, and we therefore do not believe they are directly related
to thespecific assistance provided by a service dog. For instance,
servicedogs surely must have their nails maintained at an appropriate
lengthto prevent certain maladies and discomfort associated with
overgrowthor damage. However, the exact same need exists for
nonservicedogs as well, such that all dogs' general ability to walk
andmaneuver is affected by maintenance of their nails. Unlike a
specializedharness provided by VA, nail grooming is not uniquely
requiredby a service dog to perform the work and specific tasks for
whichthey were trained, and hence is not covered under the rule. We
applythis same rationale for other items, such that VA will not pay
forstandard, nonspecialized leashes and collars, or nonprescription
food ormedications, or any other basic requirements mandated by State
governmentsfor dog ownership generally, such as dog licenses. Again,
suchstandard needs are not unique to service dogs--it is for the
overallhealth and well being of all dogs as domestic animals that they
beadequately controlled by their owners, are routinely fed and kept
free ofpests such as fleas and ticks, etc.
Commenters stated that service dogs aresubject to heightened
standardsof cleanliness by virtue of being permitted access to public
areas,which in turn creates a greater need for grooming services.
Commentersasserted further that individuals with substantial mobility
impairmentsmay not be able to complete necessary grooming to ensure
servicedogs may gain access to public areas, and specifically stated
theinability of these individuals to complete grooming tasks would be
exacerbatedby the fact that most ADI-certified dogs are large dog
breedswith long hair. However, we are not aware of any rules regarding
servicedog access to public places that hold service dogs to
heightenedstandards of cleanliness that would not otherwise be
appropriatefor a dog living in a home and assisting a disabled
veteran,nor did the commenters offer any specific examples of such
heightenedstandards. Nonetheless, we do not believe that an ADI-
accreditedor IGDF-accredited service dog organization would place a
servicedog with an individual who could not demonstrate an ability to
providefor the basic maintenance and care of the service dog, to
includerequired grooming sufficient to allow the dog access to a
publicarea. We make no changes based on these comments.
A few commenters noted specifically thatmany of the services
excludedin Sec. 17.148(d)(4) as proposed arediscounted for members
of theInternational Association of Assistance Dog Partners (IAADP),
andthat VA should in turn pay for IAADP memberships for veterans with
approvedservice dogs. We make no changes to the rule based on these
comments.The sole cost savings associated with IAADP membership as
describedby commenters was related to prescription medications, which
arecovered under Sec. 17.148(d)(1)(ii).Additionally, because the
veteranmust be generally responsible for expenses related to the
nonmedicaldaily care and maintenance of a service dog, the veteran
wouldalso be responsible for membership in any organization that may
assistin covering such expenses. One commenter additionally advocated
for VAto initiate a service dog support group, and likened the
benefitsof such a support group to the benefits individuals may
receiveas IAADP members. For instance, the commenter suggested that
such aVA support group should have a membership requirement, and would
be amore cost effective way to use VA funds for service dogs as well
aspromoting socialization and education. Although we do not disagree
withthe commenter on the potential value of such a support group, we
make nochanges to this rule based on the same rationale related to
IAADPmembership as expressed above.
[[Page54377]]
BenefitsWill Not Be Provided for More Than One Service Dog at a Time
Commenters asserted that a requirement inSec. 17.148(d) as
proposed,that benefits would only be provided for ``one service dog at
anygiven time'' is too restrictive. Commenters stated that many
servicedogs continue to live with veteran owners after being replaced
by anew service dog, and opined that the veteran should continue to
receivebenefits to relieve the financial burden of continuing to care
for theretired service animal. We make no changes based on these
comments.A retired service dog would no longer be providing specific
assistanceto the veteran to mitigate the effects of a disability, and
VAwould therefore lack authority to continue to provide benefits to
theveteran based on his or her medical need for the service dog. To
theextent that keeping a retired service dog could be a financial
strainon a veteran, all ADI-accredited and IGDF-accredited
organizationsoffer the option for owners to place retired service dogs
in thehomes of volunteers.
Commenters also stated that the restrictionof benefits to only one
servicedog at a time does not properly consider the extended training
periodsoften required to obtain replacement service dogs, and will
createan undue lapse in service dog benefits for those veterans whose
currentservice dogs will soon be retired. Essentially, commenters
assertedthat the restriction creates a costly choice for a veteran to
eitherapply benefits under the rule towards obtaining a replacement
servicedog, or continue to have benefits apply to a current service
doguntil it is officially retired. We agree that it is important that
veteransdo not experience a lapse in service dog benefits when
obtaininga replacement service dog, and did not intend for the
limitationin paragraph (d) to cause such a lapse. Therefore, we have
addedto paragraph (d)(3) the following note: ``VA will provide payment
fortravel expenses related to obtaining a replacement service dog,
even ifthe veteran is receiving other benefits under this section for
theservice dog that the veteran needs to replace.'' To emphasize this
clarification,we have added to the introductory text of paragraph (d)
asentence to explain that there is an exception in paragraph (d)(3) to
the``one service dog at any given time'' provision in the rule. This
exceptionwill only apply to travel benefits under paragraph (d)(3),
becausethe organization that is training the replacement service dog
wouldbe responsible for other benefits under Sec. 17.148(d) as needed
by thereplacement dog, until the veteran actually acquires the
replacementdog from the organization. At the time the veteran acquires
thereplacement service dog, the veteran would in effect be retiring
theformer service dog, and would apply all service dog benefits under
thissection to the replacement dog.
ServiceDogs Obtained Before the Effective Date of the Final Rule
Multiple commenters interpreted Sec. 17.148(c)(2) as proposed to
compelveterans who obtained non-ADI or non-IGDF certified service dogs
beforethe effective date of the final rule to undergo the
certificationprocess with an ADI-accredited or IGDF-accredited
organizationprior to being eligible for benefits. This is not the
intentor function of Sec. 17.148(c)(2), in allcases. The rule
clearlystates that for veterans to receive benefits for service dogs
obtainedbefore the effective date of the rule, veterans may submit
prooffrom a non-ADI or non-IGDF organization that the service dog
completeda training program offered by that organization. See Sec.
17.148(c)(2)(explaining that it is only when a veteran may not be able
toattain such proof from a non-ADI or non-IGDF organization that
``[a]lternatively,the veteran and dog [could obtain the certification
fromADI or IGDF]''). We make no changes based on these comments.
Commenters asserted that for previouslyobtained dogs, the final
rulemust establish criteria in Sec. 17.148(c)(2) to allow VA to
determinewhether the training courses certified by non-ADI or non-IGDF
organizationswere adequate to produce a well trained dog capable of
assistingthe veteran. We make no changes based on these comments. As
statedin the proposed rule, we do not have the expertise, experience,
orresources to develop independent criteria to assess the efficacy of
servicedog training programs. Additionally, we do not want those
veteranswith existing service dogs to be subjected to new requirements
whichcould prevent their receipt of benefits. Therefore, we accept a
certificatefrom a non-ADI or non-IGDF organization that existed before
theeffective date of the final rule as proof that the veteran's
servicedog has successfully completed an adequate training program,
andthat a veteran who otherwise meets the criteria in the rule may
receiveapplicable benefits. Essentially, we are ``grandfathering in''
servicedogs acquired before the effective date of the final rule by
notrequiring such dogs to have ADI or IGDF certification.
We further clarify for one commenter thatthe 1 year limitation in
Sec. 17.148(c)(2) to obtain a certificate that theveteran's service
dog hassuccessfully completed an adequate training program only
appliesif the certificate comes from the original non-ADI or non-IGDF
organization.The 1 year limitation is not applicable for a veteran who
must,because they cannot obtain a certificate from the original non-
ADI ornon-IGDF organization, undergo new training with an ADI-
accreditedor IGDF-accredited organization. See Sec. 17.148(c)(2)
(explainingthat the 1 year limitation applies when a certificate is
obtainedfrom a non-ADI organization, or ``[a]lternatively, the veteran
and dog[could obtain the certification from ADI or IGDF]''). We make
nochanges to the rule text based on this comment because the language
isclear. In response to commenters' concerns that ADI-accredited
organizationswill not certify service dogs that were not also
initiallytrained there, VA will ensure through continued workings with
ADI-accreditedand IGDF-accredited organizations that there exists a
mechanismto provide for such certification.
Lastly, one commenter advocatedspecifically that veterans who
currentlyreceive VA benefits for guide dogs should not be required to
undergothe clinical determination process in Sec. 17.148(b)(2) to now
receivebenefits under Sec. 17.148(d). We makeno changes based on
thiscomment, as all veterans who would seek to receive benefits under
Sec. 17.148(d) must be subject to the same requirements,to ensure
equitableadministration of benefits. However, we note that for any
veteranwho is currently receiving guide dog benefits from VA, that
veteranhas already undergone the same type of clinical evaluation to
determineefficacy of the dog, and would have a history of medical
documentationsupporting the use of the dog as indeed the most optimal
deviceto manage the veteran's impairment. Effectively then, the
veteransalready receiving guide dog benefits from VA would not be
subjectto a new clinical evaluation process under Sec. 17.148(b)(2),
as thiswould be duplicative and unnecessary.
ProceduresRelated to Insurance Coverage and Payments
Section 17.148(d)(1) as proposed wouldprovide an insurance policy
toveterans with prescribed service dogs that guarantees coverage of
allveterinary treatment considered medically necessary. Commenters
urgedthat Sec. 17.148(d)(1) as proposedshould
[[Page54378]]
berevised for multiple reasons, with a majority of commenters stating
thatcertain processes involved in payment for veterinary care should
beclarified. Under Sec. 17.148(d)(1)(i),VA ``will be billed for any
premiums,copayments, or deductibles associated with the policy''
negotiatedand offered by VA to veterans with prescribed service dogs.
VA willonly pay premiums and other costs as specified in Sec.
17.148(d)(1)(i)for the commercially available policy that VA provides
to theveteran, and not for any other policy that a veteran may obtain
independently.The insurance company that holds the VA-provided policy
willattain appropriate contractor status under Federal acquisition
standardsby registering with the Central Contractor Registration (CCR)
to billVA for costs specified in Sec. 17.148(d)(1)(i),and will be
subjectto the same quality standards as other VA contractors.
Multiple commenters stated that the type ofinsurance coverage that
VAwould provide in Sec. 17.148(d)(1) asproposed was inadequate, as
allcommercially available insurance policies for service dogs rely on
areimbursement model whereby veterans would pay the out of pocket cost
forveterinary treatment, prior to filing a claim with and being
reimbursedby the insurance company. Commenters stated that VA should,
instead,establish a system where VA pays for treatment costs, such as
providingveterans with prescribed service dogs some type of debit card
to beused for veterinary care. The rule clearly states that VA, ``and
not theveteran,'' will be billed directly for all costs for which VA
isresponsible under Sec. 17.148(d)(1)(i).The rule also states that
thepolicy will guarantee coverage for the types of treatment
determinedby a veterinarian to be medically necessary in Sec.
17.148(d)(1)(ii),but, as proposed, paragraph (d)(1)(ii) did not bar
billinga veteran for treatment costs. Our intent has always been to
negotiateand procure a contract, to the extent that is commercially
feasible,for an insurance policy that will not require the veteran to
pay anyout of pocket costs for covered veterinary care and treatment
costs.VA has researched the commercial market and anticipates that VA
will beable to contract for this requirement on VA's terms. In
responseto these comments and to further ensure that the regulation
effectuatesour intent, we have revised the language of Sec.
17.148(d)(1)(ii)from the proposed rule so that it bars the billing of
veteransfor covered costs.
Based on the foregoing, we do not believethat there is a need to
clarifyany of the payment processes that are authorized by the
regulationor to provide in regulation any specific procedures that
will beestablished in accordance with the insurance policy for service
dogs,so long as the basic requirements in Sec. 17.148(d)(1) are met
concerningnot billing veterans. For instance, this rule will not
specifythat the insurance provider must be registered in the CCR,
becauseit is a requirement under separate Federal Acquisition
Regulationsthat all Federal contractors must be registered in CCR. See
48 CFR4.1102.
Commenters also criticized that typicalinsurance policies that
wouldbe commercially available would not provide the scope of coverage
requiredto adequately care for a service dog, as the medical needs of
aservice dog are higher due to the level of physical work a service
dogcompletes on a regular basis. We clarify that the rule intends that
VA willselect a policy with broad coverage, to ensure that all
serviceswhich are likely to be considered medically necessary by a
veterinarianwho meets the requirements of the insurer are in fact
covered.VA will consult with ADI, IGDF, and the American Veterinary
MedicalAssociation to ensure that the most comprehensive policy,
specificto the needs of service dogs, is chosen. Additionally, in
responseto commenter concerns that such a policy is not likely to be
acceptedwidely across the nation, VA will consider geographic
availabilitywhen choosing the policy.
ProceduresRelated to the Reimbursement of Veteran Travel Expenses
Commenters argued that Sec. 17.148(d)(3) as proposed was vague
regardingreimbursement and eligibility for travel expenses, and should
morespecifically indicate the type of travel expenses covered, to
includelodging and expenses related to training and retraining/
recertificationof service dogs. We make no changes to the rule based
onthese comments. The rule is clear in Sec. 17.148(d)(3) that any
veteranwho is prescribed a service dog under Sec. 17.148(b) will be
eligibleto receive payments for travel expenses. We reiterate from the
proposedrule that Sec. 17.148(d)(3) is intendedto implement 38
U.S.C.1714(d), ``which allows VA to pay travel expenses `under the
termsand conditions set forth in [38 U.S.C. 111]' for a veteran who is
provideda service dog.'' See 76 FR 35164. We believe that the language
ofsection 1714(d) can be read to interpret obtaining a dog as
``examination,treatment, or care'' under section 111, but we would not
makepayment of section 1714(d) benefits contingent upon the separate
eligibilitycriteria in section 111. This interpretation facilitates
administrationof section 1714(d) benefits by allowing VA to avoid
additionalexpenses associated with establishing a new means of
administeringtravel benefits outside of section 111 mechanisms.
We clarify that all travel costs associatedwith obtaining the
servicedog, to include all necessary initial and follow up training,
arecovered. Additionally, all types of travel costs which are
consideredreimbursable in 38 U.S.C. 111 and 38 CFR part 70 are
consideredreimbursable in this rule, to include approved lodging.
Commenters also indicated that VA shouldnot require a prescription
for aservice dog before authorizing travel reimbursement related to
procurement.We disagree and make no changes based on these comments.
We willpay travel benefits only if it is determined by the veteran's
clinicalteam that a service dog is appropriate under Sec. 17.148;
otherwise,we would be paying costs related to procuring an assistive
devicethat may not ultimately be approved for the veteran.
Only VAStaff May Provide, Repair, or Replace Hardware Under Sec.
17.148(d)(2)
Commenters asserted that the benefit toprovide service dog
hardwareunder Sec. 17.148(d)(2) as proposedwould be too restrictive.
Commentersstated that veterans should be reimbursed for payments made
tonon-VA third party vendors to provide, repair, and replace such
hardware,instead of the current requirement that the hardware be
obtainedfrom a Prosthetic and Sensory Aids Service at the veteran's
localVA medical facility. We make no changes to the rule based on
thesecomments. We believe that hardware should only be provided,
repaired,and replaced through VA, to ensure that our clinical and
safetystandards are met. Merely reimbursing third-party providers does
notpermit VA to oversee hardware provision to ensure that it is
``clinicallydetermined to be required by the dog to perform the tasks
necessaryto assist the veteran with his or her impairment,'' as
requiredin Sec. 17.148(d)(2). A clinicaldetermination that covered
hardwaremust be task-specific for the type of assistance a service dog
providesis essential, or VA would be employing its professional
clinicalstaff to provide and repair common items related to dog
ownershipgenerally, such as collars or leashes. The purpose of Sec.
17.148(d)(2)is not to cover all equipment that a dog generally may
require,but rather to ensure that the veteran is not burdened in
finding,obtaining, or having to repair
[[Page54379]]
orreplace certain special hardware that a trained service dog requires
toprovide specific assistance. We believe that allowing third party
vendorswould also increase administrative burden for veterans, as this
wouldrequire the vendor to undergo a separate, extensive, and highly
regulatedFederal process to identify, select, and utilize third party
vendors,which would cause an undue delay for veterans in obtaining
necessaryhardware.
A DogMust Maintain Its Ability To Function as a Service Dog
Section 17.148(e) provides that forveterans to continue to receive
benefitsunder the rule, the service dog must continue to function as a
servicedog, and that VA may terminate benefits if it learns from any
sourcethat the dog is medically unable to maintain that role, or a
clinicaldetermination is made that the veteran no longer requires the
servicedog. A few commenters objected to the ``any source'' criterion
inSec. 17.148(e), stating that VA should restrictsources of
informationto a veteran's medical provider with regards to a veteran's
continuedclinical need for the service dog, and to the service dog's
veterinarianwith regards to the service dog's fitness to continue
providingassistance. We make no changes to the rule based on these
comments.We first clarify that VA will only consider the veteran's
clinicalteam as a source of information to determine whether the
veterancontinues to require the service dog; this is contemplated in
paragraph(e), which states that ``VA makes a clinical determination
thatthe veteran no longer requires the dog.'' With regards to the
medicalfitness of a service dog, VA must be permitted to receive
informationfrom a broad number of sources in a continuous manner while
benefitsare administered, for the safety of veterans and to ensure
thatbenefits are administered equitably. The ``any source'' criterion
as wellreduces administrative burden for veterans, in that VA would
otherwiseneed to prescribe a specific and regular means of evaluating
whethera service dog has maintained its ability to function as a
servicedog.
The broad ``any source'' criterion inparagraph (e) does not mean
that VAwill rely upon information from any source to terminate service
dogbenefits without considering the source of the information, and
firstallowing veterans to submit contrary information. The 30 days
noticeprior to termination of benefits provided for in paragraph (e)
allowsthe veteran ample time to present contrary information, if VA
shouldreceive information that a service dog is not able to maintain
itsfunction as a service dog.
Commenters additionally stated that VAshould exclude any insurance
companywith which VA contracts to cover veterinary care costs as a
sourceof information concerning the medical fitness of a service dog.
Thecommenters, however, did not provide a rationale for such an
exclusion.To the extent that the commenters may be concerned that an
insurancecompany would seek to have service dogs deemed medically
unfitto avoid excess expenditures, we do not believe any incentive
existsto do so. As we stated in the proposed rule, our understanding
is thatannual caps on expenditures are a common limitation in
insurancepolicies that cover service dog care, and Sec.
17.148(d)(1)(ii)specifically provides for such caps to be considered
in theadministration of veterinary care benefits. We reiterate that VA
must bepermitted to consider information from a broad number of
sources,and do not see any inherent reasons that this specific
limitationshould be implemented. Therefore, we make no changes based
onthese comments.
AppealsProcedures
In response to commenter concerns that therule does not detail an
appealsprocess for a veteran whose service dog benefits are to be
terminated,or for a veteran who is not prescribed a service dog and
cannotobtain service dog benefits, we do not believe VA must prescribe
a newappellate mechanism in this rulemaking. All decisions under this
rule,whether decisions to prescribe a service dog and initiate service
dogbenefits, or decisions to terminate such benefits, are clinical
determinationsand therefore subject to the clinical appeals procedures
in VHADirective 2006-057. It is VHA policy under this appeals process
thatpatients and their representatives have access to a fair and
impartialreview of disputes regarding clinical determinations or the
provisionof clinical services that are not resolved at a VHA facility
level.This clinical appeals process will be sufficient to resolve
conflictsrelated to the provision or termination of service dog
benefits,without prescribing a new appellate mechanism in this
rulemaking.
Amendmentof Proposed Sec. 17.154 To Include Term``Veterans''
One commenter requested that we furtherrevise Sec. 17.154 as
proposedto delete the reference to ``ex-members of the Armed
Services''and replace it with a reference to ``veterans.'' We agree
andhave revised the language of Sec. 17.154from the proposed rule to
read:``VA may furnish mechanical and/or electronic equipment
considerednecessary as aids to overcoming the handicap of blindness to
blindveterans entitled to disability compensation for a service-
connecteddisability.'' The term ``veteran'' has always been used in 38
U.S.C.1714, and the regulatory term should follow the statute. In
othercontexts, there may be a difference between an ``ex-member of the
ArmedForces'' and a ``veteran'' because the definition of ``veteran''
intitle 38 of the United States Code requires discharge or release
fromservice ``under conditions other than dishonorable,'' 38 U.S.C.
101,whereas no such limitation would appear to apply to an ``ex-member
of theArmed Forces.'' In the context of 38 CFR 17.154, however, the
changedoes not alter the meaning of the regulation because Sec.
17.154refers to an ``ex-member'' who is entitled to service-connected
disabilitycompensation and who, therefore, must be a veteran (because
suchcompensation is offered only to veterans discharged or released
underconditions other than dishonorable).
TheEstimated Number of Respondents per Year
The proposed rule estimated that 100 newservice dogs would be
providedto veterans each year. Multiple commenters objected to this
statement,asserting that this number was far too low of an estimate,
andfurther was not a reflection of veteran need for service dogs but
rathera reporting of the number of service dogs that ADI could
feasiblyprovide to veterans each year. The estimated burden of 100 is
not anestimate of the number of veterans who may need a service dog.
Rather,this number is an estimate of the number of new veterans each
yearthat VA expects to present a certificate showing successful
completionof training in order to establish a right to obtain benefits
underSec. 17.148(d). This number was based onthe number of veterans
whosought to receive new guide dog benefits in fiscal year 2010 under
Sec. 17.154 (2010), which was 66, plus anadditional number of
veteranswe estimated who would seek to receive new Sec. 17.148
servicedog benefits for hearing and mobility impairments. We estimated
thenumber of veterans who would seek new Sec. 17.148 benefits as a
onethird increase over confirmed guide dogs for which VA provided
benefitsthe previous fiscal year, and based upon a projection for
multiplefiscal years, we arrived at 100 new veterans each year seeking
benefitsunder Sec. 17.148. The estimated numberof respondents is
not, astheorized by commenters, based on
[[Page54380]]
theanticipated supply of service dogs that could be provided annually
byADI-accredited organizations.
Other commenters asserted that the numberof estimated respondents
at 100was underreported in the proposed rule for financial reasons, or
that VAcould only afford to purchase 100 dogs per year for veterans.
We reiteratethat under the rule, VA is not actually purchasing the
servicedogs from any ADI-accredited or IGDF-accredited service dog
organization,and we have no financial motive to underreport the
estimatednumber of respondents.
TheEstimated Total Annual Reporting and Recordkeeping Burden
Multiple commenters asserted that theproposed rule underreported
theexpected burden time on veterans to complete necessary
administrativerequirements to receive benefits under the rule. We
clarifythat the burden time of less than 5 minutes as stated in the
proposedrule only contemplates the submission by the veteran of the
certificationfrom the service dog organization that indicates certain
trainingrequirements have been met, as required by Sec. 17.148(c).
Theburden time does not reflect any of the time required for VA to
conductits clinical evaluation to determine whether a service dog
wouldoptimally benefit a veteran, nor the independent assessments that
aservice dog organization conducts thereafter to place a service dog
with aveteran. Such time is not part of the veteran's burden to
respondto our collection by submitting a certificate. We have
intentionallykept paperwork to a minimum in obtaining this benefit
becauseveterans in need of service dogs are generally seriously
disabledand because veterans applying for these benefits will already
beenrolled in the VA health care system.
ThisRegulatory Action Is Not Significant Under Executive Order 12866,
andWould Not Have a Significant Economic Impact on a Substantial
Numberof Small Entities
One commenter alleged that the rule shouldbe considered
significantunder Executive Order 12866, because by limiting the source
ofservice animals to ADI-accredited or IGDF-accredited organizations,
VAeffectively creates a sole-source contract with those agencies that
willhave a major impact on the service animal industry. We interpret
thiscommenter's statement to mean that because they believe VA will be
purchasingguide and service dogs, that such purchasing will adversely
affectin a material way the nature of competition with non-ADI and
non-IGDForganizations. We reiterate that VA will not be contracting
withany ADI or IGDF organization to actually purchase guide or service
dogs,and make no changes to the rule based on this comment.
Multiple commenters argued that the rulewould have a significant
economicimpact on a substantial number of small service dog
organizationsthat are either ineligible for membership in the
identifiedaccreditation groups because they do not qualify for tax-
exemptstatus (in the case of ADI accreditation), or because they
cannotafford the costs and effort that accreditation entails. We
assumethat commenters believe that VA will be purchasing the service
dogs,and therefore that these nonaccredited organizations would be
economicallydisadvantaged unless they comply with the rule's
accreditationrequirements. As VA will not be actually purchasing
servicedogs, we do not believe any non-ADI or non-IGDF organization,
assmall entities, would experience a significant economic impact. This
ruledoes not prevent individuals from acquiring service dogs from any
organization,but only establishes criteria that must be met if VA is
thengoing to provide certain benefits related to those service dogs.
We acknowledge that we require all servicedogs obtained after the
effectivedate of the rule to be ADI or IGDF certified, and as such
veteransmay opt to seek the assistance of ADI or IGDF organizations
overother nonaccredited organizations in obtaining such dogs. However,
thereis no indication that nonaccredited organizations rely on
veteransas an essential part of their business. In fact, multiple
commenterswho themselves were nonaccredited organizations, and who
objectedto the ADI accreditation standard in the rule, reported
providingservice dogs to veterans free of charge. There is no evidence
tosuggest that a substantial number of nonaccredited service dog
organizationswill be detrimentally affected by a financial incentive
forveterans to seek to obtain service dogs from accredited service dog
organizations.Even if a substantial number of nonaccredited service
dogorganizations significantly rely on veterans to buy their service
dogs,there is also no evidence to suggest that the cost of obtaining
ADI orIGDF certification is beyond the reach of a substantial number
ofnon-accredited organizations.
Commenters questioned the reasoning in theproposed rule for our
beliefthat most service dog providers that provide dogs to veterans
arealready accredited by ADI or IGDF. See 76 FR 35166. Based on
multiplecommenters who themselves were non-ADI service dog
organizationsand who did provide service dogs to veterans, we retract
therationale that ``[w]e believe that most service-dog providers that
providedogs to veterans are already accredited in accordance with the
finalrule'' and also retract the accompanying statement that ``[t]he
vastmajority of accredited programs do not provide dogs to veterans.''
However,in view of our conclusion that gaining accreditation should
notresult in a significant financial burden as explained in the
proposedrule notice, 76 FR 35166, this does not change our analysis
thatthe rule does not have a significant economic impact on a
substantialnumber of small entities.
VA WillNot Newly Initiate Proposed or Formal Rulemaking Procedures
Multiple commenters stated that VA shouldabandon this rulemaking,
andthat it should begin again with a new proposed rule. One commenter
furtherstated that VA should initiate a public hearing, or should
initiateformal rulemaking procedures related to the administration of
servicedog benefits. We decline to pursue either of these actions, as
allaffected parties were put on proper notice of the intended
provisionsin the proposed rule, and there were no significant reasons
thatcommenters put forward to require a new regulatory action that
werenot addressed in this final rule. We believe we have addressed all
significantcomments and made changes where appropriate, or have
reasonablysupported why changes were not made.
For all the reasons noted above, VA isadopting the proposed rule
asfinal with changes as noted to Sec. 17.148(b)(2), (d), (d)(1)(ii),
and(d)(3) and Sec. 17.154.
Effectof Rulemaking
Title 38 of the Code of FederalRegulations, as revised by this
rulemaking,represents VA's implementation of its legal authority on
thissubject. Other than future amendments to this regulation or
governingstatutes, no contrary guidance or procedures are authorized.
Allexisting or subsequent VA guidance must be read to conform with
this rulemakingif possible or, if not possible, such guidance is
supersededby this rulemaking.
PaperworkReduction Act
This final rule at Sec. 17.148 contains new collections of
informationunder the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).On June 16, 2011, in a proposed rule published in
[[Page54381]]
theFederal Register, we requested public comments on the new
collectionsof information. We received multiple comments in response
to thisnotice. A majority of the commenters alleged the collection was
anillegal restriction of the access rights of individuals with
disabilities.The response, as also stated in the preamble to this
finalrule, is that a certificate showing adequate service dog training
is notnecessary to gain access to VA facilities, but rather is only
necessaryto receive benefits under this rule. Some commenters stated
thatthe number of respondents for this collection was underreported,
becausemore than 100 veterans need service dogs each year. The
response,as also stated in the preamble to this final rule, is that
theestimated burden of 100 is not an estimate of the number of
veteranswho may need a service dog, but rather is an estimate of the
numberof new veterans each year that VA expects to present a
certificateshowing successful completion of training to obtain
benefits.Finally, some commenters asserted that the expected burden
timefor this collection was underreported. The response, as also
statedin the preamble to this final rule, is that the burden time of
lessthan 5 minutes only contemplates the submission of the required
certificate,and does not reflect any of the time required for VA to
conductits clinical evaluation to determine if a service dog would
optimallybenefit a veteran, nor the independent assessments that a
servicedog organization conducts thereafter to place the service dog
withthe veteran. Therefore, we make no changes to this collection.
The Office of Management and Budget (OMB)has approved the
additionalcollections in part 17 under OMB Control Number 2900-0785.
We areadding a parenthetical statement after the authority citations
to thesection in part 17 for which new collections have been approved
so thatthe control number is displayed for each new collection.
RegulatoryFlexibility Act
The Secretary hereby certifies that thisfinal rule will not have a
significanteconomic impact on a substantial number of small entities
as theyare defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. Wedo not believe that gaining accreditation should result in a
significantfinancial burden, as the standards for approval by ADI and
IGDFare reasonable thresholds that are generally expected and accepted
withinthe industry. The approximate cost to be an accredited
organizationby IGDF is a one-time fee of $795, with an annual fee of
$318and a per unit fee of $39.45. The approximate cost to be an
accreditedorganization by ADI is $1000 every 5 years with annual fees
ofapproximately $50. Therefore, pursuant to 5 U.S.C. 605(b), this
finalrule is exempt from the initial and final regulatory flexibility
analysisrequirements of sections 603 and 604.
ExecutiveOrders 12866 and 13563
Executive Orders 12866 and 13563 directagencies to assess the
costsand benefits of available regulatory alternatives and, when
regulationis necessary, to select regulatory approaches that maximize
netbenefits (including potential economic, environmental, public
healthand safety effects, and other advantages; distributive impacts;
andequity). Executive Order 13563 (Improving Regulation and Regulatory
Review)emphasizes the importance of quantifying both costs and
benefits,reducing costs, harmonizing rules, and promoting flexibility.
ExecutiveOrder 12866 (Regulatory Planning and Review) defines a
``significantregulatory action,'' which requires review by the OMB, as
``anyregulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or
adverselyaffect in a material way the economy, a sector of the
economy,productivity, competition, jobs, the environment, public
healthor safety, or State, local, or tribal governments or
communities;(2) Create a serious inconsistency or otherwise interfere
with anaction taken or planned by another agency; (3) Materially alter
thebudgetary impact of entitlements, grants, user fees, or loan
programsor the rights and obligations of recipients thereof; or (4)
Raisenovel legal or policy issues arising out of legal mandates, the
President'spriorities, or the principles set forth in this Executive
Order.''
The economic, interagency, budgetary,legal, and policy
implicationsof this final rule have been examined and it has been
determinedto not be a significant regulatory action under Executive
Order12866.
UnfundedMandates
The Unfunded Mandates Reform Act of 1995requires, at 2 U.S.C.
1532,that agencies prepare an assessment of anticipated costs and
benefitsbefore issuing any rule that may result in an expenditure by
state,local, and tribal governments, in the aggregate, or by the
privatesector, of $100 million or more (adjusted annually for
inflation)in any given year. This final rule will have no such effect
onstate, local, and tribal governments, or on the private sector.
Catalogof Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistancenumbers and titles are
64.009Veterans Medical Care Benefits, 64.010 Veterans Nursing Home
Care,and 64.011 Veterans Dental Care.
SigningAuthority
The Secretary of Veterans Affairs, ordesignee, approved this
documentand authorized the undersigned to sign and submit the document
to theOffice of the Federal Register for publication electronically as
anofficial document of the Department of Veterans Affairs. John R.
Gingrich,Chief of Staff, Department of Veterans Affairs, approved this
documenton July 30, 2012, for publication.
List ofSubjects in 38 CFR Part 17
Administrative practice and procedure,Alcohol abuse, Alcoholism,
Claims,Day care, Dental health, Drug abuse, Foreign relations,
Governmentcontracts, Grant programs--health, Government programs--
veterans,Health care, Health facilities, Health professions, Health
records,Homeless, Medical and dental schools, Medical devices, Medical
research,Mental health programs, Nursing homes, Philippines, Reporting
andrecordkeeping requirements, Scholarships and fellowships, Travel
andtransportation expenses, Veterans.
Dated: August 30, 2012.
RobertC. McFetridge,
Directorof Regulation Policy and Management, Office of the General
Counsel,Department of Veterans Affairs.
For the reasons stated in the preamble, VAamends 38 CFR part 17 as
follows:
PART17--MEDICAL
0
1. Theauthority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted inspecific sections.
0
2. AddSec. 17.148 after the undesignatedcenter heading ``PROSTHETIC,
SENSORY,AND REHABILITATIVE AIDS'', to read as follows:
Sec. 17.148 Service dogs.
(a) Definitions. For the purposes of thissection:
Service dogs are guide or service dogsprescribed for a disabled
veteranunder this section.
(b) Clinical requirements. VA will providebenefits under this
sectionto a veteran with a service dog only if:
[[Page54382]]
(1) The veteran is diagnosed as having avisual, hearing, or
substantialmobility impairment; and
(2) The VA clinical team that is treatingthe veteran for such
impairmentdetermines based upon medical judgment that it is optimal
for theveteran to manage the impairment and live independently through
theassistance of a trained service dog. Note: If other means (such as
technologicaldevices or rehabilitative therapy) will provide the same
levelof independence, then VA will not authorize benefits under this
section.
(3) For the purposes of this section,substantial mobility
impairmentmeans a spinal cord injury or dysfunction or other chronic
impairmentthat substantially limits mobility. A chronic impairment
thatsubstantially limits mobility includes but is not limited to a
traumaticbrain injury that compromises a veteran's ability to make
appropriatedecisions based on environmental cues (i.e., traffic lights
ordangerous obstacles) or a seizure disorder that causes a veteran to
becomeimmobile during and after a seizure event.
(c) Recognized service dogs. VA willrecognize, for the purpose of
payingbenefits under this section, the following service dogs:
(1) The dog and veteran must havesuccessfully completed a training
programoffered by an organization accredited by Assistance Dogs
Internationalor the International Guide Dog Federation, or both (for
dogsthat perform both service- and guide-dog assistance). The veteran
mustprovide to VA a certificate showing successful completion issued
by theaccredited organization that provided such program.
(2) Dogs obtained before September 5, 2012will be recognized if a
guideor service dog training organization in existence before
September5, 2012 certifies that the veteran and dog, as a team,
successfullycompleted, no later than September 5, 2013, a training
programoffered by that training organization. The veteran must provide
to VA acertificate showing successful completion issued by the
organizationthat provided such program. Alternatively, the veteran and
dogwill be recognized if they comply with paragraph (c)(1) of this
section.
(d) Authorized benefits. Except as noted inparagraph (d)(3) of
thissection, VA will provide to a veteran enrolled under 38 U.S.C.
1705only the following benefits for one service dog at any given time
inaccordance with this section:
(1) A commercially available insurancepolicy, to the extent
commerciallypracticable, that meets the following minimum
requirements:
(i) VA, and not the veteran, will be billedfor any premiums,
copayments,or deductibles associated with the policy; however, the
veteranwill be responsible for any cost of care that exceeds the
maximumamount authorized by the policy for a particular procedure,
courseof treatment, or policy year. If a dog requires care that may
exceedthe policy's limit, the insurer will, whenever reasonably
possibleunder the circumstances, provide advance notice to the
veteran.
(ii) The policy will guarantee coverage forall treatment (and
associatedprescription medications), subject to premiums, copayments,
deductiblesor annual caps, determined to be medically necessary,
includingeuthanasia, by any veterinarian who meets the requirements of
theinsurer. The veteran will not be billed for these covered costs,
and theinsurer will directly reimburse the provider.
(iii) The policy will not exclude dogs withpreexisting conditions
that donot prevent the dog from being a service dog.
(2) Hardware, or repairs or replacementsfor hardware, that are
clinicallydetermined to be required by the dog to perform the tasks
necessaryto assist the veteran with his or her impairment. To obtain
suchdevices, the veteran must contact the Prosthetic and Sensory Aids
Serviceat his or her local VA medical facility and request the items
needed.
(3) Payments for travel expenses associatedwith obtaining a dog
underparagraph (c)(1) of this section. Travel costs will be provided
only toa veteran who has been prescribed a service dog by a VA
clinicalteam under paragraph (b) of this section. Payments will be
made asif the veteran is an eligible beneficiary under 38 U.S.C. 111
and 38CFR part 70, without regard to whether the veteran meets the
eligibilitycriteria as set forth in 38 CFR part 70. Note: VA will
providepayment for travel expenses related to obtaining a replacement
servicedog, even if the veteran is receiving other benefits under this
sectionfor the service dog that the veteran needs to replace.
(4) The veteran is responsible forprocuring and paying for any
itemsor expenses not authorized by this section. This means that VA
willnot pay for items such as license tags, nonprescription food,
grooming,insurance for personal injury, non-sedated dental cleanings,
nailtrimming, boarding, pet-sitting or dog-walking services, over-the-
countermedications, or other goods and services not covered by the
policy.The dog is not the property of VA; VA will never assume
responsibilityfor, or take possession of, any service dog.
(e) Dog must maintain ability to functionas a service dog. To
continueto receive benefits under this section, the service dog must
maintainits ability to function as a service dog. If at any time VA
learnsfrom any source that the dog is medically unable to maintain
thatrole, or VA makes a clinical determination that the veteran no
longerrequires the dog, VA will provide at least 30 days notice to the
veteranbefore benefits will no longer be authorized.
(Authority:38 U.S.C. 501, 1714)
(TheOffice of Management and Budget has approved the information
collectionrequirements in this section under control number 2900-
0785.)
0
3.Revise Sec. 17.154 to read as follows:
Sec. 17.154 Equipment for blind veterans.
VA may furnish mechanical and/or electronicequipment considered
necessaryas aids to overcoming the handicap of blindness to blind
veteransentitled to disability compensation for a service-connected
disability.
(Authority:38 U.S.C. 1714)
[FRDoc. 2012-21784 Filed 9-4-12; 8:45 am]
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And if you've stopped paying attention (because you're not going to eat the logo, yes?) the old face was as such:
Court provides a second chance to youth; teens needed to serve as jury (Bel Air, MD) - - The Harford County Teen Court was piloted in the spring of 2011 and is approaching its second year of operation as a diversion program that provides first time, non-violent youth offenders with a second chance. The program follows a restorative justice model in which it is determined what is best for the respondent, the victim, and the community at large. 
It’s no secret that schools across the country are facing tighter and tighter budgets these days. But one local school has found a creative solution that could net them $13,500 in cash, gift cards and office supplies. The parents and staff at Emmorton Elementary are competing against thousands of other schools in a cyber voting contest – and they’re currently in 4th place nationwide. They could use the assistance of the community to move into first place! Read more...
Harford County Public Schools Board President Leonard D. Wheeler, Ed.D., died suddenly on Tuesday, September 11, 2012. Dr. Wheeler has served as a member of the Board of Education of Harford County since 2008. He began his second consecutive year as president of the Board earlier this summer. Dr. Wheeler was a retired teacher, curriculum specialist, principal and assistant superintendent of the Baltimore City Public Schools. He was also a retired associate professor in the Department of Education at the College of Notre Dame of Maryland. Read more...
Phoenix Festival Theater, a community theater at Harford Community College, will hold auditions for the musical Babes in Toyland on Monday, September 17, and Tuesday, September 18, from 7-10 PM. Auditions will be the Chesapeake Center on the HCC campus. Auditions are on a first-come, first-served basis; no appointment is needed. No previous experience is necessary, and all roles are open to all ages – children, teens and adults. Read more...
SAT scores hold steady and exceed state and national data Harford County Public Schools realized a 20 percent increase in participation in Advanced Placement (AP) assessments from 1,525 students in 2011 to 1,824 students in 2012, this at the same time total high school enrollment in the county remained steady. Total enrollment in AP courses in 2012 was 4,591, a 12 percent jump from the previous year, with many students taking multiple AP courses. With a focus on rigor at every level, Harford County anticipates continuing increases in AP participation and performance. Read more...
Arthur Dogswell LLC, Los Angeles, CA 90025, is voluntarily recalling 1051 cartons packed as either 10 or 50 packages per case of Catswell Brand VitaKitty Chicken Breast with Flaxseed and Vitamins because it has the potential to contain propylene glycol. High levels of propylene glycol in the treats could result in serious injury to cats. The adverse health impacts could be reducing red blood cell survival time (anemia) and making the cells more susceptible to oxidative damage.
The Humane Society of the United States approximates that 6-8 million dogs and cats enter animal shelters every year. Of those, it is estimated that 3-4 million are euthanized. "When you look at the numbers, it's easy to realize how big of a difference even a single adoption can make. We want to do our part in raising that awareness and thank those that make a difference in these animals' lives - the adopters and the shelter staff that work so hard to find forever homes for these wonderful animals," Ron concludes. Burns Adoption Appreciation will be a permanent, year-round program available from Ron Burns Studio. 