Department of Veterans Affairs Final Rule On Service Dogs for Veterans

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 AFFAIRS38 CFRPart 17RIN2900-AN51
ServiceDogsAGENCY: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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
01. Theauthority citation for part 17 continues to read as follows:
    Authority: 38 U.S.C. 501, and as noted inspecific sections.

02. 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:
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    (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.)
03.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]BILLINGCODE P