Service
Dogs for Veterans
[Federal
Register Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Rules
and Regulations]
[Pages
54368-54382]
From
the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc
No: 2012-21784
DEPARTMENT
OF VETERANS AFFAIRS
38 CFR
Part 17
RIN
2900-AN51
Service
Dogs
AGENCY:
Department of Veterans Affairs.
ACTION:
Final rule.
SUMMARY:
The Department of Veterans Affairs (VA) amends its regulations
concerning
veterans in need of service dogs. Under this final rule, VA
will
provide to veterans with visual, hearing, or mobility impairments
benefits
to support the use of a service dog as part of the management
of such
impairments. The benefits include assistance with veterinary
care,
travel benefits associated with obtaining and training a dog, and
the
provision, maintenance, and replacement of hardware required for
the dog
to perform the tasks necessary to assist such veterans.
DATES:
Effective Date: This rule is effective October 5, 2012.
FOR
FURTHER INFORMATION CONTACT: Lynnette Nilan, RN, MN, Patient Care
Services,
(10P4), Veterans Health Administration, Department of
Veterans
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (406)
422-4476.
(This is not a toll free number.)
SUPPLEMENTARY
INFORMATION: On June 16, 2011, VA published in the
Federal
Register (76 FR 35162) a proposed rule to amend VA regulations
to
broaden and clarify current benefits to veterans with guide dogs,
and to
establish 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
service
dogs trained for the aid of the hearing impaired or persons
with a
spinal cord injury or dysfunction or other chronic impairment
that
substantially limits mobility. Under section 1714(d), VA is also
authorized
to provide certain travel expenses related to the provision
of such
dogs.
In 1961, VA promulgated 38 CFR 17.118(a)
(recodified as current 38
CFR
17.154(a) in 1996) restating the statutory language, which at that
time
limited VA's authority to the provision of guide dogs for blind
veterans.
In 2001, Congress amended section 1714 to authorize VA to
provide
service dogs for veterans with other disabilities. See
Department
of Veterans Affairs Health Care Programs Enhancement Act of
2001,
Public Law 107-135, title II, Sec. 201.
This rule implements
that
authority and establishes a single regulation relating to the
provision
of guide and service dog benefits by VA.
Interested persons were invited to submit
comments to the proposed
rule on
or before August 15, 2011, and we received 98 comments. All of
the
issues raised by the commenters that concerned at least one portion
of the
[[Page
54369]]
rule
can be grouped together by similar topic, and we have organized
our
discussion of the comments accordingly. For the reasons set forth
in the
proposed 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.
Definition
of ``Service Dogs''
Section 17.148(a) defines ``service dogs''
as ``guide or service
dogs
prescribed for a disabled veteran under [Sec.
17.148].'' Multiple
commenters
argued that this definition is circular, and further
contended
that the omission of mental health impairments in Sec.
17.148(b)(1)
violates basic protections set forth in regulations
implementing
the Americans with Disabilities Act of 1990 (ADA). See 28
CFR
36.104 (specifically recognizing service dogs trained to assist
individuals
with mental impairments and defining ``service animal'' to
mean
``any dog that is individually trained to do work or perform tasks
for the
benefit of an individual with a disability, including a
physical,
sensory, psychiatric, intellectual, or other mental
disability'').
These commenters advocated that VA should use the
definition
of ``service animal'' set forth in the regulations
implementing
the ADA. We make no changes based on these comments.
The requirements in the ADA and regulations
implementing the ADA
are
applicable only to ``public entities,'' and Federal Government
agencies
such as VA are not included in the ADA definition of a public
entity.
See 42 U.S.C. 12131(1). Thus, the specific requirements set
forth
in the ADA are not applicable to VA. Although this does not
prevent
VA from adopting, through regulation, a definition of ``service
animal''
consistent with 28 CFR 36.104, it would be inappropriate to do
so for
the purposes of the programs regulated by this rule. The ADA and
its
implementing regulations exclusively address the issue of access to
public
facilities by individuals with disabilities, whereas the purpose
of this
rule is to authorize benefits to a veteran with a service dog.
Access
is not discussed in Sec. 17.148 or
Sec. 17.154. Conversely,
the ADA
and its implementing regulations are neither controlling nor
informative
with regard to the administration of benefits to veterans
with
service dogs. The definition of ``service dogs'' in Sec.
17.148(a)
is reasonable because it is not overly broad for the purpose
of the
rule, and is appropriate to effectuate Congressional intent. Cf.
38
U.S.C. 1714(c) (providing authority for 38 CFR 17.148 and
authorizing
VA to ``provide service dogs trained for the aid of'' those
veterans
with hearing impairments, mobility impairments, etc., but not
addressing
access to VA facilities by persons accompanied by service
dogs).
The concerns from commenters were that Sec.
17.148 ``reinvents
the
wheel'' by establishing a new definition for a term that is already
defined
in Federal regulation, and further that Sec.
17.148 was
unlawful
under such regulation. However, as discussed above, the ADA
definition
of ``service animal'' is not applicable, and also is not
helpful
in determining the circumstances under which VA will provide
the
benefits described in Sec. 17.148.
Commenters asserted that VA should use the
term ``assistance
animal''
instead of ``service dog'' because, they assert, the term
``service
dog'' is understood more narrowly in the service dog industry
to refer
only to those dogs that assist with mobility impairments,
whereas
Sec. 17.148(a) defines ``service dogs''
to mean dogs that aid
with
mobility impairments, visual impairments, and hearing impairments.
By
contrast, commenters stated that ``assistance animal'' is an
industry
term that encompasses dogs that assist with mobility, visual,
and
hearing impairments, and in turn should be used by VA in Sec.
17.148(a).
We make no changes based on these comments.
We disagree that every person in the service
dog industry would
understand
what an ``assistance animal'' is in the way described by the
commenter.
Moreover, our regulations are written for a broader audience
than
those who may own or train service dogs, to include VA employees
who
administer benefits in accordance with our regulations. We believe
that
``assistance animal'' in fact could be interpreted to have
multiple
colloquial meanings, and specifically may be likely to suggest
that VA
will provide benefits for animals other than dogs. We do not
believe,
as suggested by commenters, that our use of the term ``service
dogs''
to encompass guide dogs for visual impairments and service dogs
for
hearing and mobility impairments would confuse veterans seeking
benefits
under the rule. Most importantly, Sec.
17.148(a) clearly
defines
the term and states that the definition therein applies ``[f]or
the
purposes of'' Sec. 17.148. In applying
for this benefit, veterans
would
be expected to understand that the regulatory definition applies,
and not
any other definition that may be set forth elsewhere or
understood
in common parlance.
The
Rule Does Not Deny Access of Any Service Dog to VA Health Care
Facilities
Multiple commenters contended that the
certificate requirement in
Sec. 17.148(c)(1) as proposed would violate their
access rights under
the
regulations implementing the ADA. See 28 CFR 36.302 (stating that
``[a]
public accommodation shall not require documentation, such as
proof
that the animal has been certified, trained, or licensed as a
service
animal''). We reiterate that this rulemaking does not address
the
issue of access to VA health care facilities by individuals
accompanied
by service dogs, and will not be used to determine whether
a
particular service dog will be allowed to enter a VA facility.
Comments
that allege unlawful violations of access rights or raise
other
issues relating to access to VA facilities, therefore, are beyond
the
scope of this rule. Therefore, we make no changes based on these
comments.
A certificate is required under Sec.
17.148(c)(1) only to
enable
the veteran to receive service dog benefits, but is not required
to gain
entry to VA facilities. This rulemaking does not permit or
prohibit
the access of service dogs to VA health care facilities.
Access to VA facilities by service dogs
accompanying individuals
with
disabilities is controlled by 40 U.S.C. 3103, which states:
``Guide
dogs or other service animals accompanying individuals with
disabilities
and especially trained and educated for that purpose shall
be
admitted to any building or other property owned or controlled by
the
Federal Government on the same terms and conditions, and subject to
the
same regulations, as generally govern the admission of the public
to the
property.'' 40 U.S.C. 3103(a). The VA regulation that currently
controls
the access of animals to VA facilities is found at 38 CFR
1.218(a)(11),
and we are in the process of amending Sec.
1.218(a)(11)
to be
fully compliant with 40 U.S.C. 3103(a).
The
Exclusion of Benefits for Mental Health Service Dogs Is Not
Unlawful
Multiple commenters asserted that the
exclusion of benefits to
mental
health service dogs is unlawfully discriminatory because it
creates
a different standard for treatment options between those
veterans
with mental health impairments and those veterans without
mental
health impairments. One commenter specifically alleged that not
providing
benefits for service dogs that mitigate the effects of mental
health
illnesses, while providing benefits for service dogs that
mitigate
the effects of
[[Page
54370]]
other
impairments, may be a violation of Section 504 of the
Rehabilitation
Act (Section 504). Section 504 provides:
No otherwise qualified individual with a
disability in the
United
States, as defined in section 705(20) of this title, shall,
solely
by reason of her or his disability, be excluded from the
participation
in, be denied the benefits of, or be subjected to
discrimination
under any program or activity receiving Federal
financial
assistance or under any program or activity conducted by
any
Executive agency or by the United States Postal Service.
29
U.S.C. 794(a).
We agree that the benefits administered
under this rule are subject
to
Section 504, but disagree that not providing benefits for mental
health
service dogs violates Section 504. VA is not restricting service
dog
benefits based on disability. VA is providing benefits to both
physically
and mentally disabled veterans for the same purpose, which
is to
provide assistance for the use of a particular device (a service
dog) when
a service dog is clinically determined to be the optimal
device
to help a veteran manage a visual impairment, a hearing
impairment,
or a chronic impairment that substantially limits mobility.
All
veterans will receive equal consideration for benefits administered
for
these service dogs, provided all other criteria in Sec. 17.148 are
met,
regardless of accompanying mental health diagnosis. Veterans
diagnosed
with a hearing or visual impairment will certainly not be
deemed
ineligible for service dog benefits because they also have a
mental
health impairment. We also note that mobility impairments under
Sec. 17.148 are not specifically limited to
traumatic brain injuries
or
seizure disorders in Sec. 17.148(b)(3).
Some commenters
misinterpreted
the rule to contain such a limitation and argued that
other
mental impairment may produce mobility impairment. To clarify, if
a
veteran's mental impairment manifests in symptoms that meet the
definition
of ``chronic impairment that substantially limits mobility''
in
Sec. 17.148(b)(3) and a service dog is
clinically determined to be
the
optimal device to manage that mobility impairment, then such a
veteran
will be awarded service dog benefits. The rule does not prevent
such
individualized assessments of veterans with mental health
impairments,
as long as the service dog would be evaluated as a device
to
mitigate the effects of a visual, hearing, or mobility impairment.
If this
requirement is met, VA would not deny service dog benefits
simply
because the service dog may also assist with mental impairment
that
does not cause a limitation identified in Sec.
17.148(b).
The rule prevents the administration of
benefits for a dog to
mitigate
the effects of a mental illness that are not related to
visual,
hearing, or mobility impairments, but this restriction is not
discriminating
based on the fact that a veteran has a mental
disability.
This restriction is based on a lack of evidence to support
a
finding of mental health service dog efficacy. In contrast, VA's
shared
national experience has been to directly observe positive
clinical
outcomes related to the use of service dogs and increased
mobility
and independent completion of activities for veterans with
visual,
hearing, and mobility impairments. Our observations are
bolstered
by the existence of nationally established, widely accepted
training
protocols for such dogs that enable the dogs to perform a
variety
of tasks directly related to mitigating sensory and mobility
impairments
(such as alerting to noise, opening doors, turning on light
switches,
retrieving the telephone, picking up objects, etc.). We are
unaware
of similarly vetted and accepted training protocols for mental
health
service dogs, or how assistance from such dogs could be
consistently
helpful for veterans to mitigate mental health
impairments.
Although we do not disagree with some
commenters' subjective
accounts
that mental health service dogs have improved the quality of
their
lives, VA has not yet been able to determine that these dogs
provide
a medical benefit to veterans with mental illness. Until such a
determination
can be made, VA cannot justify providing benefits for
mental
health service dogs.
Several commenters asserted that limiting
Sec. 17.148 to veterans
diagnosed
as having visual, hearing, or substantial mobility
impairments
violates 38 U.S.C. 1714, which was amended in 2009 to
authorize
VA to provide ``service dogs trained for the aid of persons
with
mental illnesses, including post-traumatic stress disorder, to
veterans
with such illnesses who are enrolled under section 1705 of
this
title.'' 38 U.S.C. 1714(c)(3). Though multiple commenters stressed
that
this rule's exclusion of mental health service dogs violates 38
U.S.C.
1714(c)(3), we reiterate as stated in the proposed rule that
under
the statutory language VA may provide or furnish a guide dog to a
veteran
but we are not required to do so. See 38 U.S.C. 1714 (c)(1)-(3)
(noting
that ``[t]he Secretary may, in accordance with the priority
specified
in section 1705 of this title, provide'' [service dogs]). As
we
explained in the proposed rule, this rulemaking expands part 17 of
38 CFR,
which already addressed guide dogs for the blind, to now
authorize
benefits for hearing disabled and substantially mobility
impaired
veterans, because we have an adequate basis of clinical
experience
and evidence to suggest service dog efficacy for veterans
with
these impairments. Therefore, we make no changes based on the
above
comments.
The
Exclusion of Benefits for Mental Health Service Dogs Is Not
Unreasonable
Commenters contended that VA is acting
against its own practices in
administering
benefits by requiring completion of a congressionally
mandated
service dog study prior to determining whether to administer
mental
health service dog benefits. Commenters asserted that while most
VA
regulations only rely on medical judgment or medical need to justify
the
provision of medical benefits, in this instance VA is without
reason
requiring a higher standard of clinical evidence. As stated by
one
commenter:
VA's position that it can only act here in
accord with a solid
scientific
evidence base is not in accord with its own practice. In
most
instances involving medical benefits, VA regulations rely
simply
on medical judgment, ``medical need,'' or a determination
that
providing the service is ``necessary.''
This is not an accurate statement. Current
VA regulations do not
discuss
whether there is evidence to support the provision of a
particular
therapy or treatment method, but this does not support the
inference
that our regulations discount the need for evidence to
support
the provision of such therapy or treatment. Indeed, if we
ultimately
determine that mental health dogs are appropriate treatment
tools
for mental health impairments, we will amend our regulations to
authorize
benefits for such dogs. VA is currently evaluating the
efficacy
of mental health service dogs, pursuant to the National
Defense
Authorization Act for Fiscal Year 2010, Public Law 111-84,
Sec. 1077(a) (2009) (the NDAA), which states that
``the Secretary of
Veterans
Affairs shall commence a three-year study to assess the
benefits,
feasibility, and advisability of using service dogs for the
treatment
or rehabilitation of veterans with physical or mental
injuries
or disabilities, including post-traumatic stress disorder.''
All
participants in this study are veterans with mental health
disabilities
who are receiving service dog benefits similar to those
described
in this rulemaking, but the service dogs for these veterans
assist
specifically with the effects of mental illness.
[[Page
54371]]
Although
the NDAA provided that effectiveness of dogs for physical
disabilities
could additionally be evaluated in the study, we have
chosen
to limit this study's focus to mental health disabilities.
However,
we do not believe this limitation supports commenters'
assertions
that VA is creating an unreasonable double standard with
regard
to the need for clinical evidence, prior to administering
benefits
for mental health service dogs. The NDAA study is limited to
veterans
with mental health illness because VA has already determined
from a
clinical standpoint that service dogs are effective for
assisting
veterans with physical disabilities and mobility impairments.
Moreover,
we believe that the use of the word ``or'' in the NDAA makes
the
focus of the service dog study discretionary, and further that
Congress
clearly intended that VA must specifically evaluate the
efficacy
of mental health service dogs: ``The Secretary shall ensure
that at
least half of the participants in the study are veterans who
suffer
primarily from a mental health injury or disability.'' Public
Law
111-84, Sec. 1077(c)(4). There is no
similar criterion in the law
to
compel that any portion of the participants must be veterans who
suffer
primarily from a physical injury or disability.
Though many commenters asserted that there
is sufficient clinical
evidence
that VA could presently use to support administering mental
health
service dog benefits, the only evidence submitted in support of
this
assertion were anecdotal accounts of subjective benefits,
including:
Decreased dependence on medications; increased sense of
safety
or decreased sense of hyper-vigilance; increased sense of calm;
and the
use of the dog as a physical buffer to keep others at a
comfortable
distance. Again, we do not discount commenters' personal
experiences,
but we cannot reasonably use these subjective accounts as
a basis
for the administration of VA benefits. This is the precise
reason
VA is currently gathering evidence in the NDAA study--to
determine
how, exactly, service dogs may perform specific tasks or work
that
mitigates the effects of mental health disabilities.
Finally, we respond to multiple commenters'
concerns with the
manner
in which VA is currently conducting the mandatory NDAA study.
Essentially,
these commenters stated that VA's conducting of the study
is
unreasonable because either the methodology is flawed, or VA's
service
dog organization partners in the study are inappropriate.
Particularly,
commenters alleged that VA has partnered exclusively with
Assistance
Dogs International (ADI) and ADI-accredited organizations in
conducting
the study, and further that ADI is not a proponent of
psychiatric
service dogs; such commenters accused VA of making adverse
determinations
regarding the efficacy of mental health service dogs
before
the study is complete. Generally, we find these comments to be
beyond
the scope of this rule, because VA is not basing any decisions
in this
rulemaking on any outcomes of the mandatory study, as the study
has not
yet been completed. However, we will note that VA has not
partnered
exclusively with ADI or ADI-accredited organizations to
conduct
the mandatory study. All relevant Federal requirements
concerning
research studies were followed by VA as relates to this
study;
an abstract of the study to include listed eligibility and
exclusion
parameters is available for public viewing at
http://clinicaltrials.gov/ct2/show/study/NCT01329341.
Therefore, we make no
changes
based on the above comments.
Service
Dogs Must Be Certified by ADI or International Guide Dog
Federation
(IGDF) for Veterans With Visual, Hearing, or Substantial
Mobility
Impairments To Receive Benefits
Multiple commenters argued that VA should
remove the requirement in
Sec. 17.148(c) as proposed that a service dog
complete ADI training
and be
ADI certified before a veteran with a substantial mobility
impairment
can begin receiving benefits under Sec.
17.148(d). These
commenters
put forth many reasons in support of removing this
requirement,
which we will specifically address in the following
discussion.
We make no changes to the rule based on these comments. In
administering
service dog benefits, VA must ensure that tested and
proven
criteria regarding service dog training and behavior are in
place
to ensure the integrity of the service dog benefits administered,
and the
safety of veterans and others who might come in contact with
the
veteran or the dog. There are no Federal standards for service dog
training
that we can apply, and VA does not have the expertise to
design
its own accreditation program or standards. ADI and IGDF are
national,
industry-recognized organizations with established and proven
training
criteria. Commenters offered many anecdotal observations
concerning
the quality and reliability of non-ADI organizations to
train
service dogs, but no commenters offered concrete, supportive
evidence
to persuade us that there are any organizations other than ADI
or IGDF
that have an established history and national credibility such
that
they should be recognized in Sec.
17.148(c).
The reliance on ADI and IGDF accreditation
is no different than our
reliance
on other nationally standardized criteria to ensure safe, high
quality
health care across all settings. For instance, VA relies on the
Centers
for Medicare and Medicaid Services (CMS) Resident Assessment
Instrument/Minimum
Data Set as the comprehensive assessment for all
veterans
in VA Community Living Centers (long term care facilities).
See
Veterans Health Administration (VHA) Directive 2008-007. In
addition,
VA requires States to rely on this tool for veterans in State
homes receiving
per diem payments from VA for the provision of nursing
home
care. See 38 CFR 51.110(b)(1)(i). Similarly, VA relies on and
enforces
by regulation National Fire Protection Association (NFPA)
safety
standards in all VA community residential care facilities,
contract
facilities for outpatient and residential treatment services
for
veterans with alcohol or drug dependence or abuse disabilities, and
State
homes. See 38 CFR 17.63, 17.81(a)(1), 17.82(a)(1), and
59.130(d)(1).
We rely on various private, State, and local
certifications
concerning professional expertise. See, e.g., 38 CFR
3.352(b)
(predicating aid and attendance allowance on need for care
from
health-care professional licensed to practice by a State or
political
subdivision thereof), Sec. 17.81(a)(3)
(conditioning VA
authority
to contract with residential treatment facilities that are
``licensed
under State or local authority''), Sec.
17.900 (recognizing
certification
of health care providers issued by, inter alia, The Joint
Commission
as well as specified government organizations including
CMS).
Thus, VA reliance on the recognized expertise of a public or
private
organization is not uncommon, nor is it illegal or
questionable,
so long as the basis for the reliance is well-reasoned
and
articulated.
Despite the negative comments that asserted
that ADI is an
inefficient
organization or is inadequate in some respects, other
commenters
recognized that there are no other national organizations
that
perform a similar function, and that there are very few
individuals
who can accurately assess the quality of a service dog's
training.
Some commenters praised ADI, stating that ADI certification
is
``the best route to go'' and that the requirement will ensure that
VA is
not paying for dogs of ``questionable value to our vet[eran]s.''
If at
some point in the future we discover an efficient way to assess
the
quality of training provided by non-ADI
[[Page
54372]]
and
non-IGDF dog providers, we will of course amend the rule; however,
at this
time, ADI and IGDF accreditation is the best guarantee we have
that
our veterans will be provided with safe, high quality service
dogs.
We now specifically address comments that
requiring certification
from an
ADI-accredited organization effectively creates a sole source
contract,
in violation of the general requirement for open and fair
competition
in Federal Acquisition Regulations. See 48 CFR 6.101.
Multiple
commenters further alleged that Sec.
17.148(c) as proposed
would
violate a ``performance-based'' assessment requirement under
Federal
Acquisition Regulations for service contracts, because it
emphasizes
the source of service dog training rather than the result of
that
training. See 48 CFR 37.600 et seq. Without discussing under what
circumstances
VA may be permitted to enter into sole source contracts,
we
clarify for commenters that VA is not contracting with ADI or IGDF
generally
or with any ADI-accredited or IGDF-accredited organization to
purchase
service dogs for veterans under this rule. There is no fiscal
conflict
of interest or violation of Federal Acquisition Regulations
because
the rule does not authorize any financial arrangement
whatsoever
with ADI or IGDF.
Multiple commenters stated that the ADI
limitation in Sec.
17.148(c)
is inefficient and ineffective for veterans by asserting
that,
compared to non-ADI organizations: There are not enough ADI-
accredited
organizations around the United States to meet veteran
demand
for service dogs; the cost to purchase ADI-certified service
dogs is
prohibitive; and the wait to receive a service dog from an ADI-
accredited
organization is too long. We make no changes based on these
comments.
We acknowledge that not all States have
registered ADI-accredited
or
IGDF-accredited organizations; however, Sec.
17.148(d)(3) does
provide
for the reimbursement of travel expenses associated with the
training
a veteran must complete as offered by an ADI-accredited or
IGDF-accredited
organization. Therefore, there will be no out of pocket
travel
costs for veterans who must travel out of state to obtain a dog
after a
service dog is prescribed. Thus, we do not believe the absence
of
ADI-accredited or IGDF-accredited organizations in a particular
State
will serve as a barrier to obtaining a service dog.
Regarding the cost to obtain a service dog,
we did not receive any
concrete
evidence from commenters that non-ADI accredited or non-IGDF
accredited
organizations are on average less expensive. Rather,
commenters
offered anecdotal claims that non accredited organizations
are
less expensive in some cases. A few commenters asserted that non-
ADI
accredited and non-IGDF accredited providers have less overhead
costs
because those organizations do not have to spend money to acquire
or
maintain accreditation. The ADI accreditation fee is $1000.00 paid
every 5
years, with annual fees of approximately $50.00. The cost of
IGDF
accreditation is a one-time fee of $795, with an annual fee of
$318
and a per unit fee of $39.45. We do not believe that these costs
would
necessitate an increased cost being passed to veterans
specifically.
ADI accreditation and IGDF accreditation are the only
reasonable
means we have of ensuring that an organization is using
tested,
standardized training and behavior criteria prior to a service
dog
being placed with a veteran. We view the cost of ADI and IGDF
accreditation,
therefore, as necessary and reasonable in order to
ensure
that we administer benefits in a safe and consistent manner. We
clarify
for one commenter that VA only intends to recognize those
service
dog organizations that have full membership in ADI or IGDF, or
that
are fully ADI or IGDF accredited, versus those organizations in
the
process of becoming ADI or IGDF accredited. This is consistent with
our
goal of ensuring VA only administers benefits for use of high
quality
service dogs that were subject to standardized training
protocols.
Regarding the wait time to obtain a dog,
commenters did not provide
evidence
to support that on average ADI-accredited organizations take
longer
than non-ADI accredited organizations to place service dogs with
veterans.
Many commenters instead provided anecdotal accounts of non-
ADI
organizations not utilizing ADI-specific training, and in turn
training
dogs faster than ADI organizations. Non-ADI organizations that
facilitate
``owner training'' were especially noted by commenters as
being
faster and more effective for veterans, whereby the veteran would
directly
train the service dog. Again, we do not believe that we should
administer
benefits under the rule unless we can ensure that the
service
dogs for which we pay benefits are all subject to the same set
of
tested standards, to ensure safety and consistent quality. We do not
believe
this level of safety and quality can be met without
accreditation
based on nationally applicable criteria. This practice
follows
the same process VA uses with every other product, device, or
treatment
modality provided to our veterans.
Some commenters argued that VA could use
other nationally
recognized,
performance based tests instead of requiring ADI
certification
to demonstrate that service dogs are safe and
appropriately
trained to mitigate effects of substantial mobility
impairments.
These commenters stated that submission to VA of a service
dog's
performance on a Public Access Test (PAT) or the American Kennel
Club's
Canine Good Citizen (CGC) test, in combination with statements
indicating
the level of the service dog's training and confirming the
dog's
good health, would provide sufficient objective evidence that
service
dogs are suitable for provision of benefits under the rule.
Nationally
recognized temperament tests such as a PAT or the CGC may
indicate
whether a service dog is stable and unobtrusive to the public
to
justify access (and, again, Sec. 17.148
does not concern access),
but
these tests do not communicate the level of a service dog's
specific
training, or whether the service dog should be prescribed for
a
veteran as an assistive device. An accompanying statement submitted
to VA
that subjectively attests to a service dog's training is
similarly
inadequate, as VA seeks to administer benefits uniformly
under
the rule and therefore must ensure that all service dogs are
subject
to the same performance based standards. We make no changes
based
on these comments.
One commenter expressed support of VA's
decision to specifically
include
seizure disorder as a covered impairment, and requested that VA
more
clearly indicate in the final rule which tasks a service dog may
complete
for such an eligible veteran. We reiterate that we require ADI
and
IGDF certification specifically because VA does not have the
expertise,
experience, or resources to develop independent criteria.
For
this reason, we make no changes to the rule to provide specific
examples
of tasks which any service dog may perform for a veteran. ADI
has
developed training protocols for service dogs to complete work and
tasks
for impairments as described in the rule, to include seizure
disorders.
Finally, multiple commenters contended that
VA could adopt
independent
training programs to internally produce service dogs for
veterans,
versus relying on certificates from external ADI-accredited
service
dog organizations. One commenter stated that VA should initiate
an
independent training program whereby veterans with post traumatic
stress
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disorder
(PTSD) participate in training service dogs for the intended
beneficiaries
of this rule, i.e., veterans with visual, hearing, or
substantial
mobility impairments. This commenter compared such an
internal
training program to a program developed by the Denver VA
Medical
Center and Denver VA Regional Office in 2009, called
``Operation
Freedom,'' in which veterans assisted in advancing dogs
through
CGC test training for 6 weeks as a component of the veterans'
mental
health treatment plans. After completion of this 6 week basic
obedience
training program, the dogs were trained by an external ADI-
accredited
organization in a rigorous 7 month regimen to become service
dogs,
and were placed with other veterans with disabilities. The
initial
pairing of the dogs with veterans during basic obedience
training,
as a treatment modality for mental health illnesses, provided
those
veterans with opportunities in skills development and community
reintegration.
Particularly, the program provided a bridge to community
involvement
through a meaningful volunteer opportunity that served
other
disabled veterans.
Though VA is not opposed to such training
opportunities as a
component
of a treatment plan for a particular veteran, Operation
Freedom
is not an example of an independent and internal training
program
to train or produce service dogs for veterans. As the commenter
correctly
stated, the dogs involved in Operation Freedom were actually
trained
to become service dogs by an external ADI-accredited
organization,
over an extended period of time and subject to ADI
standards
as adopted and applied by that organization. We additionally
clarify
that even the initial basic obedience training that veterans
assisted
in providing to dogs was not provided on VA property, but
rather
on the property of the ADI-accredited organization, because the
goal of
Operation Freedom was to provide community reintegration
opportunities
for participating veterans as part of those veterans'
treatment
plans. The goal of Operation Freedom was ultimately not to
produce
service dogs for veterans, and we therefore do not find this
example
as provided by the commenter to be illustrative as to what VA
should
enact with regards to independent and internal service dog
training
programs. As stated previously, because VA does not have the
expertise,
experience, or resources to develop independent training
criteria
or otherwise train or produce service dogs for veterans, we
require
that service dogs be trained and placed with veterans by ADI-
accredited
and IGDF-accredited organizations. However, this in no way
limits
any veteran's personal choice to undertake any training
experiences
with any service dog organization, nor does it prevent VA
from
conducting programs similar to Operation Freedom. The commenter
also
noted potential cost savings for VA to conduct internal service
dog
training programs that employ PTSD veterans, but as explained
earlier
VA is not purchasing service dogs from ADI-accredited or IGDF-
accredited
organizations, and such cost comparisons are therefore not
relevant.
We make no changes based on the above comments.
One additional commenter suggested that
instead of requiring ADI
certification,
that VA should hire professional service dog trainers to
join
rehabilitation therapy departments (e.g., to join Occupational and
Physical
Therapy departments) as VA staff, and that this would enable
VA to
professionally train service dogs at a higher output and with
less
cost than paying for ADI-certified service dogs. We make no
changes
based on this comment, as such cost considerations are not
relevant
because VA is not purchasing service dogs. VA does not have
the
expertise, experience, or resources to develop independent training
criteria,
and VA will not adopt or initiate internal training programs,
as this
would effectively make VA act as a professional service dog
certifying
body. VA's lack of expertise in this area is exactly why we
have
mandated ADI or IGDF certification.
To
Qualify 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
and
live independently, and service dog benefits will not be provided
if
other assistive means or devices would provide the same level of
independence
as a service dog. Several commenters asserted that the use
of one
assistive device does not necessarily obviate the need for other
assistive
devices, and therefore that Sec.
17.148(c) as proposed
should
not be used to exclude the prescription of a service dog if
other
devices may assist the veteran. We agree in part with the
comments,
but make no change to the regulation because the regulation
does
not prevent veterans from using multiple assistive devices.
For purposes of Sec. 17.148(b)(2), an eligible veteran may be
prescribed
both a service dog and another assistive device, as long as
each
provides a distinct type of assistance, or if, without each of the
devices,
the veteran would be unable to complete tasks independently.
For
instance, for a veteran with a mobility impairment that is
characterized
by loss of balance and subsequent falls, both a balance
cane
and a service dog might assist a veteran with balance and walking;
the
cane might be optimal for assistance with walking, but the service
dog may
be the optimal means for that veteran to regain a standing
position
and stabilize after a fall. In such a case, the service dog
may be
prescribed to the veteran, as well as the balance cane.
Similarly,
a veteran with multiple impairments may be prescribed
assistive
devices to assist with one impairment and a service dog to
assist
with another. The ``optimal'' limitation in Sec. 17.148(b)(2)
will
not limit the prescription of a service dog when necessary for the
veteran
to manage the impairment and live independently, but it will
prevent
the provision by VA of multiple assistive devices that serve
the
same purpose. By avoiding duplication of benefits in this manner,
we
maximize the amount of resources available to veterans and ensure
that
benefits are provided in a responsible manner.
Commenters stated that the ``optimal''
criterion in Sec.
17.148(b)(2)
as proposed would be used to ensure that service dogs are
prescribed
as assistive devices only as a ``last resort.'' A service
dog is
not a ``last resort'' in the sense inferred by the commenters.
VA will
not use the ``optimal'' requirement in such a way as to deprive
any
veteran of an assistive device that would best mitigate the effects
of a
veteran's impairment and provide the veteran the highest level of
independence.
The rule is designed, however, to promote the use of
service
dogs only when it is clinically determined that other devices
will
not adequately enable the veteran to live independently. This
rationale
of promoting service dogs secondary to other assistive
devices
is not without reason. A service dog is a long term commitment
that
requires tremendous dedication and effort on the part of the
veteran,
as well as significant costs--only part of which would be paid
for by
VA under Sec. 17.148. A service dog must
be fed, exercised,
groomed,
nursed when ill, and integrated into the veteran's family as a
necessary
partner in the veteran's daily life. If the extent of the
veteran's
mobility impairment is such that the only tasks requiring
assistance
are picking up or reaching items, then a device that is not
a
service dog that fully accomplishes these tasks is not only
sufficient,
but also is not unduly burdensome for the veteran. We
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make no
changes based on these comments.
Commenters argued that the rule should
contain additional criteria
that
would objectively measure a veteran's level of independence
between
different devices, instead of the single ``optimal'' criterion.
We
believe, however, that because these are clinical determinations
based
on ``medical judgment'' under Sec.
17.148(b)(2), additional
criteria
are unnecessary and unhelpful. Therefore, we make no changes
based
on these comments. It is clear in Sec.
17.148(b)(2) that
devices,
including a service dog, will be clinically evaluated to
determine
which are necessary and most beneficial for the veteran to
manage
an impairment and live independently. We stressed the importance
of this
clinical determination in the proposed rule:
VA does not intend to allow cost or any
other factors to
discourage
the use of new technologies and equipment to maximize the
independence
of veterans. We believe that providing VA with
discretion
to choose between a service dog or assistive technology
based
on medical judgment rather than cost-effectiveness would
ensure
that VA's patients receive the highest quality of care that
the
VA-system can provide.
76 FR
35163.
One commenter additionally noted that the
above rationale from the
proposed
rule presumed that higher cost technologies offer a higher
standard
of care. We clarify that the intent of this rationale was to
support
VA's use of clinical judgment to determine what device allows
the
veteran to function most independently, and not have such a
determination
influenced by factors such as cost.
Some commenters asserted that while another
device may provide the
exact
same functions in mitigating the effects of mobility impairments
as a
service dog, service dogs nonetheless should be considered optimal
and be
prescribed because they uniquely provide certain ancillary
benefits,
including: Subjective feelings of increased personal comfort
and
understanding; an increased sense of purpose for the veteran in
having
to care for a living thing; an increased sense of self-esteem
and
overall psychological well-being; and improved social and community
reintegration
skills. We do not dispute these subjective accounts from
commenters;
however, we believe Congress authorized VA to provide
service
dogs to veterans with disabilities as a means of mitigating the
effects
of a disability--and not for the purpose of companionship or
emotional
support. Therefore, we make no changes based on these
comments.
The authorizing statute links the provision of service dogs
to
their having been trained ``for the aid of'' veterans with hearing
impairments,
mobility impairments, etc.; the statute does not suggest
that
ancillary benefits are to be considered. 38 U.S.C. 1714(c).
Therefore,
Sec. 17.148 does not authorize benefits
based on ancillary
benefits
that service dogs may provide but that are not specific to
mitigating
the effects of a veteran's disability, and which are not the
product
of specific training. Though dogs may generally tend to
engender
in their owners subjective feelings of improved well being,
this is
not the intended effect of service dog assistance under 38
U.S.C.
1714(c) or Sec. 17.148.
As proposed, the determination that the
service dog is ``optimal''
for the
veteran under Sec. 17.148(b)(2) was to
be made by a VA
clinician
using medical judgment. Multiple commenters objected to this
standard,
for various reasons. Chiefly, commenters claimed that a VA
clinician
would not have the requisite expertise related to service
dogs to
properly compare their unique characteristics and benefits to
other
assistive devices. Instead, these commenters asserted that the
decision-making
process should involve either a local evaluation board
or
interdisciplinary team, in which prosthetic staff and other
rehabilitative
therapy staff is represented. We agree, and have amended
the
first sentence of Sec. 17.148(b)(2) from
the proposed rule to
require
``[t]he VA clinical team that is treating the veteran for such
impairment''
to assess whether it is appropriate to prescribe a service
dog for
that veteran. The ``VA clinical team'' will include, by virtue
of
being the clinical staff that is treating the veteran for the
qualifying
visual, hearing, or mobility impairment, the veteran's
primary
healthcare provider, and any other relevant specialty care
providers
and professional staff, to include prosthetic and
rehabilitative
therapy staff. Thus, the first sentence of Sec.
17.148(b)(2)
now reads: ``The VA clinical team that is treating the
veteran
for such impairment determines based upon medical judgment that
it is
optimal for the veteran to manage the impairment and live
independently
through the assistance of a trained service dog.''
We also recognize that ensuring that VA
clinical staff is
knowledgeable
regarding service dog utilization is critical to the
successful
partnering of veterans with service dogs. VA is developing
and
will disseminate educational tools and training opportunities that
will assist
VA clinical staff to obtain this knowledge. In preparation
for the
effective date of this rulemaking, we have drafted clinical
practice
recommendations and have produced a video presentation for
dissemination
to every VA health facility in the country. Both the
clinical
recommendations and the video communicate to clinical staff
the
traits, capabilities, tasks, and utility of service dogs for
mobility,
hearing, and vision impairments. These and other training
materials
will include professional education credits, so clinical
staff
will have incentive to participate, and some training
opportunities
will be required training for a veteran's clinical team
when it
is necessary to determine if an assistive device is needed. The
training
provided at local facilities will ensure the veteran's
treatment
team will be qualified to evaluate between various assistive
means,
to include understanding the abilities of service dogs, and then
be able
to prescribe the most appropriate assistive device.
Multiple commenters criticized the rule for
disregarding the
expertise
of service dog organizations. It is true that for a veteran
to
receive benefits under the rule, a service dog must be prescribed by
the
veteran's clinical team, and that decision is made without
consulting
the service dog organization from which a veteran ultimately
obtains
a service dog. However, the prescription of a service dog is a
treatment
decision made by the VA clinical team that is treating the
veteran
for the qualifying impairment, and we believe that consultation
with a
private organization that has no clinical expertise as to the
medical
treatment for a specific veteran is inappropriate. Therefore,
we make
no changes based on these comments. At the same time, service
dog
organizational expertise and experience are essential to the
process
whereby a service dog is placed with a veteran. After a
clinical
decision is made to prescribe a service dog, a service dog
organization
will use its professional judgment to make independent
decisions
concerning whether a service dog will actually be placed with
the
veteran. The ADI-accredited or IGDF-accredited organization
conducts
its own assessments based on national criteria and its
specialized
experience in the field, and the veteran must complete the
service
dog organization's evaluation and training before that
organization
will match the veteran with a service dog and place that
dog in
the veteran's home.
VA's role in the service dog organization's
assessment and
evaluation
is purely supportive. For instance, VA will assist the
veteran
with obtaining medical and psychological
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54375]]
reports
and other documentation that the service dog organization may
request
from VA (if approved for release by the veteran). VA will
additionally
provide assistance to veterans in locating a service dog
organization,
if requested. In response to one commenter, however, VA
will
not formally refer veterans to specific ADI-accredited or IGDF-
accredited
organizations, or initiate a process whereby a veteran may
consent
to have VA act as an intermediary between the veteran and the
service
dog organization. We believe such a referral system would blur
the
distinct line that should exist between VA's responsibility to
determine
whether a service dog may be clinically necessary for a
veteran,
and the service dog actually being placed with the veteran.
The
clinical practice recommendations and other guidance VA has
developed
will alert VA staff to commonly available resources that
would
aid the veteran in locating service dog organizations, and this
information
could be provided to the veteran (e.g., the Web site to
find
the nearest ADI-accredited or IGDF-accredited organization). VA
will
additionally assist the veteran in obtaining medical information
the
service dog organization may require.
In response to the same commenter, VA will
not develop a standard
form to
be certified or otherwise completed by the service dog
organization,
for the veteran to submit to VA under Sec.
17.148(c)(1)-
(2) to
receive benefits. Instead, VA will accept a certificate as
required
under Sec. 17.148(c)(1)-(2) in all forms
as issued to the
veteran
from the individual service dog organizations. Such
certificates
must indicate that an adequate training program has been
completed
to warrant receipt of benefits under the rule. VA's lack of
expertise
in certifying whether appropriate training has been completed
is the
precise reason VA has required ADI or IGDF certification for all
service
dogs acquired on or after the effective date of the final rule.
Some commenters stated that only the
service dog organizations
themselves
should be the designated decision makers under Sec. 17.148,
arguing
that only these organizations could properly compare service
dogs to
other assistive devices and determine what is the most
``optimal''
means to assist a veteran. We do not believe a service dog
organization
would be so qualified, as they do not have the expertise
of
licensed VA clinicians to clinically assess or treat a specific
veteran,
nor do they have the clinical responsibility of VA clinicians
to
evaluate assistive device options other than service dogs.
Additionally,
as the benefits under the rule are to be administered
incident
to a veteran's medical treatment, only the veteran's clinical
team
may be designated decision makers regarding the initial clinical
assessment.
Therefore, we make no changes based on these comments.
Commenters asserted that having VA
clinicians make the
determination
whether a service dog is optimal discounts the veteran's
input
into their own treatment options, and instead advocated that the
decision
should be solely between the veteran and the service dog
organization.
In keeping with VA's policy of providing patient centered
care,
VA clinicians do not discount the input of veterans regarding
treatment
options. As with any other medical care VA provides, the
prescription
of a service dog for a veteran would be the recommended
course
of treatment only after the veteran's clinical team considers
all
relevant factors, to include veteran preference in treatment
options.
A veteran's preference for a service dog, therefore, would
certainly
be a factor in a determination to prescribe a service dog. We
make no
changes based on these comments.
VA Is
Not Purchasing or Otherwise Obtaining Service Dogs for Veterans
Under
the Rule
Several commenters objected to a basic
premise in this rule, which
is that
VA will assist veterans in determining whether a service dog is
an
appropriate treatment option and will maintain service dogs through
the
provision of veterinary and other benefits, but VA will not
actually
purchase or obtain service dogs for veterans. We make no
changes
based on these comments. As explained in the proposed
rulemaking,
we reiterate that we interpret the ``may * * * provide''
language
in 38 U.S.C. 1714(c) to mean that VA need not actually
purchase
or acquire dogs for eligible veterans. 76 FR 35162. This is
consistent
with VA policy, extant prior to the promulgation of this
rule,
concerning guide dogs for the visually impaired; VA does not
purchase
or obtain such dogs on behalf of veterans under the similar
authority
(``may provide'') in 38 U.S.C. 1714(b). As stated previously,
we
simply lack the facilities and expertise to purchase or obtain, or
to
train service dogs for placement with veterans, and we will continue
to rely
on independent organizations that have been recognized as
having
such expertise. VA has opted instead to offer other benefits to
facilitate
the provision of service dogs to veterans.
One commenter asserted that VA purchases other
``devices'' for
veterans,
and further that VA categorizes service dogs as ``devices,''
and
therefore that this rulemaking must address how VA plans to
purchase
service dogs for veterans from service dog organizations. We
make no
changes based on this comment. The commenter did not specify
what
type of ``devices'' VA purchases for veterans as a comparison to
service
dogs, but we assume the intended reference was to prosthetic
devices
or appliances that may be provided to certain veterans under 38
CFR
17.38 and 17.150. Although we have stated in this rulemaking that
we view
a service dog as a surrogate for another assistive device, we
clarify
that with regards to VA procurement policy, we do not treat
service
dogs in the same manner as prosthetic devices that are
purchased
for veterans. Unlike prosthetic devices that are provided by
VA to
veterans at VA expense, the actual placement of a service dog
with a
veteran is not VA's decision, and ultimately is not a clinical
decision--the
actual placement is the decision of a service dog
organization,
subject to that organization's own non-clinical
assessment
and training standards. VA is unable to provide training and
fitting
of a service dog for a veteran, as we provide for prosthetic
devices
that are purchased for veterans, again because VA at this time
lacks
this expertise.
Notwithstanding VA's lack of expertise in
purchasing or obtaining
service
dogs to provide directly to veterans, several commenters
asserted
that VA should cover a veteran's out of pocket costs to
independently
purchase a service dog. We reiterate that the rule is
designed
to support service dogs only when it is clinically determined
that
other assistive devices will not adequately enable the veteran to
live
independently, because a service dog is a long term commitment
that
requires tremendous dedication and effort on the part of the
veteran,
as well as potentially significant continuing costs for
veterans
that will not be paid by VA (e.g., non-prescription food,
over-the-counter
medications). VA will therefore not directly purchase
service
dogs for veterans. VA will not potentially incentivize the
independent
purchase of service dogs by veterans by creating an
expectation
that the purchase costs will be covered.
Another commenter asserted that VA should
establish a ``fee for
service''
program to purchase service dogs for veterans, because such
remuneration
would increase availability of service
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54376]]
dogs as
well as decrease potential wait times for veterans to obtain
service
dogs. We do not agree that the availability of service dogs
specifically
for veterans is impeded by veterans' inability to cover
purchasing
costs, because we understand that a majority of service dogs
are
acquired by veterans with little or no out of pocket cost.
Therefore,
we make no changes based on this comment. Additionally, we
do not
believe that a veteran's inability to purchase a service dog
would
contribute to any potential wait time for that veteran to obtain
a
service dog. Rather, we believe that the only factors that would
contribute
to potential wait times for veterans to obtain service dogs
would
be the supply of trained and available service dogs, which is
unaffected
by whether such dogs can be purchased or by whom.
VA Will
Not Pay for Certain Expenses Under Sec.
17.148(d)(4)
Commenters asserted that VA should pay for
certain expenses
associated
with a service dog that would be excluded under Sec.
17.148(d)(4)
as proposed. Specifically, commenters argued that VA
should
pay for grooming, nail trimming, non-sedated teeth cleaning,
nonprescription
medications, and nonprescription food and dietary
supplements,
because commenters asserted that these services are
directly
related to the dog's ability to provide assistive services,
and
therefore should be considered covered by VA. See 76 FR 35164
(explaining
that the restrictions expressed in Sec.
17.148(d)(4) are
present
to ``ensure that the financial assistance provided by VA would
not be
used to provide services that are not directly related to the
dogs'
ability to provide assistive service.''). Commenters stated that
these
excluded services are directly related to the dog's ability to
provide
assistive services because they are either necessary to ensure
a
service dog's longevity and reliable working service to the veteran,
or are
necessary to maintain the higher standards of cleanliness
service
dogs must maintain. We make no changes to the rule based on
these
comments, but reiterate our general policy as stated in the
proposed
rule that we regard the service dog as a surrogate for another
assistive
device, and require that the veteran therefore utilize the
service
dog responsibly and provide general care and maintenance. As
with
prosthetic devices prescribed by VA, the veteran is expected to
maintain
equipment by ensuring it is cared for, cleaned, serviced, and
protected
from damage. In the case of prosthetic devices, VA repairs
broken
equipment, and provides annual servicing and replacement parts
such as
hearing aid batteries or oxygen tank refills, when needed. In
the
case of a service dog, VA believes this equates to repairing and or
replacing
harnesses or other hardware, providing annual and emergent
veterinary
care, providing prescription medications, or paying for
other
services when prescribed by a veterinarian. In the same way VA
would
expect a veteran to protect and utilize his or her wheelchair in
order
to keep it in good working condition, or keep his or her
prosthetic
limb clean and functioning, VA expects that a veteran will
generally
maintain the service dog with daily feeding, regular
grooming,
and by covering any other expenses which are not clinically
prescribed
by a veterinarian.
Grooming and other excluded services in
Sec. 17.148(d)(4) are
important
for the general health of a service dog as an animal, and may
affect
a service dog's ability to provide services. However, services
excluded
in Sec. 17.148(d)(4) are not uniquely
required by a service
dog to
perform the work and specific tasks for which they were trained.
Services
excluded in Sec. 17.148(d)(4) are
general care and
maintenance
services that all dogs require for general good health and
well
being, and we therefore do not believe they are directly related
to the
specific assistance provided by a service dog. For instance,
service
dogs surely must have their nails maintained at an appropriate
length
to prevent certain maladies and discomfort associated with
overgrowth
or damage. However, the exact same need exists for
nonservice
dogs as well, such that all dogs' general ability to walk
and
maneuver is affected by maintenance of their nails. Unlike a
specialized
harness provided by VA, nail grooming is not uniquely
required
by a service dog to perform the work and specific tasks for
which
they were trained, and hence is not covered under the rule. We
apply
this same rationale for other items, such that VA will not pay
for
standard, nonspecialized leashes and collars, or nonprescription
food or
medications, or any other basic requirements mandated by State
governments
for dog ownership generally, such as dog licenses. Again,
such
standard needs are not unique to service dogs--it is for the
overall
health and well being of all dogs as domestic animals that they
be
adequately controlled by their owners, are routinely fed and kept
free of
pests such as fleas and ticks, etc.
Commenters stated that service dogs are
subject to heightened
standards
of cleanliness by virtue of being permitted access to public
areas,
which in turn creates a greater need for grooming services.
Commenters
asserted further that individuals with substantial mobility
impairments
may not be able to complete necessary grooming to ensure
service
dogs may gain access to public areas, and specifically stated
the
inability of these individuals to complete grooming tasks would be
exacerbated
by the fact that most ADI-certified dogs are large dog
breeds
with long hair. However, we are not aware of any rules regarding
service
dog access to public places that hold service dogs to
heightened
standards of cleanliness that would not otherwise be
appropriate
for a dog living in a home and assisting a disabled
veteran,
nor did the commenters offer any specific examples of such
heightened
standards. Nonetheless, we do not believe that an ADI-
accredited
or IGDF-accredited service dog organization would place a
service
dog with an individual who could not demonstrate an ability to
provide
for the basic maintenance and care of the service dog, to
include
required grooming sufficient to allow the dog access to a
public
area. We make no changes based on these comments.
A few commenters noted specifically that
many of the services
excluded
in Sec. 17.148(d)(4) as proposed are
discounted for members
of the
International Association of Assistance Dog Partners (IAADP),
and
that VA should in turn pay for IAADP memberships for veterans with
approved
service dogs. We make no changes to the rule based on these
comments.
The sole cost savings associated with IAADP membership as
described
by commenters was related to prescription medications, which
are
covered under Sec. 17.148(d)(1)(ii).
Additionally, because the
veteran
must be generally responsible for expenses related to the
nonmedical
daily care and maintenance of a service dog, the veteran
would
also be responsible for membership in any organization that may
assist
in covering such expenses. One commenter additionally advocated
for VA
to initiate a service dog support group, and likened the
benefits
of such a support group to the benefits individuals may
receive
as IAADP members. For instance, the commenter suggested that
such a
VA support group should have a membership requirement, and would
be a
more cost effective way to use VA funds for service dogs as well
as
promoting socialization and education. Although we do not disagree
with
the commenter on the potential value of such a support group, we
make no
changes to this rule based on the same rationale related to
IAADP
membership as expressed above.
[[Page
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Benefits
Will Not Be Provided for More Than One Service Dog at a Time
Commenters asserted that a requirement in
Sec. 17.148(d) as
proposed,
that benefits would only be provided for ``one service dog at
any
given time'' is too restrictive. Commenters stated that many
service
dogs continue to live with veteran owners after being replaced
by a
new service dog, and opined that the veteran should continue to
receive
benefits to relieve the financial burden of continuing to care
for the
retired service animal. We make no changes based on these
comments.
A retired service dog would no longer be providing specific
assistance
to the veteran to mitigate the effects of a disability, and
VA
would therefore lack authority to continue to provide benefits to
the
veteran based on his or her medical need for the service dog. To
the
extent that keeping a retired service dog could be a financial
strain
on a veteran, all ADI-accredited and IGDF-accredited
organizations
offer the option for owners to place retired service dogs
in the
homes of volunteers.
Commenters also stated that the restriction
of benefits to only one
service
dog at a time does not properly consider the extended training
periods
often required to obtain replacement service dogs, and will
create
an undue lapse in service dog benefits for those veterans whose
current
service dogs will soon be retired. Essentially, commenters
asserted
that the restriction creates a costly choice for a veteran to
either
apply benefits under the rule towards obtaining a replacement
service
dog, or continue to have benefits apply to a current service
dog
until it is officially retired. We agree that it is important that
veterans
do not experience a lapse in service dog benefits when
obtaining
a replacement service dog, and did not intend for the
limitation
in paragraph (d) to cause such a lapse. Therefore, we have
added
to paragraph (d)(3) the following note: ``VA will provide payment
for
travel expenses related to obtaining a replacement service dog,
even if
the veteran is receiving other benefits under this section for
the
service dog that the veteran needs to replace.'' To emphasize this
clarification,
we have added to the introductory text of paragraph (d)
a
sentence 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
exception
will only apply to travel benefits under paragraph (d)(3),
because
the organization that is training the replacement service dog
would
be responsible for other benefits under Sec.
17.148(d) as needed
by the
replacement dog, until the veteran actually acquires the
replacement
dog from the organization. At the time the veteran acquires
the
replacement service dog, the veteran would in effect be retiring
the
former service dog, and would apply all service dog benefits under
this
section to the replacement dog.
Service
Dogs Obtained Before the Effective Date of the Final Rule
Multiple commenters interpreted Sec. 17.148(c)(2) as proposed to
compel
veterans who obtained non-ADI or non-IGDF certified service dogs
before
the effective date of the final rule to undergo the
certification
process with an ADI-accredited or IGDF-accredited
organization
prior to being eligible for benefits. This is not the
intent
or function of Sec. 17.148(c)(2), in all
cases. The rule
clearly
states that for veterans to receive benefits for service dogs
obtained
before the effective date of the rule, veterans may submit
proof
from a non-ADI or non-IGDF organization that the service dog
completed
a training program offered by that organization. See Sec.
17.148(c)(2)
(explaining that it is only when a veteran may not be able
to
attain such proof from a non-ADI or non-IGDF organization that
``[a]lternatively,
the veteran and dog [could obtain the certification
from
ADI or IGDF]''). We make no changes based on these comments.
Commenters asserted that for previously
obtained dogs, the final
rule
must establish criteria in Sec.
17.148(c)(2) to allow VA to
determine
whether the training courses certified by non-ADI or non-IGDF
organizations
were adequate to produce a well trained dog capable of
assisting
the veteran. We make no changes based on these comments. As
stated
in the proposed rule, we do not have the expertise, experience,
or
resources to develop independent criteria to assess the efficacy of
service
dog training programs. Additionally, we do not want those
veterans
with existing service dogs to be subjected to new requirements
which
could prevent their receipt of benefits. Therefore, we accept a
certificate
from a non-ADI or non-IGDF organization that existed before
the
effective date of the final rule as proof that the veteran's
service
dog has successfully completed an adequate training program,
and
that a veteran who otherwise meets the criteria in the rule may
receive
applicable benefits. Essentially, we are ``grandfathering in''
service
dogs acquired before the effective date of the final rule by
not
requiring such dogs to have ADI or IGDF certification.
We further clarify for one commenter that
the 1 year limitation in
Sec. 17.148(c)(2) to obtain a certificate that the
veteran's service
dog has
successfully completed an adequate training program only
applies
if 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 or
non-IGDF organization, undergo new training with an ADI-
accredited
or IGDF-accredited organization. See Sec.
17.148(c)(2)
(explaining
that the 1 year limitation applies when a certificate is
obtained
from a non-ADI organization, or ``[a]lternatively, the veteran
and dog
[could obtain the certification from ADI or IGDF]''). We make
no
changes to the rule text based on this comment because the language
is
clear. In response to commenters' concerns that ADI-accredited
organizations
will not certify service dogs that were not also
initially
trained there, VA will ensure through continued workings with
ADI-accredited
and IGDF-accredited organizations that there exists a
mechanism
to provide for such certification.
Lastly, one commenter advocated
specifically that veterans who
currently
receive VA benefits for guide dogs should not be required to
undergo
the clinical determination process in Sec.
17.148(b)(2) to now
receive
benefits under Sec. 17.148(d). We make
no changes based on
this
comment, as all veterans who would seek to receive benefits under
Sec. 17.148(d) must be subject to the same requirements,
to ensure
equitable
administration of benefits. However, we note that for any
veteran
who is currently receiving guide dog benefits from VA, that
veteran
has already undergone the same type of clinical evaluation to
determine
efficacy of the dog, and would have a history of medical
documentation
supporting the use of the dog as indeed the most optimal
device
to manage the veteran's impairment. Effectively then, the
veterans
already receiving guide dog benefits from VA would not be
subject
to a new clinical evaluation process under Sec.
17.148(b)(2),
as this
would be duplicative and unnecessary.
Procedures
Related to Insurance Coverage and Payments
Section 17.148(d)(1) as proposed would
provide an insurance policy
to
veterans with prescribed service dogs that guarantees coverage of
all
veterinary treatment considered medically necessary. Commenters
urged
that Sec. 17.148(d)(1) as proposed
should
[[Page
54378]]
be
revised for multiple reasons, with a majority of commenters stating
that
certain processes involved in payment for veterinary care should
be
clarified. Under Sec. 17.148(d)(1)(i),
VA ``will be billed for any
premiums,
copayments, or deductibles associated with the policy''
negotiated
and offered by VA to veterans with prescribed service dogs.
VA will
only pay premiums and other costs as specified in Sec.
17.148(d)(1)(i)
for the commercially available policy that VA provides
to the
veteran, and not for any other policy that a veteran may obtain
independently.
The insurance company that holds the VA-provided policy
will
attain appropriate contractor status under Federal acquisition
standards
by registering with the Central Contractor Registration (CCR)
to bill
VA for costs specified in Sec. 17.148(d)(1)(i),
and will be
subject
to the same quality standards as other VA contractors.
Multiple commenters stated that the type of
insurance coverage that
VA
would provide in Sec. 17.148(d)(1) as
proposed was inadequate, as
all
commercially available insurance policies for service dogs rely on
a
reimbursement model whereby veterans would pay the out of pocket cost
for
veterinary treatment, prior to filing a claim with and being
reimbursed
by the insurance company. Commenters stated that VA should,
instead,
establish a system where VA pays for treatment costs, such as
providing
veterans with prescribed service dogs some type of debit card
to be
used for veterinary care. The rule clearly states that VA, ``and
not the
veteran,'' will be billed directly for all costs for which VA
is
responsible under Sec. 17.148(d)(1)(i).
The rule also states that
the
policy will guarantee coverage for the types of treatment
determined
by a veterinarian to be medically necessary in Sec.
17.148(d)(1)(ii),
but, as proposed, paragraph (d)(1)(ii) did not bar
billing
a veteran for treatment costs. Our intent has always been to
negotiate
and procure a contract, to the extent that is commercially
feasible,
for an insurance policy that will not require the veteran to
pay any
out of pocket costs for covered veterinary care and treatment
costs.
VA has researched the commercial market and anticipates that VA
will be
able to contract for this requirement on VA's terms. In
response
to these comments and to further ensure that the regulation
effectuates
our intent, we have revised the language of Sec.
17.148(d)(1)(ii)
from the proposed rule so that it bars the billing of
veterans
for covered costs.
Based on the foregoing, we do not believe
that there is a need to
clarify
any of the payment processes that are authorized by the
regulation
or to provide in regulation any specific procedures that
will be
established in accordance with the insurance policy for service
dogs,
so long as the basic requirements in Sec.
17.148(d)(1) are met
concerning
not billing veterans. For instance, this rule will not
specify
that the insurance provider must be registered in the CCR,
because
it is a requirement under separate Federal Acquisition
Regulations
that all Federal contractors must be registered in CCR. See
48 CFR
4.1102.
Commenters also criticized that typical
insurance policies that
would
be commercially available would not provide the scope of coverage
required
to adequately care for a service dog, as the medical needs of
a
service dog are higher due to the level of physical work a service
dog
completes on a regular basis. We clarify that the rule intends that
VA will
select a policy with broad coverage, to ensure that all
services
which are likely to be considered medically necessary by a
veterinarian
who meets the requirements of the insurer are in fact
covered.
VA will consult with ADI, IGDF, and the American Veterinary
Medical
Association to ensure that the most comprehensive policy,
specific
to the needs of service dogs, is chosen. Additionally, in
response
to commenter concerns that such a policy is not likely to be
accepted
widely across the nation, VA will consider geographic
availability
when choosing the policy.
Procedures
Related to the Reimbursement of Veteran Travel Expenses
Commenters argued that Sec. 17.148(d)(3) as proposed was vague
regarding
reimbursement and eligibility for travel expenses, and should
more
specifically indicate the type of travel expenses covered, to
include
lodging and expenses related to training and retraining/
recertification
of service dogs. We make no changes to the rule based
on
these comments. The rule is clear in Sec.
17.148(d)(3) that any
veteran
who is prescribed a service dog under Sec.
17.148(b) will be
eligible
to receive payments for travel expenses. We reiterate from the
proposed
rule that Sec. 17.148(d)(3) is intended
to implement 38
U.S.C.
1714(d), ``which allows VA to pay travel expenses `under the
terms
and conditions set forth in [38 U.S.C. 111]' for a veteran who is
provided
a service dog.'' See 76 FR 35164. We believe that the language
of
section 1714(d) can be read to interpret obtaining a dog as
``examination,
treatment, or care'' under section 111, but we would not
make
payment of section 1714(d) benefits contingent upon the separate
eligibility
criteria in section 111. This interpretation facilitates
administration
of section 1714(d) benefits by allowing VA to avoid
additional
expenses associated with establishing a new means of
administering
travel benefits outside of section 111 mechanisms.
We clarify that all travel costs associated
with obtaining the
service
dog, to include all necessary initial and follow up training,
are
covered. Additionally, all types of travel costs which are
considered
reimbursable in 38 U.S.C. 111 and 38 CFR part 70 are
considered
reimbursable in this rule, to include approved lodging.
Commenters also indicated that VA should
not require a prescription
for a
service dog before authorizing travel reimbursement related to
procurement.
We disagree and make no changes based on these comments.
We will
pay travel benefits only if it is determined by the veteran's
clinical
team that a service dog is appropriate under Sec. 17.148;
otherwise,
we would be paying costs related to procuring an assistive
device
that may not ultimately be approved for the veteran.
Only VA
Staff May Provide, Repair, or Replace Hardware Under Sec.
17.148(d)(2)
Commenters asserted that the benefit to
provide service dog
hardware
under Sec. 17.148(d)(2) as proposed
would be too restrictive.
Commenters
stated that veterans should be reimbursed for payments made
to
non-VA third party vendors to provide, repair, and replace such
hardware,
instead of the current requirement that the hardware be
obtained
from a Prosthetic and Sensory Aids Service at the veteran's
local
VA medical facility. We make no changes to the rule based on
these
comments. We believe that hardware should only be provided,
repaired,
and replaced through VA, to ensure that our clinical and
safety
standards are met. Merely reimbursing third-party providers does
not
permit VA to oversee hardware provision to ensure that it is
``clinically
determined to be required by the dog to perform the tasks
necessary
to assist the veteran with his or her impairment,'' as
required
in Sec. 17.148(d)(2). A clinical
determination that covered
hardware
must be task-specific for the type of assistance a service dog
provides
is essential, or VA would be employing its professional
clinical
staff to provide and repair common items related to dog
ownership
generally, 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
[[Page
54379]]
or
replace certain special hardware that a trained service dog requires
to
provide specific assistance. We believe that allowing third party
vendors
would also increase administrative burden for veterans, as this
would
require the vendor to undergo a separate, extensive, and highly
regulated
Federal process to identify, select, and utilize third party
vendors,
which would cause an undue delay for veterans in obtaining
necessary
hardware.
A Dog
Must Maintain Its Ability To Function as a Service Dog
Section 17.148(e) provides that for
veterans to continue to receive
benefits
under the rule, the service dog must continue to function as a
service
dog, and that VA may terminate benefits if it learns from any
source
that the dog is medically unable to maintain that role, or a
clinical
determination is made that the veteran no longer requires the
service
dog. A few commenters objected to the ``any source'' criterion
in
Sec. 17.148(e), stating that VA should restrict
sources of
information
to a veteran's medical provider with regards to a veteran's
continued
clinical need for the service dog, and to the service dog's
veterinarian
with regards to the service dog's fitness to continue
providing
assistance. We make no changes to the rule based on these
comments.
We first clarify that VA will only consider the veteran's
clinical
team as a source of information to determine whether the
veteran
continues to require the service dog; this is contemplated in
paragraph
(e), which states that ``VA makes a clinical determination
that
the veteran no longer requires the dog.'' With regards to the
medical
fitness of a service dog, VA must be permitted to receive
information
from a broad number of sources in a continuous manner while
benefits
are administered, for the safety of veterans and to ensure
that
benefits are administered equitably. The ``any source'' criterion
as well
reduces administrative burden for veterans, in that VA would
otherwise
need to prescribe a specific and regular means of evaluating
whether
a service dog has maintained its ability to function as a
service
dog.
The broad ``any source'' criterion in
paragraph (e) does not mean
that VA
will rely upon information from any source to terminate service
dog
benefits without considering the source of the information, and
first
allowing veterans to submit contrary information. The 30 days
notice
prior to termination of benefits provided for in paragraph (e)
allows
the veteran ample time to present contrary information, if VA
should
receive information that a service dog is not able to maintain
its
function as a service dog.
Commenters additionally stated that VA
should exclude any insurance
company
with which VA contracts to cover veterinary care costs as a
source
of information concerning the medical fitness of a service dog.
The
commenters, however, did not provide a rationale for such an
exclusion.
To the extent that the commenters may be concerned that an
insurance
company would seek to have service dogs deemed medically
unfit
to avoid excess expenditures, we do not believe any incentive
exists
to do so. As we stated in the proposed rule, our understanding
is that
annual caps on expenditures are a common limitation in
insurance
policies that cover service dog care, and Sec.
17.148(d)(1)(ii)
specifically provides for such caps to be considered
in the
administration of veterinary care benefits. We reiterate that VA
must be
permitted to consider information from a broad number of
sources,
and do not see any inherent reasons that this specific
limitation
should be implemented. Therefore, we make no changes based
on
these comments.
Appeals
Procedures
In response to commenter concerns that the
rule does not detail an
appeals
process for a veteran whose service dog benefits are to be
terminated,
or for a veteran who is not prescribed a service dog and
cannot
obtain service dog benefits, we do not believe VA must prescribe
a new
appellate mechanism in this rulemaking. All decisions under this
rule,
whether decisions to prescribe a service dog and initiate service
dog
benefits, or decisions to terminate such benefits, are clinical
determinations
and therefore subject to the clinical appeals procedures
in VHA
Directive 2006-057. It is VHA policy under this appeals process
that
patients and their representatives have access to a fair and
impartial
review of disputes regarding clinical determinations or the
provision
of clinical services that are not resolved at a VHA facility
level.
This clinical appeals process will be sufficient to resolve
conflicts
related to the provision or termination of service dog
benefits,
without prescribing a new appellate mechanism in this
rulemaking.
Amendment
of Proposed Sec. 17.154 To Include Term
``Veterans''
One commenter requested that we further
revise Sec. 17.154 as
proposed
to delete the reference to ``ex-members of the Armed
Services''
and replace it with a reference to ``veterans.'' We agree
and
have revised the language of Sec. 17.154
from the proposed rule to
read:
``VA may furnish mechanical and/or electronic equipment
considered
necessary as aids to overcoming the handicap of blindness to
blind
veterans entitled to disability compensation for a service-
connected
disability.'' The term ``veteran'' has always been used in 38
U.S.C.
1714, and the regulatory term should follow the statute. In
other
contexts, there may be a difference between an ``ex-member of the
Armed
Forces'' and a ``veteran'' because the definition of ``veteran''
in
title 38 of the United States Code requires discharge or release
from
service ``under conditions other than dishonorable,'' 38 U.S.C.
101,
whereas no such limitation would appear to apply to an ``ex-member
of the
Armed Forces.'' In the context of 38 CFR 17.154, however, the
change
does not alter the meaning of the regulation because Sec.
17.154
refers to an ``ex-member'' who is entitled to service-connected
disability
compensation and who, therefore, must be a veteran (because
such
compensation is offered only to veterans discharged or released
under
conditions other than dishonorable).
The
Estimated Number of Respondents per Year
The proposed rule estimated that 100 new
service dogs would be
provided
to veterans each year. Multiple commenters objected to this
statement,
asserting that this number was far too low of an estimate,
and
further was not a reflection of veteran need for service dogs but
rather
a reporting of the number of service dogs that ADI could
feasibly
provide to veterans each year. The estimated burden of 100 is
not an
estimate of the number of veterans who may need a service dog.
Rather,
this number is an estimate of the number of new veterans each
year
that VA expects to present a certificate showing successful
completion
of training in order to establish a right to obtain benefits
under
Sec. 17.148(d). This number was based on
the number of veterans
who
sought to receive new guide dog benefits in fiscal year 2010 under
Sec. 17.154 (2010), which was 66, plus an
additional number of
veterans
we estimated who would seek to receive new Sec.
17.148
service
dog benefits for hearing and mobility impairments. We estimated
the
number of veterans who would seek new Sec.
17.148 benefits as a
one
third increase over confirmed guide dogs for which VA provided
benefits
the previous fiscal year, and based upon a projection for
multiple
fiscal years, we arrived at 100 new veterans each year seeking
benefits
under Sec. 17.148. The estimated number
of respondents is
not, as
theorized by commenters, based on
[[Page
54380]]
the
anticipated supply of service dogs that could be provided annually
by
ADI-accredited organizations.
Other commenters asserted that the number
of estimated respondents
at 100
was underreported in the proposed rule for financial reasons, or
that VA
could only afford to purchase 100 dogs per year for veterans.
We reiterate
that under the rule, VA is not actually purchasing the
service
dogs from any ADI-accredited or IGDF-accredited service dog
organization,
and we have no financial motive to underreport the
estimated
number of respondents.
The
Estimated Total Annual Reporting and Recordkeeping Burden
Multiple commenters asserted that the
proposed rule underreported
the
expected burden time on veterans to complete necessary
administrative
requirements to receive benefits under the rule. We
clarify
that the burden time of less than 5 minutes as stated in the
proposed
rule only contemplates the submission by the veteran of the
certification
from the service dog organization that indicates certain
training
requirements have been met, as required by Sec.
17.148(c).
The
burden time does not reflect any of the time required for VA to
conduct
its clinical evaluation to determine whether a service dog
would
optimally benefit a veteran, nor the independent assessments that
a
service dog organization conducts thereafter to place a service dog
with a
veteran. Such time is not part of the veteran's burden to
respond
to our collection by submitting a certificate. We have
intentionally
kept paperwork to a minimum in obtaining this benefit
because
veterans in need of service dogs are generally seriously
disabled
and because veterans applying for these benefits will already
be
enrolled in the VA health care system.
This
Regulatory Action Is Not Significant Under Executive Order 12866,
and
Would Not Have a Significant Economic Impact on a Substantial
Number
of Small Entities
One commenter alleged that the rule should
be considered
significant
under Executive Order 12866, because by limiting the source
of
service animals to ADI-accredited or IGDF-accredited organizations,
VA
effectively creates a sole-source contract with those agencies that
will
have a major impact on the service animal industry. We interpret
this
commenter's statement to mean that because they believe VA will be
purchasing
guide and service dogs, that such purchasing will adversely
affect
in a material way the nature of competition with non-ADI and
non-IGDF
organizations. We reiterate that VA will not be contracting
with
any 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 rule
would have a significant
economic
impact on a substantial number of small service dog
organizations
that are either ineligible for membership in the
identified
accreditation groups because they do not qualify for tax-
exempt
status (in the case of ADI accreditation), or because they
cannot
afford the costs and effort that accreditation entails. We
assume
that commenters believe that VA will be purchasing the service
dogs,
and therefore that these nonaccredited organizations would be
economically
disadvantaged unless they comply with the rule's
accreditation
requirements. As VA will not be actually purchasing
service
dogs, we do not believe any non-ADI or non-IGDF organization,
as
small entities, would experience a significant economic impact. This
rule
does not prevent individuals from acquiring service dogs from any
organization,
but only establishes criteria that must be met if VA is
then
going to provide certain benefits related to those service dogs.
We acknowledge that we require all service
dogs obtained after the
effective
date of the rule to be ADI or IGDF certified, and as such
veterans
may opt to seek the assistance of ADI or IGDF organizations
over
other nonaccredited organizations in obtaining such dogs. However,
there
is no indication that nonaccredited organizations rely on
veterans
as an essential part of their business. In fact, multiple
commenters
who themselves were nonaccredited organizations, and who
objected
to the ADI accreditation standard in the rule, reported
providing
service dogs to veterans free of charge. There is no evidence
to
suggest that a substantial number of nonaccredited service dog
organizations
will be detrimentally affected by a financial incentive
for
veterans to seek to obtain service dogs from accredited service dog
organizations.
Even if a substantial number of nonaccredited service
dog
organizations significantly rely on veterans to buy their service
dogs,
there is also no evidence to suggest that the cost of obtaining
ADI or
IGDF certification is beyond the reach of a substantial number
of
non-accredited organizations.
Commenters questioned the reasoning in the
proposed rule for our
belief
that most service dog providers that provide dogs to veterans
are
already accredited by ADI or IGDF. See 76 FR 35166. Based on
multiple
commenters who themselves were non-ADI service dog
organizations
and who did provide service dogs to veterans, we retract
the
rationale that ``[w]e believe that most service-dog providers that
provide
dogs to veterans are already accredited in accordance with the
final
rule'' and also retract the accompanying statement that ``[t]he
vast
majority of accredited programs do not provide dogs to veterans.''
However,
in view of our conclusion that gaining accreditation should
not
result in a significant financial burden as explained in the
proposed
rule notice, 76 FR 35166, this does not change our analysis
that
the rule does not have a significant economic impact on a
substantial
number of small entities.
VA Will
Not Newly Initiate Proposed or Formal Rulemaking Procedures
Multiple commenters stated that VA should
abandon this rulemaking,
and
that it should begin again with a new proposed rule. One commenter
further
stated that VA should initiate a public hearing, or should
initiate
formal rulemaking procedures related to the administration of
service
dog benefits. We decline to pursue either of these actions, as
all
affected parties were put on proper notice of the intended
provisions
in the proposed rule, and there were no significant reasons
that
commenters put forward to require a new regulatory action that
were
not addressed in this final rule. We believe we have addressed all
significant
comments and made changes where appropriate, or have
reasonably
supported why changes were not made.
For all the reasons noted above, VA is
adopting the proposed rule
as
final with changes as noted to Sec.
17.148(b)(2), (d), (d)(1)(ii),
and
(d)(3) and Sec. 17.154.
Effect
of Rulemaking
Title 38 of the Code of Federal
Regulations, as revised by this
rulemaking,
represents VA's implementation of its legal authority on
this
subject. Other than future amendments to this regulation or
governing
statutes, no contrary guidance or procedures are authorized.
All
existing or subsequent VA guidance must be read to conform with
this rulemaking
if possible or, if not possible, such guidance is
superseded
by this rulemaking.
Paperwork
Reduction Act
This final rule at Sec. 17.148 contains new collections of
information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
On June 16, 2011, in a proposed rule published in
[[Page
54381]]
the
Federal Register, we requested public comments on the new
collections
of information. We received multiple comments in response
to this
notice. A majority of the commenters alleged the collection was
an
illegal restriction of the access rights of individuals with
disabilities.
The response, as also stated in the preamble to this
final
rule, is that a certificate showing adequate service dog training
is not
necessary to gain access to VA facilities, but rather is only
necessary
to receive benefits under this rule. Some commenters stated
that
the number of respondents for this collection was underreported,
because
more than 100 veterans need service dogs each year. The
response,
as also stated in the preamble to this final rule, is that
the
estimated burden of 100 is not an estimate of the number of
veterans
who may need a service dog, but rather is an estimate of the
number
of new veterans each year that VA expects to present a
certificate
showing successful completion of training to obtain
benefits.
Finally, some commenters asserted that the expected burden
time
for this collection was underreported. The response, as also
stated
in the preamble to this final rule, is that the burden time of
less
than 5 minutes only contemplates the submission of the required
certificate,
and does not reflect any of the time required for VA to
conduct
its clinical evaluation to determine if a service dog would
optimally
benefit a veteran, nor the independent assessments that a
service
dog organization conducts thereafter to place the service dog
with
the veteran. Therefore, we make no changes to this collection.
The Office of Management and Budget (OMB)
has approved the
additional
collections in part 17 under OMB Control Number 2900-0785.
We are
adding a parenthetical statement after the authority citations
to the
section in part 17 for which new collections have been approved
so that
the control number is displayed for each new collection.
Regulatory
Flexibility Act
The Secretary hereby certifies that this
final rule will not have a
significant
economic impact on a substantial number of small entities
as they
are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. We
do not believe that gaining accreditation should result in a
significant
financial burden, as the standards for approval by ADI and
IGDF
are reasonable thresholds that are generally expected and accepted
within
the industry. The approximate cost to be an accredited
organization
by IGDF is a one-time fee of $795, with an annual fee of
$318
and a per unit fee of $39.45. The approximate cost to be an
accredited
organization by ADI is $1000 every 5 years with annual fees
of
approximately $50. Therefore, pursuant to 5 U.S.C. 605(b), this
final
rule is exempt from the initial and final regulatory flexibility
analysis
requirements of sections 603 and 604.
Executive
Orders 12866 and 13563
Executive Orders 12866 and 13563 direct
agencies to assess the
costs
and benefits of available regulatory alternatives and, when
regulation
is necessary, to select regulatory approaches that maximize
net
benefits (including potential economic, environmental, public
health
and safety effects, and other advantages; distributive impacts;
and
equity). Executive Order 13563 (Improving Regulation and Regulatory
Review)
emphasizes the importance of quantifying both costs and
benefits,
reducing costs, harmonizing rules, and promoting flexibility.
Executive
Order 12866 (Regulatory Planning and Review) defines a
``significant
regulatory action,'' which requires review by the OMB, as
``any
regulatory 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
adversely
affect in a material way the economy, a sector of the
economy,
productivity, competition, jobs, the environment, public
health
or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere
with an
action taken or planned by another agency; (3) Materially alter
the
budgetary impact of entitlements, grants, user fees, or loan
programs
or the rights and obligations of recipients thereof; or (4)
Raise
novel legal or policy issues arising out of legal mandates, the
President's
priorities, or the principles set forth in this Executive
Order.''
The economic, interagency, budgetary,
legal, and policy
implications
of this final rule have been examined and it has been
determined
to not be a significant regulatory action under Executive
Order
12866.
Unfunded
Mandates
The Unfunded Mandates Reform Act of 1995
requires, at 2 U.S.C.
1532,
that agencies prepare an assessment of anticipated costs and
benefits
before issuing any rule that may result in an expenditure by
state,
local, and tribal governments, in the aggregate, or by the
private
sector, of $100 million or more (adjusted annually for
inflation)
in any given year. This final rule will have no such effect
on
state, local, and tribal governments, or on the private sector.
Catalog
of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance
numbers and titles are
64.009
Veterans Medical Care Benefits, 64.010 Veterans Nursing Home
Care,
and 64.011 Veterans Dental Care.
Signing
Authority
The Secretary of Veterans Affairs, or
designee, approved this
document
and authorized the undersigned to sign and submit the document
to the
Office of the Federal Register for publication electronically as
an
official document of the Department of Veterans Affairs. John R.
Gingrich,
Chief of Staff, Department of Veterans Affairs, approved this
document
on July 30, 2012, for publication.
List of
Subjects in 38 CFR Part 17
Administrative practice and procedure,
Alcohol abuse, Alcoholism,
Claims,
Day care, Dental health, Drug abuse, Foreign relations,
Government
contracts, 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
and
recordkeeping requirements, Scholarships and fellowships, Travel
and
transportation expenses, Veterans.
Dated: August 30, 2012.
Robert
C. McFetridge,
Director
of Regulation Policy and Management, Office of the General
Counsel,
Department of Veterans Affairs.
For the reasons stated in the preamble, VA
amends 38 CFR part 17 as
follows:
PART
17--MEDICAL
0
1. The
authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in
specific sections.
0
2. Add
Sec. 17.148 after the undesignated
center heading ``PROSTHETIC,
SENSORY,
AND REHABILITATIVE AIDS'', to read as follows:
Sec. 17.148
Service dogs.
(a) Definitions. For the purposes of this
section:
Service dogs are guide or service dogs
prescribed for a disabled
veteran
under this section.
(b) Clinical requirements. VA will provide
benefits under this
section
to a veteran with a service dog only if:
[[Page
54382]]
(1) The veteran is diagnosed as having a
visual, hearing, or
substantial
mobility impairment; and
(2) The VA clinical team that is treating
the veteran for such
impairment
determines based upon medical judgment that it is optimal
for the
veteran to manage the impairment and live independently through
the
assistance of a trained service dog. Note: If other means (such as
technological
devices or rehabilitative therapy) will provide the same
level
of independence, then VA will not authorize benefits under this
section.
(3) For the purposes of this section,
substantial mobility
impairment
means a spinal cord injury or dysfunction or other chronic
impairment
that substantially limits mobility. A chronic impairment
that
substantially limits mobility includes but is not limited to a
traumatic
brain injury that compromises a veteran's ability to make
appropriate
decisions based on environmental cues (i.e., traffic lights
or
dangerous obstacles) or a seizure disorder that causes a veteran to
become
immobile during and after a seizure event.
(c) Recognized service dogs. VA will
recognize, for the purpose of
paying
benefits under this section, the following service dogs:
(1) The dog and veteran must have
successfully completed a training
program
offered by an organization accredited by Assistance Dogs
International
or the International Guide Dog Federation, or both (for
dogs
that perform both service- and guide-dog assistance). The veteran
must
provide to VA a certificate showing successful completion issued
by the
accredited organization that provided such program.
(2) Dogs obtained before September 5, 2012
will be recognized if a
guide
or service dog training organization in existence before
September
5, 2012 certifies that the veteran and dog, as a team,
successfully
completed, no later than September 5, 2013, a training
program
offered by that training organization. The veteran must provide
to VA a
certificate showing successful completion issued by the
organization
that provided such program. Alternatively, the veteran and
dog
will be recognized if they comply with paragraph (c)(1) of this
section.
(d) Authorized benefits. Except as noted in
paragraph (d)(3) of
this
section, VA will provide to a veteran enrolled under 38 U.S.C.
1705
only the following benefits for one service dog at any given time
in
accordance with this section:
(1) A commercially available insurance
policy, to the extent
commercially
practicable, that meets the following minimum
requirements:
(i) VA, and not the veteran, will be billed
for any premiums,
copayments,
or deductibles associated with the policy; however, the
veteran
will be responsible for any cost of care that exceeds the
maximum
amount authorized by the policy for a particular procedure,
course
of treatment, or policy year. If a dog requires care that may
exceed
the policy's limit, the insurer will, whenever reasonably
possible
under the circumstances, provide advance notice to the
veteran.
(ii) The policy will guarantee coverage for
all treatment (and
associated
prescription medications), subject to premiums, copayments,
deductibles
or annual caps, determined to be medically necessary,
including
euthanasia, by any veterinarian who meets the requirements of
the
insurer. The veteran will not be billed for these covered costs,
and the
insurer will directly reimburse the provider.
(iii) The policy will not exclude dogs with
preexisting conditions
that do
not prevent the dog from being a service dog.
(2) Hardware, or repairs or replacements
for hardware, that are
clinically
determined to be required by the dog to perform the tasks
necessary
to assist the veteran with his or her impairment. To obtain
such
devices, the veteran must contact the Prosthetic and Sensory Aids
Service
at his or her local VA medical facility and request the items
needed.
(3) Payments for travel expenses associated
with obtaining a dog
under
paragraph (c)(1) of this section. Travel costs will be provided
only to
a veteran who has been prescribed a service dog by a VA
clinical
team under paragraph (b) of this section. Payments will be
made as
if the veteran is an eligible beneficiary under 38 U.S.C. 111
and 38
CFR part 70, without regard to whether the veteran meets the
eligibility
criteria as set forth in 38 CFR part 70. Note: VA will
provide
payment for travel expenses related to obtaining a replacement
service
dog, even if the veteran is receiving other benefits under this
section
for the service dog that the veteran needs to replace.
(4) The veteran is responsible for
procuring and paying for any
items
or expenses not authorized by this section. This means that VA
will
not pay for items such as license tags, nonprescription food,
grooming,
insurance for personal injury, non-sedated dental cleanings,
nail
trimming, boarding, pet-sitting or dog-walking services, over-the-
counter
medications, or other goods and services not covered by the
policy.
The dog is not the property of VA; VA will never assume
responsibility
for, or take possession of, any service dog.
(e) Dog must maintain ability to function
as a service dog. To
continue
to receive benefits under this section, the service dog must
maintain
its ability to function as a service dog. If at any time VA
learns
from any source that the dog is medically unable to maintain
that
role, or VA makes a clinical determination that the veteran no
longer
requires the dog, VA will provide at least 30 days notice to the
veteran
before benefits will no longer be authorized.
(Authority:
38 U.S.C. 501, 1714)
(The
Office of Management and Budget has approved the information
collection
requirements in this section under control number 2900-
0785.)
0
3.
Revise Sec. 17.154 to read as follows:
Sec. 17.154
Equipment for blind veterans.
VA may furnish mechanical and/or electronic
equipment considered
necessary
as aids to overcoming the handicap of blindness to blind
veterans
entitled to disability compensation for a service-connected
disability.
(Authority:
38 U.S.C. 1714)
[FR
Doc. 2012-21784 Filed 9-4-12; 8:45 am]
BILLING
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