Department of Veterans Affairs Final Rule On Service Dogs for Veterans

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

[[Page 54373]]

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

[[Page 54374]]

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

[[Page 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

[[Page 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 54377]]

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.)

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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]

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