Legislators Focus on Autism Service Dogs, Service Animal Trainers, and Service Dogs for Veterans

Some recent legislative efforts will, if enacted, make changes to service animal law, particularly with regard to autism service dogs, service dog trainers, veterans using service animals, and emergency rescues where pets and service animals need to be taken care of. Most of these efforts are federal, but a significant statutory change is expected to be signed into law in Alabama. Other proposals would require or authorize funding so their chances in the current climate are not great. Nevertheless, it is time to take stock of what our elected representatives are doing, or attempting to do, for skilled dogs these days.

Alabama House Bill 502 (revising Code 21-7-4). The Bill, which is awaiting the Governor’s signature, would revise Alabama’s statute regarding service animals by defining a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.” The revision provides that “a person who is totally or partially blind, hearing-impaired, or diagnosed on the autism spectrum shall have the right to be accompanied by a service animal in any public place, including a public or private school, and [other places of public accommodation].”

Further: “A person training a service animal shall be entitled to the same privileges granted to a person with a disability….” The places where a person with a disability can take a dog include not only places of public accommodation and transportation facilities, but also lodging.

Then comes the most interesting part of the new law:

“In the case of a disabled child, including a child diagnosed on the autism spectrum, any aide assigned to assist the child shall be trained with the service animal in basic commands in order to assist the child as a team.”

This is a significant recognition that a school that admits an autism service dog will not be able to avoid the situation by saying that the child and the dog can come but the family must provide the handler. This is a common sense recognition that if the aide is supposed to work with the child, the aide must learn to work with a trained animal that helps the child. This is a correct result, but in my opinion, and as I discussed in a prior blog, by no means certain under federal law.

H.R. 1878. To require that the same access to transportation and public accommodations that is afforded to individuals with disabilities who use service animals under the Americans with Disabilities Act be afforded to certified trainers of service animals. Representative Larry Kissell of North Carolina (Democrat) introduced this Bill to provide access to transportation and public accommodations to certified trainers of service animals. The text of the legislation says that the same access is to be provided to a “licensed or certified trainer of a service animal, or a handler of such animal that has credentials issued by an accredited school for training service animals,” as is provided to individuals with disabilities under titles II and III of the Americans with Disabilities Act.

The Secretary of Transportation and the Attorney General are given the responsibility of issuing regulations to carry out the purposes of the section. Since those agencies have not always agreed on rules applicable to service animals, presumably it is not expected that they would have to do so here.

Though intended for the Departments of Justice and Transportation, the proposed legislation does not adopt a definition from either agency, but rather says that a service animal is “a guide dog, signal dog, or other animal individually trained or being trained to provide assistance to an individual with a disability and distinguished by wearing a collar, leash, harness, or cape that identifies the animal as a service animal in training, regardless of whether such animal has been licensed or certified by a State or local government.” Thus, it appears that the animal does not need to be licensed or certified, even though the trainer does.

The legislation has a laudable objective, one not squarely faced by federal regulators, in that it is desirable that trainers should be able to take dogs in training into environments where the animals will ultimately be expected to work. North Carolina, where Kissell is from, specifies that an “animal in training to become a service animal may be taken into [places of public accommodation and transportation] for the purpose of training when the animal is accompanied by a person who is training the service animal and the animal wears a collar and leash, harness, or cape that identifies the animal as a service animal in training….”(North Carolina Disabilities Code 168-4.2) Thus, it appears that Kissell has taken the North Carolina statute and hoped to federalize it.

While the Department of Justice requires that a service animal be under the handler's control, generally with "a harness, leash, or other tether," these items are not identifying, but rather a requirement for access. (28 CFR 36.302(4)) The Department of Transportation allows that harnesses and tags can help verify that an animal is, in fact, a service animal, but such gear is not required. (See, e.g., 49 CFR 39.91(d))

The Department of Justice has “never imposed any type of formal training requirements or certification process.” (73 Fed. Reg. 24516) Most states, on the other hand, provide access rights to trainers, though many laws require that trainers be employees of recognized service dog training facilities and further require that trainers be prepared to produce documentation on their connection with the school, as well as proof that the dog is being trained to be a service animal. Since there is no such federal requirement, H.R. 1878 is not going to get very far before someone points out to the Congressman’s staff that the Bill, as drafted, would require a complete rethinking of the federal regulatory approach to service animals. It would be relatively easy to rewrite the proposal to fit within the current federal system and it is to be hoped that someone will do so. The Bill has only garnered four sponsors so far, and will probably die in the House Subcommittee on Highways and Transit.

For a detailed discussion on access rights of trainers and temporary handlers, see Service and Therapy Dogs in American Society, Chapter 15.

HR 198. Veterans Dog Training Therapy Act. Representative Michael Grimm (Republican, New York) introduced this Bill to assess “the effectiveness of addressing post-deployment mental health and post-traumatic stress disorder symptoms through a therapeutic medium of training service dogs for veterans with disabilities.” The pilot program is to be carried out at three to five VA medical centers during a five-year period. Each program site is to have a certified service dog training instructor, with preference being given to “veterans who have successfully graduated from post-traumatic stress disorder or other residential treatment programs and who have received adequate certification in service dog training.” Selecting dogs from shelters is to be considered an option, and dogs are to live “at the pilot program site or a volunteer foster home in the vicinity of such site while receiving training.” Data is to be collected from participating veterans to determine if the program is helpful in:

(1) reducing stigma associated with post-traumatic stress disorder or other post-deployment mental health condition;
(2) improving emotional regulation;
(3) improving patience;
(4) instilling or re-establishing a sense of purpose;
(5) providing an opportunity to help fellow veterans;
(6) reintegrating into the community;
(7) exposing the dog to new environments and in doing so, helping the veteran reduce social isolation and withdrawal;
(8) building relationship skills, including parenting skills;
(9) relaxing the hyper-vigilant survival state;
(10) improving sleep patterns; and
(11) enabling veterans to decrease the use of pain medication.

Further, reports to Congress are to assess the effects of participating in the program on:

(A) symptoms of post-traumatic stress disorder and post-deployment adjustment difficulties, including depression, maintenance of sobriety, suicidal ideations, and homelessness;
(B) potentially relevant physiological markers that possibly relate to the interactions with the service dogs;
(C) family dynamics;
(D) insomnia and pain management; and
(E) overall well-being.

It would seem that some professor in a public health program would be interested in researching these matters, and could assign the data gathering to eager graduate students and senior undergrads. Whether federal funding is really necessary is open to question.

The Bill gathered 71 sponsors by mid-June 2011. It has been referred to the House Committee on Veterans’ Affairs, which referred it to the Subcommittee on Health on February 18. It does not seem to have much traction at the moment.

S.769. VETS Dogs Act of 2011 (see also HR 1154). Senator Tom Harkin (Democrat, Iowa) introduced this Bill amending 38 U.S.C. 1714 to add a new subsection (e), which would provide that the “Secretary [of Veterans Affairs] may not prohibit the use of service dogs provided under subsection (c) in any facility or on any property of the Department or in any facility or on any property that receives funding from the Secretary.”

The previously existing subsection (c) provides that service dogs may be trained for hearing-impaired veterans, for persons with “spinal cord injury or dysfunction or other chronic impairment that substantially limits mobility to veterans with such injury, dysfunction, or impairment...,” and for “persons with mental illnesses, including post-traumatic stress disorder….” Patients granted service animal access must be enrolled in the VA system, which may meant that visitors with service animals will still have a problem. Under 38 U.S.C. 1714(d), the VA may pay for the veteran’s travel expenses to the training facility for the dog and “for expenses incurred in becoming adjusted to the dog.”

Enactment would effectively modify an existing regulation, 38 CFR 1.218, which provides that that dogs "and other animals, except seeing-eye dogs, shall not be brought upon [VA] property except as authorized by the head of the facility or designee." Some VA hospitals have apparently been restricting access to non-guide dog service animals, though most have not.

Hearings were held on the Bill in the Senate Committee on Veterans’ Affairs. The House version of the proposal, introduced by Rep. John Carter of Texas, has 58 sponsors and was referred by the Veterans’ Affairs Committee to the Subcommittee on Health. Since the bill should come with no price tag or a very small one, it may have a shot at enactment.

HR 57. Disaster Recovery Improvement Act. This proposal, introduced by Representative Steve Scalise of Louisiana (Republican) in January, would amend the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5192(a)) to state that, in an emergency, the President may assist state and local governments by providing assistance for “rescue, care, shelter, and essential needs (A) to individuals with household pets and service animals; and (B) to such pets and animals.” Thus, the President will have the ability to forward emergency funds for such purposes.

The proposal was referred to the House Subcommittee on Economic Development, Public Buildings and Emergency Management, where it will probably die, given that there are no cosponsors. The Republicans are apparently worried that President Obama is too much of a dog lover. The Democrats too.

Thanks to Kristina Chew for a blog that alerted me to the Alabama legislation. Thanks to Joan Esnayra for comments on several pieces of legislation, and to Patty Dobbs Gross for describing autism service dog issues that are developing in school systems.