Service Dogs and the Subtle Sociology of Prejudice in the Twenty-First Century

At its best, Mad Men is a study of corporate sociology--better, anthropology--of the 1960s. Fans of the series have their favorite episodes. Mine is the tractor episode (Season 3, episode 6), in which the new Chief Operating Officer of Sterling Cooper nearly loses his life when a secretary, driving a tractor around the office during a raucous celebration—the John Deere account has just been landed—runs over the COO’s foot, cutting it off. One of the first assessments of upper management, before the bleeding is even stopped, is that the COO will have to be replaced. He cannot play golf with only one foot. In pre-ADA America, the COO could not even think of suing based on dismissal or demotion for his sudden disability. He would have to accept that the inability to play golf would preclude his being in the inner circle of an advertising agency of that era.

We have come a long way from a time when even the object of prejudice could accept such discrimination without complaint. Prejudice has not disappeared, but those who do not want to serve or work with the disabled generally disguise their reasons much better than was the case thirty or twenty or even ten years ago. Things have gotten so subtle that it may be difficult to establish that prejudice was involved at all, and indeed it may not be involved because bad things sometimes happen to good people for nondiscriminatory reasons.

Two decisions issued in October 2011 provide something of a snapshot of the present state of legal disputes regarding exclusion of service animals from retail businesses that serve food.

Fast Food Franchise

In April 2010, Alexander Johnson attempted to enter a Burger King franchise owned by B5596, LLC, but a sales clerk prevented Johnson from bringing his hearing dog inside the restaurant. A friend had to buy food and bring it outside to Johnson.

Johnson sued for disability discrimination under California’s anti-discrimination law, known as the Unruh Act, seeking damages of $4,000, along with attorney’s fees and costs. The trial court found the franchise in violation of a separate law, usually called the Disabled Persons Act, which provides for statutory damages of $1,000. Johnson appealed, arguing that he was entitled to the statutory damages of $4,000 allowed under the Unruh Act.

An appellate court in California held, in an opinion that was not officially published, that Johnson was only entitled to damages of $1,000. The appellate court explained that the Unruh Act was amended in 1992 to provide that a “violation of the right of any individual under the Americans with Disabilities Act of 1990” constitutes a violation of the Unruh Act. The Americans with Disabilities Act restricts private rights of action to injunctive relief, but the state law allows recovery of damages for the kind of discrimination contemplated by the ADA.

The court concluded, however, that the specific mention of service dogs in California’s Disabled Persons Act meant that this was where the plaintiff had to look for compensation for the defendant’s discrimination. The court noted that a provision under the Disabled Persons Act provides that a defendant, such as the franchise here, could not be held liable under both that Act and the Unruh Act. The court also affirmed the trial court’s finding that Johnson could not choose to sue under the Act that would give him the larger award. The more specific provision controlled over the more general.

The court awarded costs on the appeal to the respondent, the franchise, though apparently not attorney’s fees. Johnson v. B5596, LLC, 2011 WL 5086234 (Cal. Ct. App. 2011)

Oregon Dairy Farm and Store

On December 1, 2009, Rachel Brodle entered a Dari-Mart Store in Eugene, Oregon, with her service dogs. The store clerk asked her what kind of service dogs they were. Plaintiff, according to the defense, became “distressed and started yelling.” Brodle left the store and returned with a friend, Lorri Cochrane. Brodle asserted her right to enter the Dari-Mart with her service dogs. Again according to the defense, Brodle was “incredibly rude and invasive” towards another employee of the store.

The store manager instructed all her employees that if Brodle returned again, she should be directed to speak to Alexander before being allowed to shop. The manager also contacted the Deri-Mart’s human resources department and requested that the surveillance video of the events be reviewed.

Brodle returned five days later with her dogs. A clerk informed her she had to speak to the manager before she would be allowed to shop. Brodle refused and left the store, saying she would contact her lawyer.

Later on December 6, Cochrane also returned to the store and expressed her displeasure at what she perceived to be the store’s mistreatment of Brodle. Cochrane had poured herself a soda and left without paying for it. Cochrane also mentioned contacting an attorney on Brodle’s behalf.

On December 7, the store manager informed Dari-Mart’s Human Resources Manager that she believed Brodle was “looking to sue us.” The HR Manager asked the company’s Safety Director to review the video surveillance of December 6. The Safety Director took out snapshots of Cochrane taking a soda without paying for it, apparently thinking there should be a shoplifting prosecution. The video of December 6 was automatically erased about 30 days after the incident.

Brodle brought suit, then petitioned for an order specifying that she was refused access to the store because she was accompanied by service dogs, as well as an order imposing an adverse-inference instruction that would instruct the jury that it could infer that spoliated video surveillance would have been unfavorable to the store and its employees.

Federal courts may issue sanctions against a party for destroying evidence, but a court considering such sanctions must take into account a number of factors before imposing them. The federal district court for the District of Oregon held that the failure to preserve the video was not the result of willfulness, bad faith, or interference with the rightful decision of the case in that the store had admitted that Brodle was asked to leave on December 6.

The court also declined to exclude testimony of the store employees regarding what happened on December 6 because Brodle “failed to show that she is unduly prejudiced by the destruction of the December 6 video and any testimony by defendants and their employees regarding the events of that day.” Thus, the store employees could testify.

As to the adverse inference instruction that Brodle sought for the jury, the court concluded that Brodle had “failed to show that the video was destroyed with a culpable state of mind.” The request for such an instruction was also denied.

Dari-Mart moved for summary judgment, arguing that Brodle had failed to establish a basis for liability. This motion was granted, ending the case, absent possible reconsideration on appeal.

As with a recent blog regarding access of a person with a service dog to a courthouse , the statement of facts given in the court’s opinion does not tell us what really happened. Clearly the court was inclined to accept that Brodle reacted badly to a request for information from a store employee. The store and its employees have a right to verify that a dog—in this case dogs—is a service animal. There are well-known limits on what may be asked and what may not be asked. Brodle’s complaint stated that she suffered from Addison’s Disease (primary adrenocortical insufficiency). The store could not ask about Brodle’s condition, and apparently did not do so. The store could ask about what functions the service dog performed, which is what apparently was asked, though the opinion never states what functions the dogs perform.

Merely knowing what was asked and what was not asked does not always describe what it was like to be in the store when the events that became the subject of this litigation took place. The court had to make a decision, and did so. Although the facts, as presented in the opinion, portray Brodle as overly sensitive to the store employee’s inquiries, we cannot be sure that some level of prejudice might have been involved.

The store made its case. Brodle did not. Judges are not agents of individuals with disabilities, nor are they agents of businesses. They listen to stories and attempt to understand what happened. As I said in another blog several years ago, enforcing one’s rights sometimes involves thinking strategically, not aggressively. That does not seem to have been done here. Brodle v. Lochmead Farms, Inc., 2011 WL 4913657 (D.Or. 2011)

What Was Not Said by the Courts

When I wrote Service and Therapy Dogs in American Society, I was surprised at how many national and multinational corporations had failed to assure that employees be aware of the disability rights of customers, including customers using service animals. It seemed to me that they should be learning from each other’s mistakes, but this has often not been the case. The lucky ones are those that find a way to settle before an incident becomes public.

Although Burger King is a franchise system, I have to believe that Burger King corporate headquarters is anxious to avoid the bad publicity attendant on a franchise employee’s refusal to admit a customer with a service animal. Was this an employee more interested in someone sitting next to him at the disability seminar than he was in the speaker? The franchise may have had to pay a small amount this time, but the next time an employee crosses the line with a customer using a service animal, resolving the issue may not come so cheap. Burger King corporate headquarters would be well advised to send a memo to franchisees warning them about the risks of failing to educate employees on the need to allow people with service animals into the restaurants.

Dari-Mart should not become complacent about the fact that it got a service dog user’s case dismissed. Why did a security official allow a videotape to be erased? Why did that official think the only thing the tape was good for was in making a shoplifting case against someone who was trying to help an individual with a disability? Other employees seem to have made it clear that they wanted the video footage reviewed to establish that their response to the woman with the service dog was not discriminatory or threatening. The security officer could not think beyond the boundary of his responsibility of protecting the store from theft. Dari-Mart should be concerned that another court, or the same court with a few variations in facts, might have favored the plaintiff in such a situation. It might even be wise to shift to a technology that saves security footage indefinitely. While a month may be adequate for most security and police purposes, an incident involving discrimination would quite likely not come to the store's attention in such a short time frame.

Conclusion

A corporation with an employee that doesn’t know about the rights of persons with disabilities, including the rights of persons using service dogs, has a problem employee. An employee who doesn’t understand that video surveillance can be used for more than preventing shoplifting may also be a problem employee. The Dari-Mart case shows that employee education should be designed to deal with the many collateral issues that may arise in a potential discrimination situation.

Corporate counsel reviewing incidents that might lead to accusations of discrimination should not rest on the easy victories where company employees were more in the right than in the wrong. These victories may come from incidents that contain the germs of more serious issues, ones that will not be easily won, or might only be won at a tremendous public relations cost.

People with disabilities, including users of service animals, are more aware of their rights than ever. An employee who loses his foot at an office party would not in the twenty-first century accept a demotion because of a sudden limitation to his golf game. Situations have become more subtle, making proof of discrimination harder to establish. All in all this is probably progress of the sort Oliver Wendell Holmes wrote about and which has for decades decorated a wall of Boalt Hall at Berkeley.

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Rashomon in the Courthouse: A Service Dog Story

As in Rashoman, there are four versions of the story, but let us begin with the dog handler:

Brenda, a veteran who suffers from a seizure disorder and requires the assistance of O’Neal, a service dog, came to an Ohio courthouse in the summer of 2009 to testify as a witness for a friend’s son. She was accompanied by her husband as well as the dog. The officer operating the metal detector informed her that animals were not allowed in the courthouse. Brenda explained that the dog was a service animal. The officer had not heard of this but said he would check with the judge where Brenda was expecting to testify.

The officer did not leave his post for 20 minutes, during which time Brenda’s husband showed him the papers the couple carried regarding service animals. Finally, just before lunch, the officer took the papers to the judge’s court officer, but the judge was going to lunch and said he would look at the papers after he came back. Apparently the judge was not immediately prepared to admit service animals.

The doors to the courtroom were locked and Brenda had to stand up during the entire hour the judge was gone. The court officials refused to let Brenda use a bathroom with her dog during this period and she had to go to a nearby Taco Bell to use a restroom. No one offered her a chair.

After lunch, just before the judge brought his courtroom back in session, Brenda was told she would be able to bring O’Neal inside. Angry at her treatment, Brenda sued.

How did the court officials see the matter?

Sergeant J.F. Brown was operating the metal detector alone. He had never encountered anyone trying to bring a service animal into the courthouse and had not been informed of any policy regarding service animals. He knew that Judge Sheridan Randolph had a policy against admitting animals into his courtroom. He told Brenda to wait because he wanted to get directions from the judge or his staff regarding the animal.

It took 20 minutes for Sergeant Brown to get away, but the judge’s court officer was equally unprepared to deal with the situation and the judge said he would look at the papers that were brought to him after he got back from lunch. Since he had not received approval to let Brenda into the secure area of the courthouse with the dog, Sergeant Brown could not permit her to use the bathroom.

Sergeant Brown and the other officers involved in the incident felt they had done their best in a situation they had not encountered before.

The matter ended up in the federal district court for the Eastern District of Tennessee, where it was assigned to Chief Judge Curtis L. Collier. His perspective is provided by the written opinion he issued in the matter, but since he was dealing with a motion for summary judgment by the defendants, he nominally accepted Brenda’s version of the facts, and otherwise considered the law. Insofar as he makes reference to the facts, he notes that there were no prior incidents of this sort, which would have put the County and its officials on notice, and even though Sergeant Brown stopped Brenda, he did so because he did not know what to do. The sergeant sought to find out, perhaps a little slowly, but not at a level that lifted the incident to one of discrimination.

Brenda sued under the Americans with Disabilities Act, under Due Process and Equal Protection clauses of the Constitution, and under state tort law claims, including negligence, invasion of privacy, and intentional infliction of emotional distress by Sergeant Brown. Judge Collier began by dismissing the ADA complaint against Sergeant Brown in his individual capacity since there is no individual liability under Title II of the ADA. Under 42 U.S.C. 12132, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Judge Collier noted that compensatory damages may be recovered under the ADA if there is intentional discrimination, and the plaintiff can show that the discrimination was directed toward her in particular. Tucker v. Tennessee, 443 F.Supp.2d 971 (W.D. Tenn. 2006). Bradley County, which operated the courthouse, where the incident occurred, argued that it could not be held liable for failure to supervise, since such a failure “is necessarily not directed at a particular disabled individual.” The County also argued that its failure to train Sergeant Brown regarding service animals was “not a specific act of intentional discrimination against Plaintiff herself….” Judge Collier agreed with the defendants and granted summary judgment on the ADA claim.

The judge also concluded that there was no evidence that the County had either a discriminatory or even an unofficial policy against the use in the courthouse of service animals by individuals with disabilities. Nor could Brenda “point to any ‘prior instances of unconstitutional conduct’ to demonstrate the County has ‘ignored a history of abuse’ toward individuals dependent on service animals, or even disabled individuals generally.” Judge Collier discussed a 2004 Supreme Court case, Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), which held that states are not exempt from ADA requirements when physical access to the courts is at issue. Although relevant to the case before him, Judge Collier stated:

“[H]olding as a general principle that the ADA is applicable with respect to courthouses is a far cry from placing municipalities on notice of an exhaustive set of particular accommodations and policies to be proactively implemented with respect to every conceivable disability.”

Although I believe that Judge Collier’s statement is correct as to the date when the incident occurred, I will argue below, when we get to my perspective, that he might not be correct now, given recent regulations issued by the Department of Justice.

Sergeant Brown also argued that he was covered by qualified immunity as to his actions. Judge Collier agreed, stating:

“Faced with what was to him the novel occasion of someone attempting to bring an animal into the courthouse, Sergeant Brown sought to consult with a higher authority before permitting Plaintiff and her service animal to enter. Mindful that “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts,” [citing Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)], the Court cannot conclude Sergeant Brown would have known his causing Plaintiff to wait while he sought approval from Judge Randolph would have violated Plaintiff's clearly established constitutional rights.”

The court dismissed all federal claims, but dismissed the state law claims without prejudice, meaning that Brenda can pursue those arguments in state court if she wishes. I will not now comment on the likelihood of success in such a proceeding.

Lastly I’ll give my perspective, even if it might be wiser to stay off the field.

I believe Brenda had good reason to be angry. If the Bradley County court system were well operated, with personnel appropriately trained, she would not have encountered the embarrassment of having to explain her condition and the need for a service animal. She should not have been asked concerning the nature of her disability. Questions asked of her by court officials should only have been directed towards the functions the dog performed for her, not towards the nature of her disability. She would not have had to find a Taco Bell to use a bathroom. She should have been offered a chair as a matter of basic civility.

I also wonder what Sergeant Brown would have done had Brenda been blind and O’Neal a guide dog. The Department of Justice regulations generally place all service dogs into the same protected category, though regulations specifically applicable to state and local governmental services had not yet been issued in final form. Nevertheless, the broad public knowledge of the access rights of blind persons with dog guides has a longer history, and such a situation might take on a different tone.

All that said, Judge Collier was right in his application of the law and in his dismissal of the federal claims. Given all the circumstances, a case was not made against the County or Sergeant Brown. The outcome does not surprise me. Nevertheless, it is sometimes worth fighting the good fight and keeping the faith, sometimes worth yelling at the umpire, not that he’ll change his call, but so that he’ll be more careful on the next pitch (or so one hopes). A good deal of history in civil rights was made because lawyers kept fighting the good fight in cases they knew they were not likely to win.

Despite these ramblings, I believe that if the incident happened now, Brenda should win. Final regulations under 28 CFR Part 35, issued by the Department of Justice on September 15, 2010, specifically mention courthouses as covered facilities 13 times. (The proposed regulations had been issued in 2008, but a lot of rules are proposed without ever becoming final and the proposal only referred to courthouses once.) The regulations detail procedures for admission of service animals to state and local government services, which include courts. Information about the rules was widely disseminated by the Department of Justice and by a multitude of groups representing individuals with disabilities. The rules were discussed in depth in a prior blog here. Therefore, I believe that state and local courthouses, and the judiciary and officials working in these facilities, are now on notice that they must accommodate individuals with disabilities.

It is often forgotten that Rashomon, the great 1950 film by Akira Kurosawa, was not just a samurai film but also a film about a trial. Four stories are told by the survivors and witnesses of the incident, all of whom give such different accounts that viewers are never sure what happened. Nor do I know what really happened at the entrance to the Bradley County courthouse on August 11, 2009. I do not know if Sergeant Brown was surly and dismissive of a request that required him to make more effort than he was willing to give to his job. I do not know if Brenda was too quick to take offense. I do not know what emotional reaction I would have had to the incident had I been an eye witness. Even had I been there, however, my emotional reaction is irrelevant because I do believe that justice was done. A different justice should apply to such a situation if it occurred now.

Sears v. Bradley County Government, 2011 WL 4473876 (E.D. Tenn. 2011)

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VA Plans Outsourcing Service Dog Certification, Ignores PTSD Dogs, Will Fund Only 100 Dogs a Year

Update: Final rules were posted in the Federal Register of September 4, 2012.  The VA made only cosmetic changes to its initial proposal, but did indicate that the rules were not intended to provide access procedures to VA facilities.  Whether VA hospitals and Army posts that used the proposed rules as access guidance will reconsider this approach remains to be seen. As noted by Christine Stapleton in The Palm Beach Post of September 4, none of the major problems with the original issuance were seriously dealt with. The final rules will be analyzed in detail here in the next week.  

The Veterans Administration has proposed rules that would define the circumstances under which a veteran may qualify for VA funding in obtaining and maintaining a guide dog, hearing dog, or mobility impairment dog. The dog would, in the future, have to be trained by a member organization of either Assistance Dogs International (ADI) or the International Guide Dog Federation (IGDF). Considering that the VA is anticipating only funding 100 dogs a year, this means that only a negligible number of veterans in need of service dogs are actually going to get them with VA financial support.

The VA puts off consideration of whether it will approve service dogs for veterans with PTSD and other mental illnesses, but the parsimony displayed here is likely to mean that few veterans will in the end receive financial support for such dogs.

Many providers of service dogs to veterans, including members of ADI and IGDF, depend primarily on private donors for the funds to train service dogs and to adapt them to their veteran handlers, and the low level of VA funding assures that this will continue to be the case. Providers not accredited by ADI and IGDF should not assume, however, that the VA’s blessing of these two accreditation groups will not have an impact on their funding sources. Donors, health care professionals, and even other federal agencies may be influenced by the VA’s determinations in choosing beneficiaries for charitable donations and in awarding grants.

History of Service Dogs and the VA

The Veterans Administration was empowered by Congress (38 U.S.C. 1714) to provide guide dogs for blind veterans in 1958 (PL 85-857). In 2002 (PL 107-135), this authority was expanded to included “service dogs trained for the aid of the hearing impaired” and “service dogs trained for the aid of persons with spinal cord injury or dysfunction or other chronic impairment that substantially limits mobility to veterans with such injury, dysfunction, or impairment.” In 2009 (PL 111-117), the VA’s authority was expanded to include the ability to provide veterans with “service dogs trained for the aid of persons with mental illnesses, including post-traumatic stress disorder.”

As early as 1961 (26 Fed. Reg. 5872, June 30, 1961), VA regulations stated:

“Blind ex-members of the Armed Forces entitled to disability compensation for a service-connected disability may be furnished a trained dog-guide. In addition, they may be furnished necessary travel expense to and from their places of residence to the point where adjustment to the dog-guide is available and meals and lodging during the period of adjustment, provided they are required to be away from their usual places of residence during the period of adjustment.” (38 CFR 17.154)

The VA is also authorized to provide mechanical and electronic equipment to recipients of guide dogs, which has included hardware required by the dog, such as a halter.

VA Inspector General 2010 Reports

In the VA Inspector General’s Semiannual Report to Congress for the period ending September 30, 2010, the IG noted the VA’s difficulties in getting non-guide service dogs to veterans:

“OIG evaluated VHA’s progress in providing guide and service dogs to qualified Veterans. While VHA has assisted visually impaired Veterans in obtaining guide dogs for several decades, VHA only began assisting mobility and hearing impaired Veterans with service dogs in 2008—6 years after originally being authorized. Since 2008, VHA’s authorization of service dogs has been limited to only eight Veterans. VAMCs lack sufficient guidance to ensure consistent decisions on Veterans’ requests for service dogs. Additionally, VHA is unsure of the actual demand for service dogs and is in the process of determining the appropriateness of using service dogs to assist Veterans with mental impairments. OIG recommended that VHA issue comprehensive interim guidance until VHA’s draft regulation addressing service dogs is finalized. The Under Secretary for Health agreed and stated that immediately after the draft regulation is published, VHA will issue a directive defining VHA’s policy on issuing service dogs.” (emphasis added)

An audit report published July 7, 2010 (10-01714-88) states that from October 1, 2008, through March 31, 2010, VA “paid for veterinary care and equipment for over 230 guide dogs for visually impaired veterans…. VA medical center PSAS staff authorizes guide dogs for the visually impaired veterans. If authorized, the veteran obtains the dog from an accredited, nonprofit organization with no charge to VA or the veteran for the dog. Eligible expenses are billed directly to the veteran’s VA medical center. From October 1, 2008 through March 31, 2010, VHA paid about $243,000 for eligible expenses or about $870 per dog in FY 2009.”

The national director of PSAS (Prosthetics and Sensory Aids Service, a VA unit) told the IG’s staff “he was not receiving many requests for service dog benefits, no wait list for authorization existed, and he was not sure what additional demand for service dogs existed. Also medical center personnel could not provide us the number of veterans who were previously denied a service dog, or an estimate of veterans who may benefit from the assistance of a dog in the future.”

The VA IG contacted four organizations and found that they had provided 72 veterans with service dogs, as follows: Canine Companions for Independence (CCI) (28), America’s VetDogs (25), Paws With a Cause (12), and Kansas Specialty Dog Service (KSDS) (7). CCI, Paws With a Cause, and KSDS are full members of Assistance Dogs International; Amerca’s VetDogs was founded by the Guide Dog Foundation, a member of the International Guide Dog Federation. The IG’s report notes that it did not verify whether the veterans being provided dogs by the programs actually qualified for benefits.

The Inspector General detailed the following situations indicating problems with the VA’s provision of service dogs:

• Two veterans applying for benefits for a seizure alert dog to treat epilepsy received different results. A veteran at the Indianapolis VA Medical Center received approval for a seizure alert dog in January 2010. The approval record stated that a seizure alert dog is “a reasonable treatment option.” However, that same month, a veteran at the Washington DC VA Medical Center received a denial for a seizure alert dog because epilepsy did not result in mobility limitation and seizure alert dogs “do not meet criteria for VA support.
• A mental health coordinator at the Columbia VA Medical Center suggested to mental health patients that getting a service dog would be beneficial and that VA could pay for some of the expenses. However, in March 2010, the PSAS coordinator at that facility told veterans not to apply for benefits because he had received guidance from VHA stating that VHA was not authorizing service dogs for mental health disabilities.

Proposed Regulations

Now, the VA is proposing rules that would flesh out the meaning of its statutory authority to provide service dogs other than guide dogs (76 Fed. Reg. 35162, June 16, 2011). The VA emphasizes that it may provide service dogs to veterans, “but is not required to do so.” The VA estimates that only about 100 veterans will obtain service dogs each year and expects that submitting certification information will require “5 minutes per veteran.” This is wildly optimistic, even excluding the time the veteran must take to obtain the information that is to be sent to the VA. (As someone who commented on IRS regulations while Chair of the Banking and Savings Institutions Committee of the American Bar Association Tax Section, I am well aware that time estimates in proposed federal compliance regulations are always low and generally fanciful.)

In an effort at regulatory efficiency, the VA will remove the current regulation on guide dogs and combine everything into a single service dog regulation, 38 CFR 17.148. The proposed rule would offer the same travel benefit as was previously offered for veterans going to get guide dogs, and would clarify the VA’s interpretation of its statutory authority as including the provision of veterinary benefits for veterans receiving qualified service dogs.

Qualification for Service Dog Benefits. The VA establishes clinical requirements for service dog benefits. A veteran would have to have a visual, hearing, or substantial mobility impairment supported by a VA clinician’s medical judgment that “it is optimal for the veteran to manage such impairment and live independently through the assistance of a trained service dog.” The VA clinician would have to assess whether there were other means for providing such independence, such as technological devices or rehabilitation techniques. If such means are available, the VA states without hesitation that it “will not authorize benefits under this section.”

This observation must be correlated with the VA Inspector General’s July 2010 audit of the guide and service dog program, which quoted the PSAS national director as stating that, prior to 2008, VA guidance “to medical center personnel was to deny requests for service dog benefits. Since 2008, VHA’s guidance has been to use service dogs after considering other options.” The VA will, apparently, only approve a service dog if the dog can “effectively perform a task that cannot be achieved through assistive technology or daily living aids.” Even though the Chief Medical Officer in a conference call of February 2010 encouraged directors to inform clinicians that the VA supports service dogs, minutes of the call indicate that no definitive criteria existed and the CMO reiterated prior guidance indicating that other options should be considered first.

Mobility Impairment. A substantial mobility impairment would, under the proposed rules, be a spinal cord injury or dysfunction or other chronic impairment substantially limiting mobility, analogizing this to the requirements for providing a guide dog:

“In providing guide-dog benefits, Congress intended to assist a group of veterans whose visual impairment prevents them from physically moving about in society. In providing service-dog benefits for veterans with hearing or spinal cord injuries or other chronic impairment that substantially limits mobility, Congress intended to help veterans with physical limitations. Both of these benefits increase a veteran’s overall ability to move independently and safely in his or her home, community, or both. However, the statute is silent as to a veteran who can see and who does not have an injury that prevents full range of motion but who nevertheless cannot move independently and safely in his or her home, community, or both. Therefore, we would interpret chronic impairment that substantially limits mobility to include, but not be limited to, disabilities such as a traumatic brain injury that compromises the ability to make appropriate decisions based on environmental cues such as traffic lights or a seizure disorder that renders a veteran immobile during and after a seizure event.”

Specific Accreditation Organizations Approved. The VA specifies that it would only recognize service dogs obtained through organizations accredited by Assistance Dogs International (ADI) or the International Guide Dog Federation (IGDF). The two organizations have a joint protocol, as the preamble to the proposed regulations explains in detail:

“ADI does not accredit organizations that provide guide dogs— ADI only does so for service-dog organizations that train dogs to perform services for individuals with conditions other than blindness. Accreditation of guide-dog programs is done by IGDF, with whom ADI has a joint protocol. ADI will only accredit guide-dog programs if they are also involved in training service dogs, and even then ADI accredits only that portion of the training related to service dogs—IGDF accredits the guide-dog portion. IGDF does not accredit any non-guide dog programs.”

The VA explains its deferral to these private organizations as being due to the absence of federal regulations governing guide or service dogs and its own lack of expertise in the area. The absence of federal regulations may be a criticism of the Department of Justice, which specifically avoided choosing outside help in this manner, going rather towards a functional approach (75 Fed. Reg. 56272):

“Certain commenters recommended the adoption of formal training requirements for service animals. The Department has rejected this approach and will not impose any type of formal training requirements or certification process, but will continue to require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability. While some groups have urged the Department to modify this position, the Department has determined that such a modification would not serve the full array of individuals with disabilities who use service animals, since individuals with disabilities may be capable of training, and some have trained, their service animal to perform tasks or do work to accommodate their disability. A training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources.”

Since the VA continually emphasizes the discretionary aspect of its authority, it is apparently less concerned with limitations on service dog benefits that might result from its approach. The release states that the VA believes “most service-dog providers that provide dogs to veterans are already accredited in accordance with the proposed rule.” The Secretary of Veterans Affairs, to meet Regulatory Flexibility Act (5 U.S.C. 601-612) requirements, certified that the proposed rule “would not have a significant impact on a substantial number of small entities as they are defined” in that Act. The definition of “small entity” includes small businesses and small organizations. Since ADI does not include for-profit organizations, it must be questioned if this certification could withstand scrutiny. One organization that trains dogs for veterans calculated that there are no ADI programs in 22 states.

Service Dogs Obtained Prior to Current Regulations. Veterans who obtained service dogs before the current regulation is finalized could keep their dogs, and such benefits they qualify for, by providing a certificate showing the veteran and dog completed a training course with an organization in existence at the time:

“We would allow veterans who obtained dogs through such non-accredited organizations up to 1 year after the effective date of this rule to obtain the required certification. Alternatively, the veteran and dog could obtain the certification from ADI or IGDF….”

This seems to mean that a non-ADI-or-IGDF organization could retroactively certify a service dog, but that if this avenue was not open (say the organization no longer exists), the veteran could obtain a certification by going to an ADI or IGDF organization. This would obviously involve some testing and the VA should make sure that ADI and IGDF provide mechanisms for such shortened certification procedures.

The VA estimates that about 600 existing service dogs will need to be certified. Given the VA Inspector General’s finding of 230 guide dogs and eight non-guide service dogs since 2008, it must be assumed that almost all of these 600 applicants will have guide dogs. It is not clear where the number 600 came from, though if 230 is the number of guide dogs provided over a two-year period and the working life of a guide dog is somewhere around eight years, the estimate seems reasonable.

Expenses VA Will Cover, and Expenses It Will Not Cover. Although the VA will cover veterinary treatment and hardware related to the service dog, and travel expenses associated with obtaining the dog, it does not intend to provide assistance for “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 expressly prescribed by regulation.”

Insurance Policy for Veterinary Care. Veterans would be able to obtain insurance to cover veterinary care for service dogs as the VA acknowledges that it lacks “the resources to review whether a veterinarian is appropriately licensed or charges appropriate fees for veterinary care.” The VA would pay “any premiums, copayments, or deductibles associated with the insurance policy,” and the VA would be billed directly for these expenses. Policies would be subject to an annual cap:

“Annual caps are a common limitation on insurance policies for service dogs, and we intend to rely on the reasonable cost-control methodologies calculated by experts in the field of veterinary insurance. When determining which companies to form relationships with, of course, VA will carefully review the maximum amounts authorized for particular procedures, as well as any annual caps on expenditures, to ensure that our veterans are getting the best insurance plan possible. To further protect veterans, we would require that the policy ensure advance notice whenever reasonably possible that a particular treatment may exceed the policy’s limits. Obviously, it may not be possible to provide advance notice when an animal requires emergency care; however, where a veterinarian prescribes a future treatment event or an ongoing course of treatment, the insurer should be expected to notify the veteran that he or she may have some financial responsibility. Proposed paragraph (d)(1)(ii) would require that the policy guarantee coverage for all treatment, subject to any annual caps that may be in place under the policy, including euthanasia, so long as it is determined to be medically necessary by a veterinarian recognized by the insurance carrier. This is to ensure that the policy does not exclude medically necessary treatment. Proposed paragraph (d)(1)(iii) would bar policies from excluding dogs with preexisting conditions that do not prevent the dog from being a service dog.”

The VA states categorically that, no matter what happens, it “will not take possession of, or responsibility for, the dog under any circumstances.” With many organizations providing service dogs this will not be a problem as they retain ownership of the dog during its service life.

Dog Not Performing as Service Dog. The VA is concerned about being hoodwinked, and requires that if the VA learns from any sources that the dog is not performing an assistive role, or that the veteran no longer needs the dog from a clinical perspective, it will give the veteran a 30-day notice of termination of benefits. The VA will not provide benefits for two dogs simultaneously, so the VA must first terminate coverage for a dog no longer performing service dog duties before it will cover the training of a new dog to perform those services.

Effects of Blessing Two Umbrella Accreditation Organizations

The VA Inspector General, in July 2010, stated that the VHA signed a Memorandum of Understanding with Assistance Dogs International “to gain their assistance in preparing educational materials for providers and veterans.”

Assistance Dogs International lists about 80 organizations as accredited members and even more than that as candidates. Candidates have seven years to satisfy ADI that they should become full members, after which they must, according to the ADI website, “show due cause to the Board of ADI as to why they should remain a Candidate and outline a clear timetable of how and when they will be ready for accreditation.” The International Guide Dog Federation lists ten organization members in the U.S., but does not list any organizations seeking admission, though the IGDF website does provide a membership application on the FAQ page.

The VA’s rulemaking will create pressure on ADI candidate organizations providing service dogs to veterans to become full members, since lack of accreditation will mean ineligibility to receive payments from the VA. ADI candidates would be well advised to seek a letter from the VA stating their qualification for VA support as long as their candidacy remains active.

One comment received by the VA on its rules release is the Educated Canines Assisting With Disabilities (ECAD), a 501(c)(3) organization and member of ADI for 12 years. (The ADI website apparently lists the organization under East Coast Assistance Dogs but with the same acronym.) ECAD’s comment states that “at this point ECAD has placed seventeen Service Dogs with Veterans, some with loss limb/s, back injuries, TBI, and/or PTSD. The VA has paid for only one Veteran, after which the VA informed ECAD not to apply again, because they are not paying for Service Dogs.” ECAD notes that its placements exceed the total number of non-guide dog placements funded by the VA.

Organizations that have not applied for recognition by ADI may nevertheless find it difficult to remain outside of the ADI system. Philanthropists who give to service dog organizations may be influenced by the VA’s actions, particularly if support of veterans is important to them. Even organizations not looking for VA support for their work may feel pressured to join ADI because of donor concerns and the possibility that other federal agencies may (officially or not) be inclined to follow the VA’s lead in relying on these two umbrella organizations.

The ADI Accreditation Procedures posted on the organization’s website provide for appeal of a failure to pass the accreditation survey to the ADI Board, but the Procedures state that the decision of the ADI Board is final. While it must be assumed that the two organizations operate honorably and efficiently, the organizations are international and it would appear to be difficult for the VA to audit those procedures either on a regular basis or in following up on a complaint by an organization that was denied approval. There would apparently be no separate evaluation in such a situation by VA personnel, and it is not clear that the VA has required or asked for any authority to investigate a Board decision. Any memorandum of understanding between the VA and either ADI or IGDF should be made public and should be posted on an easily accessible section of the VA's website.

Exclusion of Psychiatric Service Dogs

The proposed regulations provide no mechanism by which veterans can obtain psychiatric service animals. The VA feels no need to deal with this now, however, and explains:

“In 2009, Congress authorized VA to provide service dogs for the aid of persons with mental illnesses by amending section 1714. Although VA welcomes the possibility that trained dogs may provide valuable services to veterans diagnosed with certain mental illness, at this time we do not have any scientific data to determine, from a purely clinical standpoint, whether or when service dogs are most appropriately provided to veterans with mental illness, including post-traumatic stress disorder. In the National Defense Authorization Act for Fiscal Year 2010, PL 111–84 (2009) [§ 1077] , Congress mandated a 3-year study on the effectiveness of dogs for mental health purposes. The results of this study will help us learn more about the services that trained dogs can provide for veterans diagnosed with mental health conditions. Upon the completion of the study and analysis of its results, VA may revise its regulations in order to provide this service to our veterans.”

The rules release makes no mention of the statement of the Senate Appropriations Committee directing “the Department [of Veterans Affairs] to continue assisting those veterans with mental illnesses, including Post Traumatic Stress Disorder, who would benefit from having a service dog.” The Appropriations Committee, unfortunately, may in the next sentence have given the VA the excuse for delay: “The Committee urges the Department to consult with nonprofit organizations with expertise in the training and provision of service dogs and education in the use of service dogs in order to review current policies and regulations.” (Senate Report 111-226, July 19, 2010, at 50).

The House Committee on Appropriations, also not mentioned in the VA release, was more emphatic:

“The Committee is disturbed by the Department’s slow pace in implementing its new authority to provide service dogs to veterans with mental impairments, including post-traumatic stress disorder. The Committee understands that the VA is providing fewer than ten guide dogs to veterans and no service dogs for veterans with mental impairments. The Committee directs the VA to finalize regulations governing such a program by September 1, 2010 and to report to the Committee the operational details of the program established.” (House Report 111-559, July 22, 2010, at 46)

The PTSD Research Quarterly, 22(2) (2011), described one study finding a rate of 21.8% of PTSD in veterans of Operations Enduring Freedom and Iraqi Freedom. The proportion of vets who would be helped by service dogs would only be a guess, but I suspect few would put this as low as 100 per year. (See statement of Senator Charles Schumer regarding the VA "dragging its feet in providing disabled vets with service dogs.")

The VA’s decision on psychiatric service dogs has already caused consternation among veterans. As one organization commenting on the proposed rules, Educated Canines Assisting With Disabilities, stated: “Veterans with whom we work say they do not need three years for the survey—they know the Service Dogs work and they need these Service Dogs now.”

What Commenters Are Saying

One organization commenting on the proposed rules, Happy Trails Service Dogs, Inc., states that it was a member of ADI for over ten years, but chose to terminate its membership after the ADI administration changed and the accreditation manual was developed. The executive director of this organization, Joyce Weber, notes that restricting veterans to ADI and IGDF “would be like telling someone they are eligible for Food Stamps but are only able to spend them at one particular store no matter how convenient or inconvenient that may be.” Another commenter argues that the ADI application fee and the expenses for completing the application process will often be prohibitive for a small organization placing perhaps six to ten dogs per year.

A number of commenters on the proposed regulations observe that for-profit organizations are not eligible for ADI membership. One commenter notes that for-profit groups do not necessarily charge more for service dogs than not-for-profit organizations, and another commenter argued that for-profit groups often charge less. It is to be noted, however, that not-for-profit groups will not at least directly have costs covered by charitable donations.

One commenter suggests that the VA provide some mechanism by which the VA should approve self-trained service dogs. Presumably, this might be possible were the VA to expect ADI and IGDF organizations to provide certifications to previously trained dogs, much as is suggested in the preamble regarding dogs trained by non-ADI and non-IGDF organizations. Again, it would be important for the VA to be capable of auditing such procedures. Several comments note that the VA’s approach is not going to reduce the long wait time most applicants endure before they get a service dog.

It is not clear that the VA previously considered a number of issues raised by commenters, such as the capacity of for-profit groups to train service dogs and the fact that many smaller service dog training organizations will find membership expenses of ADI prohibitive. Whether the agency will look at these issues may depend on the number of comments received, or not.

Comments, including one by me, may be accessed on the regulations.gov website.

Conclusion

The VA is seeking comments on the proposed rules by August 15. Although the two organizations blessed by the VA are likely to be happy with a recognition not granted by the Department of Justice, if only 100 veterans a year get dogs with VA support, it is something of a Pyrrhic victory. Presumably about half of those dogs or more will be guide dogs, given the pride of place that such dogs and their organizations have in the service dog world. That means that organizations within the ADI can expect no more than one or two veteran placements, and most will get none at all. Organizations not full members of ADI and IGDF will likely be left out from VA support in the future, and may find it increasingly difficult to get private donations even if they have no expectation of VA support.

Worse, the rule does not bode well for veterans themselves. VA clinicians will be under pressure to limit service dog approvals, and veterans will find themselves obligated to go outside the system. Even when regulations for service dogs for PTSD and other mental illnesses are eventually issued, the number of vets getting the dogs will almost certainly be a small fraction of those needing them.

The proposed regulation is reproduced in full below.

§ 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:
(1) The veteran is diagnosed as having a visual, hearing, or substantial mobility impairment; and
(2) A VA clinician determines based upon medical judgment that it is optimal for the veteran to manage such 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 [date of publication of final rule in the Federal Register] will be recognized if a guide or service dog training organization in existence before [date of publication of final rule in the Federal Register] certifies that the veteran and dog, as a team, successfully completed, no later than [date 1 year after date of publication of final rule in the Federal Register], 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. 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 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.
(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 clinician 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 for in 38 CFR part 70.
(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, petsitting 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)

§ 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 ex-members of the Armed Forces entitled to disability compensation for a service-connected disability.

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Getting Paid for Taking Service Dog Cases: Thank the Law Gods for Appellate Courts

In October 2005, Charles Williams, a paraplegic, entered a Hilton Hotel franchise in Long Beach, California, with his service dog and requested a room. He was refused accommodations and told to leave the premises. In 2009¸a jury found that the Hilton franchise had violated California’s Unruh Civil Rights Act and had negligently trained and supervised its employees, awarding Williams $14,200 in damages, but rejected Williams’ claim for intentional infliction of emotional distress. The trial court granted the Hotel’s motion for summary judgment notwithstanding the verdict, finding that Williams’ negligence claim as to the Hotel's training of employees was not supported by substantial evidence.

The parties also stipulated to a permanent injunction after trial. The Hotel agreed to post signs that service dogs are welcome, modify its policies so that no weight limitations would apply to service animals accompanying a disabled guest, not to require a cleaning fee or deposit for service animals unless authorized by statute, and implement training standards for personnel regarding the rights of disabled persons to be accompanied by service dogs.

Williams was represented by two lawyers and applied for statutory attorneys’ fees. Samuel Jackson claimed 145.15 hours at an hourly rate of $550, totaling $79,832.50. Aaron Stites claimed 487.4 hours at a rate of $295, totaling $143,783. The trial court concluded that the case was not a difficult one, did not involve a large number of witnesses, numerous documents, or complicated transactions. The court described it as “a very simple case that would be won or lost on the issue of plaintiff’s credibility.” The court disallowed all fees claimed by Jackson, but allowed that a reasonable amount of time for Stites was 80 hours, for which the court awarded him $23,600.

The trial court thus decided that Jackson should receive nothing for interviewing Williams, inspecting the hotel property, reading depositions of the Hotel’s employees, reviewing various documents prepared by Stites (an attorney recently admitted to the California bar), conducting voir dire, preparing witnesses, giving the opening statement, and examining Williams at trial. The trial court apparently felt that Stites should have been able to conduct the case without any of this support or help, and presumably without virtually any preparation at all. This would make disability rights a very unappealing area of practice, which may have been the idea. (Presumably this trial court would feel that the book I wrote covering the law of service and therapy dogs could have been written in much less time than the two years it took me.)

There is good reason for appellate courts. The appellate court accepted that the trial court has latitude in awarding attorney fees, “and its determination will be upheld unless there is a manifest abuse of discretion.” The trial judge can rely on its own expertise, but is to consider (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, and (4) the contingent nature of the fee award. When a trial court severely curtails a fee award, the appellate court may reasonably presume that it concluded the fee request was padded.

Williams contended on appeal that only the first of these four matters was considered by the trial court, the difficulty of the case. The appellate court noted that the amount of compensatory damages awarded the plaintiff does not control the appropriate level of attorneys’ fees where constitutional rights are vindicated. Trial courts can, however, reject attorneys’ fees on claims that are unsuccessful, as was true of some of the claims here. Of course, part of the lack of success here was the judge's decision to set aside part of the jury's verdict.

“Even if the trial court could reasonably deny attorney fees for claims that it felt were unnecessarily pleaded, the court could not ignore that in addition to obtaining damages for Williams personally, plaintiff's counsel benefitted the public by securing a permanent injunction…. The purpose of the Unruh Act's attorney fees clause is to encourage vigorous enforcement of civil rights—an important public policy—by allowing injured parties to seek redress and attorney fees in situations where they would not otherwise find it economical to sue.”

The appellate court found that the trial court gave “no credit to counsel for vindicating the legal rights of all disabled people who frequent the Hotel while using licensed service animals.” Further:

“The trial court's refusal to award any fees to co-counsel Jackson was arbitrary and inexplicable. Jackson conducted jury voir dire, made the opening statement, and examined plaintiff at trial. The court conceded that Jackson's participation was “no doubt helpful and of benefit” to Stites. Any benefit to lead counsel is, at base, a benefit to plaintiff. As Stites revealed to the trial court, this was his first jury trial. Plaintiff might not have prevailed at trial without Jackson's skill in establishing plaintiff's credibility for the jury. While the court has discretion to award a reasonable fee for Jackson, it lacked discretion to deny his fee altogether.” (emphasis added)

The appellate court concluded:

“The case must be remanded to the trial court to revisit its award of attorney fees. On remand, the court must take into account the public benefit secured by counsel in pursuing this civil rights case and obtaining a permanent injunction requiring defendant to post signs, modify its policies and implement employee training with regard to treatment of disabled customers with service dogs, to deter future Unruh Act violations. Further, the trial court must award attorney fees to Samuel Jackson for nonduplicative services he rendered at trial—and pretrial preparation for those services—that helped plaintiff win his Unruh Act claim. Finally, the trial court must award attorney fees incurred in prosecuting this appeal.”

This counts as chastising. Hopefully, I won’t have to add an additional note about a subsequent appeal from this trial court.

Williams v. HEI Long Beach LLC, 2011 WL 2120908 (Ct. App. 2011)

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