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.
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.
