The problem with this proposal is that once the service dog access regulations proposed by the VA in the Federal Register on November 21, 2014, are made final, as may happen soon, veterans will be able to enter VA facilities with service dogs for PTSD, but unless the transport rules are revised to conform, they will not be able to bring their dogs on vehicles that will take them to the appointments. While it might be expected that logic will not let this happen, the administrative paralysis that has afflicted operation of the VA in recent years could mean that logic will have little to say about the matter. We can pray, but we can also write letters, and I submitted the following comment letter concerning the regulatory confusion to the Department of Veterans Affairs.
The letter has now been posted on the regulations.gov website. Thanks to Veronica and Brad Morris of Psychiatric Service Dog Partners for reading an earlier draft of this letter.
June 4, 2015
William F. Russo, Director
Regulation Policy and Management
Department of Veterans Affairs
810 Vermont Ave. NW, Room 1068
Washington, DC 20420
Re: RIN 2900-AO92-Veterans Transportation Service
Dear Director Russo:
This comment is submitted regarding two provisions in the proposed rules concerning the Veterans Transportation Service as published in the Federal Register on May 27, 2015, 80 Fed. Reg. 30190. Both provisions refer to service dogs. I am an attorney in private practice, licensed in the State of New York. I have written a book, Service and Therapy Dogs in American Society (CC Thomas 2010), which describes service animal rules in various contexts, and also maintain a blog that regularly covers legal issues regarding dogs where I have discussed issuances of various agencies, including those of the Department of Veterans Affairs.
Proposed 38 CFR 70.71(b) states that “[r]egardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS [Veterans Transportation Service] to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 [Types of transportation] for: … (2) Retrieval of, adjustment of, or training concerning medications, prosthetic appliances, or a service dog (as defined in 38 CFR 17.148)…” (emphasis added). The other reference to a service dog in the proposed rules occurs at 38 CFR 70.73(a), which provides that in requesting VTS, the requester “must provide the facility director or designee with information necessary to arrange these services, including … any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog)…” (emphasis added). The second provision does not separately reference a definition for “service or guide dog” so it must be presumed that the definition would there also be taken from 38 CFR 17.148.
The preamble to the proposal, at 80 Fed. Reg. 30192-3, elaborates:
Enrolled veterans would be eligible under paragraph (b) [Enrolled veterans] if they are traveling for a scheduled visit or urgent care; for retrieval, adjustment, or training concerning medications or prosthetic appliances; to acquire and become adjusted to a service dog provided pursuant to 38 CFR 17.148; for an unscheduled visit; or to participate and attend other events or functions for the purposes of examination, treatment, or care. (emphasis added)
This paragraph is apparently intended to indicate that if a veteran needs VTS in order to acquire or become adjusted to a service dog, such a dog would have to be one that satisfies the requirements of 38 CFR 17.148, which has a narrower definition of service dog than that contained in proposed 38 CFR 1.218(a), 79 Fed. Reg. 69379, November 21, 2014. If providing transportation services to acquire a service dog is regarded as one of the expenses that the VA will undertake to cover under the general service dog funding regulation, 38 CFR 17.148, then there is some logic to such a restriction. The phrase “becoming adjusted to a service dog” would seem to be somewhat less easily categorized as an activity that should be restricted to a service dog for which the VA would provide funding. Although it is not clear how often veterans are provided VTS solely for the purpose of becoming adjusted to traveling with service dogs, all veterans with all service dogs, including service dogs under the broad definition of proposed 38 CFR 1.218(a), must be able to habituate their dogs to transportation vehicles.
The preamble also states that when an eligible person is contacting a VA facility regarding an examination, treatment, or care at the facility, a request may be made for transportation services. The request may be made to a Mobility Manager in “many cases,” or to someone designated by the facility director. The request is to contain necessary information for the transportation of the veteran, which can include “special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog) and other relevant information.”
This clearly indicates that transportation services can be provided to any eligible veteran who is coming to a VA facility for an examination, treatment, or care, and who may need to be accompanied by a service dog. Such a dog should not be presumed to be restricted to a dog eligible for VA funding under 38 CFR 17.148, but rather to any service dog that can obtain access to VA property under proposed 38 CFR 1.218(a), a much broader definition and one largely if not completely consistent with regulations regarding service animals issued by the Department of Justice (28 CFR 36.104, etc.). If service animals that could be brought with a veteran on a VTS transport vehicle were restricted to the definition provided in 38 CFR 17.148, the anomalous situation would inevitably arise, upon finalization of 38 CFR 1.218(a), that a veteran could be entitled to bring a service dog for PTSD into a VA facility but would not be able to obtain transportation services in order to get the dog to the entrance of the facility.
It might be argued that proposed regulations on transportation services should not be required to take into account proposed regulations on another issue, and this argument may as a policy matter have merit. I note, however, that at a May 19 meeting of the VA Advisory Committee on Prosthetics and Special-Disabilities Programs, slides presented by Joyce Edmondson, Co-Chair of the VHA Animals in Health Care Committee, indicate that proposed 38 CFR 1.218(a) “is currently in the concurrence process with expedited review being completed at request of the Secretary.” It would, therefore, seem appropriate to anticipate the finalization of those regulations with language to the effect that transportation services should be provided to veterans with service dogs as defined in regulations relevant to the access of animals to VA facilities.
Distinction between Service Dogs under 38 CFR 17.148 and Proposed 38 CFR 1.218(a)
Under 38 CFR 17.148, service dogs are defined as “guide or service dogs prescribed for a disabled veteran….” Clinical requirements must be met, including that the “veteran is diagnosed as having a visual, hearing, or substantial mobility impairment….” Even if a veteran is diagnosed as having such a condition, the regulation provides that “[i]f 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.” I have been informally advised by one group working with veterans that this sentence has on occasion been used to justify medications, often substantial amounts of medications, as a preferable alternative to the use of a service dog.
In addition to the one sentence definition of service dogs, 38 CFR 17.148(c) defines “[r]ecognized service dogs … for the purpose of paying benefits…” as having to satisfy the following requirement:
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.
Thus, the veteran is to have a document that indicates completion of a training program with one of two organizations, or both. Such a document might become a means by which employees of transport services would be able to verify that a service dog satisfies the requirements of 38 CFR 17.148 and thereby preclude access to vehicles by service dogs without such documentation. Indeed, to accept dogs that did not qualify under 38 CFR 17.148 might arguably be a violation of the mandates of the proposed revisions to 38 CFR Part 70.
In contrast, proposed 38 CFR 1.218(a)(11)(viii) defines a “service animal” as follows:
A service animal means any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under § 17.148 of this chapter. (emphasis added)
There is no specific organizational connection required for a dog to be a service animal under this provision, and there is no reason that a dog could not be trained by a veteran himself. Indeed, there are programs under which veterans are presently being taught to train dogs, including service dogs. Also, there is no requirement that the service animal’s function be solely related to a “visual, hearing, or substantial mobility impairment,” as specified in 38 CFR 17.148, and functions related to a “sensory, psychiatric, intellectual, or other mental disability” are specifically allowed for service animals under the proposed provision. If there were any doubt, the final sentence specifically distinguishes this section from the funding provision.
Suggested Modifications to 38 CFR Part 70 Proposal
It is, of course, possible that proposed 38 CFR 1.218(a) will be finalized before the proposal under discussion here is finalized. In that event I respectfully suggest that the parenthetical cross-reference in 38 CFR 70.71(b)(2) to 38 CFR 17.148 be changed to 38 CFR 1.218(a). If finalization of 38 CFR 1.218(a) does not occur prior to the finalization of the current proposal, I suggest that the parenthetical reference in 38 CFR 70.71(b)(2) be altered to read:
(as defined in 38 CFR 17.148 or in such regulations as apply to the access of animals to VA property)
Although I do not believe an exception on transportation services should be made based on the VA’s service dog funding policy, if it were deemed necessary to separate general transportation services from transportation specifically to acquire a service dog, the cross-reference to a broader definition could be restricted to proposed 38 CFR 70.73(a), where a sentence could be added after the sentence with the parenthetical reference to “service or guide dog” stating: “For purposes of this provision, a service dog is one defined under such regulations as apply to the access of animals to VA property.”
If an alteration to the effect of one of these suggestions is not accepted, the preamble to the final regulation under 38 CFR Part 70 should advise veterans as to the reason for a policy decision that transportation services will only be provided to service dogs satisfying the restricted requirements of 38 CFR 17.148.
Please contact me with any questions regarding this comment. I can be reached at email@example.com or at 917-613-4960.
John J. Ensminger
 No provision other than §17.148 in Title 38 of the Code of Federal Regulations defines or even refers to service dogs. Present 38 CFR 1.218(a)(11) refers to seeing-eye dogs, a provision that would be significantly expanded under the proposed service and therapy dog access regulations referred to at length in this letter. 38 CFR 17.37(h)(i) refers to certain kinds of care which, under special circumstances, a veteran may receive, mentioning “seeing-eye or guide dogs.” 38 CFR 18.444 refers to recipients of funds to provide educational programs for veterans and states that such recipients cannot impose certain kinds of rules on “handicapped students,” an example of which would be prohibiting students from bringing guide dogs into campus buildings.
 Under 38 CFR 70.1, Part 70 “provides a mechanism” under which the VHA is “to make payments for travel expenses incurred in the United States to help veterans and other persons obtain care or services from VHA.” Although this makes 38 CFR Part 70 itself something of a funding regulation, there is no logical reason to subsume its funding limits under the funding provisions of 38 CFR 17.148. Obviously, somebody with crutches or a walker that needed transportation, but who did not obtain such items with VA assistance or approval, would not be told to leave their prosthetics at home because they were not or could not be obtained with VA funding.
 A second provision regarding “recognized service dogs” concerns dogs obtained prior to the issuance of the regulation.
 See, e.g., Rick A. Yount, Meg D. Olmert, and Mary R. Lee (2012), “Service Dog Training Program for Treatment of Posttraumatic Stress in Service Members,” pp. 63-69 in The United States Army Medical Department Journal: Canine-Assisted Therapy in Military Medicine (April-June 2012), describing a service-dog training program as “a safe, effective, nonpharmaceutical intervention to treat the symptoms of posttraumatic stress disorder (PTSD) and traumatic brain injury in Veterans and service members undergoing treatment at a large Veterans Administration residential treatment facility.” (available for download at http://www.cs.amedd.army.mil/FileDownloadpublic.aspx?docid=73e8d2aa-1a2a-467d-b6e3-e73652da8622).