Animals on VA Property, 49157-49164 [2015-20182]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 80, Number 158 (Monday, August 17, 2015)]
[Rules and Regulations]
[Pages 49157-49164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20182]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AO39


Animals on VA Property

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its regulation 
concerning the presence of animals on VA property. This final rule 
expands the current VA regulation to authorize the presence of service 
animals consistent with applicable Federal law when these animals 
accompany individuals with disabilities seeking admittance to property 
owned or operated by VA.

DATES: This rule is effective September 16, 2015.

FOR FURTHER INFORMATION CONTACT: Joyce Edmonson, RN, JD, Patient Care 
Services, (10P4), Veterans Health Administration, Department of 
Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (410) 
637-4755. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION: On November 21, 2014, VA published in the 
Federal Register (79 FR 69379) a proposed rule to amend VA regulations 
regarding the presence of animals on VA property. This rule authorizes 
the access of service animals when these animals accompany individuals 
with disabilities seeking admittance to VA property in a manner 
consistent with applicable Federal law, and clarifies the authority of 
a VA facility head or designee to allow non-service animals to be 
present on VA property.
    Interested persons were invited to submit comments to the proposed 
rule on or before January 20, 2015, and VA received 96 comments. All of 
the issues raised by the commenters that concerned at least one portion 
of the rule can be grouped together by similar topic, and we have 
organized our discussion of the comments accordingly. For the reasons 
set forth in the proposed rule and below, we are adopting the proposed 
rule as final, with changes, explained below, to proposed 38 CFR 
1.218(a)(11).
    Multiple commenters stated that it was unclear to what groups of 
individuals the proposed rule would apply. One commenter specifically 
expressed concern as to whether a service animal that assisted a 
visitor of a veteran would be permitted on VA property. We clarify for 
these commenters that this VA regulation applies to everyone seeking 
access to VA property, to include employees, veterans, and visitors. 
The rule as proposed did not contain any limiting language to restrict 
applicability to only certain groups of individuals, and we therefore 
do not make any changes to the final rule based on these comments. 
Several commenters applauded the development by VA of a uniform 
regulation for service animal access for all VA property, and did not 
recommend any changes. VA appreciates these comments and believes that 
this regulation will allow for more consistent access of VA property by 
service animals.
    One commenter asserted that VA should use the term ``assistance 
animal'' instead of ``service animals'' throughout the proposed 
regulation because, they assert, the term ``service animals'' is 
understood more narrowly in the service animal industry to refer only 
to those animals that assist with mobility impairments. We do not make 
any changes based on these comments. We disagree that the term 
``assistance animal'' is better understood than ``service animal'' by 
those in the service animal industry. Additionally, this regulation is 
written for a broader audience than just those in the service animal 
industry, to include any member of the public that may have need to 
access VA property. Indeed, the term ``service animal'' as defined in 
the proposed rule is well understood by the general public because it 
is consistent with the definition of ``service animal'' in the 
regulations that implement the Americans with Disabilities Act (ADA). 
We therefore do not make any changes based on these comments. A 
commenter

[[Page 49158]]

also urged that VA use the phrase ``guide dog'' versus ``seeing eye 
dog.'' We do not make any changes based on this comment because, as 
proposed and in this final rule, ``seeing eye dog'' is replaced in 
Sec.  1.218(a)(11) with the term ``service animal,'' and ``service 
animal'' includes those dogs trained for the purpose of assisting 
individuals with a sensory disability (to include visual impairments). 
Other commenters further asserted that the definition of ``service 
animal'' in proposed Sec.  1.218(a)(11)(viii) be changed to refer to a 
dog that does ``work or performs tasks'' as opposed to a dog that does 
``work and performs tasks.'' Particularly, commenters noted that VA 
used both these phrases interchangeably in proposed Sec.  
1.218(a)(11)(viii), and asserted that this was confusing. We agree with 
these comments, and clarify that the intent was to use only the phrase 
``work or performs tasks'' throughout the definition of ``service 
animal.'' We therefore make changes to ensure that the phrase ``work or 
perform tasks'' is used consistently throughout Sec.  
1.218(a)(11)(viii).
    One commenter was concerned that breed restrictions may be imposed 
based on a perception that certain breeds of dogs are prone to 
violence. This VA regulation does not impose breed restrictions, and VA 
will not otherwise pose breed restrictions for purposes of access of 
service animals on VA property. VA will only deny access to VA property 
or will remove a service animal from VA property based on an individual 
assessment in accordance with objective criteria of the risks that the 
individual service animal poses to the health or safety of people or 
other service animals. VA makes no changes based on this comment.
    Several commenters sought clarification between a ``service 
animal'' and a ``pet,'' and whether animals other than dogs were 
included in the definition of ``service animal.'' As proposed, Sec.  
1.218(a)(11)(viii) defined a ``service animal'' as any dog that 
accompanies an individual with a disability and that is individually 
trained for that purpose. The definition in proposed Sec.  
1.218(a)(11)(viii) specifically excluded any species of animal other 
than a dog, and specifically required that the work or tasks performed 
by the service animal be directly related to the individual's 
disability. Further, Sec.  1.218(a)(11)(viii) distinguished that the 
crime deterrent effects of an animal's presence, or the provision of 
emotional support or well-being, comfort, or companionship do not 
constitute ``work or tasks.'' The definition as proposed in Sec.  
1.218(a)(11)(viii) clearly excluded any animal other than a dog, and 
also excluded any dog that is not individually trained to assist an 
individual with a disability. As proposed, Sec.  1.218(a)(11)(viii) 
makes clear that unless the animal is a dog that is individually 
trained to do something that qualifies as work or a task, the animal is 
a pet or other type of animal and does not qualify as a service animal. 
We believe the definition in proposed Sec.  1.218(a)(11)(viii) is clear 
enough to exclude a ``pet,'', and we therefore do not make any changes 
based on these comments.
    Several commenters wanted VA to permit miniature horses on VA 
properties. As discussed in the proposed rule, VA believes the presence 
of a miniature horse poses legitimate safety concerns, both to people 
on VA property and the miniature horse, especially on VA healthcare 
properties. This final rule reiterates VA's determination from the 
proposed rule, that, in light of a review of the multiple assessment 
factors, miniature horses are excluded from VA properties. We restate 
from the proposed rule that these assessment factors include the larger 
size of a miniature horse as well as their reduced predictability in 
behaving in accordance with typical standards of public access required 
of service animals. Additional factors from the proposed rule that VA 
considers to support the exclusion of miniature horses include 
elimination of horse waste, a heightened flee response of a miniature 
horse, the smooth flooring common to VA properties, and the likely 
disruptive attention a horse would receive. We therefore do not make 
any changes based on these comments.
    Many commenters expressed concern that the proposed rule restricted 
access to only those dogs trained or certified by Assistance Dogs 
International (ADI), International Guide Dog Federation (IGDF), or one 
of their affiliated organizations. The proposed rule did not create 
such restrictions; as proposed, VA's standard for service animal access 
is consistent with regulations that implement the ADA and is not 
dependent on how the service animal was trained or by whom, but instead 
depends on the service animal's ability to behave in accordance with 
typical public access standards for public settings. Therefore, we do 
not make any changes based on these comments. VA notes that a service 
animal must be certified by ADI or IGDF as a requirement for veterans 
seeking service dog benefits under 38 CFR 17.148, however, those 
requirements for benefits do not apply to access. Conversely, several 
commenters asserted that service animal access to VA properties should 
be restricted to only those animals that are certified or trained by 
ADI, IGDF, or an affiliate--these commenters articulated various 
negative experiences where a ``fake service animal'' threatened their 
person, their service animal, or another person while on VA property or 
other property. VA recognizes that these commenters have legitimate 
concerns related to dogs that are not appropriately trained possibly 
being able to access VA property under the guise of a ``service dog,'' 
because VA will not be requiring any proof of training or certification 
for purposes of access. However, the lack of such a documentation 
requirement is consistent with regulations that implement the ADA, and 
otherwise provides the benefit of the doubt to individuals with 
disabilities unless the service animal's behavior necessitates that 
access be denied or the service animal be removed. VA does not make any 
changes based on these comments, but we stress that Sec.  
1.218(a)(11)(ii) still provides for removal of a service animal from 
certain areas on VA property if the animal exhibits behavior or other 
signs that it is a threat to the health or safety of individuals or 
other service animals on VA property.
    Several commenters objected to the requirements in proposed Sec.  
1.218(a)(11)(vii) to provide proof of a service animal's good health 
when an individual will be accompanied by a service animal while 
receiving treatment in a Veterans Health Administration (VHA) 
residential program. Some of these commenters alluded to an 
administrative burden of ``registering'' a service animal to obtain 
access to the VA property. We clarify for these commenters that Sec.  
1.218(a)(11)(vii) only applies to situations where an individual would 
be accompanied by a service animal for the duration of his or her 
treatment in a VHA residential program--these documentation 
requirements would not apply for more general access to a VA property, 
such as to receive outpatient care provided by VA. The presentation of 
certain records as proof of an animal's health required in Sec.  
1.218(a)(11)(vii) is necessary when a service animal will have routine 
and constant interaction with employees, veterans, patients, and 
visitors over the course of an extended period of time in a residential 
setting, so that VA may ensure patient care, patient safety, and 
infection control standards are met. However, we do agree with the 
commenters who noted that some of the

[[Page 49159]]

requirements in Sec.  1.218(a)(11)(vii) as proposed could create an 
undue administrative burden on both individuals receiving treatment as 
well as VA staff. We therefore make changes in the final rule to remove 
Sec.  1.218(a)(11)(vii)(A)-(C), and to revise Sec.  1.218(a)(11)(vii) 
to require that the individual receiving treatment in a residential 
program must only provide documentation that confirms that the service 
animal has a current rabies vaccine and current core canine vaccines. 
We further revise the conditions in Sec.  1.218(a)(11)(vii) related to 
when a rabies vaccine and core canine vaccines are considered 
``current'' to require ``a current rabies vaccine as determined by 
state and local public health requirements, and current core canine 
vaccines as dictated by local veterinary practice standards (e.g. 
distemper, parvovirus, and adenovirus-2).'' These changes will retain 
the requirement for documentation of basic canine vaccinations that we 
believe is necessary to ensure the service animal is in good health, 
while providing more flexibility of those required vaccinations in 
accordance with local requirements. These revisions will also remove 
the requirement for proof of a comprehensive exam within the past 12 
months, as well as remove the requirement that an individual must 
otherwise confirm in writing that the service animal is healthy. We 
believe that the revised documentation requirements in Sec.  
1.218(a)(11)(vii) now relate only to the basic canine vaccines that an 
the individual would have merely as a function of being a responsible 
dog owner, and therefore providing such documentation to VA for 
confirmation is not burdensome. We make similar changes to the 
documentation requirements related to the health of non-service animals 
in Sec.  1.218(a)(11)(ix)(C)-(E), specifically to clarify that the 
prophylactic medication requirement for non-service animals applies 
only to parasite control medications (e.g. monthly flea and tick 
prevention), and to clarify that the health requirements for non-
service animals are consistent with local veterinary practice 
standards.
    One commenter suggested that the mere presence of a flea or tick on 
a service animal should not be grounds for removal of a service animal 
under Sec.  1.218(a)(11)(ii)(C)(2), particularly for individuals being 
treated in VA residential settings. VA does not make any changes based 
on this comment. We reiterate from the proposed rule that the presence 
of a flea or tick poses a threat to the health and safety of others, as 
fleas, ticks, and other parasites can be spread by physical contact and 
close proximity and can reproduce quickly and in great volume to create 
infestation conditions that are much more difficult to remediate, 
versus removing a service animal with visible external parasites. We 
note, however, that under Sec.  1.218(a)(11)(ii)(C), VA staff must 
complete an individualized assessment based on objective indications, 
such as external signs of parasites, to ascertain the severity of risk 
to the health or safety of people or other service animals.
    Several commenters suggested that VA revise Sec.  
1.218(a)(11)(viii) to permit service dogs in training to access VA 
property. Some of these commenters reasoned that a service dog in 
training could be well trained enough to dependably behave safely in 
public settings, even without having fully completed their training. 
Other commenters expressed that VA properties could be used as training 
opportunities for service animals. VA seeks to maintain a safe and 
therapeutic environment at its properties. In a complex hospital 
environment, we believe that service animals should be fully trained 
and a ``service animal in training'' is not fully trained. We therefore 
do not revise Sec.  1.218(a)(11)(viii) to permit service animals in 
training.
    Several commenters inquired as to how VA's service animal access 
rule would be enforced, particularly with regard to staff training. 
Some commenters expressed concerns about ``fake service animals'' 
interfering with the need for people and service animals to safely 
access VA properties. Others expressed concerns that VA's proposed rule 
would establish a barrier to access or expressed concern regarding the 
authority of varying facility directors to devise implementation 
criteria that would restrict access outside of the proposed rule. VA 
does not make any changes based on these comments. The final rule 
establishes a set of standardized criteria that can be uniformly 
enforced on VA property, and removes variation amongst individual 
facilities that existed prior to this final rule. A service animal 
meeting VA's requirements under this final rule will not be subject to 
any barrier to access. And once on VA property, service animals are 
subject to the same terms, conditions and regulations that govern the 
admission of the public to VA property, to include certain exceptions 
on VHA properties to ensure patient care, patient safety, and infection 
control standards are not compromised. Therefore, service animals would 
only be denied access or removed if, based on an individualized 
assessment that is subject to objective indications in the final rule 
to ascertain severity of risk, there is cause for access denial or 
removal. VA anticipates that in most cases concerns related to access 
and removal will be communicated by veterans, employees, or visitors to 
VA staff members (including security and law enforcement) who will 
manage any concerns and facilitate an appropriate response. VA 
anticipates all appropriate staff members will be trained on what is 
and what is not allowed under this regulation and how it should be 
implemented.
    Several commenters expressed concern about the requirement in 
proposed Sec.  1.218(a)(11)(i) that the service animal be in a guiding 
harness or on a leash, as well as under the control of the individual 
with a disability, at all times while on VA property. These commenters 
asserted that multiple disabilities might prevent an individual from 
physically controlling a service animal via a harness or leash, or that 
the service animal's presence on a leash or other tether at all times 
might prevent that service animal from completing work or tasks they 
are trained to perform. Further, some commenters urged VA to adopt a 
standard that mimics that of the regulations that implement the ADA, 
whereby control over the service animal by the handler can be in the 
form of voice control. VA agrees with these comments, and amends Sec.  
1.218(a)(11)(i) to incorporate comparable language to that used in the 
regulations that implement the ADA. Cf. 28 CFR 36.302(c)(4).
    Likewise, after considering related comments, VA recognizes that 
individuals with disabilities may require the assistance of an 
alternate handler to control the service animal while on VA property. 
The need for an alternate handler may arise when the individual with 
the disability is unable to control the service animal because of the 
care the individual receives; or when the service animal, individual 
with a disability, and the alternate handler routinely operate as part 
of a team when accessing public areas. For this reason, VA amends Sec.  
1.218(a)(11)(i) and (a)(11)(ii)(A) to allow for an alternate handler to 
also be in control of the service animal. Specifically, Sec.  
1.218(a)(11)(i) will state that a service animal shall be under the 
control of the person with the disability or an alternate handler at 
all times while on VA property. Section 1.218(a)(11)(i) will also state 
that a service animal shall have a harness, leash, or other tether,

[[Page 49160]]

unless either the handler is unable because of a disability to use a 
harness, leash, or other tether, or the use of a harness, leash, or 
other tether would interfere with the service animal's safe, effective 
performance of work or tasks, in which case the service animal must be 
otherwise under the handler's control (e.g., voice control, signals, or 
other effective means). We reiterate, that at no time is any VA 
employee to be responsible for the control of the service animal, as 
set forth in Sec.  1.218(a)(11)(i).
    Several commenters inquired into whose responsibility is it to 
clean up animal waste and if VA properties have to designate an area 
for animals to relieve themselves. Commensurate with the requirements 
for access is a properly housebroken service animal. Should a service 
animal relieve bowel or bladder on VA property, it is the 
responsibility of the handler or the alternate handler to properly 
dispose of the waste in accordance with standards appropriate for 
public settings. VA again notes that at no time is any employee to be 
responsible to control a service animal and part of the access 
requirements is that an animal is housebroken. VA makes no change based 
on this comment.
    Several commenters objected to the absolute prohibition of service 
animal access to certain areas of VHA property in proposed 
1.218(a)(11)(iii), citing contrary standards that permit such access in 
regulations that implement the ADA as well as guidance issued by the 
Centers for Disease Control and Prevention (CDC). Particularly, 
commenters objected to the categorical exclusion of service animals 
from inpatient hospital settings to include locked mental health units 
(in proposed Sec.  1.218(a)(11)(iii)(C)), and from patient rooms or 
treatment areas where patients may have an animal allergy or phobia (in 
proposed Sec.  1.218(a)(11)(iii)(E)). VA cited three examples of acute 
inpatient hospital settings in proposed Sec.  1.218(a)(11)(iii)(C) 
(intensive care units, stabilization units, and locked mental health 
units) in a representative but not exhaustive list of areas that could 
be covered by this exclusion. In light of the comments received, VA 
revises Sec.  1.218(a)(11)(iii)(C) to remove these examples, and 
instead qualify the exclusion of service animals in acute inpatient 
settings to exclude such animals when their presence is not part of a 
documented treatment plan. VA agrees with the commenters that there are 
scenarios in which a service animal on any of the specific areas in 
proposed Sec.  1.218(a)(11)(iii)(C) may provide its services when the 
individual being treated or an alternate handler can control a service 
animal as part of a treatment plan established by the clinical care 
team. Although VA used CDC guidance to justify the area-based 
exclusions in proposed Sec.  1.218(a)(11)(iii)(C) (see 79 FR 69379, 
69381), VA believes that this revision is still consistent with CDC's 
guidance because the service animal would not be permitted to access 
the inpatient area if not part of a documented treatment plan. The 
animal would require a staff assessment under Sec.  1.218(a)(11)(ii)(C) 
to evaluate any threat to the health or safety of patients or staff. A 
service animal could still be removed under Sec.  1.218(a)(11)(ii) if 
it presented a risk to patient safety or infection control standards 
after gaining access to an acute inpatient setting. For these same 
reasons, VA removes proposed Sec.  1.218(a)(11)(iii)(E), the 
prohibition of the presence of service animals in patient rooms or 
areas where a patient may have an animal allergy or phobia. Again, a 
service animal could be removed from such an area if the animal posed a 
risk to patient safety or health, under Sec.  1.218(a)(11)(ii). By 
removing proposed Sec.  1.218(a)(11)(iii)(E), we will renumber proposed 
Sec.  1.218(a)(11)(iii)(F) and (iii)(G) as (iii)(E) and (iii)(F), 
respectively.
    However, VA will not remove all categorical area-based exclusions 
of service animals on VHA property from proposed Sec.  
1.218(a)(11)(iii). VA's healthcare facilities reflect evidence based 
standards governing safe operation of a healthcare facility, patient 
care, and infection control. Consistent with CDC guidance, VA still 
finds certain locations such as operating rooms, surgical suites, areas 
where invasive procedures are being performed, decontamination, sterile 
processing, sterile storage areas, food preparation areas (not to 
include public food service areas), and any areas where protective 
barrier measures are required, to be inappropriate environments for a 
service animal. One commenter recommended removing the representative 
examples in proposed Sec.  1.218(a)(11)(iii)(A)-(C) as redundant of 
places where protective barrier measures are required. We decline to 
remove these examples because they add clarity regarding the types of 
areas where access must be restricted to ensure patient care, patient 
safety or infection control standards are not compromised. While we 
will retain these area-based exclusions and the examples provided in 
the final rule, in response to comments we will revise Sec.  
1.218(a)(11)(iii)(F) as proposed, renumbered as Sec.  
1.218(a)(11)(iii)(E), to include the clarifying parenthetical ``(not to 
include public food service areas).'' We will also revise Sec.  
1.218(a)(11)(iii)(G) as proposed, renumbered as Sec.  
1.218(a)(11)(iii)(F), to refer to areas ``where personal protective 
clothing must be worn or barrier protective measures must be taken to 
enter,'' instead of referring to areas that require ``personal 
protective equipment'' to be worn. We agree with commenters that 
``personal protective equipment'' in proposed Sec.  
1.218(a)(11)(iii)(G) could be interpreted to encompass even the wearing 
of basic equipment by patients, staff, or visitors like paper face 
masks or examination gloves, which could qualify nearly any area of a 
VHA medical facility as categorically excluding the presence of a 
service animal. The revisions to proposed Sec.  1.218(a)(11)(iii)(G) 
(Sec.  1.218(a)(11)(iii)(F) as renumbered) more accurately describe the 
types of areas that a service animal will be restricted from entering.
    We emphasize that even with these changes to the area-based 
exclusions in Sec.  1.218(a)(11)(iii), a specific service animal may 
still be individually denied access or removed if it does not meet the 
standards in Sec.  1.218(a)(11)(i) and (a)(11)(ii), namely that the 
animal must be controlled (by the individual or an alternate handler 
that is not a VA employee), be housebroken, and not pose a threat to 
the health and safety of people or other service animals.
    Several commenters expressed concerns regarding the provision of 
service dogs, service dog training, and service dog benefits by VA. 
Particularly, some commenters asserted that VA should assist veterans 
to obtain a service dog and have such a dog trained and certified. 
These comments are beyond the scope of this rule, and we therefore do 
not make any changes. We note, however, that the provision of service 
dog benefits by VA is regulated at 38 CFR 17.148. Other commenters 
noted the benefits of service animals for the treatment of PTSD, but 
did not necessarily suggest any changes to the proposed rule. Again, 
these comments are beyond the scope of this rule, and we therefore do 
not make any changes. Some commenters requested that the final rule 
provide examples of what VA considers to be ``work'' or ``tasks'' that 
a service animal may be trained to perform, either in the preamble or 
through revisions to the regulation text. Commenters noted that such 
examples would be particularly helpful for a service animal that might 
assist an individual with a mental disability or illness. We decline to 
make revisions to

[[Page 49161]]

the regulation text or provide examples in the preamble of this final 
rule. However, we do provide as reference here the supplemental 
guidance issued by the Department of Justice when it last issued 
regulations on this subject in 2010, specifically on what constitutes 
``work or tasks'' that a service animal may provide (see Appendix A to 
28 CFR part 36, Guidance on Revisions to ADA Regulation on 
Nondiscrimination on the Basis of Disability by Public Accommodations 
and Commercial Facilities, 75 FR 56236, 56258). This reference provides 
examples of work or tasks that VA understands to be performed by 
service animals for individuals with disabilities so that such 
individuals may better navigate public spaces. By providing this 
reference of examples of work and tasks in the context of public 
access, VA is not expressing a position on the efficacy of such dogs 
for the treatment of the disabilities of the individuals.
    One commenter urged VA to include emotional support animals in the 
definition of ``service animal'' in Sec.  1.218(a)(11)(viii) as 
proposed. The commenter asserted that because many veterans with PTSD 
use emotional support animals in their homes, that refusing access to 
emotional support animals on VA property could discourage use of VA 
services by such veterans. This same commenter also made a reference to 
Department of Housing and Urban Development (HUD) regulations and 
guidance that create exclusions for public housing's ``no pet'' 
policies for certain animals, to include permitting access for 
emotional support animals in applicable circumstances, and suggested 
that VA consider developing a similar rule regarding emotional support 
animal access on VA property. Another commenter suggested adopting 
HUD's approach in the context of VA's residential treatment programs. 
VA does not disagree that some veterans may use emotional support 
animals, nor disagree with the commenters' subjective accounts that 
such animals have improved the quality of their lives. However, the HUD 
regulations and guidance referenced by the commenters appropriately 
apply in the context of public housing. In particular, the HUD 
regulations and guidance do not require an animal to be individually 
trained to do work or perform tasks for the benefit of the individual 
with a disability. However, there is a distinction between the presence 
of an animal in public areas and the functions that animal performs to 
enable an individual to use public services and public accommodations 
(service animal), as compared to the presence and use of a comfort or 
emotional support animal in the home (emotional support animal). 
Regarding VHA's residential treatment programs, these programs involve 
shared spaces amongst multiple veterans, where there is an active 
treatment component that involves the participation of not only the 
veterans but also treatment providers as well as other members of the 
public at times. Therefore, we interpret VHA residential programs to be 
public treatment spaces (just as the other areas of VHA property that 
are specified in this final rule), rather than a residential space 
analogous to the HUD public housing context. We therefore do not make 
any changes based on these comments.
    Commenters expressed concern about the area-based restrictions for 
property under the control of the National Cemetery Administration 
(NCA) in proposed Sec.  1.218(a)(11)(iv). We interpret such comments to 
be the result of a misunderstanding by commenters that new restrictions 
were being created in the proposed rule when in fact the proposed area-
based restrictions reflect existing restrictions on NCA property in 
accordance with rules requiring access on the same terms, conditions, 
and regulations that generally govern admission of the public to the 
property. That is, the proposed and final rules only clarify that where 
an individual may not access NCA property (i.e., in NCA construction or 
maintenance sites, or in NCA open interment areas), so, too, a service 
animal may not access such property. This rule does not affect the 
right of an individual to be accompanied by their service animal on NCA 
grounds in those areas where the general public is permitted. However, 
these comments raise the possibility that the provision regarding 
restriction of access to open interment areas may be perceived as 
overly restrictive. We have, therefore, made a change to Sec.  
1.218(a)(11)(iv)(A) to remove the reference to columbaria (as 
columbaria pose minimal safety issues), and to indicate that 
individuals may be permitted to observe an individual interment or 
inurnment accompanied by a service animal. This change will allow 
family or representatives (such as clergy), accompanied by their 
service animals, to observe an interment or inurnment when requested 
and when such observation can be safely accommodated.
    VA makes one technical correction in Sec.  1.218(a)(11)(viii). In 
the last sentence, VA is replacing ``of this chapter'' with a complete 
citation ``38 CFR 17.148.'' VA also makes several minor, non-
substantive edits for clarity such as removing the first commas 
appearing in proposed Sec.  1.218(a)(11)(ix)(C) and (D), replacing the 
word ``on'' with the word ``in'' three places in Sec.  
1.218(a)(11)(ix)(E) in reference to VA Community Living Centers, and 
adding the clarifying phrase ``with respect to an individual'' to the 
definition of a disability in Sec.  1.218(a)(11)(x).
    One commenter asked for clarification if animals other than dogs 
can participate in Animal Assisted Activities (AAA) or Animal Assisted 
Therapy (AAT) programs under Sec.  1.218(a)(11)(ix)(C) and (ix)(D) as 
proposed. Unlike service animals under the proposed and final rules, 
there is no species restriction for AAA or AAT animals, and AAA or AAT 
animals are permitted on VHA property only at the discretion of the VA 
facility head or designee. Should an AAA or AAT animal that is not a 
dog meet the requirements in Sec.  1.218(a)(11)(ix)(C) and (D), a VA 
facility head or designee may grant that animal access to VA property. 
Another commenter suggested that VA allow for pets to visit patients in 
unique circumstances such as end-of-life situations. As with other 
species of animals, there is no categorical restriction for AAA or AAT 
animals that would necessarily exclude a personal pet in an end-of-life 
or other special circumstance. Should an animal serve an AAA or AAT 
purpose and meet the requirements in Sec.  1.218(a)(11)(ix)(C) and (D), 
a VA facility head or designee may grant that animal access to VA 
property. In addition, a commenter suggested that AAA and AAT animals 
be allowed on VA property only when their handler or organization has 
liability insurance. We do not disagree that liability insurance would 
be a sensible requirement, particularly as AAA is often conducted in 
group settings. However, VA believes that any liability insurance would 
be better addressed outside of a regulatory requirement by the VA 
facility head or designee and the AAA or AAT handler or organization 
prior to establishing a particular program at a facility. VA makes no 
changes based on these comments.
    For all of the reasons noted above, VA is adopting the rule as 
final with changes as noted to 38 CFR 1.218.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
rulemaking, represents VA's implementation of its legal authority on 
this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance

[[Page 49162]]

must be read to conform with this rulemaking if possible or, if not 
possible, such guidance is superseded by this rulemaking.

Paperwork Reduction Act

    This final rule includes a collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that requires 
approval by the Office of Management and Budget (OMB). Accordingly, 
under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking 
action to OMB for review.
    OMB assigns a control number for each collection of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. Section 1.218(a)(11) contains a 
collection of information under the Paperwork Reduction Act of 1995. 
OMB has approved the information collection requirement in this section 
as an emergency clearance under control number 2900-0831. This 
emergency clearance expires on December 31, 2015, before which time VA 
will submit to OMB a request for permanent clearance.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule directly affects only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the final regulatory flexibility 
analysis requirements of 5 U.S.C. 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by OMB, unless OMB 
waives such review, as ``any regulatory action that is likely to result 
in a rule that may: (1) Have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866. VA's impact analysis can be found as a supporting document 
at https://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of this 
rulemaking and its impact analysis are available on VA's Web site at 
https://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.007, Blind Rehabilitation 
Centers; 64.009, Veterans Medical Care Benefits; 64.010, Veterans 
Nursing Home Care; and 64.011, Veterans Dental Care.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Robert L. 
Nabors II, Chief of Staff, Department of Veterans Affairs, approved 
this document on June 5, 2015, for publication.

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Cemeteries, Government 
property, Security measures.

    Dated: June 19, 2015.
Michael Shores,
Chief Impact Analyst, Office of Regulation Policy & Management, Office 
of the General Counsel, Department of Veterans Affairs.
    For the reasons stated in the preamble, VA amends 38 CFR part 1 as 
follows:

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 continues to read as follows:

    Authority:  38 U.S.C. 501(a), and as noted in specific sections.


0
2. Revise Sec.  1.218(a)(11) to read as follows:


Sec.  1.218.  Security and law enforcement at VA facilities.

    (a) * * *
    (11) Animals. (i) Service animals, as defined in paragraph 
(a)(11)(viii) of this section, are permitted on VA property when those 
animals accompany individuals with disabilities and are trained for 
that purpose. A service animal shall be under the control of the person 
with the disability or an alternate handler at all times while on VA 
property. A service animal shall have a harness, leash, or other 
tether, unless either the handler is unable because of a disability to 
use a harness, leash, or other tether, or the use of a harness, leash, 
or other tether would interfere with the service animal's safe, 
effective performance of work or tasks, in which case the service 
animal must be otherwise under the handler's control (e.g., voice 
control, signals, or other effective means). VA is not responsible for 
the care or supervision of a service animal. Service animal presence on 
VA property is subject to the same terms, conditions, and regulations 
as generally govern admission of the public to the property.
    (ii) A service animal will be denied access to VA property or 
removed from VA property if:
    (A) The animal is not under the control of the individual with a 
disability or an alternate handler;
    (B) The animal is not housebroken. The animal must be trained to 
eliminate its waste in an outdoor area; or
    (C) The animal otherwise poses a risk to the health or safety of 
people or other service animals. In determining whether

[[Page 49163]]

an animal poses a risk to the health or safety of people or other 
service animals, VA will make an individualized assessment based on 
objective indications to ascertain the severity of the risk. Such 
indications include but are not limited to:
    (1) External signs of aggression from the service animal, such as 
growling, biting or snapping, baring its teeth, lunging; or
    (2) External signs of parasites on the service animal (e.g. fleas, 
ticks), or other external signs of disease or bad health (e.g. diarrhea 
or vomiting).
    (iii) Service animals will be restricted from accessing certain 
areas of VA property under the control of the Veterans Health 
Administration (VHA properties) to ensure patient care, patient safety, 
or infection control standards are not compromised. Such areas include 
but are not limited to:
    (A) Operating rooms and surgical suites;
    (B) Areas where invasive procedures are being performed;
    (C) Acute inpatient hospital settings when the presence of the 
service animal is not part of a documented treatment plan;
    (D) Decontamination, sterile processing, and sterile storage areas;
    (E) Food preparation areas (not to include public food service 
areas); and
    (F) Any areas where personal protective clothing must be worn or 
barrier protective measures must be taken to enter.
    (iv) Service animals will be restricted from accessing certain 
areas of VA property under the control of the National Cemetery 
Administration (NCA properties) to ensure that public safety, 
facilities and grounds care, and maintenance control are not 
compromised. Such areas include but are not limited to:
    (A) Open interment areas, except as approved to observe an 
individual interment or inurnment.
    (B) Construction or maintenance sites; and
    (C) Grounds keeping and storage facilities.
    (v) If a service animal is denied access to VA property or removed 
from VA property in accordance with (a)(11)(ii) of this section, or 
restricted from accessing certain VA property in accordance with 
paragraphs (a)(11)(iii) and (iv) of this section, then VA will give the 
individual with a disability the opportunity to obtain services without 
having the service animal on VA property.
    (vi) Unless paragraph (a)(11)(vii) of this section applies, an 
individual with a disability must not be required to provide 
documentation, such as proof that an animal has been certified, 
trained, or licensed as a service animal, to gain access to VA property 
accompanied by the service animal. However, an individual may be asked 
if the animal is required because of a disability, and what work or 
task the animal has been trained to perform.
    (vii) An individual with a disability, if such individual will be 
accompanied by the service animal while receiving treatment in a VHA 
residential program, must provide VA with documentation that confirms 
the service animal has had a current rabies vaccine as determined by 
state and local public health requirements, and current core canine 
vaccines as dictated by local veterinary practice standards (e.g. 
distemper, parvovirus, and adenovirus-2).
    (viii) A service animal means any dog that is individually trained 
to do work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, 
or other mental disability. 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 38 CFR 17.148.
    (ix) Generally, animals other than service animals (``non-service 
animals'') are not permitted to be present on VA property, and any 
individual with a non-service animal must remove it. However, a VA 
facility head or designee may permit certain non-service animals to be 
present on VA property for the following reasons:
    (A) Animals may be permitted to be present on VA property for law 
enforcement purposes;
    (B) Animals under the control of the VA Office of Research and 
Development may be permitted to be present on VA property;
    (C) Animal-assisted therapy (AAT) animals may be permitted to be 
present on VHA property when the presence of such animals would not 
compromise patient care, patient safety, or infection control 
standards. AAT is a goal-directed clinical intervention, as provided or 
facilitated by a VA therapist or VA clinician, that incorporates the 
use of an animal into the treatment regimen of a patient. Any AAT 
animal present on VHA property must facilitate achievement of patient-
specific treatment goals, as documented in the patient's treatment 
plan. AAT animals must be up to date with all core vaccinations or 
immunizations, prophylactic parasite control medications, and regular 
health screenings as determined necessary by a licensed veterinarian 
consistent with local veterinary practice standards. Proof of 
compliance with these requirements must be documented and accessible in 
the area(s) where patients receive AAT.
    (D) Animal-assisted activity (AAA) animals may be permitted to be 
present on VHA property when the presence of such animals would not 
compromise patient care, patient safety, or infection control 
standards. AAA involves animals in activities to provide patients with 
casual opportunities for motivational, educational, recreational, and/
or therapeutic benefits. AAA is not a goal-directed clinical 
intervention that must be provided or facilitated by a VA therapist or 
clinician, and therefore is not necessarily incorporated into the 
treatment regimen of a patient or documented in the patient's medical 
record as treatment. AAA animals must be up to date with all core 
vaccinations or immunizations, prophylactic parasite control 
medications, and regular health screenings as determined necessary by a 
licensed veterinarian consistent with local veterinary practice 
standards. Proof of compliance with these requirements must be 
documented and accessible in the area(s) where patients may participate 
in AAA.
    (E) Animals participating in a VA Community Living Center (CLC) 
residential animal program or a Mental Health Residential 
Rehabilitation Treatment Program (MHRRTP) may be permitted to be 
present on VHA property, when the presence of such animals would not 
compromise patient care, patient safety, or infection control 
standards. A residential animal program in a VA CLC or a MHRRTP is a 
program that uses the presence of animals to create a more homelike 
environment to foster comfort for veterans, while also stimulating a 
sense of purpose, familiarity, and belonging. Any VA CLC or MHRRTP 
residential animal present on VHA property must facilitate achievement 
of therapeutic outcomes (such as described above), as documented in 
patient treatment plans. Residential animals in a VA CLC or MHRRTP must 
be up to date with all core vaccinations and immunizations, 
prophylactic parasite control

[[Page 49164]]

medications, and regular health screenings as determined necessary by a 
licensed veterinarian consistent with local veterinary practice 
standards. Proof of compliance with these requirements must be 
documented and accessible in the VA CLC or MHRRTP.
    (F) Animals may be present on NCA property for ceremonial purposes 
during committal services, interments, and other memorials, if the 
presence of such animals would not compromise public safety, facilities 
and grounds care, and maintenance control standards.
    (x) For purposes of this section, a disability means, with respect 
to an individual, a physical or mental impairment that substantially 
limits one or more major life activities of the individual; a record of 
such an impairment; or being regarded as having such an impairment.
    (OMB has approved the information collection requirements in this 
section under control number XXXX-XXXX.)
* * * * *
(Authority: 38 U.S.C. 901, 40 U.S.C. 3103)

[FR Doc. 2015-20182 Filed 8-14-15; 8:45 am]
BILLING CODE 8320-01-P