Service Dogs, 35162-35167 [2011-14933]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 76, Number 116 (Thursday, June 16, 2011)]
[Proposed Rules]
[Pages 35162-35167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14933]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN51


Service Dogs

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations concerning veterans in need of service dogs. Under current 
regulations, VA provides benefits to veterans with guide dogs, and this 
rulemaking would broaden and clarify those benefits. This rulemaking 
would also implement new benefits related to service dogs.

DATES: Comments must be received by VA on or before August 15, 2011.

ADDRESSES: Written comments may be submitted through https://www.regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AN51--Service Dogs.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. (This is not a toll-free number.) In addition, during 
the comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at https://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Neal Eckrich, Office of Patient Care 
Services (113), Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-1804. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1714(b) and (c), VA 
may provide to veterans enrolled under 38 U.S.C. 1705 guide dogs 
trained for the aid of people who are blind and service dogs trained 
for the aid of the hearing impaired or persons with a spinal cord 
injury or dysfunction or other chronic impairment that substantially 
limits mobility. Under section 1714(d), VA is also authorized to 
provide certain travel expenses related to the provision of such dogs.
    In 1961, VA promulgated 38 CFR 17.118(a) (recodified as current 38 
CFR 17.154(a) in 1996) restating the statutory language, which at that 
time limited VA's authority to the provision of guide dogs for blind 
veterans. Under both the statutory and regulatory language VA may 
provide or furnish a guide dog to a veteran but is not required to do 
so. VA interpreted ``provide'' in section 1714 and ``furnished'' in 
Sec.  17.154(a) to mean that VA need not actually purchase or acquire 
dogs for eligible veterans if there is an appropriate alternative. (We 
also note that nothing in 38 U.S.C. 1714 requires VA to provide a dog 
to a disabled veteran--the statutory authority is that we ``may'' do 
so). Accordingly, it has long been VA's policy to apply current Sec.  
17.154(a) by recognizing guide dogs that are obtained by the veteran 
from private (usually non-profit) organizations dedicated to training 
guide dogs. In this manner, we can rely on the professional expertise 
of these organizations without having to house the animals and hire 
trainers. Currently, VA regulations recognize only guide dogs and not 
service dogs. To assist the veteran, VA provides financial assistance 
for veterinary care, and provides hardware required by the dog at no 
cost to the veteran. The provision of travel benefits is authorized by 
current Sec.  17.154(a), and the provision of hardware is authorized by 
current Sec.  17.154(b). This proposed rule would authorize VA to 
provide benefits for

[[Page 35163]]

eligible veterans in need of service dogs, and clearly define the 
benefit.
    In 2001, Congress amended section 1714 to provide that VA may also 
provide service dogs for veterans with other disabilities. See 
Department of Veterans Affairs Health Care Programs Enhancement Act of 
2001, Public Law 107-135 (2001). This rulemaking would implement that 
statutory amendment and would establish a single regulation relating to 
the provision of assistive dogs by VA. In so doing, we would remove 
current Sec.  17.154(a) and establish the criteria proposed in Sec.  
17.148 so that the proposed rule would be the only regulatory authority 
for benefits related to service dogs. As explained below, the proposed 
rule would offer the same travel benefit offered under current Sec.  
17.154(a). The proposed rule would also clarify that VA interprets 
section 1714 as authorizing the provision of veterinary-care benefits 
and would establish a clear procedure for awarding such benefits.
    Proposed paragraph (a) would define service dogs as ``guide or 
service dogs prescribed for a disabled veteran under this section.'' 
This rule would provide the same benefit to all eligible veterans, so 
it is unnecessary to distinguish dogs by the services that they 
provide. For example, we do not use the term ``guide dogs'', which 
appears under current 38 CFR 17.154, because for the purposes of this 
rulemaking, veterans who are eligible due to blindness would receive 
the same benefit.
    Proposed paragraph (b) would establish the clinical requirements to 
obtain service-dog benefits. First, we would authorize benefits only if 
the veteran is diagnosed as having a visual, hearing, or substantial 
mobility impairment. These requirements incorporate the eligibility 
criteria in section 1714. Second, we would require a clinical 
determination by a VA clinician, which would be based upon the 
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.'' By this, we intend to exclude situations in 
which a VA clinician's medical judgment indicates that there are means 
other than a dog, such as technological devices or rehabilitative 
techniques, which would enable and encourage the veteran to live 
independently. To emphasize this point, we would note 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.'' VA does not intend to allow cost or any 
other factors to discourage the use of new technologies and equipment 
to maximize the independence of veterans. We believe that providing VA 
with discretion to choose between a service dog or assistive technology 
based on medical judgment rather than cost-effectiveness would ensure 
that VA's patients receive the highest quality of care that the VA-
system can provide.
    Third, for the purposes of this section, we would define 
substantial mobility impairment as a spinal cord injury or dysfunction 
or other chronic impairment that substantially limits mobility. 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.
    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, Pub. L. 111-84 (2009), 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.
    Proposed paragraph (c) would establish criteria for obtaining a 
service dog recognized under this section for purposes of obtaining 
benefits. Under paragraphs (c)(1) and (2), we would recognize service 
dogs obtained through an organization that is accredited by Assistance 
Dogs International (ADI) or the International Guide Dog Federation 
(IGDF). Proof of completion would be established by a certificate from 
the organization. ADI is an international coalition of nonprofit 
organizations that train and place service dogs. ADI has established an 
accreditation procedure for service dog organizations, setting minimum 
standards for safety and cleanliness of the training facility, fair and 
ethical treatment of clients, proper health care for the dogs, humane 
training methods, screening the suitability of dogs and clients, 
matching dogs and clients, and compliance with all relevant laws. 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. IGDF is an 
international coalition of member organizations. IGDF is committed to 
improving the guide dog industry throughout the world and has published 
standards that cover a wide range of activities conducted by guide dog 
organizations, such as organizational structure, fundraising, 
recordkeeping, technical matters relating to dog health and welfare, 
dog and client training, and school facilities.
    VA has reviewed ADI's and IGDF's standards thoroughly, and we 
believe that they represent appropriate criteria for training and 
placing guide and service dogs. We are also unaware of any other 
organizations that similarly scrutinize the process of training and 
placing guide or service dogs. We note that there are no Federal 
regulations governing the training of guide or service dogs, and VA 
does not have the expertise, experience, or resources to develop 
independent criteria. Therefore, we would rely on ADI and IGDF 
accreditation to conclude that a dog is qualified and capable of 
performing the tasks that are clinically required by the medical 
determination prescribed under

[[Page 35164]]

proposed paragraph (b)(2), i.e., that the dog will benefit the veteran 
in a way that other assistive means cannot.
    For dogs acquired before the effective date of this rule, we would 
require the veteran to provide a certificate showing that the veteran 
and dog have completed a training course offered by a guide or service 
dog organization in existence before such date. We would limit this 
authority to organizations that existed before the effective date of 
the regulation. The purpose of this paragraph is to ensure that 
veterans who obtained dogs prior to the publication of this regulation, 
but not through ADI or IGDF accredited organizations, would be eligible 
for the benefits prescribed by this regulation. 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 described under proposed paragraph 
(c)(1).
    Proposed paragraph (d) would outline the benefits provided by VA 
under this section. As required by section 1714(a) and (b), benefits 
would be based on the veteran being enrolled under 38 U.S.C. 1705.
    Although Congress has authorized VA to provide service dogs and has 
expressly authorized the payment of certain travel and incidental 
expenses related to a veteran's adjustment to the dog, Congress did not 
address certain important aspects of the program. Veterans who have 
been furnished a dog must also maintain the health of the dog, and most 
will also need to purchase and maintain hardware related to the use of 
the dog. Without financial assistance, some veterans may not be able to 
afford such veterinary care and hardware. We believe that providing 
service dogs under the statute necessarily includes providing 
veterinary treatment and hardware, and repairs to such hardware, 
required by the dog to perform in service to the veteran. Consistent 
with this interpretation of our statutory authority, we propose to 
authorize payments for the care of service dogs that will help maintain 
the dogs' ability to perform as service dogs. However, we would not 
provide assistance for additional expenses such as license tags, non-
prescription 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. This limitation would help ensure 
that VA's service dog program is able to continue to provide critical 
assistance to a larger number of veterans and would ensure that the 
financial assistance provided by VA would not be used to provide 
services that are not directly related to the dogs' ability to provide 
assistive service. We believe that limiting benefits for service dogs 
to necessary veterinary care, hardware, repairs to hardware, and travel 
expenses associated with obtaining a dog is similarly within the scope 
of the benefit authorized by Congress.
    Under proposed paragraph (d)(1), we would provide, as the mechanism 
for providing payment for veterinary care, an insurance policy to every 
eligible veteran. Because VA does not employ veterinarians, we lack the 
expertise to directly provide veterinary care, or to determine whether 
care is medically appropriate. We also lack the resources to review 
whether a veterinarian is appropriately licensed or charges appropriate 
fees for veterinary care. Thus, we have determined that an insurance 
policy is the most efficient way to provide appropriate veterinary care 
under this section, and we would pay any premiums, copayments, or 
deductibles associated with the insurance policy.
    Under proposed paragraph (d)(1)(i), we would require that VA, and 
not the veteran will be billed for any premiums, copayments, or 
deductibles associated with the policy. This is to ensure that the 
veteran is not overburdened when obtaining care under this section. 
However, we would note that the policies could be subject to an annual 
cap, depending upon what policies are actually negotiated when this 
rule become effective. If an annual cap were in place, care that 
exceeds the maximum authorized by the policy would be the 
responsibility of the veteran. 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.
    Under proposed paragraph (d)(2), VA would provide any and all 
hardware clinically determined to be needed by the dog to perform its 
task. Such hardware would include standard equipment such as harnesses 
for service dogs. Often, service dogs will require certain hardware in 
order to perform specific tasks for the unique needs of each veteran, 
and VA would ensure that every veteran receives the equipment that 
fulfills his or her clinical needs. VA would also provide necessary 
repairs or replacements for such hardware. This is consistent with 
current practice. In order to obtain hardware and/or repairs, veterans 
would call the Prosthetics Office at their local VA Medical Center and 
specify the hardware needed or repairs to be made. The Office will then 
provide the necessary hardware or repairs.
    Under paragraph (d)(3), we propose to implement 38 U.S.C. 1714(d), 
which allows VA to pay travel expenses ``under the terms and conditions 
set forth in [38 U.S.C. 111]'' for a veteran who is provided a service 
dog. We propose to implement this provision by considering such 
veterans as eligible beneficiaries under 38 CFR Part 70. This will 
facilitate administration of the benefit and will allow VA to avoid any 
additional expenses associated with establishing a ``new'' travel 
benefit. We believe that the language of 38 U.S.C. 1714(d) can be read 
to interpret obtaining a dog as ``examination, treatment, or care'' 
under 38 U.S.C. 111. In addition, 38 U.S.C. 111 limits eligibility to 
certain veterans. Most (if not all) veterans who would be eligible for 
a service dog will meet the eligibility requirements of 38 U.S.C. 111. 
For example, most will have a service-connected disability rated at 30 
percent or more under 38 U.S.C. 111(b)(1)(B). However, we would 
explicitly state in the regulation that the limitations on eligibility 
found in section 111 (as well

[[Page 35165]]

as in VA's implementing regulations in 38 CFR Part 70) will not limit 
eligibility for veterans seeking to obtain a dog. Again, we interpret 
section 1714(d) as authorizing payment of travel expenses associated 
with obtaining a service dog. Proposed paragraph (d)(4) would clarify 
the limitation of the benefits provided. We would exclude payment for 
any expenses that are not clinically prescribed by a veterinarian or 
otherwise authorized by the proposed rule. Our policy would be, in 
essence, to treat the dog as a surrogate for an assistive device, 
requiring that the veteran use the device responsibly and provide 
general care and maintenance. We would also clarify that VA will not 
take possession of, or responsibility for, the dog under any 
circumstances.
    Finally, under proposed paragraph (e), we would require that the 
dog maintain its ability to function as a service dog in order for 
benefits to be provided under this section. We would provide that, when 
VA learns from any source that the dog is unable to maintain its 
assistive role, or VA determines that the veteran no longer requires 
the dog from a clinical perspective, VA will provide the veteran at 
least 30 days notice before benefits are terminated. The determination 
of such continued ability will generally be made by either a 
veterinarian (if the issue involves the animal's health) or by a VA 
clinician (if the issue is whether the veteran still meets the clinical 
prerequisite for eligibility under paragraph (b)(2)). The veteran may, 
but is not required to, notify VA or the insurer that the dog is 
medically unable to maintain its role as a service dog. However, we 
note that VA will not provide the benefit for two dogs simultaneously, 
which is discussed in the introductory text of proposed paragraph (d), 
so VA must first terminate the coverage for the dog that is no longer 
performing its duties before it would cover the training of a new dog 
to perform such services for the veteran. Since the veteran may often 
be the first person to know whether the dog can no longer perform its 
duties, we would encourage the veteran to notify VA so that we may 
expedite the transfer of benefits to a new dog, and make any other 
clinically appropriate arrangements for the veteran as the new dog is 
trained.
    Current Sec.  17.154(a) provides that VA may furnish a guide dog 
for blind veterans as well as travel expenses incurred by the veteran 
as a result of adjustment to the guide dog. Current Sec.  17.154(b) 
provides that VA may supply mechanical and/or electronic equipment to 
beneficiaries to help overcome the handicap of blindness. In accordance 
with the proposed changes discussed above, we propose to revise Sec.  
17.154 by removing paragraph (a) and removing the designation of 
paragraph (b), and by making technical revisions to the title and 
language to accord with the removal of paragraph (a). It will continue 
to authorize VA to provide equipment to blind veterans.

Effect of Rulemaking

    We would rescind certain sections of the following VHA Handbooks, 
which contain conflicting provisions. We would rescind ``Aids for the 
Blind and Visually Impaired,'' 1173.05, paragraph 12, concerning 
issuance of guide dogs; ``Eligibility,'' 1173.1, paragraph 7(b)(1), 
referencing ``veterinary treatment for guide dogs;'' and ``Furnishing 
Prosthetic Appliances and Services,'' 1173.2, paragraph 4(a)(4), 
referencing ``veterinary treatment for guide dogs.'' Additionally, we 
would rescind the reference to ``dog guide'' in ``Furnishing Prosthetic 
Appliances and Services,'' 1173.2, paragraph 4(c)(a)(2)(b), which 
limits the Prosthetics Service Card amount to $100. Finally, we propose 
to amend the citations to current 38 CFR 17.154 to proposed Sec.  
17.148 and Sec.  17.154 in ``Benefits Overview,'' 1601A.04, A-1(6) and 
A-7(22).

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 given year. This proposed rule would have no such 
effect on state, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    This proposed rule includes provisions constituting collections of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521) 
that require approval by the Office of Management and Budget (OMB). 
Accordingly, under section 3507(d) of the Act, VA has submitted a copy 
of this rulemaking to OMB for review. OMB assigns a control number for 
each collection of information it approves. Except for emergency 
approvals under 44 U.S.C. 3507(j), 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. Proposed Sec.  
17.148(c)(1) and (d)(2) contain collections of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521). If OMB does not approve 
the collections of information as requested, VA will immediately remove 
the provisions containing a collection of information or take such 
other action as is directed by OMB.
    Comments on the collections of information contained in this 
proposed rule should be submitted to the Office of Management and 
Budget, Attention: Desk Officer for the Department of Veterans Affairs, 
Office of Information and Regulatory Affairs, Washington, DC 20503, 
with copies sent by mail or hand delivery to: Director, Office of 
Regulation Policy and Management (02REG), Department of Veterans 
Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to 
(202) 273-9026; or through https://www.Regulations.gov. Comments should 
indicate that they are submitted in response to ``RIN 2900-AN51, 
Service Dogs.''
    OMB is required to make a decision concerning the collections of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed rule.
    VA considers comments by the public on proposed collections of 
information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of VA, 
including whether the information will have practical utility;
     Evaluating the accuracy of VA's estimate of the burden of 
the proposed collections of information, including the validity of the 
methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The proposed amendments to title 38, CFR Chapter 17 contain 
collections of information under the Paperwork Reduction Act for which 
we are requesting approval by OMB. These collections of information are 
described

[[Page 35166]]

immediately following this paragraph, under their respective titles.
    Title: Service Dogs.
    Summary of collection of information: The proposed rule at Sec.  
17.148(c) requires the veteran to either (1) provide a certificate of 
completion from an ADI or IGDF-certified organization if the service 
dog is acquired by the veteran after the publication of the final rule; 
or (2) provide a certificate of completion from any then-existing guide 
or service dog organization if the dog is acquired prior to publication 
of the final rule.
    Description of the need for information and proposed use of 
information: This information is needed for VA to determine that the 
dog is suitable for the clinical needs of the veteran that it would be 
required to fulfill and is able to behave appropriately in public.
    Description of likely respondents: Veterans.
    Estimated number of respondents per year: Approximately 600 
veterans will need to provide certification for existing service dogs, 
and approximately 100 veterans will obtain service dogs each year; 
therefore 700 submissions in year one and 100 submissions annually.
    Estimated frequency of responses per year: Veterans will submit 
certification for approximately 600 existing service dogs and 100 new 
service dogs each year; 700 submissions in year one and 100 submissions 
each year thereafter.
    Estimated total annual reporting and recordkeeping burden: It is 
expected that this burden will take less than 5 minutes per veteran, 
per dog. The estimated total annual reporting and recordkeeping burden 
is 3500 minutes in year one and 500 minutes each year thereafter.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (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 the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined and it has 
been determined not to be a significant regulatory action under the 
Executive Order.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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. We believe that most service-dog providers that provide 
dogs to veterans are already accredited in accordance with the proposed 
rule. We do not believe that gaining accreditation should result in a 
significant financial burden, as the standards for approval by ADI and 
IGDF are reasonable thresholds that are generally expected and accepted 
within the industry. The approximate cost to be an accredited 
organization by IGDF is a one-time fee of $795, with an annual fee of 
$318 and a per unit fee of $39.45. The approximate cost to be an 
accredited organization by ADI is $1,000 every 5 years with annual fees 
of approximately $50. The vast majority of accredited programs do not 
provide dogs to veterans. Therefore, pursuant to 5 U.S.C. 605(b), this 
proposed rule is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance numbers and titles are 
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. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on May 11, 2011, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Government programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing home care, Reporting and 
recordkeeping requirements, Scholarships and fellowships, Travel and 
transportation expenses, Veterans.

    Dated: June 13, 2011.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of General Counsel, 
Department of Veterans Affairs.

    For the reasons stated in the preamble, VA proposes to amend 38 CFR 
part 17 as follows:

PART 17--MEDICAL

    1. The authority citation for part 17 continues to read as follows:


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

    2. Add Sec.  17.148 after the undesignated center heading 
``PROSTHETIC, SENSORY, AND REHABILITATIVE AIDS'', to read as follows:


Sec.  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

[[Page 35167]]

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, non-prescription 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 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)

    3. Revise Sec.  17.154 to read as follows:


Sec.  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.

(Authority: 38 U.S.C. 1714)


[FR Doc. 2011-14933 Filed 6-15-11; 8:45 am]
BILLING CODE 8320-01-P