Service Dogs, 54368-54382 [2012-21784]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Rules and Regulations]
[Pages 54368-54382]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21784]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN51


Service Dogs

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations 
concerning veterans in need of service dogs. Under this final rule, VA 
will provide to veterans with visual, hearing, or mobility impairments 
benefits to support the use of a service dog as part of the management 
of such impairments. The benefits include assistance with veterinary 
care, travel benefits associated with obtaining and training a dog, and 
the provision, maintenance, and replacement of hardware required for 
the dog to perform the tasks necessary to assist such veterans.

DATES: Effective Date: This rule is effective October 5, 2012.

FOR FURTHER INFORMATION CONTACT: Lynnette Nilan, RN, MN, Patient Care 
Services, (10P4), Veterans Health Administration, Department of 
Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (406) 
422-4476. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION: On June 16, 2011, VA published in the 
Federal Register (76 FR 35162) a proposed rule to amend VA regulations 
to broaden and clarify current benefits to veterans with guide dogs, 
and to establish new benefits related to service dogs. 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. In 2001, Congress amended section 1714 to authorize VA to 
provide service dogs for veterans with other disabilities. See 
Department of Veterans Affairs Health Care Programs Enhancement Act of 
2001, Public Law 107-135, title II, Sec.  201. This rule implements 
that authority and establishes a single regulation relating to the 
provision of guide and service dog benefits by VA.
    Interested persons were invited to submit comments to the proposed 
rule on or before August 15, 2011, and we received 98 comments. All of 
the issues raised by the commenters that concerned at least one portion 
of the

[[Page 54369]]

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 Sec.  17.148(b)(2), 
(d), (d)(1)(ii), and (d)(3) and Sec.  17.154.

Definition of ``Service Dogs''

    Section 17.148(a) defines ``service dogs'' as ``guide or service 
dogs prescribed for a disabled veteran under [Sec.  17.148].'' Multiple 
commenters argued that this definition is circular, and further 
contended that the omission of mental health impairments in Sec.  
17.148(b)(1) violates basic protections set forth in regulations 
implementing the Americans with Disabilities Act of 1990 (ADA). See 28 
CFR 36.104 (specifically recognizing service dogs trained to assist 
individuals with mental impairments and defining ``service animal'' to 
mean ``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''). These commenters advocated that VA should use the 
definition of ``service animal'' set forth in the regulations 
implementing the ADA. We make no changes based on these comments.
    The requirements in the ADA and regulations implementing the ADA 
are applicable only to ``public entities,'' and Federal Government 
agencies such as VA are not included in the ADA definition of a public 
entity. See 42 U.S.C. 12131(1). Thus, the specific requirements set 
forth in the ADA are not applicable to VA. Although this does not 
prevent VA from adopting, through regulation, a definition of ``service 
animal'' consistent with 28 CFR 36.104, it would be inappropriate to do 
so for the purposes of the programs regulated by this rule. The ADA and 
its implementing regulations exclusively address the issue of access to 
public facilities by individuals with disabilities, whereas the purpose 
of this rule is to authorize benefits to a veteran with a service dog. 
Access is not discussed in Sec.  17.148 or Sec.  17.154. Conversely, 
the ADA and its implementing regulations are neither controlling nor 
informative with regard to the administration of benefits to veterans 
with service dogs. The definition of ``service dogs'' in Sec.  
17.148(a) is reasonable because it is not overly broad for the purpose 
of the rule, and is appropriate to effectuate Congressional intent. Cf. 
38 U.S.C. 1714(c) (providing authority for 38 CFR 17.148 and 
authorizing VA to ``provide service dogs trained for the aid of'' those 
veterans with hearing impairments, mobility impairments, etc., but not 
addressing access to VA facilities by persons accompanied by service 
dogs). The concerns from commenters were that Sec.  17.148 ``reinvents 
the wheel'' by establishing a new definition for a term that is already 
defined in Federal regulation, and further that Sec.  17.148 was 
unlawful under such regulation. However, as discussed above, the ADA 
definition of ``service animal'' is not applicable, and also is not 
helpful in determining the circumstances under which VA will provide 
the benefits described in Sec.  17.148.
    Commenters asserted that VA should use the term ``assistance 
animal'' instead of ``service dog'' because, they assert, the term 
``service dog'' is understood more narrowly in the service dog industry 
to refer only to those dogs that assist with mobility impairments, 
whereas Sec.  17.148(a) defines ``service dogs'' to mean dogs that aid 
with mobility impairments, visual impairments, and hearing impairments. 
By contrast, commenters stated that ``assistance animal'' is an 
industry term that encompasses dogs that assist with mobility, visual, 
and hearing impairments, and in turn should be used by VA in Sec.  
17.148(a). We make no changes based on these comments.
    We disagree that every person in the service dog industry would 
understand what an ``assistance animal'' is in the way described by the 
commenter. Moreover, our regulations are written for a broader audience 
than those who may own or train service dogs, to include VA employees 
who administer benefits in accordance with our regulations. We believe 
that ``assistance animal'' in fact could be interpreted to have 
multiple colloquial meanings, and specifically may be likely to suggest 
that VA will provide benefits for animals other than dogs. We do not 
believe, as suggested by commenters, that our use of the term ``service 
dogs'' to encompass guide dogs for visual impairments and service dogs 
for hearing and mobility impairments would confuse veterans seeking 
benefits under the rule. Most importantly, Sec.  17.148(a) clearly 
defines the term and states that the definition therein applies ``[f]or 
the purposes of'' Sec.  17.148. In applying for this benefit, veterans 
would be expected to understand that the regulatory definition applies, 
and not any other definition that may be set forth elsewhere or 
understood in common parlance.

The Rule Does Not Deny Access of Any Service Dog to VA Health Care 
Facilities

    Multiple commenters contended that the certificate requirement in 
Sec.  17.148(c)(1) as proposed would violate their access rights under 
the regulations implementing the ADA. See 28 CFR 36.302 (stating that 
``[a] public accommodation shall not require documentation, such as 
proof that the animal has been certified, trained, or licensed as a 
service animal''). We reiterate that this rulemaking does not address 
the issue of access to VA health care facilities by individuals 
accompanied by service dogs, and will not be used to determine whether 
a particular service dog will be allowed to enter a VA facility. 
Comments that allege unlawful violations of access rights or raise 
other issues relating to access to VA facilities, therefore, are beyond 
the scope of this rule. Therefore, we make no changes based on these 
comments. A certificate is required under Sec.  17.148(c)(1) only to 
enable the veteran to receive service dog benefits, but is not required 
to gain entry to VA facilities. This rulemaking does not permit or 
prohibit the access of service dogs to VA health care facilities.
    Access to VA facilities by service dogs accompanying individuals 
with disabilities is controlled by 40 U.S.C. 3103, which states: 
``Guide dogs or other service animals accompanying individuals with 
disabilities and especially trained and educated for that purpose shall 
be admitted to any building or other property owned or controlled by 
the Federal Government on the same terms and conditions, and subject to 
the same regulations, as generally govern the admission of the public 
to the property.'' 40 U.S.C. 3103(a). The VA regulation that currently 
controls the access of animals to VA facilities is found at 38 CFR 
1.218(a)(11), and we are in the process of amending Sec.  1.218(a)(11) 
to be fully compliant with 40 U.S.C. 3103(a).

The Exclusion of Benefits for Mental Health Service Dogs Is Not 
Unlawful

    Multiple commenters asserted that the exclusion of benefits to 
mental health service dogs is unlawfully discriminatory because it 
creates a different standard for treatment options between those 
veterans with mental health impairments and those veterans without 
mental health impairments. One commenter specifically alleged that not 
providing benefits for service dogs that mitigate the effects of mental 
health illnesses, while providing benefits for service dogs that 
mitigate the effects of

[[Page 54370]]

other impairments, may be a violation of Section 504 of the 
Rehabilitation Act (Section 504). Section 504 provides:

    No otherwise qualified individual with a disability in the 
United States, as defined in section 705(20) of this title, shall, 
solely by reason of her or his disability, be excluded from the 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal 
financial assistance or under any program or activity conducted by 
any Executive agency or by the United States Postal Service.

29 U.S.C. 794(a).

    We agree that the benefits administered under this rule are subject 
to Section 504, but disagree that not providing benefits for mental 
health service dogs violates Section 504. VA is not restricting service 
dog benefits based on disability. VA is providing benefits to both 
physically and mentally disabled veterans for the same purpose, which 
is to provide assistance for the use of a particular device (a service 
dog) when a service dog is clinically determined to be the optimal 
device to help a veteran manage a visual impairment, a hearing 
impairment, or a chronic impairment that substantially limits mobility. 
All veterans will receive equal consideration for benefits administered 
for these service dogs, provided all other criteria in Sec.  17.148 are 
met, regardless of accompanying mental health diagnosis. Veterans 
diagnosed with a hearing or visual impairment will certainly not be 
deemed ineligible for service dog benefits because they also have a 
mental health impairment. We also note that mobility impairments under 
Sec.  17.148 are not specifically limited to traumatic brain injuries 
or seizure disorders in Sec.  17.148(b)(3). Some commenters 
misinterpreted the rule to contain such a limitation and argued that 
other mental impairment may produce mobility impairment. To clarify, if 
a veteran's mental impairment manifests in symptoms that meet the 
definition of ``chronic impairment that substantially limits mobility'' 
in Sec.  17.148(b)(3) and a service dog is clinically determined to be 
the optimal device to manage that mobility impairment, then such a 
veteran will be awarded service dog benefits. The rule does not prevent 
such individualized assessments of veterans with mental health 
impairments, as long as the service dog would be evaluated as a device 
to mitigate the effects of a visual, hearing, or mobility impairment. 
If this requirement is met, VA would not deny service dog benefits 
simply because the service dog may also assist with mental impairment 
that does not cause a limitation identified in Sec.  17.148(b).
    The rule prevents the administration of benefits for a dog to 
mitigate the effects of a mental illness that are not related to 
visual, hearing, or mobility impairments, but this restriction is not 
discriminating based on the fact that a veteran has a mental 
disability. This restriction is based on a lack of evidence to support 
a finding of mental health service dog efficacy. In contrast, VA's 
shared national experience has been to directly observe positive 
clinical outcomes related to the use of service dogs and increased 
mobility and independent completion of activities for veterans with 
visual, hearing, and mobility impairments. Our observations are 
bolstered by the existence of nationally established, widely accepted 
training protocols for such dogs that enable the dogs to perform a 
variety of tasks directly related to mitigating sensory and mobility 
impairments (such as alerting to noise, opening doors, turning on light 
switches, retrieving the telephone, picking up objects, etc.). We are 
unaware of similarly vetted and accepted training protocols for mental 
health service dogs, or how assistance from such dogs could be 
consistently helpful for veterans to mitigate mental health 
impairments.
    Although we do not disagree with some commenters' subjective 
accounts that mental health service dogs have improved the quality of 
their lives, VA has not yet been able to determine that these dogs 
provide a medical benefit to veterans with mental illness. Until such a 
determination can be made, VA cannot justify providing benefits for 
mental health service dogs.
    Several commenters asserted that limiting Sec.  17.148 to veterans 
diagnosed as having visual, hearing, or substantial mobility 
impairments violates 38 U.S.C. 1714, which was amended in 2009 to 
authorize VA to provide ``service dogs trained for the aid of persons 
with mental illnesses, including post-traumatic stress disorder, to 
veterans with such illnesses who are enrolled under section 1705 of 
this title.'' 38 U.S.C. 1714(c)(3). Though multiple commenters stressed 
that this rule's exclusion of mental health service dogs violates 38 
U.S.C. 1714(c)(3), we reiterate as stated in the proposed rule that 
under the statutory language VA may provide or furnish a guide dog to a 
veteran but we are not required to do so. See 38 U.S.C. 1714 (c)(1)-(3) 
(noting that ``[t]he Secretary may, in accordance with the priority 
specified in section 1705 of this title, provide'' [service dogs]). As 
we explained in the proposed rule, this rulemaking expands part 17 of 
38 CFR, which already addressed guide dogs for the blind, to now 
authorize benefits for hearing disabled and substantially mobility 
impaired veterans, because we have an adequate basis of clinical 
experience and evidence to suggest service dog efficacy for veterans 
with these impairments. Therefore, we make no changes based on the 
above comments.

The Exclusion of Benefits for Mental Health Service Dogs Is Not 
Unreasonable

    Commenters contended that VA is acting against its own practices in 
administering benefits by requiring completion of a congressionally 
mandated service dog study prior to determining whether to administer 
mental health service dog benefits. Commenters asserted that while most 
VA regulations only rely on medical judgment or medical need to justify 
the provision of medical benefits, in this instance VA is without 
reason requiring a higher standard of clinical evidence. As stated by 
one commenter:

    VA's position that it can only act here in accord with a solid 
scientific evidence base is not in accord with its own practice. In 
most instances involving medical benefits, VA regulations rely 
simply on medical judgment, ``medical need,'' or a determination 
that providing the service is ``necessary.''

    This is not an accurate statement. Current VA regulations do not 
discuss whether there is evidence to support the provision of a 
particular therapy or treatment method, but this does not support the 
inference that our regulations discount the need for evidence to 
support the provision of such therapy or treatment. Indeed, if we 
ultimately determine that mental health dogs are appropriate treatment 
tools for mental health impairments, we will amend our regulations to 
authorize benefits for such dogs. VA is currently evaluating the 
efficacy of mental health service dogs, pursuant to the National 
Defense Authorization Act for Fiscal Year 2010, Public Law 111-84, 
Sec.  1077(a) (2009) (the NDAA), which states that ``the Secretary of 
Veterans Affairs shall commence a three-year study to assess the 
benefits, feasibility, and advisability of using service dogs for the 
treatment or rehabilitation of veterans with physical or mental 
injuries or disabilities, including post-traumatic stress disorder.'' 
All participants in this study are veterans with mental health 
disabilities who are receiving service dog benefits similar to those 
described in this rulemaking, but the service dogs for these veterans 
assist specifically with the effects of mental illness.

[[Page 54371]]

Although the NDAA provided that effectiveness of dogs for physical 
disabilities could additionally be evaluated in the study, we have 
chosen to limit this study's focus to mental health disabilities. 
However, we do not believe this limitation supports commenters' 
assertions that VA is creating an unreasonable double standard with 
regard to the need for clinical evidence, prior to administering 
benefits for mental health service dogs. The NDAA study is limited to 
veterans with mental health illness because VA has already determined 
from a clinical standpoint that service dogs are effective for 
assisting veterans with physical disabilities and mobility impairments. 
Moreover, we believe that the use of the word ``or'' in the NDAA makes 
the focus of the service dog study discretionary, and further that 
Congress clearly intended that VA must specifically evaluate the 
efficacy of mental health service dogs: ``The Secretary shall ensure 
that at least half of the participants in the study are veterans who 
suffer primarily from a mental health injury or disability.'' Public 
Law 111-84, Sec.  1077(c)(4). There is no similar criterion in the law 
to compel that any portion of the participants must be veterans who 
suffer primarily from a physical injury or disability.
    Though many commenters asserted that there is sufficient clinical 
evidence that VA could presently use to support administering mental 
health service dog benefits, the only evidence submitted in support of 
this assertion were anecdotal accounts of subjective benefits, 
including: Decreased dependence on medications; increased sense of 
safety or decreased sense of hyper-vigilance; increased sense of calm; 
and the use of the dog as a physical buffer to keep others at a 
comfortable distance. Again, we do not discount commenters' personal 
experiences, but we cannot reasonably use these subjective accounts as 
a basis for the administration of VA benefits. This is the precise 
reason VA is currently gathering evidence in the NDAA study--to 
determine how, exactly, service dogs may perform specific tasks or work 
that mitigates the effects of mental health disabilities.
    Finally, we respond to multiple commenters' concerns with the 
manner in which VA is currently conducting the mandatory NDAA study. 
Essentially, these commenters stated that VA's conducting of the study 
is unreasonable because either the methodology is flawed, or VA's 
service dog organization partners in the study are inappropriate. 
Particularly, commenters alleged that VA has partnered exclusively with 
Assistance Dogs International (ADI) and ADI-accredited organizations in 
conducting the study, and further that ADI is not a proponent of 
psychiatric service dogs; such commenters accused VA of making adverse 
determinations regarding the efficacy of mental health service dogs 
before the study is complete. Generally, we find these comments to be 
beyond the scope of this rule, because VA is not basing any decisions 
in this rulemaking on any outcomes of the mandatory study, as the study 
has not yet been completed. However, we will note that VA has not 
partnered exclusively with ADI or ADI-accredited organizations to 
conduct the mandatory study. All relevant Federal requirements 
concerning research studies were followed by VA as relates to this 
study; an abstract of the study to include listed eligibility and 
exclusion parameters is available for public viewing at https://clinicaltrials.gov/ct2/show/study/NCT01329341. Therefore, we make no 
changes based on the above comments.

Service Dogs Must Be Certified by ADI or International Guide Dog 
Federation (IGDF) for Veterans With Visual, Hearing, or Substantial 
Mobility Impairments To Receive Benefits

    Multiple commenters argued that VA should remove the requirement in 
Sec.  17.148(c) as proposed that a service dog complete ADI training 
and be ADI certified before a veteran with a substantial mobility 
impairment can begin receiving benefits under Sec.  17.148(d). These 
commenters put forth many reasons in support of removing this 
requirement, which we will specifically address in the following 
discussion. We make no changes to the rule based on these comments. In 
administering service dog benefits, VA must ensure that tested and 
proven criteria regarding service dog training and behavior are in 
place to ensure the integrity of the service dog benefits administered, 
and the safety of veterans and others who might come in contact with 
the veteran or the dog. There are no Federal standards for service dog 
training that we can apply, and VA does not have the expertise to 
design its own accreditation program or standards. ADI and IGDF are 
national, industry-recognized organizations with established and proven 
training criteria. Commenters offered many anecdotal observations 
concerning the quality and reliability of non-ADI organizations to 
train service dogs, but no commenters offered concrete, supportive 
evidence to persuade us that there are any organizations other than ADI 
or IGDF that have an established history and national credibility such 
that they should be recognized in Sec.  17.148(c).
    The reliance on ADI and IGDF accreditation is no different than our 
reliance on other nationally standardized criteria to ensure safe, high 
quality health care across all settings. For instance, VA relies on the 
Centers for Medicare and Medicaid Services (CMS) Resident Assessment 
Instrument/Minimum Data Set as the comprehensive assessment for all 
veterans in VA Community Living Centers (long term care facilities). 
See Veterans Health Administration (VHA) Directive 2008-007. In 
addition, VA requires States to rely on this tool for veterans in State 
homes receiving per diem payments from VA for the provision of nursing 
home care. See 38 CFR 51.110(b)(1)(i). Similarly, VA relies on and 
enforces by regulation National Fire Protection Association (NFPA) 
safety standards in all VA community residential care facilities, 
contract facilities for outpatient and residential treatment services 
for veterans with alcohol or drug dependence or abuse disabilities, and 
State homes. See 38 CFR 17.63, 17.81(a)(1), 17.82(a)(1), and 
59.130(d)(1). We rely on various private, State, and local 
certifications concerning professional expertise. See, e.g., 38 CFR 
3.352(b) (predicating aid and attendance allowance on need for care 
from health-care professional licensed to practice by a State or 
political subdivision thereof), Sec.  17.81(a)(3) (conditioning VA 
authority to contract with residential treatment facilities that are 
``licensed under State or local authority''), Sec.  17.900 (recognizing 
certification of health care providers issued by, inter alia, The Joint 
Commission as well as specified government organizations including 
CMS). Thus, VA reliance on the recognized expertise of a public or 
private organization is not uncommon, nor is it illegal or 
questionable, so long as the basis for the reliance is well-reasoned 
and articulated.
    Despite the negative comments that asserted that ADI is an 
inefficient organization or is inadequate in some respects, other 
commenters recognized that there are no other national organizations 
that perform a similar function, and that there are very few 
individuals who can accurately assess the quality of a service dog's 
training. Some commenters praised ADI, stating that ADI certification 
is ``the best route to go'' and that the requirement will ensure that 
VA is not paying for dogs of ``questionable value to our vet[eran]s.'' 
If at some point in the future we discover an efficient way to assess 
the quality of training provided by non-ADI

[[Page 54372]]

and non-IGDF dog providers, we will of course amend the rule; however, 
at this time, ADI and IGDF accreditation is the best guarantee we have 
that our veterans will be provided with safe, high quality service 
dogs.
    We now specifically address comments that requiring certification 
from an ADI-accredited organization effectively creates a sole source 
contract, in violation of the general requirement for open and fair 
competition in Federal Acquisition Regulations. See 48 CFR 6.101. 
Multiple commenters further alleged that Sec.  17.148(c) as proposed 
would violate a ``performance-based'' assessment requirement under 
Federal Acquisition Regulations for service contracts, because it 
emphasizes the source of service dog training rather than the result of 
that training. See 48 CFR 37.600 et seq. Without discussing under what 
circumstances VA may be permitted to enter into sole source contracts, 
we clarify for commenters that VA is not contracting with ADI or IGDF 
generally or with any ADI-accredited or IGDF-accredited organization to 
purchase service dogs for veterans under this rule. There is no fiscal 
conflict of interest or violation of Federal Acquisition Regulations 
because the rule does not authorize any financial arrangement 
whatsoever with ADI or IGDF.
    Multiple commenters stated that the ADI limitation in Sec.  
17.148(c) is inefficient and ineffective for veterans by asserting 
that, compared to non-ADI organizations: There are not enough ADI-
accredited organizations around the United States to meet veteran 
demand for service dogs; the cost to purchase ADI-certified service 
dogs is prohibitive; and the wait to receive a service dog from an ADI-
accredited organization is too long. We make no changes based on these 
comments.
    We acknowledge that not all States have registered ADI-accredited 
or IGDF-accredited organizations; however, Sec.  17.148(d)(3) does 
provide for the reimbursement of travel expenses associated with the 
training a veteran must complete as offered by an ADI-accredited or 
IGDF-accredited organization. Therefore, there will be no out of pocket 
travel costs for veterans who must travel out of state to obtain a dog 
after a service dog is prescribed. Thus, we do not believe the absence 
of ADI-accredited or IGDF-accredited organizations in a particular 
State will serve as a barrier to obtaining a service dog.
    Regarding the cost to obtain a service dog, we did not receive any 
concrete evidence from commenters that non-ADI accredited or non-IGDF 
accredited organizations are on average less expensive. Rather, 
commenters offered anecdotal claims that non accredited organizations 
are less expensive in some cases. A few commenters asserted that non-
ADI accredited and non-IGDF accredited providers have less overhead 
costs because those organizations do not have to spend money to acquire 
or maintain accreditation. The ADI accreditation fee is $1000.00 paid 
every 5 years, with annual fees of approximately $50.00. The cost of 
IGDF accreditation is a one-time fee of $795, with an annual fee of 
$318 and a per unit fee of $39.45. We do not believe that these costs 
would necessitate an increased cost being passed to veterans 
specifically. ADI accreditation and IGDF accreditation are the only 
reasonable means we have of ensuring that an organization is using 
tested, standardized training and behavior criteria prior to a service 
dog being placed with a veteran. We view the cost of ADI and IGDF 
accreditation, therefore, as necessary and reasonable in order to 
ensure that we administer benefits in a safe and consistent manner. We 
clarify for one commenter that VA only intends to recognize those 
service dog organizations that have full membership in ADI or IGDF, or 
that are fully ADI or IGDF accredited, versus those organizations in 
the process of becoming ADI or IGDF accredited. This is consistent with 
our goal of ensuring VA only administers benefits for use of high 
quality service dogs that were subject to standardized training 
protocols.
    Regarding the wait time to obtain a dog, commenters did not provide 
evidence to support that on average ADI-accredited organizations take 
longer than non-ADI accredited organizations to place service dogs with 
veterans. Many commenters instead provided anecdotal accounts of non-
ADI organizations not utilizing ADI-specific training, and in turn 
training dogs faster than ADI organizations. Non-ADI organizations that 
facilitate ``owner training'' were especially noted by commenters as 
being faster and more effective for veterans, whereby the veteran would 
directly train the service dog. Again, we do not believe that we should 
administer benefits under the rule unless we can ensure that the 
service dogs for which we pay benefits are all subject to the same set 
of tested standards, to ensure safety and consistent quality. We do not 
believe this level of safety and quality can be met without 
accreditation based on nationally applicable criteria. This practice 
follows the same process VA uses with every other product, device, or 
treatment modality provided to our veterans.
    Some commenters argued that VA could use other nationally 
recognized, performance based tests instead of requiring ADI 
certification to demonstrate that service dogs are safe and 
appropriately trained to mitigate effects of substantial mobility 
impairments. These commenters stated that submission to VA of a service 
dog's performance on a Public Access Test (PAT) or the American Kennel 
Club's Canine Good Citizen (CGC) test, in combination with statements 
indicating the level of the service dog's training and confirming the 
dog's good health, would provide sufficient objective evidence that 
service dogs are suitable for provision of benefits under the rule. 
Nationally recognized temperament tests such as a PAT or the CGC may 
indicate whether a service dog is stable and unobtrusive to the public 
to justify access (and, again, Sec.  17.148 does not concern access), 
but these tests do not communicate the level of a service dog's 
specific training, or whether the service dog should be prescribed for 
a veteran as an assistive device. An accompanying statement submitted 
to VA that subjectively attests to a service dog's training is 
similarly inadequate, as VA seeks to administer benefits uniformly 
under the rule and therefore must ensure that all service dogs are 
subject to the same performance based standards. We make no changes 
based on these comments.
    One commenter expressed support of VA's decision to specifically 
include seizure disorder as a covered impairment, and requested that VA 
more clearly indicate in the final rule which tasks a service dog may 
complete for such an eligible veteran. We reiterate that we require ADI 
and IGDF certification specifically because VA does not have the 
expertise, experience, or resources to develop independent criteria. 
For this reason, we make no changes to the rule to provide specific 
examples of tasks which any service dog may perform for a veteran. ADI 
has developed training protocols for service dogs to complete work and 
tasks for impairments as described in the rule, to include seizure 
disorders.
    Finally, multiple commenters contended that VA could adopt 
independent training programs to internally produce service dogs for 
veterans, versus relying on certificates from external ADI-accredited 
service dog organizations. One commenter stated that VA should initiate 
an independent training program whereby veterans with post traumatic 
stress

[[Page 54373]]

disorder (PTSD) participate in training service dogs for the intended 
beneficiaries of this rule, i.e., veterans with visual, hearing, or 
substantial mobility impairments. This commenter compared such an 
internal training program to a program developed by the Denver VA 
Medical Center and Denver VA Regional Office in 2009, called 
``Operation Freedom,'' in which veterans assisted in advancing dogs 
through CGC test training for 6 weeks as a component of the veterans' 
mental health treatment plans. After completion of this 6 week basic 
obedience training program, the dogs were trained by an external ADI-
accredited organization in a rigorous 7 month regimen to become service 
dogs, and were placed with other veterans with disabilities. The 
initial pairing of the dogs with veterans during basic obedience 
training, as a treatment modality for mental health illnesses, provided 
those veterans with opportunities in skills development and community 
reintegration. Particularly, the program provided a bridge to community 
involvement through a meaningful volunteer opportunity that served 
other disabled veterans.
    Though VA is not opposed to such training opportunities as a 
component of a treatment plan for a particular veteran, Operation 
Freedom is not an example of an independent and internal training 
program to train or produce service dogs for veterans. As the commenter 
correctly stated, the dogs involved in Operation Freedom were actually 
trained to become service dogs by an external ADI-accredited 
organization, over an extended period of time and subject to ADI 
standards as adopted and applied by that organization. We additionally 
clarify that even the initial basic obedience training that veterans 
assisted in providing to dogs was not provided on VA property, but 
rather on the property of the ADI-accredited organization, because the 
goal of Operation Freedom was to provide community reintegration 
opportunities for participating veterans as part of those veterans' 
treatment plans. The goal of Operation Freedom was ultimately not to 
produce service dogs for veterans, and we therefore do not find this 
example as provided by the commenter to be illustrative as to what VA 
should enact with regards to independent and internal service dog 
training programs. As stated previously, because VA does not have the 
expertise, experience, or resources to develop independent training 
criteria or otherwise train or produce service dogs for veterans, we 
require that service dogs be trained and placed with veterans by ADI-
accredited and IGDF-accredited organizations. However, this in no way 
limits any veteran's personal choice to undertake any training 
experiences with any service dog organization, nor does it prevent VA 
from conducting programs similar to Operation Freedom. The commenter 
also noted potential cost savings for VA to conduct internal service 
dog training programs that employ PTSD veterans, but as explained 
earlier VA is not purchasing service dogs from ADI-accredited or IGDF-
accredited organizations, and such cost comparisons are therefore not 
relevant. We make no changes based on the above comments.
    One additional commenter suggested that instead of requiring ADI 
certification, that VA should hire professional service dog trainers to 
join rehabilitation therapy departments (e.g., to join Occupational and 
Physical Therapy departments) as VA staff, and that this would enable 
VA to professionally train service dogs at a higher output and with 
less cost than paying for ADI-certified service dogs. We make no 
changes based on this comment, as such cost considerations are not 
relevant because VA is not purchasing service dogs. VA does not have 
the expertise, experience, or resources to develop independent training 
criteria, and VA will not adopt or initiate internal training programs, 
as this would effectively make VA act as a professional service dog 
certifying body. VA's lack of expertise in this area is exactly why we 
have mandated ADI or IGDF certification.

To Qualify for Benefits, a Service Dog Must Be ``Optimal'' for the 
Veteran

    Under Sec.  17.148(b)(2), we require that the service dog must be 
the ``optimal'' device for the veteran to manage his or her impairment 
and live independently, and service dog benefits will not be provided 
if other assistive means or devices would provide the same level of 
independence as a service dog. Several commenters asserted that the use 
of one assistive device does not necessarily obviate the need for other 
assistive devices, and therefore that Sec.  17.148(c) as proposed 
should not be used to exclude the prescription of a service dog if 
other devices may assist the veteran. We agree in part with the 
comments, but make no change to the regulation because the regulation 
does not prevent veterans from using multiple assistive devices.
    For purposes of Sec.  17.148(b)(2), an eligible veteran may be 
prescribed both a service dog and another assistive device, as long as 
each provides a distinct type of assistance, or if, without each of the 
devices, the veteran would be unable to complete tasks independently. 
For instance, for a veteran with a mobility impairment that is 
characterized by loss of balance and subsequent falls, both a balance 
cane and a service dog might assist a veteran with balance and walking; 
the cane might be optimal for assistance with walking, but the service 
dog may be the optimal means for that veteran to regain a standing 
position and stabilize after a fall. In such a case, the service dog 
may be prescribed to the veteran, as well as the balance cane. 
Similarly, a veteran with multiple impairments may be prescribed 
assistive devices to assist with one impairment and a service dog to 
assist with another. The ``optimal'' limitation in Sec.  17.148(b)(2) 
will not limit the prescription of a service dog when necessary for the 
veteran to manage the impairment and live independently, but it will 
prevent the provision by VA of multiple assistive devices that serve 
the same purpose. By avoiding duplication of benefits in this manner, 
we maximize the amount of resources available to veterans and ensure 
that benefits are provided in a responsible manner.
    Commenters stated that the ``optimal'' criterion in Sec.  
17.148(b)(2) as proposed would be used to ensure that service dogs are 
prescribed as assistive devices only as a ``last resort.'' A service 
dog is not a ``last resort'' in the sense inferred by the commenters. 
VA will not use the ``optimal'' requirement in such a way as to deprive 
any veteran of an assistive device that would best mitigate the effects 
of a veteran's impairment and provide the veteran the highest level of 
independence. The rule is designed, however, to promote the use of 
service dogs only when it is clinically determined that other devices 
will not adequately enable the veteran to live independently. This 
rationale of promoting service dogs secondary to other assistive 
devices is not without reason. A service dog is a long term commitment 
that requires tremendous dedication and effort on the part of the 
veteran, as well as significant costs--only part of which would be paid 
for by VA under Sec.  17.148. A service dog must be fed, exercised, 
groomed, nursed when ill, and integrated into the veteran's family as a 
necessary partner in the veteran's daily life. If the extent of the 
veteran's mobility impairment is such that the only tasks requiring 
assistance are picking up or reaching items, then a device that is not 
a service dog that fully accomplishes these tasks is not only 
sufficient, but also is not unduly burdensome for the veteran. We

[[Page 54374]]

make no changes based on these comments.
    Commenters argued that the rule should contain additional criteria 
that would objectively measure a veteran's level of independence 
between different devices, instead of the single ``optimal'' criterion. 
We believe, however, that because these are clinical determinations 
based on ``medical judgment'' under Sec.  17.148(b)(2), additional 
criteria are unnecessary and unhelpful. Therefore, we make no changes 
based on these comments. It is clear in Sec.  17.148(b)(2) that 
devices, including a service dog, will be clinically evaluated to 
determine which are necessary and most beneficial for the veteran to 
manage an impairment and live independently. We stressed the importance 
of this clinical determination in the proposed rule:

    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.

76 FR 35163.

    One commenter additionally noted that the above rationale from the 
proposed rule presumed that higher cost technologies offer a higher 
standard of care. We clarify that the intent of this rationale was to 
support VA's use of clinical judgment to determine what device allows 
the veteran to function most independently, and not have such a 
determination influenced by factors such as cost.
    Some commenters asserted that while another device may provide the 
exact same functions in mitigating the effects of mobility impairments 
as a service dog, service dogs nonetheless should be considered optimal 
and be prescribed because they uniquely provide certain ancillary 
benefits, including: Subjective feelings of increased personal comfort 
and understanding; an increased sense of purpose for the veteran in 
having to care for a living thing; an increased sense of self-esteem 
and overall psychological well-being; and improved social and community 
reintegration skills. We do not dispute these subjective accounts from 
commenters; however, we believe Congress authorized VA to provide 
service dogs to veterans with disabilities as a means of mitigating the 
effects of a disability--and not for the purpose of companionship or 
emotional support. Therefore, we make no changes based on these 
comments. The authorizing statute links the provision of service dogs 
to their having been trained ``for the aid of'' veterans with hearing 
impairments, mobility impairments, etc.; the statute does not suggest 
that ancillary benefits are to be considered. 38 U.S.C. 1714(c). 
Therefore, Sec.  17.148 does not authorize benefits based on ancillary 
benefits that service dogs may provide but that are not specific to 
mitigating the effects of a veteran's disability, and which are not the 
product of specific training. Though dogs may generally tend to 
engender in their owners subjective feelings of improved well being, 
this is not the intended effect of service dog assistance under 38 
U.S.C. 1714(c) or Sec.  17.148.
    As proposed, the determination that the service dog is ``optimal'' 
for the veteran under Sec.  17.148(b)(2) was to be made by a VA 
clinician using medical judgment. Multiple commenters objected to this 
standard, for various reasons. Chiefly, commenters claimed that a VA 
clinician would not have the requisite expertise related to service 
dogs to properly compare their unique characteristics and benefits to 
other assistive devices. Instead, these commenters asserted that the 
decision-making process should involve either a local evaluation board 
or interdisciplinary team, in which prosthetic staff and other 
rehabilitative therapy staff is represented. We agree, and have amended 
the first sentence of Sec.  17.148(b)(2) from the proposed rule to 
require ``[t]he VA clinical team that is treating the veteran for such 
impairment'' to assess whether it is appropriate to prescribe a service 
dog for that veteran. The ``VA clinical team'' will include, by virtue 
of being the clinical staff that is treating the veteran for the 
qualifying visual, hearing, or mobility impairment, the veteran's 
primary healthcare provider, and any other relevant specialty care 
providers and professional staff, to include prosthetic and 
rehabilitative therapy staff. Thus, the first sentence of Sec.  
17.148(b)(2) now reads: ``The VA clinical team that is treating the 
veteran for such impairment determines based upon medical judgment that 
it is optimal for the veteran to manage the impairment and live 
independently through the assistance of a trained service dog.''
    We also recognize that ensuring that VA clinical staff is 
knowledgeable regarding service dog utilization is critical to the 
successful partnering of veterans with service dogs. VA is developing 
and will disseminate educational tools and training opportunities that 
will assist VA clinical staff to obtain this knowledge. In preparation 
for the effective date of this rulemaking, we have drafted clinical 
practice recommendations and have produced a video presentation for 
dissemination to every VA health facility in the country. Both the 
clinical recommendations and the video communicate to clinical staff 
the traits, capabilities, tasks, and utility of service dogs for 
mobility, hearing, and vision impairments. These and other training 
materials will include professional education credits, so clinical 
staff will have incentive to participate, and some training 
opportunities will be required training for a veteran's clinical team 
when it is necessary to determine if an assistive device is needed. The 
training provided at local facilities will ensure the veteran's 
treatment team will be qualified to evaluate between various assistive 
means, to include understanding the abilities of service dogs, and then 
be able to prescribe the most appropriate assistive device.
    Multiple commenters criticized the rule for disregarding the 
expertise of service dog organizations. It is true that for a veteran 
to receive benefits under the rule, a service dog must be prescribed by 
the veteran's clinical team, and that decision is made without 
consulting the service dog organization from which a veteran ultimately 
obtains a service dog. However, the prescription of a service dog is a 
treatment decision made by the VA clinical team that is treating the 
veteran for the qualifying impairment, and we believe that consultation 
with a private organization that has no clinical expertise as to the 
medical treatment for a specific veteran is inappropriate. Therefore, 
we make no changes based on these comments. At the same time, service 
dog organizational expertise and experience are essential to the 
process whereby a service dog is placed with a veteran. After a 
clinical decision is made to prescribe a service dog, a service dog 
organization will use its professional judgment to make independent 
decisions concerning whether a service dog will actually be placed with 
the veteran. The ADI-accredited or IGDF-accredited organization 
conducts its own assessments based on national criteria and its 
specialized experience in the field, and the veteran must complete the 
service dog organization's evaluation and training before that 
organization will match the veteran with a service dog and place that 
dog in the veteran's home.
    VA's role in the service dog organization's assessment and 
evaluation is purely supportive. For instance, VA will assist the 
veteran with obtaining medical and psychological

[[Page 54375]]

reports and other documentation that the service dog organization may 
request from VA (if approved for release by the veteran). VA will 
additionally provide assistance to veterans in locating a service dog 
organization, if requested. In response to one commenter, however, VA 
will not formally refer veterans to specific ADI-accredited or IGDF-
accredited organizations, or initiate a process whereby a veteran may 
consent to have VA act as an intermediary between the veteran and the 
service dog organization. We believe such a referral system would blur 
the distinct line that should exist between VA's responsibility to 
determine whether a service dog may be clinically necessary for a 
veteran, and the service dog actually being placed with the veteran. 
The clinical practice recommendations and other guidance VA has 
developed will alert VA staff to commonly available resources that 
would aid the veteran in locating service dog organizations, and this 
information could be provided to the veteran (e.g., the Web site to 
find the nearest ADI-accredited or IGDF-accredited organization). VA 
will additionally assist the veteran in obtaining medical information 
the service dog organization may require.
    In response to the same commenter, VA will not develop a standard 
form to be certified or otherwise completed by the service dog 
organization, for the veteran to submit to VA under Sec.  17.148(c)(1)-
(2) to receive benefits. Instead, VA will accept a certificate as 
required under Sec.  17.148(c)(1)-(2) in all forms as issued to the 
veteran from the individual service dog organizations. Such 
certificates must indicate that an adequate training program has been 
completed to warrant receipt of benefits under the rule. VA's lack of 
expertise in certifying whether appropriate training has been completed 
is the precise reason VA has required ADI or IGDF certification for all 
service dogs acquired on or after the effective date of the final rule.
    Some commenters stated that only the service dog organizations 
themselves should be the designated decision makers under Sec.  17.148, 
arguing that only these organizations could properly compare service 
dogs to other assistive devices and determine what is the most 
``optimal'' means to assist a veteran. We do not believe a service dog 
organization would be so qualified, as they do not have the expertise 
of licensed VA clinicians to clinically assess or treat a specific 
veteran, nor do they have the clinical responsibility of VA clinicians 
to evaluate assistive device options other than service dogs. 
Additionally, as the benefits under the rule are to be administered 
incident to a veteran's medical treatment, only the veteran's clinical 
team may be designated decision makers regarding the initial clinical 
assessment. Therefore, we make no changes based on these comments.
    Commenters asserted that having VA clinicians make the 
determination whether a service dog is optimal discounts the veteran's 
input into their own treatment options, and instead advocated that the 
decision should be solely between the veteran and the service dog 
organization. In keeping with VA's policy of providing patient centered 
care, VA clinicians do not discount the input of veterans regarding 
treatment options. As with any other medical care VA provides, the 
prescription of a service dog for a veteran would be the recommended 
course of treatment only after the veteran's clinical team considers 
all relevant factors, to include veteran preference in treatment 
options. A veteran's preference for a service dog, therefore, would 
certainly be a factor in a determination to prescribe a service dog. We 
make no changes based on these comments.

VA Is Not Purchasing or Otherwise Obtaining Service Dogs for Veterans 
Under the Rule

    Several commenters objected to a basic premise in this rule, which 
is that VA will assist veterans in determining whether a service dog is 
an appropriate treatment option and will maintain service dogs through 
the provision of veterinary and other benefits, but VA will not 
actually purchase or obtain service dogs for veterans. We make no 
changes based on these comments. As explained in the proposed 
rulemaking, we reiterate that we interpret the ``may * * * provide'' 
language in 38 U.S.C. 1714(c) to mean that VA need not actually 
purchase or acquire dogs for eligible veterans. 76 FR 35162. This is 
consistent with VA policy, extant prior to the promulgation of this 
rule, concerning guide dogs for the visually impaired; VA does not 
purchase or obtain such dogs on behalf of veterans under the similar 
authority (``may provide'') in 38 U.S.C. 1714(b). As stated previously, 
we simply lack the facilities and expertise to purchase or obtain, or 
to train service dogs for placement with veterans, and we will continue 
to rely on independent organizations that have been recognized as 
having such expertise. VA has opted instead to offer other benefits to 
facilitate the provision of service dogs to veterans.
    One commenter asserted that VA purchases other ``devices'' for 
veterans, and further that VA categorizes service dogs as ``devices,'' 
and therefore that this rulemaking must address how VA plans to 
purchase service dogs for veterans from service dog organizations. We 
make no changes based on this comment. The commenter did not specify 
what type of ``devices'' VA purchases for veterans as a comparison to 
service dogs, but we assume the intended reference was to prosthetic 
devices or appliances that may be provided to certain veterans under 38 
CFR 17.38 and 17.150. Although we have stated in this rulemaking that 
we view a service dog as a surrogate for another assistive device, we 
clarify that with regards to VA procurement policy, we do not treat 
service dogs in the same manner as prosthetic devices that are 
purchased for veterans. Unlike prosthetic devices that are provided by 
VA to veterans at VA expense, the actual placement of a service dog 
with a veteran is not VA's decision, and ultimately is not a clinical 
decision--the actual placement is the decision of a service dog 
organization, subject to that organization's own non-clinical 
assessment and training standards. VA is unable to provide training and 
fitting of a service dog for a veteran, as we provide for prosthetic 
devices that are purchased for veterans, again because VA at this time 
lacks this expertise.
    Notwithstanding VA's lack of expertise in purchasing or obtaining 
service dogs to provide directly to veterans, several commenters 
asserted that VA should cover a veteran's out of pocket costs to 
independently purchase a service dog. We reiterate that the rule is 
designed to support service dogs only when it is clinically determined 
that other assistive devices will not adequately enable the veteran to 
live independently, because a service dog is a long term commitment 
that requires tremendous dedication and effort on the part of the 
veteran, as well as potentially significant continuing costs for 
veterans that will not be paid by VA (e.g., non-prescription food, 
over-the-counter medications). VA will therefore not directly purchase 
service dogs for veterans. VA will not potentially incentivize the 
independent purchase of service dogs by veterans by creating an 
expectation that the purchase costs will be covered.
    Another commenter asserted that VA should establish a ``fee for 
service'' program to purchase service dogs for veterans, because such 
remuneration would increase availability of service

[[Page 54376]]

dogs as well as decrease potential wait times for veterans to obtain 
service dogs. We do not agree that the availability of service dogs 
specifically for veterans is impeded by veterans' inability to cover 
purchasing costs, because we understand that a majority of service dogs 
are acquired by veterans with little or no out of pocket cost. 
Therefore, we make no changes based on this comment. Additionally, we 
do not believe that a veteran's inability to purchase a service dog 
would contribute to any potential wait time for that veteran to obtain 
a service dog. Rather, we believe that the only factors that would 
contribute to potential wait times for veterans to obtain service dogs 
would be the supply of trained and available service dogs, which is 
unaffected by whether such dogs can be purchased or by whom.

VA Will Not Pay for Certain Expenses Under Sec.  17.148(d)(4)

    Commenters asserted that VA should pay for certain expenses 
associated with a service dog that would be excluded under Sec.  
17.148(d)(4) as proposed. Specifically, commenters argued that VA 
should pay for grooming, nail trimming, non-sedated teeth cleaning, 
nonprescription medications, and nonprescription food and dietary 
supplements, because commenters asserted that these services are 
directly related to the dog's ability to provide assistive services, 
and therefore should be considered covered by VA. See 76 FR 35164 
(explaining that the restrictions expressed in Sec.  17.148(d)(4) are 
present to ``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.''). Commenters stated that 
these excluded services are directly related to the dog's ability to 
provide assistive services because they are either necessary to ensure 
a service dog's longevity and reliable working service to the veteran, 
or are necessary to maintain the higher standards of cleanliness 
service dogs must maintain. We make no changes to the rule based on 
these comments, but reiterate our general policy as stated in the 
proposed rule that we regard the service dog as a surrogate for another 
assistive device, and require that the veteran therefore utilize the 
service dog responsibly and provide general care and maintenance. As 
with prosthetic devices prescribed by VA, the veteran is expected to 
maintain equipment by ensuring it is cared for, cleaned, serviced, and 
protected from damage. In the case of prosthetic devices, VA repairs 
broken equipment, and provides annual servicing and replacement parts 
such as hearing aid batteries or oxygen tank refills, when needed. In 
the case of a service dog, VA believes this equates to repairing and or 
replacing harnesses or other hardware, providing annual and emergent 
veterinary care, providing prescription medications, or paying for 
other services when prescribed by a veterinarian. In the same way VA 
would expect a veteran to protect and utilize his or her wheelchair in 
order to keep it in good working condition, or keep his or her 
prosthetic limb clean and functioning, VA expects that a veteran will 
generally maintain the service dog with daily feeding, regular 
grooming, and by covering any other expenses which are not clinically 
prescribed by a veterinarian.
    Grooming and other excluded services in Sec.  17.148(d)(4) are 
important for the general health of a service dog as an animal, and may 
affect a service dog's ability to provide services. However, services 
excluded in Sec.  17.148(d)(4) are not uniquely required by a service 
dog to perform the work and specific tasks for which they were trained. 
Services excluded in Sec.  17.148(d)(4) are general care and 
maintenance services that all dogs require for general good health and 
well being, and we therefore do not believe they are directly related 
to the specific assistance provided by a service dog. For instance, 
service dogs surely must have their nails maintained at an appropriate 
length to prevent certain maladies and discomfort associated with 
overgrowth or damage. However, the exact same need exists for 
nonservice dogs as well, such that all dogs' general ability to walk 
and maneuver is affected by maintenance of their nails. Unlike a 
specialized harness provided by VA, nail grooming is not uniquely 
required by a service dog to perform the work and specific tasks for 
which they were trained, and hence is not covered under the rule. We 
apply this same rationale for other items, such that VA will not pay 
for standard, nonspecialized leashes and collars, or nonprescription 
food or medications, or any other basic requirements mandated by State 
governments for dog ownership generally, such as dog licenses. Again, 
such standard needs are not unique to service dogs--it is for the 
overall health and well being of all dogs as domestic animals that they 
be adequately controlled by their owners, are routinely fed and kept 
free of pests such as fleas and ticks, etc.
    Commenters stated that service dogs are subject to heightened 
standards of cleanliness by virtue of being permitted access to public 
areas, which in turn creates a greater need for grooming services. 
Commenters asserted further that individuals with substantial mobility 
impairments may not be able to complete necessary grooming to ensure 
service dogs may gain access to public areas, and specifically stated 
the inability of these individuals to complete grooming tasks would be 
exacerbated by the fact that most ADI-certified dogs are large dog 
breeds with long hair. However, we are not aware of any rules regarding 
service dog access to public places that hold service dogs to 
heightened standards of cleanliness that would not otherwise be 
appropriate for a dog living in a home and assisting a disabled 
veteran, nor did the commenters offer any specific examples of such 
heightened standards. Nonetheless, we do not believe that an ADI-
accredited or IGDF-accredited service dog organization would place a 
service dog with an individual who could not demonstrate an ability to 
provide for the basic maintenance and care of the service dog, to 
include required grooming sufficient to allow the dog access to a 
public area. We make no changes based on these comments.
    A few commenters noted specifically that many of the services 
excluded in Sec.  17.148(d)(4) as proposed are discounted for members 
of the International Association of Assistance Dog Partners (IAADP), 
and that VA should in turn pay for IAADP memberships for veterans with 
approved service dogs. We make no changes to the rule based on these 
comments. The sole cost savings associated with IAADP membership as 
described by commenters was related to prescription medications, which 
are covered under Sec.  17.148(d)(1)(ii). Additionally, because the 
veteran must be generally responsible for expenses related to the 
nonmedical daily care and maintenance of a service dog, the veteran 
would also be responsible for membership in any organization that may 
assist in covering such expenses. One commenter additionally advocated 
for VA to initiate a service dog support group, and likened the 
benefits of such a support group to the benefits individuals may 
receive as IAADP members. For instance, the commenter suggested that 
such a VA support group should have a membership requirement, and would 
be a more cost effective way to use VA funds for service dogs as well 
as promoting socialization and education. Although we do not disagree 
with the commenter on the potential value of such a support group, we 
make no changes to this rule based on the same rationale related to 
IAADP membership as expressed above.

[[Page 54377]]

Benefits Will Not Be Provided for More Than One Service Dog at a Time

    Commenters asserted that a requirement in Sec.  17.148(d) as 
proposed, that benefits would only be provided for ``one service dog at 
any given time'' is too restrictive. Commenters stated that many 
service dogs continue to live with veteran owners after being replaced 
by a new service dog, and opined that the veteran should continue to 
receive benefits to relieve the financial burden of continuing to care 
for the retired service animal. We make no changes based on these 
comments. A retired service dog would no longer be providing specific 
assistance to the veteran to mitigate the effects of a disability, and 
VA would therefore lack authority to continue to provide benefits to 
the veteran based on his or her medical need for the service dog. To 
the extent that keeping a retired service dog could be a financial 
strain on a veteran, all ADI-accredited and IGDF-accredited 
organizations offer the option for owners to place retired service dogs 
in the homes of volunteers.
    Commenters also stated that the restriction of benefits to only one 
service dog at a time does not properly consider the extended training 
periods often required to obtain replacement service dogs, and will 
create an undue lapse in service dog benefits for those veterans whose 
current service dogs will soon be retired. Essentially, commenters 
asserted that the restriction creates a costly choice for a veteran to 
either apply benefits under the rule towards obtaining a replacement 
service dog, or continue to have benefits apply to a current service 
dog until it is officially retired. We agree that it is important that 
veterans do not experience a lapse in service dog benefits when 
obtaining a replacement service dog, and did not intend for the 
limitation in paragraph (d) to cause such a lapse. Therefore, we have 
added to paragraph (d)(3) the following note: ``VA will provide payment 
for travel expenses related to obtaining a replacement service dog, 
even if the veteran is receiving other benefits under this section for 
the service dog that the veteran needs to replace.'' To emphasize this 
clarification, we have added to the introductory text of paragraph (d) 
a sentence to explain that there is an exception in paragraph (d)(3) to 
the ``one service dog at any given time'' provision in the rule. This 
exception will only apply to travel benefits under paragraph (d)(3), 
because the organization that is training the replacement service dog 
would be responsible for other benefits under Sec.  17.148(d) as needed 
by the replacement dog, until the veteran actually acquires the 
replacement dog from the organization. At the time the veteran acquires 
the replacement service dog, the veteran would in effect be retiring 
the former service dog, and would apply all service dog benefits under 
this section to the replacement dog.

Service Dogs Obtained Before the Effective Date of the Final Rule

    Multiple commenters interpreted Sec.  17.148(c)(2) as proposed to 
compel veterans who obtained non-ADI or non-IGDF certified service dogs 
before the effective date of the final rule to undergo the 
certification process with an ADI-accredited or IGDF-accredited 
organization prior to being eligible for benefits. This is not the 
intent or function of Sec.  17.148(c)(2), in all cases. The rule 
clearly states that for veterans to receive benefits for service dogs 
obtained before the effective date of the rule, veterans may submit 
proof from a non-ADI or non-IGDF organization that the service dog 
completed a training program offered by that organization. See Sec.  
17.148(c)(2) (explaining that it is only when a veteran may not be able 
to attain such proof from a non-ADI or non-IGDF organization that 
``[a]lternatively, the veteran and dog [could obtain the certification 
from ADI or IGDF]''). We make no changes based on these comments.
    Commenters asserted that for previously obtained dogs, the final 
rule must establish criteria in Sec.  17.148(c)(2) to allow VA to 
determine whether the training courses certified by non-ADI or non-IGDF 
organizations were adequate to produce a well trained dog capable of 
assisting the veteran. We make no changes based on these comments. As 
stated in the proposed rule, we do not have the expertise, experience, 
or resources to develop independent criteria to assess the efficacy of 
service dog training programs. Additionally, we do not want those 
veterans with existing service dogs to be subjected to new requirements 
which could prevent their receipt of benefits. Therefore, we accept a 
certificate from a non-ADI or non-IGDF organization that existed before 
the effective date of the final rule as proof that the veteran's 
service dog has successfully completed an adequate training program, 
and that a veteran who otherwise meets the criteria in the rule may 
receive applicable benefits. Essentially, we are ``grandfathering in'' 
service dogs acquired before the effective date of the final rule by 
not requiring such dogs to have ADI or IGDF certification.
    We further clarify for one commenter that the 1 year limitation in 
Sec.  17.148(c)(2) to obtain a certificate that the veteran's service 
dog has successfully completed an adequate training program only 
applies if the certificate comes from the original non-ADI or non-IGDF 
organization. The 1 year limitation is not applicable for a veteran who 
must, because they cannot obtain a certificate from the original non-
ADI or non-IGDF organization, undergo new training with an ADI-
accredited or IGDF-accredited organization. See Sec.  17.148(c)(2) 
(explaining that the 1 year limitation applies when a certificate is 
obtained from a non-ADI organization, or ``[a]lternatively, the veteran 
and dog [could obtain the certification from ADI or IGDF]''). We make 
no changes to the rule text based on this comment because the language 
is clear. In response to commenters' concerns that ADI-accredited 
organizations will not certify service dogs that were not also 
initially trained there, VA will ensure through continued workings with 
ADI-accredited and IGDF-accredited organizations that there exists a 
mechanism to provide for such certification.
    Lastly, one commenter advocated specifically that veterans who 
currently receive VA benefits for guide dogs should not be required to 
undergo the clinical determination process in Sec.  17.148(b)(2) to now 
receive benefits under Sec.  17.148(d). We make no changes based on 
this comment, as all veterans who would seek to receive benefits under 
Sec.  17.148(d) must be subject to the same requirements, to ensure 
equitable administration of benefits. However, we note that for any 
veteran who is currently receiving guide dog benefits from VA, that 
veteran has already undergone the same type of clinical evaluation to 
determine efficacy of the dog, and would have a history of medical 
documentation supporting the use of the dog as indeed the most optimal 
device to manage the veteran's impairment. Effectively then, the 
veterans already receiving guide dog benefits from VA would not be 
subject to a new clinical evaluation process under Sec.  17.148(b)(2), 
as this would be duplicative and unnecessary.

Procedures Related to Insurance Coverage and Payments

    Section 17.148(d)(1) as proposed would provide an insurance policy 
to veterans with prescribed service dogs that guarantees coverage of 
all veterinary treatment considered medically necessary. Commenters 
urged that Sec.  17.148(d)(1) as proposed should

[[Page 54378]]

be revised for multiple reasons, with a majority of commenters stating 
that certain processes involved in payment for veterinary care should 
be clarified. Under Sec.  17.148(d)(1)(i), VA ``will be billed for any 
premiums, copayments, or deductibles associated with the policy'' 
negotiated and offered by VA to veterans with prescribed service dogs. 
VA will only pay premiums and other costs as specified in Sec.  
17.148(d)(1)(i) for the commercially available policy that VA provides 
to the veteran, and not for any other policy that a veteran may obtain 
independently. The insurance company that holds the VA-provided policy 
will attain appropriate contractor status under Federal acquisition 
standards by registering with the Central Contractor Registration (CCR) 
to bill VA for costs specified in Sec.  17.148(d)(1)(i), and will be 
subject to the same quality standards as other VA contractors.
    Multiple commenters stated that the type of insurance coverage that 
VA would provide in Sec.  17.148(d)(1) as proposed was inadequate, as 
all commercially available insurance policies for service dogs rely on 
a reimbursement model whereby veterans would pay the out of pocket cost 
for veterinary treatment, prior to filing a claim with and being 
reimbursed by the insurance company. Commenters stated that VA should, 
instead, establish a system where VA pays for treatment costs, such as 
providing veterans with prescribed service dogs some type of debit card 
to be used for veterinary care. The rule clearly states that VA, ``and 
not the veteran,'' will be billed directly for all costs for which VA 
is responsible under Sec.  17.148(d)(1)(i). The rule also states that 
the policy will guarantee coverage for the types of treatment 
determined by a veterinarian to be medically necessary in Sec.  
17.148(d)(1)(ii), but, as proposed, paragraph (d)(1)(ii) did not bar 
billing a veteran for treatment costs. Our intent has always been to 
negotiate and procure a contract, to the extent that is commercially 
feasible, for an insurance policy that will not require the veteran to 
pay any out of pocket costs for covered veterinary care and treatment 
costs. VA has researched the commercial market and anticipates that VA 
will be able to contract for this requirement on VA's terms. In 
response to these comments and to further ensure that the regulation 
effectuates our intent, we have revised the language of Sec.  
17.148(d)(1)(ii) from the proposed rule so that it bars the billing of 
veterans for covered costs.
    Based on the foregoing, we do not believe that there is a need to 
clarify any of the payment processes that are authorized by the 
regulation or to provide in regulation any specific procedures that 
will be established in accordance with the insurance policy for service 
dogs, so long as the basic requirements in Sec.  17.148(d)(1) are met 
concerning not billing veterans. For instance, this rule will not 
specify that the insurance provider must be registered in the CCR, 
because it is a requirement under separate Federal Acquisition 
Regulations that all Federal contractors must be registered in CCR. See 
48 CFR 4.1102.
    Commenters also criticized that typical insurance policies that 
would be commercially available would not provide the scope of coverage 
required to adequately care for a service dog, as the medical needs of 
a service dog are higher due to the level of physical work a service 
dog completes on a regular basis. We clarify that the rule intends that 
VA will select a policy with broad coverage, to ensure that all 
services which are likely to be considered medically necessary by a 
veterinarian who meets the requirements of the insurer are in fact 
covered. VA will consult with ADI, IGDF, and the American Veterinary 
Medical Association to ensure that the most comprehensive policy, 
specific to the needs of service dogs, is chosen. Additionally, in 
response to commenter concerns that such a policy is not likely to be 
accepted widely across the nation, VA will consider geographic 
availability when choosing the policy.

Procedures Related to the Reimbursement of Veteran Travel Expenses

    Commenters argued that Sec.  17.148(d)(3) as proposed was vague 
regarding reimbursement and eligibility for travel expenses, and should 
more specifically indicate the type of travel expenses covered, to 
include lodging and expenses related to training and retraining/
recertification of service dogs. We make no changes to the rule based 
on these comments. The rule is clear in Sec.  17.148(d)(3) that any 
veteran who is prescribed a service dog under Sec.  17.148(b) will be 
eligible to receive payments for travel expenses. We reiterate from the 
proposed rule that Sec.  17.148(d)(3) is intended 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.'' See 76 FR 35164. We believe that the language 
of section 1714(d) can be read to interpret obtaining a dog as 
``examination, treatment, or care'' under section 111, but we would not 
make payment of section 1714(d) benefits contingent upon the separate 
eligibility criteria in section 111. This interpretation facilitates 
administration of section 1714(d) benefits by allowing VA to avoid 
additional expenses associated with establishing a new means of 
administering travel benefits outside of section 111 mechanisms.
    We clarify that all travel costs associated with obtaining the 
service dog, to include all necessary initial and follow up training, 
are covered. Additionally, all types of travel costs which are 
considered reimbursable in 38 U.S.C. 111 and 38 CFR part 70 are 
considered reimbursable in this rule, to include approved lodging.
    Commenters also indicated that VA should not require a prescription 
for a service dog before authorizing travel reimbursement related to 
procurement. We disagree and make no changes based on these comments. 
We will pay travel benefits only if it is determined by the veteran's 
clinical team that a service dog is appropriate under Sec.  17.148; 
otherwise, we would be paying costs related to procuring an assistive 
device that may not ultimately be approved for the veteran.

Only VA Staff May Provide, Repair, or Replace Hardware Under Sec.  
17.148(d)(2)

    Commenters asserted that the benefit to provide service dog 
hardware under Sec.  17.148(d)(2) as proposed would be too restrictive. 
Commenters stated that veterans should be reimbursed for payments made 
to non-VA third party vendors to provide, repair, and replace such 
hardware, instead of the current requirement that the hardware be 
obtained from a Prosthetic and Sensory Aids Service at the veteran's 
local VA medical facility. We make no changes to the rule based on 
these comments. We believe that hardware should only be provided, 
repaired, and replaced through VA, to ensure that our clinical and 
safety standards are met. Merely reimbursing third-party providers does 
not permit VA to oversee hardware provision to ensure that it is 
``clinically determined to be required by the dog to perform the tasks 
necessary to assist the veteran with his or her impairment,'' as 
required in Sec.  17.148(d)(2). A clinical determination that covered 
hardware must be task-specific for the type of assistance a service dog 
provides is essential, or VA would be employing its professional 
clinical staff to provide and repair common items related to dog 
ownership generally, such as collars or leashes. The purpose of Sec.  
17.148(d)(2) is not to cover all equipment that a dog generally may 
require, but rather to ensure that the veteran is not burdened in 
finding, obtaining, or having to repair

[[Page 54379]]

or replace certain special hardware that a trained service dog requires 
to provide specific assistance. We believe that allowing third party 
vendors would also increase administrative burden for veterans, as this 
would require the vendor to undergo a separate, extensive, and highly 
regulated Federal process to identify, select, and utilize third party 
vendors, which would cause an undue delay for veterans in obtaining 
necessary hardware.

A Dog Must Maintain Its Ability To Function as a Service Dog

    Section 17.148(e) provides that for veterans to continue to receive 
benefits under the rule, the service dog must continue to function as a 
service dog, and that VA may terminate benefits if it learns from any 
source that the dog is medically unable to maintain that role, or a 
clinical determination is made that the veteran no longer requires the 
service dog. A few commenters objected to the ``any source'' criterion 
in Sec.  17.148(e), stating that VA should restrict sources of 
information to a veteran's medical provider with regards to a veteran's 
continued clinical need for the service dog, and to the service dog's 
veterinarian with regards to the service dog's fitness to continue 
providing assistance. We make no changes to the rule based on these 
comments. We first clarify that VA will only consider the veteran's 
clinical team as a source of information to determine whether the 
veteran continues to require the service dog; this is contemplated in 
paragraph (e), which states that ``VA makes a clinical determination 
that the veteran no longer requires the dog.'' With regards to the 
medical fitness of a service dog, VA must be permitted to receive 
information from a broad number of sources in a continuous manner while 
benefits are administered, for the safety of veterans and to ensure 
that benefits are administered equitably. The ``any source'' criterion 
as well reduces administrative burden for veterans, in that VA would 
otherwise need to prescribe a specific and regular means of evaluating 
whether a service dog has maintained its ability to function as a 
service dog.
    The broad ``any source'' criterion in paragraph (e) does not mean 
that VA will rely upon information from any source to terminate service 
dog benefits without considering the source of the information, and 
first allowing veterans to submit contrary information. The 30 days 
notice prior to termination of benefits provided for in paragraph (e) 
allows the veteran ample time to present contrary information, if VA 
should receive information that a service dog is not able to maintain 
its function as a service dog.
    Commenters additionally stated that VA should exclude any insurance 
company with which VA contracts to cover veterinary care costs as a 
source of information concerning the medical fitness of a service dog. 
The commenters, however, did not provide a rationale for such an 
exclusion. To the extent that the commenters may be concerned that an 
insurance company would seek to have service dogs deemed medically 
unfit to avoid excess expenditures, we do not believe any incentive 
exists to do so. As we stated in the proposed rule, our understanding 
is that annual caps on expenditures are a common limitation in 
insurance policies that cover service dog care, and Sec.  
17.148(d)(1)(ii) specifically provides for such caps to be considered 
in the administration of veterinary care benefits. We reiterate that VA 
must be permitted to consider information from a broad number of 
sources, and do not see any inherent reasons that this specific 
limitation should be implemented. Therefore, we make no changes based 
on these comments.

Appeals Procedures

    In response to commenter concerns that the rule does not detail an 
appeals process for a veteran whose service dog benefits are to be 
terminated, or for a veteran who is not prescribed a service dog and 
cannot obtain service dog benefits, we do not believe VA must prescribe 
a new appellate mechanism in this rulemaking. All decisions under this 
rule, whether decisions to prescribe a service dog and initiate service 
dog benefits, or decisions to terminate such benefits, are clinical 
determinations and therefore subject to the clinical appeals procedures 
in VHA Directive 2006-057. It is VHA policy under this appeals process 
that patients and their representatives have access to a fair and 
impartial review of disputes regarding clinical determinations or the 
provision of clinical services that are not resolved at a VHA facility 
level. This clinical appeals process will be sufficient to resolve 
conflicts related to the provision or termination of service dog 
benefits, without prescribing a new appellate mechanism in this 
rulemaking.

Amendment of Proposed Sec.  17.154 To Include Term ``Veterans''

    One commenter requested that we further revise Sec.  17.154 as 
proposed to delete the reference to ``ex-members of the Armed 
Services'' and replace it with a reference to ``veterans.'' We agree 
and have revised the language of Sec.  17.154 from the proposed rule to 
read: ``VA may furnish mechanical and/or electronic equipment 
considered necessary as aids to overcoming the handicap of blindness to 
blind veterans entitled to disability compensation for a service-
connected disability.'' The term ``veteran'' has always been used in 38 
U.S.C. 1714, and the regulatory term should follow the statute. In 
other contexts, there may be a difference between an ``ex-member of the 
Armed Forces'' and a ``veteran'' because the definition of ``veteran'' 
in title 38 of the United States Code requires discharge or release 
from service ``under conditions other than dishonorable,'' 38 U.S.C. 
101, whereas no such limitation would appear to apply to an ``ex-member 
of the Armed Forces.'' In the context of 38 CFR 17.154, however, the 
change does not alter the meaning of the regulation because Sec.  
17.154 refers to an ``ex-member'' who is entitled to service-connected 
disability compensation and who, therefore, must be a veteran (because 
such compensation is offered only to veterans discharged or released 
under conditions other than dishonorable).

The Estimated Number of Respondents per Year

    The proposed rule estimated that 100 new service dogs would be 
provided to veterans each year. Multiple commenters objected to this 
statement, asserting that this number was far too low of an estimate, 
and further was not a reflection of veteran need for service dogs but 
rather a reporting of the number of service dogs that ADI could 
feasibly provide to veterans each year. The estimated burden of 100 is 
not an estimate of the number of veterans who may need a service dog. 
Rather, this number is an estimate of the number of new veterans each 
year that VA expects to present a certificate showing successful 
completion of training in order to establish a right to obtain benefits 
under Sec.  17.148(d). This number was based on the number of veterans 
who sought to receive new guide dog benefits in fiscal year 2010 under 
Sec.  17.154 (2010), which was 66, plus an additional number of 
veterans we estimated who would seek to receive new Sec.  17.148 
service dog benefits for hearing and mobility impairments. We estimated 
the number of veterans who would seek new Sec.  17.148 benefits as a 
one third increase over confirmed guide dogs for which VA provided 
benefits the previous fiscal year, and based upon a projection for 
multiple fiscal years, we arrived at 100 new veterans each year seeking 
benefits under Sec.  17.148. The estimated number of respondents is 
not, as theorized by commenters, based on

[[Page 54380]]

the anticipated supply of service dogs that could be provided annually 
by ADI-accredited organizations.
    Other commenters asserted that the number of estimated respondents 
at 100 was underreported in the proposed rule for financial reasons, or 
that VA could only afford to purchase 100 dogs per year for veterans. 
We reiterate that under the rule, VA is not actually purchasing the 
service dogs from any ADI-accredited or IGDF-accredited service dog 
organization, and we have no financial motive to underreport the 
estimated number of respondents.

The Estimated Total Annual Reporting and Recordkeeping Burden

    Multiple commenters asserted that the proposed rule underreported 
the expected burden time on veterans to complete necessary 
administrative requirements to receive benefits under the rule. We 
clarify that the burden time of less than 5 minutes as stated in the 
proposed rule only contemplates the submission by the veteran of the 
certification from the service dog organization that indicates certain 
training requirements have been met, as required by Sec.  17.148(c). 
The burden time does not reflect any of the time required for VA to 
conduct its clinical evaluation to determine whether a service dog 
would optimally benefit a veteran, nor the independent assessments that 
a service dog organization conducts thereafter to place a service dog 
with a veteran. Such time is not part of the veteran's burden to 
respond to our collection by submitting a certificate. We have 
intentionally kept paperwork to a minimum in obtaining this benefit 
because veterans in need of service dogs are generally seriously 
disabled and because veterans applying for these benefits will already 
be enrolled in the VA health care system.

This Regulatory Action Is Not Significant Under Executive Order 12866, 
and Would Not Have a Significant Economic Impact on a Substantial 
Number of Small Entities

    One commenter alleged that the rule should be considered 
significant under Executive Order 12866, because by limiting the source 
of service animals to ADI-accredited or IGDF-accredited organizations, 
VA effectively creates a sole-source contract with those agencies that 
will have a major impact on the service animal industry. We interpret 
this commenter's statement to mean that because they believe VA will be 
purchasing guide and service dogs, that such purchasing will adversely 
affect in a material way the nature of competition with non-ADI and 
non-IGDF organizations. We reiterate that VA will not be contracting 
with any ADI or IGDF organization to actually purchase guide or service 
dogs, and make no changes to the rule based on this comment.
    Multiple commenters argued that the rule would have a significant 
economic impact on a substantial number of small service dog 
organizations that are either ineligible for membership in the 
identified accreditation groups because they do not qualify for tax-
exempt status (in the case of ADI accreditation), or because they 
cannot afford the costs and effort that accreditation entails. We 
assume that commenters believe that VA will be purchasing the service 
dogs, and therefore that these nonaccredited organizations would be 
economically disadvantaged unless they comply with the rule's 
accreditation requirements. As VA will not be actually purchasing 
service dogs, we do not believe any non-ADI or non-IGDF organization, 
as small entities, would experience a significant economic impact. This 
rule does not prevent individuals from acquiring service dogs from any 
organization, but only establishes criteria that must be met if VA is 
then going to provide certain benefits related to those service dogs.
    We acknowledge that we require all service dogs obtained after the 
effective date of the rule to be ADI or IGDF certified, and as such 
veterans may opt to seek the assistance of ADI or IGDF organizations 
over other nonaccredited organizations in obtaining such dogs. However, 
there is no indication that nonaccredited organizations rely on 
veterans as an essential part of their business. In fact, multiple 
commenters who themselves were nonaccredited organizations, and who 
objected to the ADI accreditation standard in the rule, reported 
providing service dogs to veterans free of charge. There is no evidence 
to suggest that a substantial number of nonaccredited service dog 
organizations will be detrimentally affected by a financial incentive 
for veterans to seek to obtain service dogs from accredited service dog 
organizations. Even if a substantial number of nonaccredited service 
dog organizations significantly rely on veterans to buy their service 
dogs, there is also no evidence to suggest that the cost of obtaining 
ADI or IGDF certification is beyond the reach of a substantial number 
of non-accredited organizations.
    Commenters questioned the reasoning in the proposed rule for our 
belief that most service dog providers that provide dogs to veterans 
are already accredited by ADI or IGDF. See 76 FR 35166. Based on 
multiple commenters who themselves were non-ADI service dog 
organizations and who did provide service dogs to veterans, we retract 
the rationale that ``[w]e believe that most service-dog providers that 
provide dogs to veterans are already accredited in accordance with the 
final rule'' and also retract the accompanying statement that ``[t]he 
vast majority of accredited programs do not provide dogs to veterans.'' 
However, in view of our conclusion that gaining accreditation should 
not result in a significant financial burden as explained in the 
proposed rule notice, 76 FR 35166, this does not change our analysis 
that the rule does not have a significant economic impact on a 
substantial number of small entities.

VA Will Not Newly Initiate Proposed or Formal Rulemaking Procedures

    Multiple commenters stated that VA should abandon this rulemaking, 
and that it should begin again with a new proposed rule. One commenter 
further stated that VA should initiate a public hearing, or should 
initiate formal rulemaking procedures related to the administration of 
service dog benefits. We decline to pursue either of these actions, as 
all affected parties were put on proper notice of the intended 
provisions in the proposed rule, and there were no significant reasons 
that commenters put forward to require a new regulatory action that 
were not addressed in this final rule. We believe we have addressed all 
significant comments and made changes where appropriate, or have 
reasonably supported why changes were not made.
    For all the reasons noted above, VA is adopting the proposed rule 
as final with changes as noted to Sec.  17.148(b)(2), (d), (d)(1)(ii), 
and (d)(3) and Sec.  17.154.

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 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 at Sec.  17.148 contains new collections of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521). On June 16, 2011, in a proposed rule published in

[[Page 54381]]

the Federal Register, we requested public comments on the new 
collections of information. We received multiple comments in response 
to this notice. A majority of the commenters alleged the collection was 
an illegal restriction of the access rights of individuals with 
disabilities. The response, as also stated in the preamble to this 
final rule, is that a certificate showing adequate service dog training 
is not necessary to gain access to VA facilities, but rather is only 
necessary to receive benefits under this rule. Some commenters stated 
that the number of respondents for this collection was underreported, 
because more than 100 veterans need service dogs each year. The 
response, as also stated in the preamble to this final rule, is that 
the estimated burden of 100 is not an estimate of the number of 
veterans who may need a service dog, but rather is an estimate of the 
number of new veterans each year that VA expects to present a 
certificate showing successful completion of training to obtain 
benefits. Finally, some commenters asserted that the expected burden 
time for this collection was underreported. The response, as also 
stated in the preamble to this final rule, is that the burden time of 
less than 5 minutes only contemplates the submission of the required 
certificate, and does not reflect any of the time required for VA to 
conduct its clinical evaluation to determine if a service dog would 
optimally benefit a veteran, nor the independent assessments that a 
service dog organization conducts thereafter to place the service dog 
with the veteran. Therefore, we make no changes to this collection.
    The Office of Management and Budget (OMB) has approved the 
additional collections in part 17 under OMB Control Number 2900-0785. 
We are adding a parenthetical statement after the authority citations 
to the section in part 17 for which new collections have been approved 
so that the control number is displayed for each new collection.

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. 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 $1000 every 5 years with annual fees 
of approximately $50. Therefore, pursuant to 5 U.S.C. 605(b), this 
final rule is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 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,'' which requires review by the OMB, 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 to not be a significant regulatory action under Executive 
Order 12866.

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 final rule will have no such effect 
on state, local, and tribal governments, or on the private sector.

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 July 30, 2012, 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 homes, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

    Dated: August 30, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.
    For the reasons stated in the preamble, VA amends 38 CFR part 17 as 
follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

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


0
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:

[[Page 54382]]

    (1) The veteran is diagnosed as having a visual, hearing, or 
substantial mobility impairment; and
    (2) The VA clinical team that is treating the veteran for such 
impairment determines based upon medical judgment that it is optimal 
for the veteran to manage the impairment and live independently through 
the assistance of a trained service dog. Note: If other means (such as 
technological devices or rehabilitative therapy) will provide the same 
level of independence, then VA will not authorize benefits under this 
section.
    (3) For the purposes of this section, substantial mobility 
impairment means a spinal cord injury or dysfunction or other chronic 
impairment that substantially limits mobility. A chronic impairment 
that substantially limits mobility includes but is not limited to a 
traumatic brain injury that compromises a veteran's ability to make 
appropriate decisions based on environmental cues (i.e., traffic lights 
or dangerous obstacles) or a seizure disorder that causes a veteran to 
become immobile during and after a seizure event.
    (c) Recognized service dogs. VA will recognize, for the purpose of 
paying benefits under this section, the following service dogs:
    (1) The dog and veteran must have successfully completed a training 
program offered by an organization accredited by Assistance Dogs 
International or the International Guide Dog Federation, or both (for 
dogs that perform both service- and guide-dog assistance). The veteran 
must provide to VA a certificate showing successful completion issued 
by the accredited organization that provided such program.
    (2) Dogs obtained before September 5, 2012 will be recognized if a 
guide or service dog training organization in existence before 
September 5, 2012 certifies that the veteran and dog, as a team, 
successfully completed, no later than September 5, 2013, 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. Except as noted in paragraph (d)(3) of 
this section, 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, to the extent 
commercially practicable, 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. The veteran will not be billed for these covered costs, 
and the insurer will directly reimburse the provider.
    (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 
clinical team 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 forth in 38 CFR part 70. Note: VA will 
provide payment for travel expenses related to obtaining a replacement 
service dog, even if the veteran is receiving other benefits under this 
section for the service dog that the veteran needs to replace.
    (4) The veteran is responsible for procuring and paying for any 
items or expenses not authorized by this section. This means that VA 
will not pay for items such as license tags, nonprescription food, 
grooming, insurance for personal injury, non-sedated dental cleanings, 
nail trimming, boarding, 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)


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0785.)


0
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 
veterans entitled to disability compensation for a service-connected 
disability.

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


[FR Doc. 2012-21784 Filed 9-4-12; 8:45 am]
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