2014-27629. Animals on VA Property

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes to amend its regulation regarding the presence of animals on VA property. Current VA regulation authorizes the presence of seeing-eye dogs on VA property and other animals as authorized at the discretion of a VA facility head or designee. However, applicable Federal law authorizes the presence of guide dogs and other service animals when these animals accompany individuals with disabilities seeking admittance to buildings or property owned or operated by the Federal Government. This proposed rule would expand the current VA regulation to be consistent with applicable Federal law, and would clarify the authority of a VA facility head or designee to allow nonservice animals to be present on VA property.

DATES:

Comments must be received by VA on or before January 20, 2015.

ADDRESSES:

Written comments may be submitted through http://www.Regulations.gov;​; by mail or hand delivery to the Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by fax to [phone]. Comments should indicate that they are submitted in response to “RIN 2900-AO39-Animals on VA Property.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call [phone] for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Joyce Edmondson, RN, JD, Patient Care Services (10P4), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, [phone]. (This is not a toll free number).

SUPPLEMENTARY INFORMATION:

Pursuant to 38 U.S.C. 901, VA may prescribe rules to provide for the maintenance of law and order and the protection of persons and property on VA property. VA implements this authority in regulations at 38 CFR 1.218 pertaining to security and law enforcement and § 1.220. This proposed rule would amend § 1.218(a)(11) to require VA facilities to permit service animals on VA property consistent with 40 U.S.C. 3103 (section 3103) and Sec. 109, Pub. L. 112-154, 126 Stat. 1165 (2012) (section 109). Section 3103(a) provides that guide dogs or other service animals accompanying individuals with disabilities and especially trained 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. Section 109 provides that VA specifically may not prohibit the use of a covered service dog in any VA facility, on any VA property, or in any facility or on any property that receives funding from VA, and further defines a covered service dog as a service dog that has been trained by an entity that is accredited by an appropriate accrediting body that evaluates and accredits organizations which train guide or service dogs. Current 38 CFR 1.218(a)(11), however, reads that dogs and other animals, except seeing-eye dogs, shall not be brought upon property except as authorized by the head of the facility or designee. Our current regulation can be interpreted to allow the head of a VA facility or designee to bar access to all animals other than seeing-eye dogs, which is inconsistent with both section 3103(a) and section 109. We would therefore revise our regulation to be consistent with the requirements in section 3103(a) and section 109. We also note that these revisions would be consistent with the remainder of § 1.218 and § 1.220, as well as consistent with VA regulations that ensure accessibility for programs or activities conducted by VA, 38 CFR 15.101 et al.

The proposed revisions to 38 CFR 1.218(a)(11) would establish nationally applicable criteria regarding the presence of service animals on VA property, to ensure that our regulations cannot be interpreted in a manner that conflicts with section 3103(a), section 109, §§ 1.218 and 1.220, or § 15.101 et al. We note that section 3103(b) specifically authorizes the Secretary of VA to prescribe regulations that are necessary in the public interest to carry out section 3103(a) as it applies to any building or other property subject to VA's jurisdiction, and VA is otherwise authorized to prescribe rules to protect persons and property on VA property under 38 U.S.C. 901.

Consistent with section 3103(a), proposed § 1.218(a)(11)(i) would provide that service animals, as defined in proposed paragraph (a)(11)(viii), must be permitted to be present on VA property when those animals accompany individuals with disabilities and are trained for that purpose. Section 3103(a) refers to animals that are “trained” as well as “educated” for the purpose of accompanying individuals with disabilities, but we believe our regulation should be revised to only include reference to “trained” animals. We are not aware of any intent on the part of Congress in section 3103(a) to distinguish “trained” from “educated” in the context of the skills a service animal learns for the purposes of assisting individuals with disabilities. Additionally, we believe the concept of training an animal versus educating an animal is more relatable for a majority of the public. We explain later in this proposed rulemaking how the definition of “service animal” in proposed paragraph (a)(11)(viii) would be consistent with the definition of “service animal” in regulations that implement the Americans with Disabilities Act (ADA), as well as consistent with the meaning of “covered service dog” in section 109. Proposed § 1.218(a)(11)(i) would restate other requirements from section 3103(a), that the service animal must be in a guiding harness or on a leash and under the control of the individual with the disability at all times while on VA property, and that VA is not responsible for the care or supervision of the service animal. Lastly, proposed § 1.218(a)(11)(i) would state that service animal presence on VA property is subject to the same terms, conditions, and regulations as generally govern admission of the public to the property.

Proposed § 1.218(a)(11)(ii) would provide that a service animal will be denied access to VA property or removed from otherwise accessible VA property under certain circumstances. The subsequent bases for removal in proposed § 1.218(a)(11)(ii)(A) through (C) would permit a VA facility head or designee to remove a service animal to maintain the general health and safety of veterans, VA employees, other VA stakeholders, and other service dogs. Pursuant to 38 U.S.C. 901(a)(1), maintaining the health and safety of individuals through security and law enforcement restrictions of presence or activities on VA property is the overriding purpose of § 1.218(a) (see, for instance § 1.218(a)(3) and (a)(5)), and the proposed restrictions in this rulemaking would not conflict with § 1.218 generally or with VA regulations related to accessibility of VA programs for individuals with disabilities under 38 CFR 15.101 et al. These bases for removal are also permitted under section 3103(b), which specifically authorizes the Secretary, VA to prescribe regulations that are necessary in the public interest to carry out section 3103(a) as it applies to any building or other property subject to VA's jurisdiction. These bases for removal are further consistent with section 109 because they would not prohibit the use of service dogs generally, but rather would only limit the presence of service dogs under particular circumstances in which a dog's behavior may be contrary to typical public access standards. A basic level of training is expected of and necessary for service dogs to access public areas, and such training in the least is contemplated by section 109, which provides that VA may not prohibit the use of service dogs if such dogs are “trained by an entity that is accredited by an appropriate accrediting body.” Section 109. However, we do not interpret section 109 to further require that service dogs must be trained by any specific entity to access VA property, because section 109 does not define an “appropriate accrediting body.” More fundamentally, section 109 does not prohibit VA from granting access to a broader group of service animals than those trained by accredited entities generally (see Section 109 (mandating that VA may not prohibit the use of certain “covered service dogs,” but does not mandate that VA must only permit the use of such dogs)). Therefore, we interpret section 109 to only guarantee access to VA property for those service dogs that can dependably behave in accordance with typical public access standards for public settings. Proposed paragraphs 1.218(a)(11)(ii)(A) through (C) identify behaviors not in accordance with typical public access standards for public settings and therefore are the basis for removal, and consequently would not conflict with section 109.

Proposed § 1.218(a)(11)(ii)(A) would provide that a service animal will be removed from VA property if the animal is not under the control of the individual with a disability as required under proposed § 1.218(a)(11)(i). In addition to being consistent with section 109, this restriction would be a restatement of the requirement in section 3103(a), to emphasize the fundamental importance of animal control in public settings. Proposed § 1.218(a)(11)(ii)(B) would indicate that a service animal will be removed from VA property if the animal is not housebroken. We would further indicate that this means the animal must be trained to eliminate its waste in an outdoor area.

Proposed § 1.218(a)(11)(ii)(C) would provide that a service animal will be removed from VA property if the animal otherwise poses a risk to the health or safety of people or other service animals. In determining whether an animal poses such a risk, VA would make an individualized assessment based on objective indications to ascertain the severity of the risk. These indications would either be actions of an animal that typically are followed by acts of aggression, or other external signs that the animal poses a risk to the health or safety of people or other service animals. To prevent any aggressive acts of a service animal for the purpose of maintaining the health and safety of people or other service animals, we would propose in paragraph (a)(11)(ii)(C)(1) specific external indicators that are commonly understood to be followed by aggressive acts of animals, to include growling; biting or snapping; baring its teeth; and lunging. Although we do not expect service animals to behave in such ways, owing to their special behavioral training to not be aggressive in public areas, it is nonetheless imperative that we establish a mechanism to remove an animal that is acting in an aggressive manner.

We propose additional external indicators of disease or bad health in paragraph (a)(11)(ii)(C)(2) that would warrant a service animal being removed from VA property, such as external signs of parasites on a service animal (e.g. fleas or ticks), or other external signs of disease or bad health (e.g. diarrhea or vomiting).

The presence of parasites would pose a threat to the health and safety of others, as many of these types of parasites can be spread easily by brief physical contact and in some instances even by close proximity. Additionally, many of these types of parasites reproduce quickly and in great volume to create infestation conditions that are much more difficult to remediate, versus removing a service animal with visible external parasites. Similarly, vomiting or diarrhea or other external signs of disease or bad health would signal immediate illness or disease that could be communicable to people or other service animals.

We propose certain additional restrictions for service animal access in proposed paragraph (a)(11)(iii), specifically for property under the control of the Veterans Health Administration (VHA property), subject to the same terms, conditions, and regulations as generally govern admission of the public to the property, in accordance with section 3103(a), and also in accordance with VA's authority to prescribe rules to protect persons and property on VA property under 38 U.S.C. 901. VHA properties, as health care settings, must maintain the highest standard of clinical practice for the care of veterans. Therefore, we would authorize restrictions on the right of service animal access arising from patient care, patient safety, or infection control standards just as we restrict the right of members of the public. There are specific areas in VHA facilities where the presence of a member of the public or an animal would tend to compromise patient care, patient safety or infection control. In terms of members of the public, VA may be able to mitigate such risks to patient safety or infection control by imposing certain terms and conditions that would be impossible or impractical to impose upon service animals, such as a requirement to wear protective equipment such as gloves, gowns, or masks in areas where such equipment is required (such as operating rooms, and other critical medical care areas). Another impossible or impractical requirement to impose upon service animals would be the requirement to remain continuously indoors in intensively monitored settings, such as acute inpatient hospital settings. In such settings, veterans would typically be recovering from an acute medical episode, and would not likely be able to effectively attend to the needs of a service animal (e.g. taking the service animal outside, or feeding or watering the service animal). Staff in these inpatient hospital settings must not be expected to set aside their patient monitoring and care duties to instead attend to the needs of a service animal. Additionally, the immediate needs of veterans in these settings would be most appropriately fulfilled by medical staff and not a service animal (for instance, getting in and out of a hospital bed).

It is not possible to predict with certainty all specific areas on VHA property that would need to restrict the presence of a service animal for patient care, patient safety, and infection control reasons. We therefore propose general language authorizing restrictions based on patient care, patient safety, or infection control considerations as part of standards of good clinical practice, and additionally propose a list of areas within VHA facilities that must restrict the access of service animals. This list would not be exhaustive, but would be comprehensive to provide the public with notice of those areas that typically, because of patient care, patient safety, and infection control standards, may not be accessed by service animals. These areas in proposed § 1.218(a)(11)(iii)(A) through (G) would include: Operating rooms and surgical suites; areas where invasive procedures are being performed; acute inpatient hospital settings (e.g. intensive care units, stabilization units, locked mental health units); decontamination, sterile processing, and sterile storage areas; patient rooms or patient treatment areas where it is indicated that a patient has animal allergies, or has fear or phobia(s) of animals; food preparation areas; and any area where personal protective equipment must be worn. Such restrictions would be consistent with section 3103(b), which authorizes VA to establish regulations necessary in the public interest to carry out section 3103 as it applies to any building or other property subject to VA's jurisdiction, as well as consistent with VA's authority to prescribe rules to protect persons and property on VA property under 38 U.S.C. 901. These restrictions would also be consistent with the mandate in section 109 that VA may not prohibit the use of certain service animals, because service animals would not actually be used by individuals with disabilities in a majority of these medical care areas, or in those areas in which public access generally is not granted. For instance, an individual with a disability would not be using a service animal while the individual was undergoing a surgical procedure; hence, preventing the animal to be present in an operating room or other surgical suite area would not be a prohibition on use, and a service animal restriction in these areas would not violate section 109.

The restriction of service animal access to certain areas of VHA property, as health care settings, is further consistent with regulations that implement title III of the ADA. See 28 CFR 36.302(c)(7). Though the ADA and the regulations implementing the ADA do not apply to agencies of the executive branch such as VA, VA is not prevented from adopting standards similar to those in the ADA when appropriate and applicable. In promulgating § 36.302, the Department of Justice (DOJ) considered a substantial number of public comments regarding service animal access during a comprehensive, multi-staged rulemaking process, culminating in the publication of a final rule at 75 FR 56236, Sept. 15, 2010. We agree with the discussion and rationale used by DOJ in their rulemaking to limit the access of service animals in healthcare settings. Particularly, we agree that, consistent with Centers for Disease Control and Prevention guidance, it is generally appropriate to exclude a service animal from limited-access areas that employ general infection control measures and that require persons to undertake added precautions. Id.

We additionally propose in § 1.218(a)(11)(iv) certain restrictions for service animal access, specifically for property under the control of the National Cemetery Administration (NCA), subject to the same terms, conditions, and regulations as generally govern admission of the public to the property, in accordance with 40 U.S.C. 3103(a). NCA honors veterans and their families with final resting places in national shrines and with lasting tributes that commemorate their service and sacrifice to our Nation. VA's 131 national cemeteries are visited year-round, sometimes by large crowds for special events and ceremonies, and committal services, interments, and other memorials are held on a daily basis across the cemetery system. For these reasons, NCA must provide broad public access to cemetery grounds and facilities with certain limitations to ensure public safety.

It is not possible to predict with certainty all specific areas on NCA property that would need to restrict the presence of a service animal for safety and maintenance reasons. We therefore propose general language authorizing restrictions to ensure that public safety, facilities and grounds care, and maintenance control considerations are not compromised. Additionally, we propose a list of areas within NCA facilities that must restrict public access, including service animals and their owners or handlers, to the same extent that the presence of the general public would be unauthorized. These areas in proposed § 1.218(a)(11)(iv)(A) through (C) would include open interment areas including columbaria, construction or maintenance sites, and grounds keeping and storage facilities. Such restrictions would be consistent with section 3103(a), which ensures access for service animals on Federal property only on the same terms and conditions, and subject to the same regulations, as generally govern the admission of the public. Such restrictions would also be consistent with section 3103(b), which authorizes VA to establish regulations necessary in the public interest to carry out this section as it applies to any building or other property subject to VA's jurisdiction. Lastly, these restrictions would be consistent with section 109, because service animals would not be used by individuals with disabilities in those areas in which public access generally would not be permitted.

Proposed § 1.218(a)(11)(v) would provide that if a service animal is denied access to VA property or removed from VA property subject to proposed § 1.218(a)(11)(ii), or restricted from accessing certain VA property subject to proposed § 1.218(a)(11)(iii) and (a)(11)(iv), that VA would give the individual with a disability the opportunity to obtain services without having the service animal on VA property. This provision would be consistent with the regulations that implement the ADA at 28 CFR 36.302(c)(3), and would be important to ensure that the individual with a disability still receives VA services.

Proposed § 1.218(a)(11)(vi) would provide that, subject to limited requirements in proposed § 1.218(a)(11)(vii), an individual with a disability must not be required to provide documentation, such as proof that an animal has been certified, trained, or licensed as a service animal, to gain access to VA property accompanied by their service animal. Proposed paragraph (a)(11)(vi) would further state that an individual may be asked if the animal is required because of a disability, and what work or task the animal has been trained to perform. A restriction on required documentation and permitting minimal inquiries would reduce administrative burden for veterans and other VA stakeholders seeking access to VA property, and would prevent VA staff from having to verify documentation that proves service animal training was completed. Proposed paragraph (a)(11)(vi) is consistent with regulations that implement the ADA. See 28 CFR 36.302(c)(6). We agree with the rationale as stated in § 36.302(c)(6) that in most instances, it is apparent that an animal is trained to do work or perform tasks for an individual with a disability. Therefore, restricting documentation and permitting minimal inquiries as proposed in paragraph (a)(11)(vi) should not permit an undue number of nonservice animals to access VA property in contravention of the proposed criteria in this rulemaking.

Proposed § 1.218(a)(11)(vii) would state that an individual with a disability will be required to provide documentation that a service animal is up to date with certain vaccinations and veterinary examinations (as described in proposed paragraphs (a)(11)(vii)(A) and (B)), if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program. This documentation would allow VA to confirm that a service animal was healthy for purposes of continuous, extended exposure to veterans, VA staff, and other VA stakeholders in residential rehabilitation and treatment areas on VHA property (such as VHA Community Living Centers, VHA Mental Health Residential Rehabilitation Treatment Programs, or Blind Rehabilitation Centers). Any additional documentation that would be requested under proposed § 1.218(a)(11)(vii) would only be related to the health and wellness of the animal, and would not be related to an animal's level of training or other certification that the animal was a service animal.

Proposed § 1.218(a)(11)(vii)(A) through (C) would permit VA to request documentation to confirm that a service animal has a current rabies vaccination (1 year or 3 year interval, depending on local requirements), and that a service animal has had a comprehensive physical examination by a licensed veterinarian within the last 12 months that confirms immunizations with core canine vaccines (in addition to the required rabies vaccine) distemper, parvovirus, and adenovirus-2, and screening for and treatment of internal and external parasite as well as control of such parasites. Additionally, the individual with a disability would be asked to confirm in writing that at least seven days have elapsed since the dog recovered from (as applicable), any of the following: vomiting, diarrhea, urinary or fecal incontinence, sneezing or coughing, open wounds, skin infections or mucus membrane infections, orthopedic or other conditions that may interfere with ambulation within the VA facility, and estrus in intact female dogs.

Proposed § 1.218(a)(11)(viii) would define a service animal as any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, would not be service animals for the purposes of this definition. The work or tasks performed by a service animal would have to be directly related to the individual's disability. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship would not constitute work or tasks for the purposes of this definition. This definition would apply regardless of whether VA is providing benefits to support a service dog under 38 CFR 17.148. We recognize that this definition is broader than the definition of the types of dogs for which we pay benefits under § 17.148; specifically this definition would include service dogs that are trained to mitigate the effects of mental health disabilities (mental health service dogs). We explained in the proposed rulemaking associated with 38 CFR 17.148 that VA does not yet have sufficient evidence to prescribe mental health service dogs as part of a veteran's treatment plan, and therefore cannot at this time offer benefits to support the use of such dogs. 76 FR 35163, June 16, 2011. However, the issue of whether the prescription of mental health service dogs is clinically appropriate to necessitate the provision of benefits under § 17.148 is much narrower than the issue of whether we should allow mental health service dogs to access VA facilities while accompanying individuals with disabilities. Therefore, we believe it is consistent to permit the presence of mental health service dogs on VA property for purposes of ensuring access for individuals with disabilities, while still (at this time) restricting the provision of benefits to support mental health service dogs in § 17.148.

The definition of a “service animal” in proposed § 1.218(a)(11)(viii) would be consistent with the definition of “service animal” in regulations that implement title III of the ADA. See 28 CFR 36.104. To reiterate, although VA is not bound by the ADA, VA is not prevented from adopting standards similar to those in the ADA when appropriate and applicable. Because there is no existing definition of “service animal” in any law or regulation that is applicable to VA, we find the definition in 28 CFR 36.104 the most relevant source for consideration of the issue of service animal presence on VA property, other than those service dogs VA recognizes under § 17.148.

The definition of “service animal” in proposed paragraphs (a)(11)(viii) would also be consistent with our interpretation of the definition of a “covered service dog” in section 109. We reiterate that we do not interpret section 109 to require that a service dog must be trained by any specific entity, and that section 109 does not prohibit VA from granting access to a broader group of service animals than those trained by accredited entities generally. We would not impose an accreditation requirement to verify that a service dog has been trained appropriately to gain access to VA property.

Proposed § 1.218(a)(11)(viii) would limit dogs as the only species of animal recognized as a service animal, and would further provide that dogs that merely provide crime deterrent effects, emotional support, well-being, comfort, or companionship to individuals (versus being individually trained to assist individuals with disabilities) are not service animals. These limitations are consistent with the current definition of “service animal” provided in 28 CFR 36.104. In promulgating § 36.104, DOJ considered a substantial number of public comments regarding species limitations for service animals during a comprehensive, multi-staged rulemaking process, culminating in the publication of the final rule at 75 FR 56236, Sept. 15, 2010. We agree with the discussion and rationale used by DOJ in limiting the definition of a “service animal” to only dogs, and to only those dogs that are individually trained to do work and perform tasks for the benefit of an individual with a disability. Specifically, DOJ considered a substantial number of public comments regarding the exclusion of emotional support or companion animals from the definition of “service animal” in the regulations implementing the ADA. We agree with the discussion and rationale used by DOJ in support of this restriction, particularly that the mere presence of a dog that is not trained to perform work or tasks is not required by individuals in the context of public accommodations. In enforcing the ADA, DOJ has been in the unique position since the early 1990s to follow developments regarding service animals, and has determined that only dogs individually trained to assist individuals with disabilities should be defined as a “service animal” for consistent admittance to and presence in a variety of public settings. Therefore, we believe it is reasonable to defer to DOJ on these points. We would also not consider service dogs in training to be service animals for purposes of this rule, because such dogs in training have yet to be fully “trained to do work and perform tasks” as required in the proposed definition of “service animal.” These limitations will provide greater predictability regarding the presence of animals on VA property and facilities, and will reduce risks to the health and safety of those on VA property. It will also allow access to the vast majority of disabled individuals who rely on a service animal to assist them in moving about in public places.

A miniature horse is not included in the definition of a service animal under regulations that implement the ADA. See 28 CFR 36.104. However, 28 CFR 36.302(c)(9)(i) provides that public accommodations must make reasonable modifications in policies, practices, and procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. Public accommodation may consider multiple assessment factors under § 36.302(c)(9)(ii) to determine whether allowing a miniature horse access will be a reasonable modification, which include the size and weight of a miniature horse and whether the handler has sufficient control of the horse, whether the miniature horse is housebroken, and whether the horse's presence in a facility would compromise legitimate safety requirements necessary for safe operations. As stated in DOJ's final rule, these assessment factors essentially permit exclusions of miniature horses because they are typically larger and harder to control than service dogs, and can be less predictable in behaving in accordance with typical standards of public access than service dogs. 75 FR 56273. Because we are proposing a definition of “service animal” that is so similar to that implemented in ADA regulations, we have also considered the caveat in ADA regulations to permit access of miniature horses in public accommodations. After some consideration, we would exclude the access of miniature horses in this proposed rule because we find their larger size would make them more difficult to control within a facility or remove from a facility as needed. Horses are prey animals and thus have a heightened flee response when they perceive things in their environment as a threat. Coupled with this heightened response, VA healthcare facilities typically have smooth flooring that is able to withstand industrial cleaning and polishing (e.g. vinyl composite tile, polished concrete, etc.), which is difficult for hooved animals to walk on and may contribute to horses having difficulty ambulating or even falling. The presence of a miniature horse in VA facilities is also more likely to be disruptive and may result in egress issues because large numbers of people would likely congregate to see the miniature horse. Additionally, we are not aware that miniature horses generally can be reliably trained to be housebroken in the same manner as service dogs trained to hold their waste until it could be eliminated in outdoor areas. For instance, it would not be appropriate, especially in VA health care facility settings, to permit a miniature horse to eliminate its waste in a specialized waste bag the horse might wear while indoors. All of these factors present too high of a risk to legitimate safety concerns, both to persons and the animal, especially in VA health care facilities, to permit the presence of a miniature horse as a service animal.

Proposed § 1.218(a)(11)(ix) would specify that generally, animals other than service animals are not permitted to be present on VA property, and any individual with a nonservice animal must remove it. Proposed paragraph (a)(11)(ix) would also, however, permit the head of a VA facility or designee to allow certain nonservice animals to be present on VA property for certain reasons. Proposed paragraphs (a)(11)(ix)(A) through (F) would specify the types of nonservice animals that a VA facility head or designee could permit to gain access to VA property.

Proposed § 1.218(a)(11)(ix)(A) would allow, with approval of the VA facility head or designee, nonservice animals to be present on VA property for law enforcement purposes. This exception to the general bar on access for nonservice animals may be required to ensure that the safety of veterans, VA employees, and other VA stakeholders, if a law enforcement team must use animals to conduct investigations, such as explosives detection dogs that would be employed by State or Federal agencies. Proposed § 1.218(a)(11)(ix)(B) would allow, with approval of the VA facility head or designee, nonservice animals to be present on VA property if such animals are under the control of the VA Office of Research and Development (ORD). The use of animals in VA ORD is a privilege granted to those investigators and programs that commit to meeting certain ethical and regulatory standards. VA ORD investigators and programs must follow VA policy on the use of research animals, which incorporates compliance with United States Department of Agriculture Animal Welfare Act Regulations. All VA ORD programs are accredited by the Association for Assessment and Accreditation of Laboratory Animal Care. We note that these and other external standards regarding animal use in VA ORD programs are controlling with regards to the actual criteria contained therein; proposed paragraph (a)(11)(ix)(B) would only establish the authority of a VA facility head to permit these animals to be present on VA property, so that we would not with this rulemaking limit the ability of these types of nonservice animals to be present on VA property.

Proposed § 1.218(a)(11)(ix)(C) through (E) would be related only to property under the control of the Veterans Health Administration (VHA), as the three types of nonservice animals we would designate in these paragraphs would only be relevant for VA health care and hospital settings. Proposed paragraphs (a)(11)(ix)(C) through (E) would therefore contain the same general restrictions relevant to the presence of service animals in certain areas of VHA property, namely that the presence of the animal would only be permitted subject to patient safety, patient care, and infection control standards. Proposed § 1.218(a)(11)(ix)(C) would allow, with approval of the VA facility head or designee, nonservice animals to be present on VHA property if those animals are involved in the provision of animal-assisted therapy (AAT), which is a goal-directed intervention that incorporates the use of an animal into the treatment regimen of a patient, as provided or facilitated by a qualified VA therapist or VA clinician. AAT is designed to improve human physical, social, emotional, and cognitive function, and is provided in a variety of settings and may be group or individual in nature. Clinical disciplines such as physical, occupational, recreational, and speech therapies use AAT animals to perform tasks that facilitate achievement of patient-specific treatment goals and objectives. Proposed paragraph (a)(11)(ix)(C) would further specify that an AAT animal may be present on VHA property if the animal is used to facilitate achievement of patient-specific treatment goals, as documented in the patient's treatment plan. This requirement would ensure that these types of nonservice animals would be permitted access to VHA property only for the therapeutic benefit of veterans. This proposed paragraph would also specify that an AAT animal must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined to be necessary by a licensed veterinarian, and that proof of compliance with these requirements is documented and accessible in the area(s) where patients receive AAT. We would require that proof of compliance with these standards be kept in the areas where patients receive AAT, as it is these areas that an AAT animal would be exposed to patients as well as others. Such a requirement would ensure the quickest access to information as needed, to ensure that patient care, patient safety, and infection control standards are not compromised.

Proposed § 1.218(a)(11)(ix)(D) would allow, with approval of the VA facility head or designee, nonservice animals to be present on VHA property if those animals are involved in the provision of animal-assisted activities (AAA), which are activities that involve animals to provide patients with casual opportunities for motivational, educational, recreational, and/or therapeutic benefits. Unlike AAT, AAA is not a goal-directed intervention that is necessarily designed to improve functioning, but that nonetheless may provide opportunities for patients to experience benefits as noted above. AAA does not have to be provided or facilitated by a VA therapist or clinician, and therefore is not necessarily incorporated into the treatment regimen of a patient or documented in the patient's medical record as treatment. Proposed paragraph (a)(11)(ix)(D) would further specify that an AAA animal must be up to date with all required core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined to be necessary by a licensed veterinarian, and that proof of compliance with these requirements is documented and accessible in the area(s) where patients may participate in AAA. We would require that proof of compliance with these standards be kept in the areas where patients may participate in AAA, as it is these areas that an AAA animal would be exposed to patients as well as others. Such a requirement would ensure the quickest access to information as needed, to ensure that patient care, patient safety, and infection control standards are not compromised.

Proposed § 1.218(a)(11)(ix)(E) would allow, with approval of the VA facility head or designee, nonservice animals to be present on VHA property if those animals were present for purposes of a residential animal program in a VA Community Living Center (CLC), which is a long term care setting that provides nursing home care services to veterans, or in a Mental Health Residential Rehabilitation Treatment Program (MHRRTP). Nursing home and mental health care delivery have experienced a significant change in philosophy of care, which has resulted in an initiative to transform the culture of care in VA from a medical model where the care is driven by the medical diagnosis, to a person-centered model where the care is driven by the needs of the individual as impacted by medical conditions. In particular, VA has been working diligently to change the culture of the provision of nursing home care services in its CLCs to create a more homelike environment to foster comfort for veterans while also stimulating a sense of purpose, familiarity, and belonging. The presence of animals is one of many ways that VA seeks to enhance the CLC and MHRRTP environments for veterans. Proposed paragraph (a)(11)(ix)(E) would specify that nonservice animals may be present on VHA property if part of a residential animal program in a VA CLC or a MHRRTP, and would define a residential animal program as a program that uses the presence of animals to create a more homelike environment to foster comfort for veterans, while also stimulating a sense of purpose, familiarity, and belonging. We would state that any VA CLC or MHRRTP residential animal present on VHA property must facilitate achievement of therapeutic outcomes (such as described above), which would be documented in patient treatment plans. We believe this requirement ensures that animals would not be merely residing on a VA CLC or MHRRTP, but rather would be permitted extended access to VHA property only for the therapeutic benefit of veterans. This proposed paragraph would further specify that such an animal must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined to be necessary by a licensed veterinarian, and that proof of compliance with these requirements must be documented and accessible on the premises of the VA CLC or MHRRTP. This requirement that certain documentation be accessible where the animals are exposed to patients and others is supported by the same rationale as expressed above for AAT animals.

Proposed § 1.218(a)(11)(ix)(F) would allow, with approval of the VA facility head or designee, nonservice animals to be present on NCA property if those animals were present for ceremonial purposes during committal services, interments, and other memorials, if the presence of such animals would not compromise public safety, facilities and grounds care, and maintenance control standards. Such an exception to the general rule for nonservice animals would permit NCA cemeteries and other facilities to honor veterans in line with longstanding military tradition, such as the presence of a horse-drawn caisson for particular services or observances.

Proposed § 1.218(a)(11)(x) would define a disability, for purposes of this section, as “a physical or mental impairment that substantially limits one or more major life activities of the individual; a record of such an impairment; or being regarded as having such an impairment.” This definition is consistent with the definition of a disability in 42 U.S.C. 12102, which is applicable to VA through 29 U.S.C. 794, the Rehabilitation Act of 1973. See 29 U.S.C. 794 (a) (defining “individual with a disability” by reference to 29 U.S.C. 705(20), which in turn defines “individual with a disability” by reference to 42 U.S.C. 12102, for purposes of access to certain programs).

Effect of Rulemaking

The Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All VA guidance would be read to conform with this proposed rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking.

Paperwork Reduction Act

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would directly affect only individuals and would not directly affect any small entities. Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 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,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov,, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/​orpm,, by following the link for VA Regulations Published From FY 2004 Through FYTD.

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

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 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. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on November 17, 2014, for publication.

List of Subjects in 38 CFR Part 1

• Administrative practice and procedure
• Cemeteries
• Government property
• Security measures

Dated: November 18, 2014.

William F. Russo,

Acting Director, Office of Regulation Policy & Management, Office of the General Counsel, U.S. Department of Veterans Affairs.

For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 1 as follows:

PART 1—GENERAL PROVISIONS

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

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

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

§ 1.218.

Security and law enforcement at VA facilities.

(a) * * *

(11) Animals. (i) Service animals, as defined in paragraph (a)(11)(viii) of this section, are permitted on VA property when those animals accompany individuals with disabilities and are trained for that purpose. A service animal must be in a guiding harness or on a leash, and under control of the individual with the disability at all times while on VA property. VA is not responsible for the care or supervision of a service animal. Service animal presence on VA property is subject to the same terms, conditions, and regulations as generally govern admission of the public to the property.

(ii) A service animal will be denied access to VA property or removed from VA property if:

(A) The animal is not under the control of the individual with a disability;

(B) The animal is not housebroken. The animal must be trained to eliminate its waste in an outdoor area; or

(C) The animal otherwise poses a risk to the health or safety of people or other service animals. In determining whether an animal poses a risk to the health or safety of people or other service animals, VA will make an individualized assessment based on objective indications to ascertain the severity of the risk. Such indications include but are not limited to:

(1) External signs of aggression from the service animal, such as growling, biting or snapping, baring its teeth, lunging; or

(2) External signs of parasites on the service animal (e.g. fleas, ticks), or other external signs of disease or bad health (e.g. diarrhea or vomiting).

(iii) Service animals will be restricted from accessing certain areas of VA property under the control of the Veterans Health Administration (VHA property) to ensure patient care, patient safety, or infection control standards are not compromised. Such areas include but are not limited to:

(A) Operating rooms and surgical suites;

(B) Areas where invasive procedures are being performed;

(C) Acute inpatient hospital settings (e.g. intensive care units, stabilization units, locked mental health units);

(D) Decontamination, sterile processing, and sterile storage areas;

(E) Patient rooms or patient treatment areas where it is indicated that a patient has animal allergies, or has fear or phobia(s) of animals;

(F) Food preparation areas; and

(G) Any areas where personal protective equipment must be worn.

(iv) Service animals will be restricted from accessing certain areas of VA property under the control of the National Cemetery Administration (NCA property) to ensure that public safety, facilities and grounds care, and maintenance control are not compromised. Such areas include but are not limited to:

(A) Open interment areas including columbaria;

(B) Construction or maintenance sites; and

(C) Grounds keeping and storage facilities.

(v) If a service animal is denied access to VA property or removed from VA property in accordance with (a)(11)(ii) of this section, or restricted from accessing certain VA property in accordance with paragraphs (a)(11)(iii) and (iv) of this section, then VA will give the individual with a disability the opportunity to obtain services without having the service animal on VA property.

(vi) Unless paragraph (a)(11)(vii) of this section applies, an individual with a disability must not be required to provide documentation, such as proof that an animal has been certified, trained, or licensed as a service animal, to gain access to VA property accompanied by their service animal. An individual may be asked if the animal is required because of a disability, and what work or task the animal has been trained to perform.

(vii) An individual with a disability will be required to comply with the following requirements, if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program:

(A) The individual with a disability must provide VA with documentation that confirms the service animal has had a current rabies vaccine (one year or three year interval, depending on local requirements);

(B) The individual with a disability must provide VA with documentation that verifies the service animal has had a comprehensive physical exam performed by a licensed veterinarian within the last 12 months that confirms immunizations with the core canine vaccines distemper, parvovirus, and adenovirus-2, and that confirms screening for and treatment of internal and external parasites as well as control of such parasites; and

(C) The individual with a disability must confirm in writing that at least seven days have elapsed since the dog recovered from any instances of vomiting, diarrhea, urinary or fecal incontinence, sneezing or coughing, open wounds, skin infections or mucous membrane infections, orthopedic or other conditions that may interfere with ambulation within the VA facility, and estrus in intact female service dogs.

(viii) A service animal means any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under § 17.148 of this chapter.

(ix) Generally, animals other than service animals (“nonservice animals”) are not permitted to be present on VA property, and any individual with a nonservice animal must remove it. However, a VA facility head or designee may permit certain nonservice animals to be present on VA property for the following reasons:

(A) Animals may be permitted to be present on VA property for law enforcement purposes;

(B) Animals under the control of the VA Office of Research and Development may be permitted to be present on VA property;

(C) Animal-assisted therapy (AAT) animals may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. AAT is a goal-directed clinical intervention, as provided or facilitated by a VA therapist or VA clinician, that incorporates the use of an animal into the treatment regimen of a patient. Any AAT animal present on VHA property must facilitate achievement of patient-specific treatment goals, as documented in the patient's treatment plan. AAT animals must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible in the area(s) where patients receive AAT.

(D) Animal-assisted activity (AAA) animals may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. AAA involves animals in activities to provide patients with casual opportunities for motivational, educational, recreational, and/or therapeutic benefits. AAA is not a goal-directed clinical intervention that must be provided or facilitated by a VA therapist or clinician, and therefore is not necessarily incorporated into the treatment regimen of a patient or documented in the patient's medical record as treatment. AAA animals must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible in the area(s) where patients may participate in AAA.

(E) Animals participating in a VA Community Living Center (CLC) residential animal program or a Mental Health Residential Rehabilitation Treatment Program (MHRRTP) may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. A residential animal program on a VA CLC or a MHRRTP is a program that uses the presence of animals to create a more homelike environment to foster comfort for veterans, while also stimulating a sense of purpose, familiarity, and belonging. Any VA CLC or MHRRTP residential animal present on VHA property must facilitate achievement of therapeutic outcomes (such as described above), as documented in patient treatment plans. Residential animals on a VA CLC or MHRRTP must be up to date with all core vaccinations and immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible on the VA CLC or MHRRTP.

(F) Animals may be present on NCA property for ceremonial purposes during committal services, interments, and other memorials, if the presence of such animals would not compromise public safety, facilities and grounds care, and maintenance control standards.

(x) For purposes of this section, a disability means a physical or mental impairment that substantially limits one or more major life activities of the individual; a record of such an impairment; or being regarded as having such an impairment.

* * * * *

(Authority: 38 U.S.C. 901, 40 U.S.C. 3103)