[Federal Register Volume 79, Number 225 (Friday, November 21, 2014)]
[Proposed Rules]
[Pages 69379-69387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27629]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AO39


Animals on VA Property

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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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 (202) 273-9026. 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 (202) 461-4902 for an appointment. (This is not a toll-free 
number.) In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System 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, (410) 637-4755. 
(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 Sec.  1.220. This proposed rule would amend Sec.  
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 Sec.  1.218 and Sec.  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, Sec. Sec.  1.218 and 1.220, or Sec.  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 Sec.  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

[[Page 69380]]

service dog'' in section 109. Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1.218(a) (see, for 
instance Sec.  1.218(a)(3) and (a)(5)), and the proposed restrictions 
in this rulemaking would not conflict with Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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).

[[Page 69381]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  1.218(a)(11)(ii), or restricted from 
accessing certain VA property subject to proposed Sec.  
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 Sec.  1.218(a)(11)(vi) would provide that, subject to 
limited requirements in proposed Sec.  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.

[[Page 69382]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 
Sec.  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 Sec.  17.148.
    The definition of a ``service animal'' in proposed Sec.  
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 Sec.  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 Sec.  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 Sec.  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

[[Page 69383]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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

[[Page 69384]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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).

[[Page 69385]]

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

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

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

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


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

    (a) * * *
    (11) Animals. (i) Service animals, as defined in paragraph 
(a)(11)(viii) of this section, are permitted on VA property when those 
animals accompany individuals with disabilities and are trained for 
that purpose. A service animal 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

[[Page 69386]]

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 Sec.  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.
* * * * *

[[Page 69387]]


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

[FR Doc. 2014-27629 Filed 11-20-14; 8:45 am]
BILLING CODE 8320-01-P