Secretary of the Army Affirms Outsourcing of Service Dog Qualification

Let us start with an analogy that will bring this home to lawyers.  I graduated from Hastings College of the Law, an accredited law school that permitted me to take the bar examination in New York State.  I passed and was admitted to the bar. 

Now suppose that New York State decides that it is too expensive to maintain a court administration system that involves employing bar examiners, renting space to conduct exams, hiring proctors, etc.  Instead, New York decides to privatize the admission of applicants to the bar by designating a particular association of law schools whose graduates will be the only ones allowed to practice law. 

Also suppose that Hastings is not a member of the association of law schools.  It might be supposed that I would be grandfathered in some way because I have been practicing for 37 years, but this is not the case.  New York gives the association of law schools�let us call it the Association of Eastern Law Schools with Endowments of Over $100 Million�complete authority from January 1, 2013 forward to determine who may practice law after that date. 

I go to the Association of Eastern Law Schools with Endowments of Over $100 Million and ask if there is any way that I can continue to practice law.  I point out that I went to a very good law school, though it is not one that is a member of this Association, and that I have been practicing for a long time.  They are sympathetic but say that my law school has not applied to be a member of the Association, and even if it did, there is a five-year admission process before Hastings can become fully accredited. There is no guarantee Hastings will have the requisite endowment at the end of the period or that it will satisfy the examiners of the Association.  Graduates of provisional members cannot practice law, only graduates of full members.

I ask if there is any other alternative.  The Association tells me that one of their law school members has a program that will allow me to practice law in New York after two years of refresher courses.  It will cost me $100,000 per year.  Of course I will have to pass all the tests in subjects that I took and passed decades before.  That is my only option. 

This is essentially what the Army and the Veterans Administration have done with regard to service dogs, and despite objections from dozens of trainers who have trained service dogs for active Army and former military members, as well as from hundreds if not thousands of current and former military personnel who have trained their own dogs, the Army and the Veterans Administration continue to insist their way is the only way things will be done in the future.  Their way is that service dogs are dogs trained by nonprofit training schools that are members of either the International Guide Dog Federation (IGDF) or Assistance Dogs International (ADI).  Any other dogs are not service dogs, regardless of who trained them, what skill level they have achieved, how long they have been service dogs, or what resources the owners of the dogs have. 

I must acknowledge that my law school association analogy is not perfect in that I hypothesized an American organization as having the authority to determine who could practice law.  Rather than outsourcing service dog qualification to a domestic organization, the Army and the Veterans Administration have chosen two associations, whose governing boards are dominated by foreign training organizations, to determine what makes a service dog.

Letter to Debbie Kandoll

The Veterans Administration has implemented its rules on service dogs through the standard federal regulatory process by issuing proposed rules and then final rules, both of which have been described here.  The Army, on the other hand, began the transition to recognizing only dogs from IGDF and ADI member organizations by first limiting dogs that could be admitted to Army medical facilities, a policy that was then adopted post-wide at Forts Campbell and Bliss, and as I understand it at several other military facilities.  The Army�s approach was not without its critics, even internally, but it may have reached the point where only Congressional interest could achieve any sensible change, and at this time that does not appear forthcoming. 

Letter from the Secretary of the Army

In a letter from Secretary of the Army John M. McHugh, to Debbie Kandoll, a trainer in Las Cruces who has been working with Soldiers at Fort Bliss, it is apparent that the policy can now be regarded as covering all Army personnel and facilities.  On November 5, McHugh wrote to Kandoll:

�I understand your concerns regarding the requirement for accreditation of service dog providers.  However, there are several reasons why the Army will recognize only those service dogs obtained by eligible Soldiers from a source accredited by an organization recognized by the U.S. Department of Veterans Affairs (VA).� 

Eligible Soldiers are those who have received command approval to have a service dog, as well as a recommendation from a multi-disciplinary medical team.  The reference to the VA policy made by McHugh is interesting in that it confirms what seemed obvious but was not previously explicit, namely that the Army has been following the VA�s lead on this issue. 

McHugh continues in his letter to Kandoll:

�First, reliance on these sources gives the Army an effective and efficient means to conclude that a service dog is qualified and capable of performing those tasks clinically required to assist a Soldier.  Our garrison and post commanders do not uniformly possess this expertise.�

This �effective and efficient means� is, of course, the outsourcing to the foreign-dominated training associations.  The reference to �clinically required� is an emphasis that the Soldier�s treatment team must make the decision that he or she needs a service dog.  A Soldier cannot make this determination alone or even with only one or two professionals involved in his or her treatment regimen. 

McHugh then gives an additional rationale:

�Moreover, while we are working to provide our Wounded Warriors with every scientifically-supported treatment, we also have an obligation to the safety of our Soldiers and Families on our installations.  As I am sure you know, a child was brutally mauled to death earlier this year at Fort Campbell, Kentucky, by a �service dog� that was not certified.�

This event did happen, and is a reason for concern, but to go back to my legal practice analogy, it would be as if to say that one lawyer from an unaccredited law school misrepresented a client was a reason for outsourcing lawyer qualification to an association of only some particularly well-endowed law schools.  As has been pointed out, negligence in the death of the boy near Fort Campbell does not merely lie with the trainer of the dog. 

Back to McHugh�s letter:

�Finally, the VA currently requires accreditation for service dogs to receive VA-provided veterinary care and medical supply benefits.  Presumably, the Wounded Warriors who require service dogs will be going through the disability evaluation system and could be medically discharged.  If the Soldier obtains a service dog from a non-accredited provider, that dog currently will not be eligible for VA services, and the Soldier will then have the potential financial stress of additional expenses.�

Obtaining veterinary care for service dogs is a concern to members and former members of the military, but many of them who obtained dogs through non-accredited channels would not have dogs at all if they had to wait to receive a dog from a member of an organization blessed by the Army or the VA.  Since the Army and the VA have aligned their policies, it is apparent that if a Soldier obtains a dog that the Army does not recognize, upon leaving the Army he or she will have a dog the VA will not recognize. In my experience, many Soldiers and veterans would much prefer to have a service dog that the Army or VA will not provide care for than not have a service dog at all.  In many locations, such as Fort Bliss, there is no nearby ADI training organization and the possibility of getting a dog from such an organization is little to none. 

McHugh gives Kandoll a solution:

�I urge you to consider pursuing accreditation for your organization, Mutts Assisting Soldier Heroes.  As you so eloquently pointed out in your letter, there are definitely Soldiers who have a need for service dogs.  With the training experience you have acquired as you described in your letter, it seems that accreditation for your organization is a natural next step.  It certainly would provide the Army with another wonderful service dog resource for our Wounded Warriors.�

This sounds simple, but McHugh seems unaware that the VA policy does not permit an organization in the long transitional process to obtaining full membership in IGDF or ADI to qualify a service dog.  In response to the VA�s request for comments in issuing proposed rules on service dogs, I had asked whether candidate members of the associations could qualify service animals.  In issuing its final rules, the VA responded to me as follows:

�We clarify for one commenter that VA only intends to recognize those service dog organizations that have full membership in ADI or IGDF, or that are fully ADI or IGDF accredited, versus those organizations in the process of becoming ADI or IGDF accredited.�  (77 Fed. Reg. 54372, September 5, 2012)

Thus, McHugh�s solution ignores the expensive and generally multi-year process of achieving full membership in one of the organizations blessed by the VA and the Army.  Volunteer trainers such as Kandoll, who are training dogs on shoestring budgets, could not in most cases expect to raise the necessary cash to pay the admission price of an exclusive club.  They would rather train dogs with the resources they have instead. 

If McHugh intends that the Army should accept ADI- and IGDF-candidate organizations as able to train service dogs that can qualify for Army recognition, this should be explicitly stated.   Also, since the VA in its final rules declined to cover expenses for dogs that serve veterans with PTSD "based on a lack of evidence to support a finding of mental health service dog efficacy," the Army should state whether it is following this policy position as well. (77 Fed. Reg. 54370) The possibility that the Army does not fully accept the VA's position may be suggested in the first paragraph of McHugh's letter, where he states that he shares Kandoll's "desire to provide our Soldiers with the therapy they need to recover from their psychological injuries." If the Army does not consider that service dogs can help in this regard, both Soldiers, trainers, and the Army medical community are entitled to know.  

It would, in any case, be appropriate for the Army to issue a general directive, as opposed to an internal memorandum or a letter to a private organization, stating exactly what the Army's policy is.

Economics of the Service Dog Industry

An analysis I am working on of IRS Forms 990 filed by U.S. members of the two VA and Army-accepted associations indicates that guide dogs trained by U.S. members of IGDF cost around $89,000.  The cost of non-guide service dogs trained by members of ADI comes in at around $38,000.  (Curiously, $38,000 is exactly the amount that one insurance company values non-guide service dogs at for replacement insurance purposes. I suspect that the actuaries used the same valuation procedure I did to reach the number.)  Volunteer groups, like those started by Debbie Kandoll, operate on much smaller budgets and train dogs for much less.  Although Soldiers and veterans generally have most of the initial costs of obtaining a service animal covered by charitable donations to the training organizations, and from other sources, there are not nearly enough dogs coming out of these organizations to satisfy the need.  The Army and VA policies are exacerbating the problem by making it harder for smaller groups to get service dogs to Soldiers and veterans. 

An article in the American Journal of Public Health, vol. 99(9), 1651-1657) estimated that approximately 40% of Iraq and Afghanistan Veterans treated at American health centers from 2002 to 2008 were diagnosed with PTSD, depression, or other mental health issues.  This article did not estimate how many of this 40% wanted service dogs, but about 30% of veterans with spinal cord injuries have expressed interest in obtaining a service dog.  It is safe to say that thousands of psychologically and physically wounded soldiers and veterans would get service dogs if they could.  (See summary and additional citations in The U.S. Army Medical Department Journal, April-June 2012, at p. 64.)

Conclusion

There are more practical solutions.  The Departments of Justice, Transportation, and Housing and Urban Development have established criteria by which service and assistance dogs can be distinguished from pets by business owners, airline personnel, and others.  The same could be done here.  I have volunteered to adapt the approaches of other federal agencies to military and ex-military environments, as have others, to no avail. 

If a certification system is deemed necessary, the Army and VA could designate one or two officials each to go around the country to test and certify service dogs.  They could also require that handlers know enough not to leave a large dog alone with a small child so that the Fort Campbell tragedy is not repeated.

Why has the Army not taken such an unbiased approach?  It is cheaper to insist that two international associations do the job for them for free than to train base personnel what service dogs are or hire additional personnel to evaluate the dogs that Soldiers acquire.  Wounded Warriors are, after all, damaged goods. Most of them are on the way out.  Why spend anything to make their short remaining military service more comfortable or the post-military lives more tolerable?   

Hopefully the New York State court system won�t start thinking the same way about lawyers it allows to practice.  

Additional Note: It has been pointed out to me since this blog was posted yesterday that the new Assistance Dogs International website emphasizes the regional chapters of ADI, and that there is a North American regional chapter called Assistance Dog International North America (ADINA). Presumably ADI has delegated the responsibilities for the VA and the U.S. Army to this chapter, though the Army and VA releases use the overall umbrella organization's name. (There appears to be some confusion regarding the distinction in the U.S. between Assistance Dogs International (using the plural, dogs) and Assistance Dog International (singular). There is, or was, an Assistance Dogs International Inc., EIN 13-2946594, which had its tax exemption revoked in 2011 for failure to file Forms 990. Yet publicly available Forms 990 for 2008, 2009, 2011, show that Assistance Dogs International, Inc., with an EIN of 93-0993471, filed 990s.  Those forms were signed by Wells B. Jones, listed as Treasurer, Assistance Dogs International.  That was the position that the prior website had him holding with Assistance Dogs International and which he still holds.  He is also now listed as Treasurer and Vice-President of Assistance Dog International North America. The EIN of 93-0993471 seems to belong to Assistance Dog International, Inc. on some searches and to Assistance Dogs International Inc. on others.  None of the tax forms I have been able to find include �North America� as part of the organization�s name. Since it must be presumed that the VA and the Army are dealing with a single legal entity, they should clarify which one has been designated.  If it is a North American chapter of an international organization, this should be specified.  Since the VA has stated its policy in the Federal Register, any modification should be filed there as well.)

Second Additional Note. Michelle Covert's comment below is incisive and important.  I had discussed the Honoring America's Veterans Act, using its  Public Law Number (112-154) when the final VA rules on service dogs were released.  The situation continues to get worse for military and former military personnel who do not toe the line on this wrong-headed policy.