The Good Wife 2012 and Dragnet 1969: TV Sometimes Gets Police Dogs Right

Jack Webb, Harry Morgan, and Ginger in Narcotics: DR-21

Not since Jack Webb introduced much of America to a drug sniffing dog in an episode of Dragnet that aired in January 1969 has there been such an informative episode regarding drug canines in a TV drama as occurred on The Good Wife on September 30, 2012. It appears to have taken 43 years for a television depiction of police dogs to equal the level of what was first shown on Dragnet.  

The Dragnet episode, Narcotics: DR-21, described how a dog was trained to recognize marijuana at the Los Angeles Airport.  For additional photos from the episode, and a detailed description of the program, see the The Hannibal 8, October 17, 2014. The crime in the episode involved two obviously gay men (this was just before Stonewall) who were accused of selling marijuana to high school students.  Searches of their apartment consistently turned up nothing until the dog was brought in, with Jack Webb as handler, and scratched at a light switch.  Behind the switch were found several bricks of marijuana.  America was on notice that drug dogs would stop the flow of drugs once every police department had one, but the police were on notice that they had to establish the reliability of the dog for issuance of a search warrant.   

The drug dog in The Good Wife is no longer a pure force for good.  The handler, an Illinois state trooper in Madison County, cues his dog to alert, denies that he is profiling the occupants of the car, is hoping to search the car for currency rather than drugs, and is doing this to get cash that can be forfeited and put to the use of the county. It is nothing short of highway robbery by law enforcement, showing that the promise Jack Webb gave us so long ago has never been achieved.

It is probably no accident that the episode is making these arguments less than a month before the U.S. Supreme Court will hear two drug dog cases, the first to come before the Court in seven years.  Issues in those cases include cueing, training, what records are required to be given to the defense, and what is needed to establish probable cause in several situations. 

Traffic Stop

Woven through other plot strands in The Good Wife episode, titled �I fought the law,� is a traffic stop that occurs on Interstate 55 as three of the drama�s characters, Alicia Florrick and her two children, are returning to Chicago from visiting a college that Zach, the son, is considering attending.  Zach is driving the car, his sister shotgun, and mother, Alicia, in the back seat asleep. 

The trooper, Officer Robb, pulls them over, and saying he cannot hear Zach�s answers over the traffic noise asks him to get out of the car so he can explain the reason for the stop.  Alicia tries to join the conversation, which is taking place in front of the patrol car, but is told to wait.

When Robb is finished with Zach he speaks to Alicia and says that Zach seemed nervous, making him wonder if there might be drugs in the car.  She asks if they are being profiled.  �You saw two kids driving at eight in the morning.  You thought maybe drugs?� He denies this, then says he has a K-9 in his car and asks if Alicia would mind if he led the dog around the car.  She asks what he would do if she did mind.  We skip a few seconds to the dog being led around the car. 

Cueing

The stop is being videotaped by a dashboard camera in the patrol car.  Portions of the video are replayed at various points in the episode and Zach eventually posts it online, supplemented by his own commentary and spliced in with scenes from horror movies.  The video shows Officer Robb encouraging his dog at a level that convinces a trainer who later watches it that Robb was forcing false positives.  The alert takes place at the front of the car, so dash cam video does not actually capture the alert, only the sound of Robb loudly encouraging his dog.  In the offices of Lockhart & Gardner, the trainer demonstrates how this can be achieved with her own dog, which she does by tapping on a file box until the dog alerts. �My dog has just alerted to your file box.�

Going back to the actual traffic stop, Zach is arrested for recording his conversation with the officer on his iPhone, an apparent violation of the Illinois criminal code.  

As the episode progresses, Alicia brings in various members of the firm of Lockhart & Gardner to help her fight on her son�s behalf.  When she tells fellow associate Cary Agos that Officer Robb said the dog probably alerted to marijuana shake on the floor of the car, Agos, a former prosecutor, says, �Shake is what they say when they don�t find anything.�  (As a fan of the series, my opinion is that the actor who plays Agos, Matt Czuchry, has more precisely captured the ambitious associate, the up-and-coming litigator, than anyone else in the cast.) 

When Alicia tells her husband, Cook County District Attorney Peter Florrick, about the incident, Peter attempts to strong-arm the DA of Madison County to drop the charges, expunge the record, and have Officer Robb call Zach and apologize.  This almost happens but Alicia learns from Zach, who has been researching traffic stops in Madison County on the internet, that Robb and other police are targeting northbound cars on I-55. 

Targeting Currency in a Drug Corridor

�They�re not trying to stop drugs,� Alicia explains to the judge at a preliminary hearing.  �They�re trying to confiscate the money made from these drug sales.�  This explains why stops are being made on the northbound but not the southbound side of I-55.  Stopping cars on the southbound side would more likely produce drugs, but 90% of the stops are on the northbound side.   

The judge agrees with Alicia that these are serious charges and the Madison DA decides to pursue the matter against Zach and informs Peter Florrick that his own officers� stops on the corridor must produce ten times the revenue in Cook County that is being raised from highway forfeitures in Madison County. 

The stalemate between the two county DAs is broken when Zach posts the dash cam video online.  One of the background sources for the episode is revealed when Kalinda, Lockhart & Gardner�s in-house investigator, refers to the posting as being �smart, like Breakfast in Collinsville.� The video goes viral, eventually getting more than half a million views on YouTube.  The Breakfast in Collinsville video made by Terrance Huff after his stop in Collinsville, Illinois, has, as of October 11, logged over 420,000 views.  The actual video contains much of the dialogue adapted by the scriptwriters for The Good Wife episode.

In the final scene, Officer Robb calls up Zach and apologizes, telling him that the charges will be dropped and his record expunged.  Beside Robb as he makes the call is the Madison County DA, who apparently has decided that pursuing the matter will bring unwanted attention to the methods of Madison County law enforcement.  Zach has his revenge. 

Drug Corridors

Profiling is known to occur along drug corridors, although it is usually racially based.  Austin Sarat and Jonathan Simon note:

�The highway that runs from Miami, Florida, to Maine [Interstate 95] has been labeled a drug corridor by law enforcement for years. At various points along it, local, state, and sometimes federal agents have sought to apprehend cars moving drugs or drug money. The result, it has been alleged, is the profiling of black drivers who are pulled over with minimal or no legal justification in the hopes of winning consent to search their cars. Even when no drugs are found, large sums of cash have been seized as drug money.�

Sarat and Simon, Beyond Legal Realism? Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship, 13 Yale Journal of Law and the Humanities 3 (2001). 

Some drug corridors, such as U.S. Route 40 near Carney�s Point, New Jersey, have had multiple seizures with cars going in specific directions.  See U.S. v. $32,310, 1988 WL 16927 (D.N.J) (three individuals were driving a car with South Carolina plates westbound on U.S. Route 40 in Carney�s Point, Salem County, New Jersey when they were stopped for a speeding violation; search produced currency, marijuana, and paraphernalia; amount of currency was �roughly equivalent to the street value of a kilogram of cocaine� and �was wrapped in a highly peculiar manner�; currency was subject of forfeiture action; one passenger was charged with resisting arrest and possession of a controlled dangerous substance while two others were charged with obstruction of justice; the stop was described as occurring in a �known drug corridor�); U.S. v. $87,375, 727 F.Supp. 155 (D.N.J. 1989) (pillow case full of �small denomination bills� totaling $87,375 found by flashlight in back of car defendant, a Columbian national living in Miami, was driving westbound on U.S. Route 40 in Carney�s Point, Salem County, New Jersey; after transportation of suspect to station, pillow case was hidden in locker room chest of drawers; dog alerted to chest of drawers; the stop was characterized by the federal district court in New Jersey as occurring in a �well-known drug corridor�). 

Other highways have been identified as drug corridors, including I-77 in North Carolina (U.S. v. Wai Lun Ng, 2007 WL 3046215 (W.D.N.C.)); I-35 in Minnesota (U.S. v. Lara, 2007 WL 3144998 (D.Minn. 2007)); I-20 in Georgia (U.S. v. $19,054, 2012 WL 4094361 (M.D.Ga. 2012) involving a currency seizure); and I-29 between Sioux Falls, South Dakota, and Sioux City, Iowa (Lindstad, A., State v. de la Rosa: Creating a de Minimis Exception to the Fourth Amendment, 49 South Dakota Law Review 313 (2003-2004)). 

The Eighth Circuit has concluded that merely driving along a drug corridor is a relevant factor in determining the legality of a stop. U.S. v. Blaylock, 421 F.3d 758 (8^th Cir. 2005)

Stops of Vehicles Going in One Direction Only  

That drugs and money often move in opposite directions has been noted by legal analysts:

�I-94 is well-known to those in law enforcement as a drug corridor where couriers, frequently using rental cars, transport money to Chicago and drugs back to Detroit. After learning that Smith's driver's license had been suspended and that her passenger had been previously arrested for cocaine possession and weapons offenses, the officer searched the trunk of the car and found the backpack containing $180,975.�

Yeaton, D., Civil Forfeiture�Exclusionary Rule�Broadening the Use of Illegally Seized Evidence in Forfeiture Proceedings. In re Forfeiture of $180,977, 734 N.W.2d 489 (Mich. 2007), 86 University of Detroit Mercy Law Review 59 (Fall 2008).  Note that the direction here relative to Chicago is opposite to that suggested as happening in The Good Wife.

Mary Cheh reported that along the I-95 drug corridor in Florida, drug agents choose to stop southbound vehicles in the belief that they contain forfeitable cash, while ignoring northbound vehicles in the belief that they contain drugs, of no value to the agents. Cheh, M.M., Can Something This Easy, Quick and Profitable Also Be Fair? Runaway Civil Forfeiture Stumbles on the Constitution, 39 New York Law School Law Review 1, 6 (1994)

Forfeiture as a Source of Government Revenue

In a report posted by the Institute for Justice in 2010, Policing for Profit: The Abuse of Civil Asset Forfeiture, the authors noted that along a major drug corridor between Shreveport, Louisiana, and Houston, Texas (U.S. Route 59), none of the plaintiffs in a lawsuit in Texas who had been stopped were arrested for, much less convicted of violating drug laws.  Most were black.  �Public records requests revealed that the District Attorney used some of the money [confiscated] to buy a $524 popcorn machine, $195 for candy and $400 for catering. Seized funds also went to the local Chamber of Commerce, a youth baseball league and a local church.�

In Collinsville, where Terrance Huff�s stop occurred, the municipal budget for 2010 was aided by $313,272 in forfeitures. 

Law review articles have argued that civil forfeiture has been an objective of traffic stops.   See Bernstein, A., The Representational Dialectic (with Illustrations from Obscenity, Forfeiture, and Accident Law), 87 California Law Review 305 (March, 1999), stating: �Drug kingpins buy their way out of incarceration through forfeiture-based plea bargaining, while impoverished low-level 'mules' go to prison.�  For this Bernstein cites Blumenson, E. and Nilsen, E., Policing for Profit: The Drug War's Hidden Economic Agenda, 65 University of Chicago Law Review 35, 110, n.285 (1998).

Conclusion

When Burt Prelutsky wrote Narcotics: DR-21 in the late 1960s, much of America had never heard of narcotics detection dogs and the evidence provided by their alerts was only beginning to be used in criminal prosecutions.  The dog that appeared in the episode was one of the first drug dogs in the United States, a Belgian shepherd named Ginger.  I discussed the importance of the episode in Police and Military Dogs.  Many television shows have used dogs since, even going so far as to explain their functions, but all cases I can recall were intended only to get some sympathy for a victim or to provide an explanation of how a conviction was obtained when the plot was too poorly constructed to provide another reason.  Seldom was any research, legal or forensic, involved. 

The scriptwriters of The Good Wife, Robert and Michelle King, have presented us with the downside of a police method that has been too easily accepted by the public and sometimes the courts as guaranteeing a solid forensic result, almost as secure as DNA testing.  The problem when objectives other than fair administration of the law becomes a priority is not with the dogs, as is said in the episode.  The problem is with the handlers and their supervisors.  We must hope that the Supreme Court was watching.  

Additional Note. For a recent case with overtones of the Collinsville incident, see Miller v. Vohne Liche Kennels, Inc., 2013 WL 3177434 (S.D. Ind. 2013).  After an alert and a fruitless search at a traffic stop in Plymouth, Indiana, Kevin Miller sued Vohne Liche Kennels for inadequately training drug-detection dogs, and American Working Dogs United, Inc. for improperly certifying them. Motions for summary judgment were granted to the defendants.   

Facility Dog Allowed to Sit at Adult Victim�s Feet as He Testifies

A case from the State of Washington concluded that allowing a trained �facility dog� to sit beside an adult victim as he testified did not violate the defendant�s right to a fair trial.  I have discussed the decision of the Washington appellate court in an article posted on the website of the Animal Legal and Historical Center of the Michigan State University College of Law.  A picture of the dog used in the case, Ellie, was provided by Ellen O�Neill-Stephens of Courthouse Dogs.

Since an appellate court has accepted that an adult functioning at the level of a child could testify with the support of a dog trained to work with vulnerable witnesses, the next question must be what boundaries can or should be set on the use of dogs in courtrooms.  Should a psychiatric service dog be allowed to accompany a witness with PTSD?  What about an untrained emotional support animal for a person with an anxiety disorder who cannot speak in public without the dog?  Judges have a great deal of latitude in what to permit, yet in one case I cite a judge's misbehaving dog was visible to a jury.  

I had described �testimony dogs� in a section of Service and Therapy Dogs in American Society (p. 100), but the term �facility dog� appears to be more common in the growing literature and case law regarding this type of function.  If the trend continues, I will use this term in subsequent editions of my book. Washington v. Dye, 283 P.3d 1130 (Wash.App. Div. 1, 2012).

Whether Emotional Support Animal Alleviates Agoraphobia Requires Fact-Specific Analysis

Judge Leslie E. Kobayashi of the federal district court of Hawaii was faced with cross motions for summary judgment in a case involving a condo unit in Hawaii.  The tenant wanted to keep a dog, Nell, arguing that the condo association was obligated to allow this as an accommodation for his mental disability.  The association countered that the matter was resolved by a precedent of the district court, Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D.Hawaii 2003), which had held that reasonable accommodation did not require accepting a dog without specialized training. 

Judge Kobayashi now concludes that the law has evolved since Prindable was decided in 2003, and that it has become clear that an emotional support animal, as opposed to a service animal, can be the subject of a reasonable accommodation. That does not end the matter, however, since the dog must alleviate or ameliorate the symptoms or effects of the resident�s disability.  Although in some cases this might not require specialized training, in others Judge Kobayashi says that it might.  This is a fact-specific determination.  Therefore, the matter was not ripe for summary judgment and the dispute could proceed to trial.  Given the importance of the question and the court�s careful analysis, for the sake of the law in the area it must be hoped that there will be a trial and a further opinion from Judge Kobayashi. 

Hawaii Condo Dispute

Joel Lee Taylor purchased a condominium apartment in Liliuokalani Gardens at Waikiki in 2011, conditioned on his being able to keep his dog, Nell, as an accommodation for his mental disability.  Taylor characterized his need for the dog by saying that �she must be quartered with me so as to be on call when I am required to engage with the general public.�

The apartment owners association provided a questionnaire to be completed by a physician.  Alex E. Torres, MD, stated in the questionnaire that Taylor suffered from agoraphobia and �social phobia-permanent condition.�  Both times the court referenced Torres� diagnosis, it noted that the spelling of the condition used by Torres was incorrect, �agarophobia [sic].� The doctor also referred to a brain chemistry imbalance and said, ��Caring for oneself� is possible with his service dog.� 

The condo association apparently accepted that Nell was important to Taylor when he was in public, saying that Nell was a pet whose mere presence allowed Taylor to �function in a calm collected manner in crowded environments such as airline travel and grocery stores.� This is a curious approach for the association since it seems to accept that for agoraphobia (an anxiety disorder in the 4^th edition of the Diagnostic and Statistical Manual), the dog�s emotional support function would at least relate to Taylor's ability to go out in public.  Nevertheless, the association was primarily relying on Prindable, i.e., on the requirement that a dog have specialized training to receive an accommodation. 

The association attacked Dr. Torres� responses in the questionnaire, saying that he had �failed to indicate how the requested accommodation would alleviate or mitigate� Taylor�s disability or otherwise assist him in using and enjoying the dwelling.  The association also noted that Dr. Torres had not stated what training Nell had received.  Taylor dropped the attempt to purchase the unit, then bought a different unit in the same complex and renewed his request for an accommodation to permit him to keep his dog.  Dr. Torres had in the meantime moved to Puerto Rico. 

The association sued in federal court, arguing that Taylor did not have a handicap under the Fair Housing Act, and even if he was, it was not required to waive its no-pets policy for a dog that did not have any specialized training.   

Tenant�s Arguments

Taylor argued that Prindable erroneously applied requirements of the Americans with Disabilities Act applicable to service animals to a housing situation that should have been governed by the Fair Housing Act.  He noted that the FHA�s implementing regulations do not contain a requirement that a service animal be specially trained and argued that HUD has interpreted the FHA�s reasonable accommodation provision to require accommodations for non-trained emotional support animals.  He cited HUD v. Dutra, 1996 WL 657690 (JUDALJ 1996), where an administrative law judge found that a landlord had violated the FHA by refusing to grant a mentally disabled man a reasonable accommodation to allow to keep his emotional support cat in a no-pets apartment. 

Taylor also cited, and the court quoted, a memorandum issued by HUD in February 2011 which concerned the relationship between the regulations of the Department of Justice and the Fair Housing Act.  The memorandum, referring to the DOJ�s rules states:

�The DOJ�s new rules limit the definition of �service animal� in the ADA to include only dogs. The new rules also define �service animal� to exclude emotional support animals. This definition, however, does not apply to the FHAct or Section 504. Disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHAct or Section 504. In situations where both laws apply, housing providers must meet the broader FHAct/Section 504 standard in deciding whether to grant reasonable accommodation requests.�

In 2008, HUD issued final rules regarding pet ownership for the elderly and persons with disabilities, stating that �emotional support animals do not need training to ameliorate the effects of a person�s mental and emotional disabilities.� (73 Fed. Reg. 63834, 63836, October 27, 2008) 

Taylor described decisions that had not followed Prindable, including Overlook Mutual Homes, Inc. v. Spencer, 666 F.Supp2d 850 (S.D.Ohio 2009) and Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.N.D.2011), both discussed here in a prior blog.    

The Hawaii Civil Rights Commission generally supported Taylor�s arguments.  The Commission represented that it has an agreement with HUD under which the State�s reasonable accommodation provisions must be substantially equivalent to the FHA. 

Condo Association Arguments

The condo association argued that Prindable had correctly fathomed that for �a reasonable and necessary accommodation under the FHA, the animal needs to have something that sets it apart from the ordinary pet.�  It also argued that Prindable set a minimum standard necessary to demonstrate the link between the animal and the condition the animal purportedly ameliorates.  �[I]t is that individual training the animal received or that special skill the animal possesses that links the animal directly to the effects of the disability and makes the animal necessary for purposes of the FHA.� 

The condo association�s other major argument was that since nondisabled persons also get comfort from animals yet are not entitled to have them under the FHA, disabled persons should not be able to get a greater benefit than a nondisabled persons can get under the Act.  Therefore, emotional support, according to the association, should not be the basis of allowing an untrained animal despite a no-pets policy.

District of Hawaii Sidelines Prindable

Judge Kobayashi shows tremendous deference to her fellow Hawaii federal district court judge, Alan C. Kay, who decided Prindable nine years earlier. Nevertheless, Kobayashi concludes that Taylor and the Hawaii Civil Rights Commission �have presented persuasive arguments that the FHA has evolved to recognize �assistance animals,� including �emotional support animals,� as reasonable accommodations�. The Court agrees that both federal and state law, while not explicitly embracing �emotional support animals� as unequivocal �reasonable accommodations,� does not preclude them as such�. Accordingly, this Court acknowledges that the law has changed since Prindable was decided in 2003 by increasing acceptance of �assistance animals� as possible �reasonable accommodations.��

Also, in Prindable the resident claimed to have a service animal, not an assistance animal, and Judge Kay had considered whether the animal in question was a service animal.  In the present case, Judge Kobayashi was considering whether Nell was an assistance animal, �that, by her very presence, provides emotional support to ameliorate Taylor�s disability.�  Therefore, the judge found that �Prindable is distinguishable from the instant matter and CONCLUDES that its holding is inapplicable to the present case.� 

More Information Needed to Decide Reasonable Accommodation Question  

Judge Kobayashi said that she had to first examine Taylor�s claimed disability before she could determine whether Nell alleviates that disability and is a reasonable accommodation:

�Because the analysis must start with the disability, the Court cannot say, as a matter of law, that an untrained emotional support animal unequivocally is or is not a reasonable accommodation under the FHA. In some instances, a plaintiff may have a disability that requires an assistance animal with some type of training; in other instances, it may be possible that no training is necessary. This determination must be the result of a fact-specific inquiry and case-by-case determination�.  The Court believes that this analysis ensures that only those with proper disabilities are afforded accommodations such as assistance animals; it will not � result in everyone who wants a pet being afforded an assistance animal, so long as they label it an emotional support animal. Rather, because the animal must alleviate the disability, only those with disabilities will be afforded this accommodation.� (emphasis added)

Thus, a reasonable accommodation request does not categorically require specialized training, nor does it categorically mean that specialized training will never be required.  Presumably for some mental or emotional disabilities, the dog will not alleviate or ameliorate the condition without specialized training, for others it will. If Nell allowed Taylor to function in public, in situations where the anxiety disorder of agoraphobia would come into play, presumably the requirement that the dog alleviate the condition would be satisfied.  Of course, a service animal could be trained to deal with situations where anxiety would be high for someone with agoraphobia, such as being in a line, by standing behind the master to give him some space from the next person in line.  Nevertheless, the law of accommodation does not require that the dog function optimally for the mental health condition, only that it ameliorate or alleviate that condition.   

The judge clearly felt the brief responses to a questionnaire by a doctor who was no longer in Hawaii or available for testimony, that Taylor had agoraphobia (�agarophobia [sic]�) and a brain chemistry imbalance, but could care for himself with his dog, were insufficient to require a reasonable accommodation. Such a statement says little because it could apparently mean as well that the resident could care for himself without a dog. Although the judge says that the case requires that she consider whether Nell, �by her very presence, provides emotional support to ameliorate Taylor�s disability,� it appears that she may require that the dog do more than provide comfort and companionship in order to find amelioration from its presence.  On the other hand, even temporary relief from the symptoms or effects of a mental condition should be adequate to establish that an animal ameliorates or alleviates the condition. 

Summary Judgment Motions Denied

The court denied both motions for partial summary judgment, meaning that the questions of whether Taylor has a disability or whether, if so, his condition is ameliorated by the dog, could proceed to trial.  For the future of service and support animal law, it must be hoped that there will be a further decision from Judge Kobayashi since she seems poised to consider what alleviation or amelioration should mean in this context. 

Association of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor, 892 F.Supp.2d 1268 (D. Hawaii 2012).

Supplementary Note.  The court in Taylor noted that the resident argued that the analysis begins with the disabled individual, while the association argued that it begins with the accommodation.  The federal district court agreed with the resident, saying that it must first examine the claimed disability before it can determine whether the dog is a reasonable accommodation.  In commenting on a draft Technical Assistance Manual for airline carriers regarding passengers with disabilities, Dr. J. Lawrence Thomas and I questioned one of the requirements for a letter from a medical or mental health professional supporting a patient wishing to fly with a service or support animal.  The Department of Transportation says that the professional must state that the �passenger needs the service animal as an accommodation for air travel and/or activity at the passenger�s destination.�  It is not clear how a medical or mental health professional is supposed to understand what accommodations should be granted by airlines.  In commenting, we suggested that prior language used by the Department was more appropriate in requiring that a letter state that �having the animal accompany the passenger is necessary to the passenger�s mental health or treatment.�  Judge Kobayashi has correctly observed that need and accommodation are separate inquiries that should not be conflated into a single issue. 

Fish & Wildlife Says Wyoming Wolves Can Be Hunted Back to 1999 Levels

Additional Note.  For an indication of how ridiculous the idea of letting state fish and game authorities control gray wolf populations is, see the editorial of Lawrence Downs in the New York Times, December 28, 2013 ("Wolf Haters").

The U.S. Fish and Wildlife Service has issued final rules that remove the gray wolf in Wyoming from the list of endangered and threatened wildlife.  This finalizes the delisting that was proposed by the agency in 2011 and discussed in a prior blog.  According to Fish and Wildlife, �Wyoming�s gray wolf population is stable, threats are sufficiently minimized, and a post-delisting monitoring and management framework has been developed.�  The Yellowstone Experimental Population Area established in 1994 to facilitate reintroductions to the Park is also removed. 

In 1978, Fish and Wildlife classified the gray wolf (Canis lupus) as endangered at a species level throughout the coterminous 48 states and Mexico, excepting only Minnesota where the classification level was �threatened� rather than endangered.  The history of the Wyoming wolves and their various designations is replete with litigation and Congressional meddling, described in soporific detail in the preamble to the present rulemaking.  A useful timeline is posted on the website of Earthjustice.  Through it all, as discussed in another blog, Fish and Wildlife has been determinedly washing its hands of the gray wolf preservation business, presumably to free up staff and time for other bureaucratic sports. 

Approximately 250,000 comments were submitted regarding the 2011 delisting proposal, but Fish and Wildlife had little trouble ignoring almost all of them. 

Wolves Become Game Animals

Wolf Trophy Game Management Area and Yellowstone National Park

Wyoming wolves will now, according to Fish and Wildlife to �be managed as game animals year-round or protected in about 38,500 square kilometers (km²) (15,000 square miles (mi²) in the northwestern portion of the State (15.2 percent of Wyoming).�  Wolves will be designated as predatory animals everywhere else in Wyoming.  The map shows the year-round and seasonal wolf trophy management areas.  Only a small portion of the area, with a minimal wolf population, is seasonal.  Thus, wolves can now be hunted most of the time most everywhere in Wyoming.   

Wyoming has committed to maintaining a population of ten breeding pairs and at least 100 wolves in portions of Wyoming outside Yellowstone National Park and the Wind River Indian Reservation.  This apparently assumes about ten packs of ten wolves per pack since packs will generally have only one breeding pair.  Fish and Wildlife assures us:

�Wyoming intends to maintain an adequate buffer above minimum population objectives to accommodate management needs and ensure uncontrollable sources of mortality do not drop the population below this minimum population level.�

It must be doubted whether the wolves will take much comfort in such assurances.  As to how many wolves are in Yellowstone National Park, the rules release predicts there will be between 50 and 100 wolves and 5 to 10 packs, but there may only be four to six breeding pairs.  The Wind River Reservation primarily has isolated wolves than only occasionally form packs. 

Wolf Packs in Montana and Wyoming

That means that the objective is to have �at least 15 breeding pairs and at least 150 wolves statewide,� including the wolves of Yellowstone.  The objective for Montana, Idaho, and Wyoming combined is about 30 breeding pairs and at least 300 wolves in total.  Fish and Wildlife says that gene flow is expected throughout this small group, but acknowledges that this may have to be agency-managed (explained later as "moving individual wolves or their genes into the affected population segment").  The distribution of wolf packs at the end of 2011 is illustrated in the second map.

The objective provided in the rules release is less than the current population of wolves, meaning that Fish and Wildlife is content to have the current populations hunted or exterminated in significant numbers.  The current numbers are stated as follows:

�By the end of 2011, the NRM [Northern Rocky Mountain] gray wolf population included a minimum population estimate of 1,774 wolves (including at least: 653 in Montana; 746 in Idaho; 328 in Wyoming; 18 in Washington; and 29 in Oregon) in 109 breeding pairs (including at least: 39 in Montana; 40 in Idaho; 27 in Wyoming; 2 in Washington; and 1 in Oregon).�

This means that the minimum objective being stated by Fish and Wildlife could effectively roll back the wolf population to the level that existed in the area around 1999 or 2000, with anything above that considered a buffer.  In responding to comments to its proposed rulemaking, Fish and Wildlife says the following:

�Although population decreases are expected in Idaho, Montana, and Wyoming, we expect that these reductions will be carefully managed so that populations are maintained well above recovery levels (perhaps around 1,000 wolves will be maintained across the NRM DPS long term). Our expectation for gradual reductions was verified in 2009 and 2011 (the first 2 years of State management including a hunting season) where the population remained relatively stable (technically, slight increases were documented each year) even in the face of substantial mortality levels. Measurable declines across the region are expected to begin to occur in 2012. In Wyoming, we expect the total statewide population will be reduced between 10 to 20 percent in 2012 with continued gradual reductions thereafter, if appropriate.�

The last phrase in this paragraph, �if appropriate,� seems nonsensical.  Why would it not be appropriate if the minimum levels of animals are being left alive? 

Wolves in Idaho, Montana, and Wyoming from 1980 to 2011

It is difficult to understand how such numbers�even assuming that the minimum numbers will for some time stay below actual numbers�can satisfy anyone that the population is sufficiently stable that the wolf can be labeled a game animal. Wayne and Hedrick (2011) asked "what will happen if western states allow the population to be hunted to the federal minimum requirement for recovery ...?  Such small populations would also be more vulnerable to random demographical and genetic affects and could sink far below the minimum numbers." Wayne, R., and Hedrick, P. (2011). Genetics and Wolf Conservation in the American West: Lessons and Challenges.  Heredity, 107, 16-19. DOI:10.1038/hdy.2010.147.  

Fish and Wildlife praises Wyoming�s decision to recognize that wolves in most trophy areas could never be considered predatory animals.  In other words, Wyoming has evolved from saying that you could sometimes shoot a wolf in the trophy area as a predator to saying that you need a hunting license to shoot a wolf in a trophy area.  This, according to Fish and Wildlife, is �a substantial improvement over current Wyoming law.�  Many more such improvements will probably make wolves extinct. (Hunting wolves in the European tradition was always intended to eliminate a competing predator, though ritual elements entered into hunting and capturing of wolves by North American Native Americans.  It is safe to say that for most of the hunters who will be bagging wolves in the trophy areas of Wyoming, this is target practice.)

How Wolves Will Be Hunted

Gray Wolf Hunt Areas Established by the Wyoming Game and Fish Department

To understand how Wyoming�s idea of conservation will actually work, one must look at materials on the website of the Wyoming Game and Fish Department (WGFD).  WGFD has established 12 hunt areas, as shown by the red lines on its map.  For each hunt area, there is a season, as indicated on the table of season dates provided in a brochure issued by WGFD.  For all but Hunt Area 12, the hunting season is from October 1 to December 31. 

Each hunt area has a mortality quota, ranging from 1 to 8, totaling 52 possible kills per year. See the table below.  If the mortality quota for a hunt area is reached before December 31, the hunting season closes in that area.  The regulations require that prior to hunting, �it is the hunter�s responsibility to confirm the hunt area the person intends to hunt is open.  The status of hunt area closures shall be available twenty-four (24) hours a day by calling toll-free 1-800-264-1280.� 

Gray wolves are to be taken only with firearms and archery equipment from a half hour before sunrise to a half hour after sunset.  It is illegal to take a gray wolf by using radio tracking equipment.  According to the Fish and Wildlife release, approximately 2,000 wolves in Idaho, Montana, and Wyoming have been radio-collared at one time or another, so presumably Wyoming is hoping that hunters won�t obtain equipment that can tap into the frequencies of the wolf collars.  Wyoming has begun putting radio collars on wolves in order to verify numbers. 

Each hunter is limited to one gray wolf per calendar year.  That applies, of course, to hunting of wolves, not to the elimination of wolves classified as predators.  Use of aircraft in hunting trophy animals is prohibited, though they may be used to pursue wolves in areas where they are deemed predators. 

Trophy wolf pelts are to be turned in for registration purposes:

�Hunters taking a gray wolf in the hunt areas � shall retain the pelt and skull from each gray wolf for registration purposes. Even if the skull is damaged, it shall accompany the pelt for registration purposes. Visible external evidence of sex shall remain naturally attached to the pelt. The pelt and skull shall be presented in an unfrozen condition to allow collection of biological samples and to determine the age and sex of the gray wolf.�

Hunt Seasons by Area. Section 4(i) provides that gray wolf hunting is closed in that part of Area 6 in the John D. Rockefeller Jr. Memorial Parkway.  Section 4(j) explains that in Section 12, gray wolfes are predators from March 1 to October 14.

The hunter is to call a toll-free number within 24 hours of taking a gray wolf and report where the kill occurred. Reporting is required of wolves taken as predators as well.  The pelt is to be turned in within five days, though this is not required if a wolf is taken in an area where it is deemed predatory. WGFD nevertheless encourages turning in predatory wolf pelts �to aid the department efforts to monitor wolf populations and genetic interchange throughout the state.� If the wolf was wearing an electronic device, that is also to be turned in, presumably to be worn by some other unlucky wolf. 

For Hunt Area 12, wolves are game animals from October 15 through the last day of February, though the hunting season ends on December 31.  They are predatory animals from March 1 through October 14.  No license is needed in the predatory period. It will be interesting to see how long wolves can be found in Hunt Area 12. I suggest that any documentary filmmaker pursuing this story focus on Area 12. 

Purchasing a gray wolf hunting license costs a resident of Wyoming $18, but a nonresident $180.  A conservation stamp costing $12.50 must also be purchased.  A nonresident cannot hunt a trophy game animal �unless accompanied by a licensed professional guide or a resident guide.� It is apparent that Wyoming does not even see allowing the hunting of wolves as a way of raising cash. 

Safe Areas

Hunting is prohibited in the Grand Teton National Park, but the preamble points out that most wolves that spend time in that park also spend time in areas near it where hunting will be permitted.  Apparently most wolves in Yellowstone National Park spend most of their time inside it, so they will at least have some peace as long as they remain conscious of Park boundaries.  The Forest Service has lands in Wyoming and other states with wolf populations, but the Forest Service �typically defers to States on hunting decisions.�  Thus, State-authorized hunting occurs in National Forests, Wilderness Areas, Wilderness Study Areas, and Bureau of Land Management lands. 

Conclusion

With these final rules, the Fish and Wildlife Service continues its theme-park approach to environmental conservation. It also continues to follow an agenda sympathetic to those political forces that always clamor for less regulation of anything for any reason.  Although this might sound like the beginning of a diatribe against Republicans, it is to be noted that much of the delisting activity is occurring under a Democratic administration. 

Fortunately for the wolves, environmental groups have lawyers and money and, according to news reports, a coalition of them is preparing a lawsuit.  The courts have helped the wolves before, when the Fish and Wildlife Service would not, and those of us who value these beleaguered ancestors of our dogs must hope they will do so again. 

Department of the Interior, Fish and Wildlife Service, Removal of the Gray Wolf in Wyoming From the Federal List of Endangered and Threatened Wildlife and Removal of the Wyoming Wolf Population�s Status as an Experimental Population,  77 Fed. Reg. 55530 (September 10, 2012)

VA Final Service Dog Rules Still Nix Psych Dogs, Hold to Foreign Outsourcing

Reference Note: An article appearing in the Quinnipiac Health Law Journal contains an incisive analysis of the VA's failure to provide service dogs for veterans with mental disabilities.  Alma Nunley (July 2014). Service Dogs for (Some) Veterans: Inequality in the Treatment of Disabilities by the Department of Veterans Affairs. Quinnipiac Health Law Journal, 17(2), 261-291. 

The Department of Veterans Affairs has finalized rulesproposed in 2011 on service dogs. The VA says that its proposal was not intended to provide guidance concerning what service dogs could have access to VA facilities, only on what types of service dogs would be funded.  Dogs for veterans with mental health disabilities will still not be funded, unless a dog also has a function relating to a veteran�s sight, hearing, or mobility impairment.  The requirement that dogs be certified by one of two foreign-controlled umbrella associations is retained, and indeed reinforced because the VA now states that an organization must be a full member, not merely a candidate member of either association. 

In the end, the proposed rules have been adopted with only minor alterations, and the VA still expects only to fund expenses related to 100 new dogs a year, two-thirds of which will be guide dogs.   The VA received 98 comments on the rules proposalit issued in June 2011.  The rules as modified become effective on October 5, 2012.  The final rule is reproduced in full at the end of this piece.

VA Defines Service Dog for Funding Purposes Only

The final rules define service dogs as �guide or service dogs prescribed for a disabled veteran�.�  Commenters had noted the circularity of the definition and had recommended that the VA adopt the definition given by the Department of Justice under the Americans with Disabilities Act.  The VA acknowledges that the definition is circular, but finds it adequate for its purposes and declines to change it, declaring that �the ADA and its implementing regulations are neither controlling nor informative with regard to the administration of benefits to veterans with service dogs.�  The circularity means that the VA has effectively avoided providing a useful definition. 

The VA says that its rules are designed for an entirely different purpose from the ADA:

�The ADA and its implementing regulations exclusively address the issue of access to public facilities by individuals with disabilities, whereas the purpose of [the VA�s] rule is to authorize benefits to a veteran with a service dog.  Access is not discussed in [the VA�s rules].�

This restricted objective of the VA rules is emphasized throughout the release accompanying the VA�s final rules. They are funding rules, not access rules. 

�We reiterate that this rulemaking does not address the issue of access to VA health care facilities by individuals accompanied by service dogs, and will not be used to determine whether a particular service dog will be allowed to enter a VA facility�. A certificate is required � only to enable the veteran to receive service dog benefits, but is not required to gain entry to VA facilities.  This rulemaking does not permit or prohibit the access of service dogs to VA health care facilities.� 

VA Drafting New Access Rule

The preamble notes that 40 U.S.C. 3103(a) states: �Guide dogs or other service animals accompanying individuals with disabilities and especially trained and educated for that purpose shall be admitted to any building or other property owned or controlled by the Federal Government on the same terms and conditions, and subject to the same regulations, as generally govern the admission of the public to the property.� 

The VA�s current access regulation, 38 CFR 1.212(a)(11), is much narrower: �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.�

The VA release states that �we are in the process of amending �1.218(a)(11) to be fully compliant with 40 U.S.C. 3103(a).� 

No Mention of Honoring America�s Veterans Act

The regulatory release makes no mention of the Honoring America�s Veterans and Caring for Camp Lejeune Families Act of 2012, P.L. 112-154, which contains a section entitled: Use of Service Dogs on Property of the Department of Veterans Affairs.  That section of the Act revises the security and law enforcement section that applies to property under the jurisdiction of the Department of Veterans Affairs, 38 U.S.C. 901, to include a new subsection stating:

�(f)(1) The Secretary may not prohibit the use of a covered service dog in any facility or on any property of the Department or in any facility or on any property that receives funding from the Secretary.

(2) For purposes of this subsection, a covered service dog is 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.�

This certainly looks like an access rule, though it only requires that access be provided to dogs that meet the criteria that are now being used for a funding rule.  It does not specify animals that are to be denied access.  In theory, then, the Department could expand its access rule to permit �the use of� a non-covered service dog as well. 

The fact that this section (38 U.S.C. 901) was not mentioned in the preamble to the regulations would suggest that the regulation writers were not aware of it when they completed writing the preamble.  Nevertheless, the Act was signed by President Obama on August 6 and there should have been time to add a reference to a release published in the Federal Register on September 5.  Whether the reg writers were sloppy or disingenuous is not clear. 

Service Dogs for Visual, Hearing, or Substantial Mobility Impairments

The final rules provide funding for dogs for veterans �diagnosed as having a visual, hearing, or substantial mobility impairment.� Benefits will not be provided �for a dog to mitigate the effects of a mental illness that are not related to visual, hearing or mobility impairments.�  The preamble clarifies that veterans �diagnosed with a hearing or visual impairment will certainly not be deemed ineligible for service dog benefits because they also have a mental health impairment.� 

As to mobility impairments, the VA states that �if a veteran�s mental impairment manifests in symptoms that meet the definition of �chronic impairment that substantially limits mobility� � and a service dog is clinically determined to be the optimal device to manage that mobility impairment, then such a veteran will be awarded service dog benefits.�  The dog must, however, �mitigate the effects of a visual, hearing, or mobility impairment.�  Thus, a dog that mitigates the effect of a mental illness of someone who has a hearing impairment, but which does not mitigate the effects of the hearing impairment (i.e., is not a hearing or signal dog) would not be funded by the VA.  If the dog alerted to an anxiety attack that produced a temporary deafness, but had no standard hearing dog functions, it would presumably also not be covered, unless this could be called a seizure disorder. Seizure disorders are specifically covered if the disorder �causes a veteran to become immobile during and after a seizure event,� so seizure alert dogs may be funded.  

Rationale for Not Covering Dogs for Mental Disabilities

The VA says that the reason it is not covering dogs for mental health conditions is �based on a lack of evidence to support a finding of mental health service dog efficacy.�  Citing �widely accepted training protocols� for guide, hearing, and mobility impairment dogs, the VA states:

�We are unaware of similarly vetted and accepted training protocols for mental health service dogs, or how assistance from such dogs could be consistently helpful for veterans to mitigate mental health impairments.� 

The VA does not dispute that many veterans have argued that mental health service dogs have improved the quality of their lives, but the agency insists that it �has not yet been able to determine that these dogs provide a medical benefit to veterans with mental illness.  Until such a determination can be made, VA cannot justify providing benefits for mental health service dogs.� 

This opens up the question of how a medical benefit from a mental health service dog (the release generally avoids using the term �psychiatric service dogs�) would be determined.  If a benefit is only demonstrated by a statistical improvement in generally accepted psychological measures in a clinical study of a sufficiently large sample of individuals using such dogs, then the VA can find some support for its position.  As described in a prior blog, the evidence from refereed psychiatric and psychological publications is inconsistent, with some studies finding improved psychological conditions and others not. If, on the other hand, a dog sits behind a veteran with PTSD in a movie line to give him some distance from those behind him while guarding his back, this may provide some temporary relief in a stressful situation and make it possible for the veteran to go to the movie in the first place. That is certainly a measurable benefit.  Guide dogs do not cure blindness, but they allow a blind person to function in ways that might otherwise be impossible.  It must be questioned whether the VA has posed the question of a mental health benefits from a service dog appropriately. 

Regardless of the ultimate criteria for determining effectiveness, more studies are in progress and the field of the psychological benefits of service dogs is not static.  The VA mentions a study in progress in Tampa, Florida.  A similar study was mentioned in a recent issue of the Army Medical Journal, as described in a prior blog.  It will be important to verify whether veterans and soldiers with service dogs reduce use of medications after getting dogs. 

The VA says here, as it had previously stated in its 2011 proposal, that although Congress has given it the authority to provide �service dogs trained for the aid of persons with mental illnesses, including post-traumatic stress disorder, to veterans with such illnesses� who are eligible for VA benefits, the statute, 38 U.S.C. 1714(c)(3), does not require it to do so.  The VA states that �if we ultimately determine that mental health dogs are appropriate treatment tools for mental health impairments, we will amend our regulations to authorize benefits for such dogs.� 

Requirement of Certification by Members of Foreign-Controlled Organizations  

Numerous commenters had criticized the VA�s outsourcing of service dog qualification to the International Guide Dog Federation (IGDF) and Assistance Dogs International (ADI) but the VA is holding fast to this approach. 

�There are no Federal standards for service dog training that we can apply, and VA does not have the expertise to design its own accreditation program or standards.  ADI and IGDF are national, industry-recognized organizations with established and proven training criteria.� 

The word �national� is not correct, unless it is meant to indicate that these organizations operate in the United States.  IGDF is headquartered in England, its director is Canadian, and only one of its seven directors is located in the U.S.  ADI gives contact information for a Santa Rosa address, but its president, vice-president, and four of its seven board members are not in the U.S. 

The VA notes that, for other accreditation purposes, it relies on a number of organizations, including (1) Centers for Medicare and Medicaid Services, (2) the National Fire Protection Association, and (3) State licensing organizations for health care professionals.  This is undoubtedly true, but all of these instances of accreditation outsourcing involve organizations based in the United States.  With IGDF and ADI, the VA is allowing policy decisions to be made overseas. 

Effect of Limiting Dogs to ADI and IGDF Organizations

The VA acknowledges that �not all States have registered ADI-accredited or IGDF-accredited organizations, but argues that its final rules �provide for the reimbursement of travel expenses associated with the training a veteran must complete as offered by an ADI-accredited or IGDF-accredited organization.�  Because the VA will pick up the travel expenses, �we do not believe the absence of ADI-accredited or IGDF-accredited organizations in a particular State will serve as a barrier to obtaining a service dog.�

Traveling to obtain a dog is a severe problem for active duty military personnel, who are not (yet) veterans covered by the VA�s rules, but who must now operate under rules that the Army has adopted that use the same organizational approach as used by the VA.  That is not the VA�s problem, however.

Full Membership in ADI and IGDF Required

In commenting on the VA proposal in August 2011, I had asked: �Are candidate organizations of the umbrella groups to be authorized to certify service dogs for veterans, given that their candidacies may not ultimately result in full membership?�  To me or someone who asked the same thing, the VA states:

�We clarify for one commenter that VA only intends to recognize those service dog organizations that have full membership in ADI or IGDF, or that are fully ADI or IGDF accredited, versus those organizations in the process of becoming ADI or IGDF accredited.� 

This substantially cuts the potential supply of service dogs, since there are many organizations in candidate status with ADI.  The VA also noted that commenters had argued for �owner training,� but the agency declined to fund dogs trained in this manner, or trained in any manner by an organization not a full member of ADI or IGDF. 

The VA specifies that it �will not formally refer veterans to specific ADI-accredited or IGDF-accredited organizations, or initiate a process whereby a veteran may consent to have the VA act as an intermediary between the veteran and the service dog organization.�  Clinical staff will be able to give patients website information where they may find the nearest ADI- or IGDF-accredited organization, but the VA clearly wants to keep its distance from the process of actually getting the veteran a dog.  One senses a certain concern about liability here.  If the veteran provides a poorly functioning dog, the VA can insist that it only made a recommendation, not that it approved a specific organization or a specific dog. 

Service Dog Must Be an Optimal Device

Many commenters were surprised that the VA anticipated funding only about 100 dogs per year to veterans.  How that number was calculated will be discussed below, but the way that the VA may assure not having to fund more is the principle that it incorporates into the rule that a service dog must be �the �optimal� device for the veteran to manage his or her impairment and live independently.�  The VA elaborates:  �[S]ervice dog benefits will not be provided if other assistive means or devices would provide the same level of independence as a service dog.� 

The VA acknowledges that �an eligible veteran may be prescribed both a service dog and another assistive device, as long as each provides a distinct type of assistance, or if, without each of the devices, the veteran would be unable to complete tasks independently.�  Thus, a veteran might be prescribed both a balance cane and a service dog, where the balance cane is optimal for walking, but the service dog is the best way to �regain a standing position and stabilize after a fall.� 

The VA states its reason for treating service dogs as secondary to other assistive devices:

�A service dog is a long term commitment that requires tremendous dedication and effort on the part of the veteran, as well as significant costs�only part of which would be paid for by VA�. A service dog must be fed, exercised, groomed, nursed when ill, and integrated into the veteran�s family as a necessary partner in the veteran�s daily life. If the extent of the veteran�s mobility impairment is such that the only tasks requiring assistance are picking up or reaching items, then a device that is not a service dog that fully accomplishes these tasks is not only sufficient, but also is not unduly burdensome for the veteran.�

Thus, if a cane works as well as a dog, the cane will be prescribed, the dog will not.  The fact that the dog adds emotional support to physical support will not be taken into account.  �Congress authorized VA to provide service dogs to veterans with disabilities as a means of mitigating the effects of a disability�and not for the purpose of companionship or emotional support.�  The VA also says that cost will not enter into its decision as to what devices to supply to a veteran. 

Expanding the example of the last paragraph, it is also apparent that if the dog is not optimal, not only will the cane be prescribed, but any mental illness that the veteran has on top of the mobility impairment will be treated by means other than a dog.  So if the soldier could use a dog just as well as a cane, and would not have to take as many psychotropic medications if he had a dog, the dog will still not be prescribed because it is not optimal for the mobility impairment.  As stated previously, the �service dog benefits will not be provided if other assistive means or devices would provide the same level of independence as a service dog.�  

Would a VA treatment team be able to argue that a service dog provides greater independence because the psychotropic medications have side effects that reduce the patient�s ability to function independently?  Perhaps, but this would seem to stretch the wording of the release well beyond what the reg writers intended. 

Who Determines What is Optimal?

The proposed rules specified that a VA clinician using medical judgment was to determine if a service dog was optimal.  The VA agreed with commenters who suggested that other professionals might appropriately be involved, including prosthetic staff and rehabilitative therapy staff who are members of an interdisciplinary team.  The VA clinical team will thus include �the veteran�s primary healthcare provider, and any other relevant specialty care providers and professional staff, to include prosthetic, and rehabilitative therapy staff.� 

What VA Will Pay For

The final rules follow the concept of the proposed rules in specifying that the VA will not buy service dogs for veterans.  Of course many organizations do not sell service dogs to end-users because they want to retain the ability to take the dog back if it is not being properly cared for or not being used for its intended service.  In any case, the VA is correct that �a majority of service dogs are acquired by veterans with little or no out of pocket cost.� 

The VA will pay for �repairing and or replacing harnesses or other hardware, providing annual and emergent veterinary care, providing prescription medications, or paying for other services when prescribed by a veterinarian.� 

The VA will not pay for grooming, nail trimming, non-sedated teeth cleaning, nonprescription medications, and nonprescription food and dietary supplements.  The VA will also not pay for standard nonspecialized leashes and collars and dog licenses.

Benefits will generally not be provided for more than one service dog at a time.  Thus, the VA will not pay expenses for a service dog that has been retired.  The final rule adds a provision that is a limited exception to the one-dog rule:

�VA will provide payment for travel expenses related to obtaining a replacement service dog, even if the veteran is receiving other benefits under this section for the service dog that the veteran needs to replace.�

Service Dogs Obtained before October 2012

The VA states that �we accept a certificate from a non-ADI or non-IGDF organization that existed before the effective date of the final rule as proof that the veteran�s service dog has successfully completed an adequate training program, and that a veteran who otherwise meets the criteria in the rule may receive applicable benefits.�  The VA says that it is essentially grandfathering service dogs acquired before the effective date of the final rule by not requiring these dogs to have ADI or IGDF certification. 

There appears to be a logical inconsistency here.  An organization that is a candidate member of IGDF or ADI cannot certify a dog either before or after the effective date of the final rules, i.e., October 5, 2012.  An organization that never applied for ADI membership can do so up to that date.  

The preamble adds one curious sentence:

�In response to commenters� concerns that ADI-accredited organizations will not certify service dogs that were not also initially trained there, VA will ensure through continued workings with ADI-accredited and IGDF-accredited organizations that there exists a mechanism to provide such certification.� 

What �continued workings?�  In a 2010 audit of the VA�s Service Dog Program (10-01714-188), the VA Inspector General mentions that the VA signed a Memorandum of Understanding with Assistance Dogs International �to gain their assistance in preparing educational materials for providers and veterans.�  This MOU would not seem to cover the continued workings discussed here.  In any case, the VA apparently anticipates the possibility of having to pressure an accredited organization to work with a veteran who has a dog but no certification from a non-accredited organization.  Presumably ADI will have to contact member organizations and inform them of the advisability of cooperating with the VA on providing a certification for a previously trained dog.  It will be very interesting to see how all this works in practice, and I encourage anyone who gets into this situation to publish or post their experience.

In the few hours since this blog was first posted, I have been advised that at least one ADI member organization believes it will not be able to provide any certification for dogs it has not trained because its insurance policy would not cover such an activity.  Insurers in this business are likely to follow suit in interpreting policy provisions. It will be interesting to see if the VA comes up with a Plan B.  The easiest solution for many organizations will simply be to deny any applicant seeking a secondary certification, regardless of the quality of the dog and despite the language in the release.  

Service Dog Insurance Policies

The VA says that it �has researched the commercial market and anticipates that VA will be able to contract� that will mean that veterans will not have to pay any out of pocket costs for covered veterinary care and treatment costs.�  Because of concerns expressed by commenters, the final rule bars the billing of veterans for covered costs.  The VA says it �will consult with ADI, IGDF, and the American Veterinary Medical Association to ensure that the most comprehensive policy, specific to the needs of service dogs, is chosen.�    

Presumably, despite the foreign control of two out of three of the organization with which the agency will consult, the insurer will be U.S. based. Presumably also, due diligence should assure that the insurer has no direct or indirect connection with the designated umbrella organizations or members of those organizations.  

Number of Dogs VA Expects to Fund

The 2011 proposed rules estimated that 100 new service dogs would be provided to veterans annually.  Commenters objected that this was too low an estimate.  The preamble says that �100 is not an estimate of the number of veterans who may need a service dog.�  Rather, the number �was based on the number of veterans who sought to receive new guide dog benefits in fiscal year 2010 � which was 66, plus an additional number of veterans we estimated who would seek to receive new � service dog benefits for hearing and mobility impairments.�  Thus, the VA estimated that only 34 hearing and mobility impairment dogs would be needed to satisfy the demand created by VA system recommendations for such dogs as an �optimal device.� 

This highly questionable arithmetic will produce a very small number of dogs needed and one wonders what will happen if more recommendations than are being budgeted for start to come in.  A Republican administration, perhaps even a Democratic administration, may not be terribly flexible about making an adjustment to a figure that appears to have been calculated through use of a dart board.  Nevertheless, the VA insists that it has �no financial motive to underreport the estimated number of respondents.� 

Conclusion

It is unfortunate that the VA has chosen to ignore those veterans who have obtained service dogs for mental disabilities, but it is my opinion that this is not at present a litigable issue.  The VA is awaiting research results and has closed the door only for the present. 

The fact that the VA does not see its rules as defining service dog access would be a great relief to many veterans were it not that the Honoring America�s Veterans Act seems to include contrary language.  Also, the Army has been adopting access policies based on the same sort of foreign outsourcing approach that appears to have been blessed by Congress in the Act, so no one with a non-ADI or �IGDF service dog should rest easy until a final rule gives them access rights. 

The VA�s determination to give control of service dog qualification to two foreign-controlled organizations is tantamount to providing government contracts to a very limited number of bidders, and may have a significant impact on the economics of the service dog industry.  This is something that has happened in military contracts for working dogs, which I discussed in a blogtwo years ago.  There is a major difference, however.  With contract working dogs for military operations, the Department of Defense is paying for the services provided by the contractors, including the use of dogs over their useful lives, and due diligence is required for the spending of federal tax dollars on such contracts.  Awards are subject to review and can be overturned by the Government Accountability Office or by the courts, as happened with multi-million dollar contract I described in that blog. 

With service dogs, the veterans may have to pay for the dogs themselves and if a veteran can find a dog with the necessary skills by going to an individual trainer or small business that trains service dogs at a lower cost than an established charity, he or she should not be precluded from using such a resource.  By excluding funding for dogs trained outside of approved channels, the VA is essentially supporting a segment of the industry based not on the quality of its product but rather on the source of its product. The VA was able to do this without holding a public hearing on its proposed rulemaking, or by giving any consideration to approaches used by other federal agencies, including the Departments of Justice, Transportation, and Housing and Urban Development, all of which developed the sort of expertise the VA and the Army seem to find unattainable.  By insisting that its lack of expertise with service dogs excuses it from developing its own criteria for evaluating them, the VA has just awarded a very large government contract without any due diligence whatsoever.   

The final rule is reproduced below.

Thanks to Joan Esnayra, Debbie Kandoll, Leigh Anne Novak, Hilary Phillips, and Dailyah Rudek for comments and corrections, though I must acknowledge that I have not always followed their sound advice. I am solely responsible for all errors in fact or judgment.   

38 CFR 17.148 Service Dogs

(a) Definitions. For the purposes of this section: Service dogs are guide or service dogs prescribed for a disabled veteran under this section.

(b) Clinical requirements. VA will provide benefits under this section to a veteran with a service dog only if:

(1) The veteran is diagnosed as having a visual, hearing, or substantial mobility impairment; and

(2) The VA clinical team that is treating the veteran for such impairment determines based upon medical judgment that it is optimal for the veteran to manage the impairment and live independently through the assistance of a trained service dog. Note: If other means (such as technological devices or rehabilitative therapy) will provide the same level of independence, then VA will not authorize benefits under this section.

(3) For the purposes of this section, substantial mobility impairment means a spinal cord injury or dysfunction or other chronic impairment thatsubstantially limits mobility. A chronic impairment that substantially limits mobility includes but is not limited to a traumatic brain injury that compromises a veteran�s ability to make appropriate decisions based on environmental cues (i.e., traffic lights or dangerous obstacles) or a seizure disorder that causes a veteran to become immobile during and after a seizure event.

(c) Recognized service dogs. VA will recognize, for the purpose of paying benefits under this section, the following service dogs:

(1) The dog and veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation, or both (for dogs that perform both service- and guide-dog assistance). The veteran must provide to VA a certificate showing successful completion issued by the accredited organization that provided such program.

(2) Dogs obtained before September 5, 2012 will be recognized if a guide or service dog training organization in existence before September 5, 2012 certifies that the veteran and dog, as a team, successfully completed, no later than September 5, 2013, a training program offered by that training organization. The veteran must provide to VA a certificate showing successful completion issued by the organization that provided such program. Alternatively, the veteran and dog will be recognized if they comply with paragraph (c)(1) of this section.

(d) Authorized benefits. Except as noted in paragraph (d)(3) of this section, VA will provide to a veteran enrolled under 38 U.S.C. 1705 only the following benefits for one service dog at any given time in accordance with this section:

(1) A commercially available insurance policy, to the extent commercially practicable, that meets the following minimum requirements:

(i) VA, and not the veteran, will be billed for any premiums, copayments, or deductibles associated with the policy; however, the veteran will be responsible for any cost of care that exceeds the maximum amount authorized by the policy for a particular procedure, course of treatment, or policy year. If a dog requires care that may exceed the policy�s limit, the insurer will, whenever reasonably possible under the circumstances, provide advance notice to the veteran.

(ii) The policy will guarantee coverage for all treatment (and associated prescription medications), subject to premiums, copayments, deductibles or annual caps, determined to be medically necessary, including euthanasia, by any veterinarian who meets the requirements of the insurer. The veteran will not be billed for these covered costs, and the insurer will directly reimburse the provider.

(iii) The policy will not exclude dogs with preexisting conditions that do not prevent the dog from being a service dog.

(2) Hardware, or repairs or replacements for hardware, that are clinically determined to be required by the dog to perform the tasks necessary to assist the veteran with his or her impairment. To obtain such devices, the veteran must contact the Prosthetic and Sensory Aids Service at his or her local VA medical facility and request the items needed.

(3) Payments for travel expenses associated with obtaining a dog under paragraph (c)(1) of this section. Travel costs will be provided only to a veteran who has been prescribed a service dog by a VA clinical team under paragraph (b) of this section. Payments will be made as if the veteran is an eligible beneficiary under 38 U.S.C. 111 and 38 CFR part 70, without regard to whether the veteran meets the eligibility criteria as set forth in 38 CFR part 70. Note: VA will provide payment for travel expenses related to obtaining a replacement service dog, even if the veteran is receiving other benefits under this section for the service dog that the veteran needs to replace.

(4) The veteran is responsible for procuring and paying for any items or expenses not authorized by this section. This means that VA will not pay for items such as license tags, nonprescription food, grooming, insurance for personal injury, nonsedated dental cleanings, nail trimming, boarding, pet-sitting or dog-walking services, over-the-counter medications, or other goods and services not covered by the policy. The dog is not the property of VA; VA will never assume responsibility for, or take possession of, any service dog.

(e) Dog must maintain ability to function as a service dog. To continue to receive benefits under this section, the service dog must maintain its ability to function as a service dog. If at any time VA learns from any source that the dog is medically unable to maintain that role, or VA makes a clinical determination that the veteran no longer requires the dog, VA will provide at least 30 days notice to the veteran before benefits will no longer be authorized.