VeteransFirstActYesterday, the leaders of the Senate Committee on Veterans Affairs held a press conference to announce that they had reached an agreement on a piece of legislation that would bring changes to many areas of the VA. The bill, known as the “Veterans First Act,” is the product of intense negotiations among Senators from both parties in recent months. The 391-page bill contains provisions dealing with accountability, healthcare, compensation, education, homelessness, and more. Below, we’ve summarized some of the key provisions.

Accountability

If you’ve been following the various VA scandals in recent years, then many of the bill’s provisions concerning accountability may sound familiar to you. The Veterans First Act would give the VA Secretary more authority to hire and fire employees, and allow him to make his personnel decisions more quickly. It would also limit the amount of time that employees can be placed on “paid administrative leave” to prevent bad actors from collecting government salaries during lengthy investigations. Under the bill, healthcare executives who lead a VA medical center would be entitled to significant pay raises to match what they would earn in the private sector. Perhaps most interestingly, the bill would establish an independent office within the VA known as the “Office of Accountability and Whistle-blower Protection.”

Health Care

Regarding healthcare, the proposed legislation would require the VA to make prompt payment to private facilities that have agreed to participate in the Veterans Choice program. This provision was likely included in response to the many headlines alleging that the VA owes millions of dollars to outside facilities, and that some private providers were electing to abandon the program altogether because they weren’t being paid. The bill would also expand the rules allowing family members to serve as caregivers for severely disabled veterans, and make it easier for the agency to hire mental health professionals. Additionally, the bill would attempt to address the over-prescription of opiate painkillers.

Disability Compensation

The proposed legislation would require the VA to launch a voluntary pilot program under which veterans who opt-in are forbidden from submitting additional evidence after filing a Notice of Disagreement. In exchange for giving-up this important right, veterans in the pilot program would skip the issuance of a Statement of the Case and go straight to the Board of Veterans’ Appeals where they would receive a final decision within one year of filing their Notice of Disagreement. The bill would also make it easier for the survivors of recently deceased veterans to receive benefits, and would increase the oversight of VA Regional Offices by permitting reviews by the Government Accountability Office.

Education & Employment

The Veterans First Act would expand the availability of Post-9/11 GI Bill funds to mobilized reservists, and authorize additional educational benefits to the spouses and children of veterans. It would also permit the VA to reinstate a veteran’s educational benefits in the event that the school the veteran was attending permanently closes. The bill would also require the VA to coordinate with the Department of Labor and state agencies to help increase the availability of jobs for veterans, and would require a non-governmental study of job counseling, training, and placement services for veterans.

Homeless Veterans

Homelessness among veterans has been a widely-discussed topic in recent years, and the proposed legislation aims at further reducing the number of veterans without a roof over their heads. Among the provisions of the bill is one would would expand the definition of “homeless” to include those veterans who are escaping from domestic violence, thus increasing the availability of benefits and services to such veterans. The bill would also expand the eligibility of the Department of Labor’s Homeless Veterans’ Reintegration Program and authorize the VA to form partnerships in order to provide legal services to homeless veterans.

U.S. Court of Appeals for Veterans Claims

The proposed legislation would once again reauthorize the temporary expansion of the Court from seven to nine judges through the end of the year 2020. This represents a compromise from what has been proposed by several lawmakers and veterans’ advocates which would make the increase to nine judges permanent. Additionally, the Veterans First Act would change some rules concerning the availability of certain benefits for judges, and would alter the manner in which the Chief Judge of the Court was determined.

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Overall, we are pleased with the provisions of the proposed legislation. We will say that we were somewhat surprised that the bill does not contain a complete overhaul of the Veterans Choice program, which has drawn much scrutiny for its failure to reduce the delays veterans face in receiving healthcare. The expansion of the Veterans Court is an important step, but we’re disappointed that Congress hasn’t decided to require more decision-makers in the locations they are most needed: at the Board of Veterans’ Appeals. Finally, we’re skeptical of the proposed pilot program for streamlining the appeal process because, simply put, it misidentifies the problem. The issue with appeals has never been that veterans are bogging-down the process by submitting new evidence, its that the VA doesn’t have adequate procedures or sufficient staff to handle the number of claims it receives. Thankfully, for now at least, the Pilot program is only a test.

The bill represents only a proposal from the Senate, and differs in some key ways from what has been proposed over in the House. We expect there to be some changes to the ultimate legislative package that reaches the President’s desk, and we will do our best to keep you posted on future developments.

ChoiceAct-NewDevelopmentDuring a hearing today before the House Committee on Veterans Affairs, several high-ranking VA officials outlined the agency’s plans to overhaul the Veterans Choice program. That program–created in response to scandals concerning the amount of time veterans were waiting for medical appointments–has faced criticism since its implementation last year that it was overly bureaucratic and did not achieve its intended goals. During the hearing, VA officials told Congress that the current system is simply “too complicated.”

The new plan would expand veterans access to healthcare outside the VA system by consolidating various existing programs into larger integrated networks across the country. In his prepared remarks, Deputy Secretary Sloan Gibson said that the changes to the program “will clarify eligibility requirements, build on existing infrastructure to develop a high-performing network, streamline clinical and administrative processes, and implement a continuum of care coordination services.” One of the most notable changes revealed in the VA’s new proposal is the establishment of “a single set of eligibility criteria” for access to private doctors on the VA’s dime. Under the current system, access to outside providers is limited by numerous factors that are confusing to veterans, doctors, and VA employees alike.

The VA said it would need an initial $421 million in the year 2016 to get its ambitious program off the ground. Some lawmakers seemed skeptical of the revised program, with Representative Mark Takano of California saying that the “VA does not have a great track record when it comes to implementation.” But other representatives were quick to jump to the defense of the proposal, with Representative Tim Walz of Minnesota calling the plan “the silver lining out of Phoenix,” a clear reference to the 2014 scandal involving manipulation of wait time data at Arizona facilities.

Yet one of the most significant themes from certain members of Congress was a concern that this was a privatization measure. To this, Assistant Deputy Undersecretary Baligh Yehia  simply said that it did not make economic sense to “provide every [medical] service in every location to every single veteran.” Committee Chairman Jeff Miller of Florida echoed this sentiment saying that the program would “supplement, not supplant” the current VA healthcare system.

Detailed information on the VA’s new plan is sparse as of now, but a general overview can be obtained from reading Gibson’s prepared remarks. We will follow this story and keep you updated as more detailed information becomes available.

More often than not, Congressional hearings are excruciatingly boring. Today’s subcommittee hearing was no different. Luckily for you, I watched the hearing so you don’t have to. You can read my summary below. If however, you have a lot of time to kill, you can watch the full hearing above.

The Subcommittee on Health of the House Veterans Affairs Committee met today to hear remarks on a number of pieces of legislation which would impact healthcare for our nation’s veterans. The goals of these bills varied from decreasing wait times to improving care options for survivors of sexual assault. Given that these bills are very early in the legislative process, it is difficult to know what chance they stand at becoming law, but the fact that a hearing was held at all may be seen as encouraging.

ORourkeOne of the more interesting pieces of legislation discussed during the hearing was the Ask Veterans Act (H.R. 1319). To introduce his bill to the committee, Representative Beto O’Rourke of Texas (pictured) described how, after raising concerns about wait times with VA Officials, the VA told him that what he was “dealing with here are some cranky ornery veterans” and that  “some of these folks you just can’t make them happy.” Because something just didn’t add up between the stories he heard from veterans and the VA’s statements that the vast majority of veterans saw doctors within 14 days, he commissioned a study to determine whether the veterans he spoke with were exaggerating or if the VA was being misleading. His study found that “on average, veterans in El Paso waited over 80 days for a primary care appointment, and over 70 days for a mental healthcare appointment.”

Based on these experiences, O’Rourke crafted the Ask Veterans Act which “would simply require that the VA contract with an independent third party to assess true wait times.” Unlike some VA data which is essentially hidden from the public, O’Rourke’s bill would require the VA to “publish these reports publically on the web for everyone to see and to be held accountable.” This bill stands-out among those discussed during the hearing, and we are hopeful that independent oversight of the VA will become a reality through this legislation.

MosleyNext up was the Military SAVE Act (H.R. 1603) which would amend the Choice Act to allow veterans who were the victims of military sexual trauma to receive treatment at non-VA facilities. The most powerful testimony of the entire hearing came from Susan Moseley (pictured), a veteran who faced sexual assault by a superior during her service. After her discharge, Moseley faced a difficult life but, after sixteen years, was able to find a VA therapist who could help her. Unfortunately, due to staffing burdens, she could only see that therapist once every three weeks. “That was all the VA could offer us,” she said. The Military SAVE Act would answer the lack of specialized VA therapists by allowing survivors of military sexual trauma to seek outside treatment. As explained by LaRanda Holt of American Legion, “this is about trying to find the right treatment and therapy for every veteran, and in the case of [military sexual trauma], unique circumstances can shape treatment and therapy needs.” As people who have represented victims of military sexual trauma in our professional lives, we unreservedly support the Military SAVE Act.

RobyThe only legislation to face any obvious opposition from members of the subcommittee was the Failing VA Medical Center Recovery Act (H.R. 3234). The bill’s sponsor, Representative Martha Roby of Alabama, explained the goals of her bill by saying, “similar to how a state superintendent would take-over the day-to-day operations of a failing school, this legislation requires the establishment of highly-specialized teams to take over the day-to-day operations of the worst VA facilities in the nation.” According to Roby, the worst of the worst among VA medical centers would be managed directly from Washington until they were able to improve. Representative Phil Roe of Tennessee questioned the wisdom of the bill, observing that “just because the VA gets centralized doesn’t mean it gets better.” Citing issues with the Choice Act, Representative Roe expressed that he was “not sure making it more bureaucratic and putting it up to people who are in charge [in Washington] who weren’t successful to begin with is going to work.” While this legislation may sound good at first blush and has some admirable goals, we share Representative Roe’s concern that more bureaucracy might not be the right solution to the problem.

During its hearing, the committee also heard about bills that would address more technical concerns about the delivery of VA healthcare. Citing an instance where a veteran was nearly thrown from his vehicle due to an incorrectly installed chair lock and a case where a veteran’s bumper was ripped-off by a wheelchair lift, Representative Jackie Walorski advocated for her bill (H.R. 3471) which would impose licensing standards on contractors who install wheelchair lifts and similar equipment on vehicles for disabled veterans. Also addressed was a bill (H.R. 1904) aimed at increasing the number of professionals who create prosthetics for veterans by issuing grants to colleges and universities that establish programs to train such workers. Highlighting the importance of such action, the bill’s sponsor Representative Matthew Cartwright of Pennsylvania stated that the number of veteran’s requiring prosthetics has increased 300% since 2000, yet there is a shrinking workforce of professionals who create their prosthetics. The committee also heard testimony on a hyper-technical piece of legislation that would redefine the qualifications for Marriage and Family Therapists employed by the VA (H.R. 2639).

Also discussed were several proposals which have not yet been introduced, including legislation aimed at dealing with over-prescription of narcotic pain killers as well as a proposal that would better facilitate the VA’s arrangement of outside healthcare. We will be certain to keep you posted once ink meets paper on these proposals.

By nearly any metric, the Department of Veterans Affairs usually fails to achieve its mission of caring for veterans.  I’m sure that there are many categories which could be measured, but what good is any measurement if the results are kept a secret.  I don’t trust the VA to be either transparent or honest about its metrics, but if VA were more transparent, it would be a lot harder to be dishonest about its measurements.

VA maintains detailed, internal measurements about its performance in a multitude of categories, but these statistics are neither revealed to the public nor readily available to public inquiry.  Indeed, the only time that most of VA’s internal statistics come to light is when they are revealed to legislators as part of testimony to Congress.

Congress can mandate transparency, and indeed, Congress has mandated VA transparency in the past.

A number of years ago, Congress passed a law that requires the Chairman of the Board of Veterans’ Appeals to publish an annual report.  Although there hasn’t been a Chairman at the Board for a number of years (which is a story for another day), the Board is still required to publish the annual report each year.

The Board is required to report its activities during that year and the projected activities of the Board for the current and subsequent years.  Further, the Board must provide very detailed statistics in a number of categories.  For instance, the Board reports the number of decisions it issues, and the disposition of those decisions.  For example, there were 10,876 denials of compensation claims in fiscal year 2014.

The report also lists the average amount of time it takes VA to complete certain actions.  For example, the Board reported that the average length of time between the filing of an appeal and the Board’s decision of the appeal was 1,038 days in 2014.  In other words, the Board reported that it took nearly 3 years to decide an appeal.

Of course, this statistic is important, but it’s terribly misleading.  It’s misleading because it doesn’t take into account the time it takes for VA to issue a statement of the case after receipt of a notice of disagreement, which is an average 330 days. If you add in this time, it takes the Board nearly 4 years to decide an appeal.

Now that VA has revealed these statistics, the question becomes “Should it take VA four or five years to decide an appeal filed by a veteran or a widow?”  Asked in a different way, should a disabled veteran who is homeless have to wait four or five years for VA to decide his appeal?  What if that veteran had to wait a year for VA to make the initial decision before he filed an appeal?  Is VA achieving its mission if a disabled veteran has to wait four or five years for benefits?

Metrics, the measurement of certain processes, are important.  VA compiles these statistics daily, weekly, and monthly.  They aren’t always honest about their numbers, but they are under no legal obligation to reveal their numbers publicly.  Perhaps by next Veterans Day, VA will be required to publish their compiled statistics weekly, monthly, and annually.  I call on them to do just that.

Over the years, there have been many attempts to solve the issue of delays faced by veterans seeking VA benefits. One attempt to solve the delay issue in the appeals context came when the VA, in 2001, created a rule allowing  the Board of Veterans’ Appeals to obtain and consider new evidence without telling a veteran about that evidence or sending the appeal back to the VA Regional Office where the claim began. The VA’s rule was invalidated by the courts , essentially because it violated veterans’ right  to have an initial decision from the VA before receiving a final decision from the Board. This right is designed in a way that allows the veteran to know about the evidence that VA is considering when deciding his or her claim.

Earlier this year, Representative Jeff Miller of Florida introduced proposed legislation  which would allow the Board to obtain new evidence and prohibit the Board from ever sending a case back to a VA Regional Office. Information on this bill is scarce, but it has already  cleared a House subcommittee and is now pending before the House Veterans Committee on Veterans Affairs. If enacted as law, this bill would resurrect the VA’s rule from 2001 that was invalidated by the courts, and could have serious consequences for veterans seeking benefits.

Any attempt to speed-up the VA process should be applauded. Unfortunately, while the legislation proposed by Representative Miller would likely decrease delays, it would also trample on the rights of deserving veterans. This is because the proposed legislation is simply too vague. It is only a few sentences long, and would give  the Board broad authority to “take such steps as may be necessary to develop the evidence necessary to make a decision in the case.” This provision is not altogether a bad idea because, at least in theory, it would allow the Board to obtain evidence rather than subjecting veterans to months or years of delay by instructing a Regional Office to obtain the same evidence. What is missing, however, is a provision that safeguards the Constitutional Due Process rights of our veterans.

Broadly speaking, the Fifth  and Fourteenth  Amendments to the Constitution protect your “Due Process” rights, and entitle you  to “notice and an opportunity to be heard” before the government deprives you of “life, liberty or property.” Courts have specifically said  that veterans seeking VA benefits have a “property interest” in obtaining VA benefits, and thus the VA cannot deny you of your benefits without giving you “notice and an opportunity to be heard.” So what does this mean for veterans seeking benefits? It means that the Board should not be allowed to obtain and consider evidence without telling you about that evidence and offering you an opportunity to challenge it. For example, the VA should not be allowed to obtain a negative medical from a doctor and then deny your claim based on that opinion without telling you first.

The bill proposed by Representative Miller might be a smart way to speed-up the appeals process. But it should not become law unless it contains specific provisions requiring the Board to provide you with notice of any evidence that it obtains as well as an opportunity to challenge that evidence. We already saw, in 2001, that the VA wants to obtain evidence without telling veterans, and it seems that this bill could allow it to do so again. Unless the proposed legislation contains language specifically protecting veteran’s rights, we urge Congress to reject the bill and encourage you to do the same. Click here  to find your Representative and contact them to tell them to oppose “H.R. 1379” unless it protects veterans’ Due Process rights.

Every once in a while, we like to take a look at Congress to see what our elected representatives have proposed to help our nation’s veterans. We may have covered some of these bills in detail already, and may do so in the future for others, but today we want to give an overview of a few bills which could affect your claims for benefits if they were to become law. Unfortunately, due to the realities of Congress, most of these bills have little chance of being enacted.

  • Faster Decisions for Certain Veterans
    • Summary: There is currently no procedure for expediting a claim pending before a VA Regional Office, but both the Board  of Veterans’ Appeals and the U.S. Court  of Appeals for Veterans Claims have a procedure in place. Representative Paul Cook of California has introduced legislation which would expedite claims at the Regional Office for veterans who are over the age of 70, are terminally ill, or who are suffering from a life-threatening illness.
    • Bill Number: H.R. 2286
    • Sponsor: Representative Paul Cook (California)
    • Cosponsors: 0
    • Introduced: May 13, 2015
    • Current Status: Pending before a subcommittee in the House
  • More Judges for the Veterans Court
    • Summary: As we explained previously , the number of judges on the U.S. Court of Appeals for Veterans Claims will shrink back to seven without action from Congress. Representative Ryan Costello of Pennsylvania has introduced a bill  in the House which would permanently increase the number of judges on the court to nine. Senator Jeanne Shaheen has introduced a similar bill in the Senate.
    • Bill Number: H.R. 1067(House)/S. 1754 (Senate)
    • Sponsor: Representative Ryan A. Costello (California, House)
      Senator Jeanne Shaheen (New Hampshire, Senate)
    • Cosponsors: 1 (House)/1(Senate)
    • Introduced: February 22, 2015 (House)/July 14, 2015 (Senate)
    • Current Status: Pending before full Committee, hearing held (House & Senate)
  • Agent Orange Exposure & “Blue Water” Veterans
    • Summary: Veterans who served aboard Navy ships off the coast of Vietnam have long been deprived of benefits  relating to Agent Orange exposure. A bill which would redefine the meaning of “Vietnam” to include its territorial waters has been introduced in both the House  and the Senate  and would finally allow these veterans to receive compensation for disabilities related to Agent Orange exposure.
    • Bill Number: H.R. 969 (House)/S.681 (Senate)
    • Sponsor: Representative Christopher P. Gibson (New York, House)
      Senator Kristen E. Gillibrand (New York, Senate)
    • Cosponsors: 285 (House)/31 (Senate)
    • Introduced: February 13, 2015 (House)/March 9, 2015 (Senate)
    • Current Status: Pending before a subcommittee (House)
      Pending before full committee, hearings held (Senate)
  • Maintaining a Simple System for Claims
    • Summary:  A bill  has been introduced in the House which would allow an “informal claim” to be submitted to the VA to establish an effective date and thereafter allow the claimant 180 days to file a formal application. The bill would also require the VA to decide “reasonably raised” claims, which are claims which, while not specifically mentioned by the veteran, are nonetheless suggested by the evidence in the veteran’s file. This bill might eliminate some of the pit-falls  associated with VA’s newly mandated appeals form.
    • Bill Number: H.R. 245
    • Sponsor: Representative Ralph Abraham (Louisiana)
    • Cosponsors: 0
    • Introduced:  January 9, 2015
    • Current Status: Pending before a full committee in the House, hearings held
  • Increase Burial Benefits
    • Summary: For many years, the law  has allowed the individual who paid for the expenses associated with a veteran’s funeral to be reimbursed in an amount of up to $300. According to  the National Funeral Directors Association, “the national median cost of a funeral for calendar year 2014 was $7,181.” Representative Duncan Hunter of California has proposed legislation  which would increase the maximum reimbursement to $2000.
    • Bill Number: H.R. 1911
    • Sponsor: Representative Duncan D. Hunter (California)
    • Cosponsors: 11
    • Introduced: May 1, 2015
    • Current Status: Pending before a subcommittee in the House
  • Survivor’s Claims
    • Summary: Currently, for a widow or widower of a veteran to receive certain survivor benefits, the deceased veteran must have either had a pending claim at the time of his or her death or have been receiving benefits. Senator Mazzie Hirono of Hawaii has introduced a bill  which would allow a surviving spouse to file a new claim for benefits which the veteran should have received regardless of the fact that he or she may have never filed a claim.
    • Bill Number: S. 1451
    • Sponsor: Senator Mazie K. Hirono (Hawaii)
    • Cosponsors: 0
    • Introduced: May 21, 2015
    • Current Status: Pending before Senate committee, hearing held
  • Accrued Benefits for Estates
    • Summary: Currently, if a veteran passes-away while he has a claim pending before the VA, the law  allows certain individuals to be substituted for the deceased veteran including the veteran’s spouse, children, and parents. Representative Lee Zeldin of New York has introduced a bill  which would expand the group of individuals eligible for accrued benefits to include the estate of the veteran in the event that he or she passes-away without a surviving spouse, child, or parent.
    • Bill Number: H.R. 1569
    • Sponsor: Representative Lee M. Zeldin (New York)
    • Cosponsors: 0
    • Introduced: May 14, 2015
    • Current Status: Cleared subcommittee, Pending before full committee in House

Do you know of a bill pending before Congress that needs our attention? Let us know by sending an email to links@brokenVA.com and we’ll try to include it in our next edition of Legislation Watch.

Recently Judge William A. Moorman  of the U.S. Court of Appeals for Veterans Claims assumed “Senior Status”—a form of semi-retirement. With Judge Moorman’s departure from the Court, the number of active judges has been reduced to eight . Despite the growing number of appeals filed each year, Judge Moorman will not be replaced with a new judge unless Congress takes action.

To understand why Judge Moorman will not be replaced, one needs to look at the law. As designed by Congress, the Veterans Court is supposed  to be made up of “at least three and not more than seven judges.” However, due to the ever-increasing number of appeals, Congress passed a law  several years ago allowing the number of judges to be increased to nine. That increase was not permanent, and specifically prevented the appointment of any new judges to replace those who retire unless the number of active judges had fallen below seven. This means that Judge Moorman will not be replaced, nor will the next judge who retires or reaches the end of his or her term.

The potential consequences of allowing the number of judges on the Court to decrease are many. For instance, as VA works to whittle-down the backlog of claims, this will create more appeals which are destined to be heard by the Board and eventually the Court. As the number of appeals filed to the Court will surely increase, decreasing the number of judges to decide those appeals hardly seems like a wise move for Congress to make. Indeed, the filing of more appeals to a court made-up of fewer judges will inevitably lead to longer waits for veterans to have their appeals decided.

During a recent hearing, Senator Jeanne Shaheen of New Hampshire noted  that “over the past four years, the number of disability claims appeals received by the Board has increased 65 percent.” She argued that Congress should act to permanently authorize there to be nine judges on the Veterans Court, saying that “as we see unprecedented and unrelenting growth in the backlog of appeals, now is not the time to reduce our capacity to pre-2002 levels.” In a statement submitted to the Senate Committee on Veterans’ Affairs, Chief Judge Lawrence B. Hagel of the Veterans Court echoed Senator Shaheen’s comments regarding an onslaught of new appeals, stating  that “it seems likely… that the number of appeals filed at the Court will also rise further and stay high.” Chief Judge Hagel similarly urged Congress to authorize a permanent increase in the number of judges on the Veterans Court.

Currently pending in Congress is Senate Bill 1754, also known as the “Veterans Court of Appeals Support Act of 2015.” This bill would authorize the permanent expansion of the Veterans Court to nine judges. It would insure that the Veterans Court would be able to decide appeals more quickly, meaning that the delays encountered by veterans who appeal VA denials would not increase. Everyone here at brokenVA believes that this bill should become law, and you should support it too. To show your support, please click here  to find the contact information for your senators and urge them to vote in favor of Senate Bill 1754.