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112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-678
======================================================================
AMENDING TITLE 38, UNITED STATES CODE, TO IMPROVE THE SUPERVISION OF
FIDUCIARIES OF VETERANS UNDER THE LAWS ADMINISTERED BY THE SECRETARY OF
VETERANS AFFAIRS, AND FOR OTHER PURPOSES
_______
September 19, 2012.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Miller of Florida, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany H.R. 5948]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 5948) to amend title 38, United States Code, to
improve the supervision of fiduciaries of veterans under the
laws administered by the Secretary of Veterans Affairs, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 12
Background and Need for Legislation.............................. 13
Hearings......................................................... 22
Subcommittee Consideration....................................... 23
Committee Consideration.......................................... 23
Committee Votes.................................................. 23
Committee Oversight Findings..................................... 24
Statement of General Performance Goals and Objectives............ 24
New Budget Authority, Entitlement Authority, and Tax Expenditures 24
Earmarks and Tax and Tariff Benefits............................. 24
Committee Cost Estimate.......................................... 24
Congressional Budget Office Estimate............................. 24
Federal Mandates Statement....................................... 28
Advisory Committee Statement..................................... 28
Constitutional Authority Statement............................... 28
Applicability to Legislative Branch.............................. 28
Section-by-Section Analysis of the Legislation................... 28
Changes in Existing Law Made by the Bill as Reported............. 32
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Table of Contents.
Sec. 2. Improvement of fiduciaries for veterans.
Sec. 3. Establishment of Place of Remembrance at Arlington National
Cemetery.
Sec. 4. Furnishing caskets and urns for deceased veterans with no known
next of kin.
Sec. 5. Improved communication between Department of Veterans Affairs
and medical examiners and funeral directors.
Sec. 6. Report on compliance of Department of Veterans Affairs with
industry standards for caskets and urns.
Sec. 7. Exclusion of persons convicted of committing certain sex
offenses from interment or memorialization in national cemeteries,
Arlington National Cemetery, and certain State veterans' cemeteries and
from receiving certain funeral honors.
Sec. 8. Veterans freedom of conscience protection.
Sec. 9. Authority for the performance of medical disability
examinations by contract physicians.
Sec. 10. Provision of access to case-tracking information.
Sec. 11. Notification by the Secretary of Veterans Affairs of
individuals whose sensitive personal information is involved in a data
breach.
Sec. 12. Limitation on bonuses for Department of Veterans Affairs
employees who violate Federal civil laws or regulations.
Sec. 13. Limitation on awards and bonuses to employees of the
Department of Veterans Affairs.
Sec. 14. Sense of Congress on Patriot Guard Riders.
Sec. 15. Sense of Congress honoring Korean War veterans.
SEC. 2. IMPROVEMENT OF FIDUCIARIES FOR VETERANS.
(a) Appointment and Supervision.--
(1) Section 5502 of title 38, United States Code, is amended
to read as follows:
``Sec. 5502. Appointment of fiduciaries
``(a) Appointment.--(1) Where it appears to the Secretary that the
interest of the beneficiary would be served thereby, payment of
benefits under any law administered by the Secretary may be made
directly to the beneficiary or to a relative or some other fiduciary
for the use and benefit of the beneficiary, regardless of any legal
disability on the part of the beneficiary.
``(2) When in the opinion of the Secretary, a temporary fiduciary is
needed in order to protect the benefits provided to the beneficiary
under any law administered by the Secretary while a determination of
incompetency is being made or appealed or a fiduciary is appealing a
determination of misuse, the Secretary may appoint one or more
temporary fiduciaries for a period not to exceed 120 days. If a final
decision has not been made within 120 days, the Secretary may not
continue the appointment of the fiduciary without obtaining a court
order for appointment of a guardian, conservator, or other fiduciary
under the authority provided in section 5502(b) of this title.
``(b) Appeals.--(1) If the Secretary determines a beneficiary to be
mentally incompetent for purposes of appointing a fiduciary under this
chapter, the Secretary shall provide such beneficiary with a written
statement detailing the reasons for such determination.
``(2) A beneficiary whom the Secretary has determined to be mentally
incompetent for purposes of appointing a fiduciary under this chapter
may appeal such determination.
``(c) Modification.--(1) A beneficiary for whom the Secretary
appoints a fiduciary under this chapter may, at any time, request the
Secretary to--
``(A) remove the fiduciary so appointed; and
``(B) have a new fiduciary appointed.
``(2) The Secretary shall comply with a request under paragraph (1)
unless the Secretary determines that the request is not made in good
faith.
``(3) The Secretary shall ensure that any removal or new appointment
of a fiduciary under paragraph (1) does not delay or interrupt the
beneficiary's receipt of benefits administered by the Secretary.
``(d) Independence.--A fiduciary appointed by the Secretary shall
operate independently of the Department to determine the actions that
are in the interest of the beneficiary.
``(e) Predesignation.--A veteran may predesignate a fiduciary by--
``(1) submitting written notice to the Secretary of the
predesignated fiduciary; or
``(2) submitting a form provided by the Secretary for such
purpose.
``(f) Appointment of Non-predesignated Fiduciary.--If a beneficiary
designates an individual to serve as a fiduciary under subsection (e)
and the Secretary appoints an individual not so designated as the
fiduciary for such beneficiary, the Secretary shall notify such
beneficiary of--
``(1) the reason why such designated individual was not
appointed; and
``(2) the ability of the beneficiary to modify the appointed
fiduciary under subsection (c).
``(g) Priority of Appointment.--In appointing a fiduciary under this
chapter, if a beneficiary does not designate a fiduciary pursuant to
subsection (e), to the extent possible the Secretary shall appoint a
person who is--
``(1) a relative of the beneficiary;
``(2) appointed as guardian of the beneficiary by a court of
competent jurisdiction; or
``(3) authorized to act on behalf of the beneficiary under a
durable power of attorney.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 55 of title 38, United States Code, is
amended by striking the item relating to section 5502 and
inserting the following:
``5502. Appointment of fiduciaries.''.
(b) Supervision.--
(1) In general.--Chapter 55 of title 38, United States Code,
is amended by inserting after section 5502, as amended by
subsection (a)(1), the following new section:
``Sec. 5502A. Supervision of fiduciaries
``(a) Commission.--(1)(A) In a case in which the Secretary determines
that a commission is necessary in order to obtain the services of a
fiduciary in the best interests of a beneficiary, the Secretary may
authorize a fiduciary appointed by the Secretary to obtain from the
monthly benefits provided to the beneficiary a reasonable commission
for fiduciary services rendered, but the commission for any month may
not exceed the lesser of the following amounts:
``(i) The amount that equals three percent of the monthly monetary
benefits under laws administered by the Secretary paid on behalf of the
beneficiary to the fiduciary.
``(ii) $35.
``(B) A commission paid under this paragraph may not be derived from
any award to a beneficiary regarding back pay or retroactive benefits
payments.
``(C) A commission may not be authorized for a fiduciary who receives
any other form of remuneration or payment in connection with rendering
fiduciary services for benefits under this title on behalf of the
beneficiary.
``(D) In accordance with section 6106 of this title, a commission may
not be paid to a fiduciary if the Secretary determines that the
fiduciary misused any benefit payments of a beneficiary.
``(E) If the Secretary determines that the fiduciary has misused any
benefit or payments of a beneficiary, the Secretary may revoke the
fiduciary status of the fiduciary.
``(2) Where, in the opinion of the Secretary, any fiduciary receiving
funds on behalf of a Department beneficiary is acting in such a number
of cases as to make it impracticable to conserve properly the estates
or to supervise the persons of the beneficiaries, the Secretary may
refuse to make future payments in such cases as the Secretary may deem
proper.
``(b) Court.--Whenever it appears that any fiduciary, in the opinion
of the Secretary, is not properly executing or has not properly
executed the duties of the trust of such fiduciary or has collected or
paid, or is attempting to collect or pay, fees, commissions, or
allowances that are inequitable or in excess of those allowed by law
for the duties performed or expenses incurred, or has failed to make
such payments as may be necessary for the benefit of the ward or the
dependents of the ward, then the Secretary may appear, by the
Secretary's authorized attorney, in the court which has appointed such
fiduciary, or in any court having original, concurrent, or appellate
jurisdiction over said cause, and make proper presentation of such
matters. The Secretary, in the Secretary's discretion, may suspend
payments to any such fiduciary who shall neglect or refuse, after
reasonable notice, to render an account to the Secretary from time to
time showing the application of such payments for the benefit of such
incompetent or minor beneficiary, or who shall neglect or refuse to
administer the estate according to law. The Secretary may require the
fiduciary, as part of such account, to disclose any additional
financial information concerning the beneficiary (except for
information that is not available to the fiduciary). The Secretary may
appear or intervene by the Secretary's duly authorized attorney in any
court as an interested party in any litigation instituted by the
Secretary or otherwise, directly affecting money paid to such fiduciary
under this section.
``(c) Payment of Certain Expenses.--Authority is hereby granted for
the payment of any court or other expenses incident to any
investigation or court proceeding for the appointment of any fiduciary
or other person for the purpose of payment of benefits payable under
laws administered by the Secretary or the removal of such fiduciary and
appointment of another, and of expenses in connection with the
administration of such benefits by such fiduciaries, or in connection
with any other court proceeding hereby authorized, when such payment is
authorized by the Secretary.
``(d) Temporary Payment of Benefits.--All or any part of any benefits
the payment of which is suspended or withheld under this section may,
in the discretion of the Secretary, be paid temporarily to the person
having custody and control of the incompetent or minor beneficiary, to
be used solely for the benefit of such beneficiary, or, in the case of
an incompetent veteran, may be apportioned to the dependent or
dependents, if any, of such veteran. Any part not so paid and any funds
of a mentally incompetent or insane veteran not paid to the chief
officer of the institution in which such veteran is a patient nor
apportioned to the veteran's dependent or dependents may be ordered
held in the Treasury to the credit of such beneficiary. All funds so
held shall be disbursed under the order and in the discretion of the
Secretary for the benefit of such beneficiary or the beneficiary's
dependents. Any balance remaining in such fund to the credit of any
beneficiary may be paid to the beneficiary if the beneficiary recovers
and is found competent, or if a minor, attains majority, or otherwise
to the beneficiary's fiduciary, or, in the event of the beneficiary's
death, to the beneficiary's personal representative, except as
otherwise provided by law; however, payment will not be made to the
beneficiary's personal representative if, under the law of the
beneficiary's last legal residence, the beneficiary's estate would
escheat to the State. In the event of the death of a mentally
incompetent or insane veteran, all gratuitous benefits under laws
administered by the Secretary deposited before or after August 7, 1959,
in the personal funds of patients trust fund on account of such veteran
shall not be paid to the personal representative of such veteran, but
shall be paid to the following persons living at the time of
settlement, and in the order named: The surviving spouse, the children
(without regard to age or marital status) in equal parts, and the
dependent parents of such veteran, in equal parts. If any balance
remains, such balance shall be deposited to the credit of the
applicable current appropriation; except that there may be paid only so
much of such balance as may be necessary to reimburse a person (other
than a political subdivision of the United States) who bore the
expenses of last sickness or burial of the veteran for such expenses.
No payment shall be made under the two preceding sentences of this
subsection unless claim therefor is filed with the Secretary within
five years after the death of the veteran, except that, if any person
so entitled under said two sentences is under legal disability at the
time of death of the veteran, such five-year period of limitation shall
run from the termination or removal of the legal disability.
``(e) Escheatment.--Any funds in the hands of a fiduciary appointed
by a State court or the Secretary derived from benefits payable under
laws administered by the Secretary, which under the law of the State
wherein the beneficiary had last legal residence would escheat to the
State, shall escheat to the United States and shall be returned by such
fiduciary, or by the personal representative of the deceased
beneficiary, less legal expenses of any administration necessary to
determine that an escheat is in order, to the Department, and shall be
deposited to the credit of the applicable revolving fund, trust fund,
or appropriation.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 55 of title 38, United States Code, is
amended by inserting after the item relating to section 5502
the following new item:
``5502A. Supervision of fiduciaries.''.
(c) Definition of Fiduciary.--Section 5506 of title 38, United States
Code is amended--
(1) by striking ``For purposes'' and inserting ``(a) For
purposes''; and
(2) by adding at the end the following new subsection:
``(b)(1) For purposes of subsection (a), the term `person' includes
any--
``(A) State or local government agency whose mission is to
carry out income maintenance, social service, or health care-
related activities;
``(B) any State or local government agency with fiduciary
responsibilities; or
``(C) any nonprofit social service agency that the Secretary
determines--
``(i) regularly provides services as a fiduciary
concurrently to five or more individuals; and
``(ii) is not a creditor of any such individual.
``(2) The Secretary shall maintain a list of State or local agencies
and nonprofit social service agencies under paragraph (1) that are
qualified to act as a fiduciary under this chapter. In maintaining such
list, the Secretary may consult the lists maintained under section
807(h) of the Social Security Act (42 U.S.C. 1007(h)).''.
(d) Qualifications.--Section 5507 of title 38, United States Code, is
amended to read as follows:
``Sec. 5507. Inquiry, investigations, and qualification of fiduciaries
``(a) Investigation.--Any certification of a person for payment of
benefits of a beneficiary to that person as such beneficiary's
fiduciary under section 5502 of this title shall be made on the basis
of--
``(1) an inquiry or investigation by the Secretary of the
fitness of that person to serve as fiduciary for that
beneficiary to be conducted in advance of such certification
and in accordance with subsection (b);
``(2) adequate evidence that certification of that person as
fiduciary for that beneficiary is in the interest of such
beneficiary (as determined by the Secretary under regulations);
``(3) adequate evidence that the person to serve as fiduciary
protects the private information of a beneficiary in accordance
with subsection (d)(1); and
``(4) the furnishing of any bond that may be required by the
Secretary, in accordance with subsection (f).
``(b) Elements of Investigation.--(1) In conducting an inquiry or
investigation of a proposed fiduciary under subsection (a)(1), the
Secretary shall conduct--
``(A) a face-to-face interview with the proposed fiduciary by
not later than 30 days after the date on which such inquiry or
investigation begins; and
``(B) a background check of the proposed fiduciary to--
``(i) in accordance with paragraph (2), determine
whether the proposed fiduciary has been convicted of a
crime; and
``(ii) determine whether the proposed fiduciary will
serve the best interest of the beneficiary, including
by conducting a credit check of the proposed fiduciary
and checking the records under paragraph (5).
``(2) The Secretary shall request information concerning whether that
person has been convicted of any offense under Federal or State law. If
that person has been convicted of such an offense, the Secretary may
certify the person as a fiduciary only if the Secretary finds that the
person is an appropriate person to act as fiduciary for the beneficiary
concerned under the circumstances.
``(3) The Secretary shall conduct the background check described in
paragraph (1)(B)--
``(A) each time a person is proposed to be a fiduciary,
regardless of whether the person is serving or has served as a
fiduciary; and
``(B) at no expense to the beneficiary.
``(4) Each proposed fiduciary shall disclose to the Secretary the
number of beneficiaries that the fiduciary acts on behalf of.
``(5) The Secretary shall maintain records of any person who has--
``(A) previously served as a fiduciary; and
``(B) had such fiduciary status revoked by the Secretary.
``(6)(A) If a fiduciary appointed by the Secretary is convicted of a
crime described in subparagraph (B), the Secretary shall notify the
beneficiary of such conviction by not later than 14 days after the date
on which the Secretary learns of such conviction.
``(B) A crime described in this subparagraph is a crime--
``(i) for which the fiduciary is convicted while serving as a
fiduciary for any person;
``(ii) that is not included in a report submitted by the
fiduciary under section 5509(a) of this title; and
``(iii) that the Secretary determines could affect the
ability of the fiduciary to act on behalf of the beneficiary.
``(c) Investigation of Certain Persons.--(1) In the case of a
proposed fiduciary described in paragraph (2), the Secretary, in
conducting an inquiry or investigation under subsection (a)(1), may
carry out such inquiry or investigation on an expedited basis that may
include giving priority to conducting such inquiry or investigation.
Any such inquiry or investigation carried out on such an expedited
basis shall be carried out under regulations prescribed for purposes of
this section.
``(2) Paragraph (1) applies with respect to a proposed fiduciary who
is--
``(A) the parent (natural, adopted, or stepparent) of
a beneficiary who is a minor;
``(B) the spouse or parent of an incompetent
beneficiary;
``(C) a person who has been appointed a fiduciary of
the beneficiary by a court of competent jurisdiction;
``(D) being appointed to manage an estate where the
annual amount of veterans benefits to be managed by the
proposed fiduciary does not exceed $3,600, as adjusted
pursuant to section 5312 of this title; or
``(E) a person who is authorized to act on behalf of
the beneficiary under a durable power of attorney.
``(d) Protection of Private Information.--(1) A fiduciary shall take
all reasonable precautions to--
``(A) protect the private information of a beneficiary,
including personally identifiable information; and
``(B) securely conducts financial transactions.
``(2) A fiduciary shall notify the Secretary of any action of the
fiduciary that compromises or potentially compromises the private
information of a beneficiary.
``(e) Potential Misuse of Funds.--(1) If the Secretary has reason to
believe that a fiduciary may be misusing all or part of the benefit of
a beneficiary, the Secretary shall--
``(A) conduct a thorough investigation to determine the
veracity of such belief; and
``(B) if such veracity is established, transmit to the
officials described in paragraph (2) a report of such
investigation.
``(2) The officials described in this paragraph are the following:
``(A) The Attorney General.
``(B) Each head of a Federal department or agency that pays
to a fiduciary or other person benefits under any law
administered by such department of agency for the use and
benefit of a minor, incompetent, or other beneficiary.
``(f) Bond.--In requiring the furnishing of a bond under subsection
(a)(4), the Secretary shall--
``(1) ensure that any such bond is not paid using any funds
of the beneficiary; and
``(2) consider--
``(A) the care a proposed fiduciary has taken to
protect the interests of the beneficiary; and
``(B) the capacity of the proposed fiduciary to meet
the financial requirements of the bond without
sustaining hardship.
``(g) List of Fiduciaries.--Each regional office of the Veterans
Benefits Administration shall maintain a list of the following:
``(1) The name and contact information of each fiduciary,
including address, telephone number, and email address.
``(2) With respect to each fiduciary described in paragraph
(1)--
``(A) the date of the most recent background check
and credit check performed by the Secretary under this
section;
``(B) the date that any bond was paid under this
section;
``(C) the name, address, and telephone number of each
beneficiary the fiduciary acts on behalf of; and
``(D) the amount that the fiduciary controls with
respect to each beneficiary described in subparagraph
(C).''.
(e) Annual Receipt of Payments.--
(1) In general.--Section 5509 of title 38, United States
Code, is amended--
(A) in subsection (a)--
(i) by striking ``may require a fiduciary to
file a'' and inserting ``, subject to
regulations prescribed pursuant to subsection
(f), shall require a fiduciary to file an
annual''; and
(ii) by adding at the end the following new
sentence: ``The Secretary shall transmit such
annual report or accounting to the beneficiary
and any legal guardian of such beneficiary.'';
(B) by adding at the end the following new
subsections:
``(c) Matters Included.--An annual report or accounting under
subsection (a) shall include the following:
``(1) For each beneficiary that a fiduciary acts on behalf
of--
``(A) the amount of the benefits of the beneficiary
accrued during the year, the amount spent, and the
amount remaining; and
``(B) if the fiduciary serves the beneficiary with
respect to benefits not administered by the Secretary,
an accounting of all sources of benefits or other
income the fiduciary oversees for the beneficiary.
``(2) A list of events that occurred during the year covered
by the report that could affect the ability of the fiduciary to
act on behalf of the beneficiary, including--
``(A) the fiduciary being convicted of any crime;
``(B) the fiduciary declaring bankruptcy; and
``(C) any judgments entered against the fiduciary.
``(d) Random Audits.--The Secretary shall annually conduct random
audits of fiduciaries who receive a commission pursuant to subsection
5502A(a)(1) of this title.
``(e) Status of Fiduciary.--If a fiduciary includes in the annual
report events described in subsection (c)(2), the Secretary may take
appropriate action to adjust the status of the fiduciary as the
Secretary determines appropriate, including by revoking the fiduciary
status of the fiduciary.
``(f) Regulations.--(1) In prescribing regulations to carry out this
section, the Secretary, in consultation with the Under Secretary for
Benefits and the Under Secretary for Health, shall ensure that the care
provided by a fiduciary described in paragraph (2) to a beneficiary is
not diminished or otherwise worsened by the fiduciary complying with
this section.
``(2) A fiduciary described in this paragraph is a fiduciary who, in
addition to acting as a fiduciary for a beneficiary, provides care to
the beneficiary pursuant to this title (including such care provided
under section 1720G of this title).''; and
(C) by striking the section heading and inserting the
following: ``Annual reports and accountings of
fiduciaries''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 55 of title 38, United States Code, is
amended by striking the item relating to section 5509 and
inserting the following new item:
``5509. Annual reports and accountings of fiduciaries.''.
(f) Repayment of Misused Benefits.--Section 6107(a)(2)(C) of title
38, United States Code, is amended by inserting before the period the
following: ``, including by the Secretary not acting in accordance with
section 5507 of this title''.
(g) Annual Reports.--Section 5510 of title 38, United States Code, is
amended by striking ``The Secretary shall include in the Annual
Benefits Report of the Veterans Benefits Administration or the
Secretary's Annual Performance and Accountability Report'' and
inserting ``Not later than July 1 of each year, the Secretary shall
submit to the Committees on Veterans' Affairs of the House of
Representatives and the Senate a separate report containing''.
(h) Report.--Not later than one year after the date of the enactment
of this Act, the Secretary of Veterans Affairs shall submit to the
Committee on Veterans' Affairs of the Senate and the Committee on
Veterans' of the House of Representatives a comprehensive report on the
implementation of the amendments made by this Act, including--
(1) detailed information on the establishment of new policies
and procedures pursuant to such amendments and training
provided on such policies and procedures; and
(2) a discussion of whether the Secretary should provide
fiduciaries with standardized financial software to simplify
reporting requirements.
SEC. 3. ESTABLISHMENT OF PLACE OF REMEMBRANCE AT ARLINGTON NATIONAL
CEMETERY.
(a) Establishment Authorized.--The Secretary of the Army may
establish at an appropriate location in Arlington National Cemetery a
Place of Remembrance for the interment of cremated fragments of the
remains of members of the Armed Forces who died in the circumstances
specified in subsection (c) when one of the conditions specified in
subsection (d) applies with respect to the remains.
(b) Regulations; Design.--The Secretary of the Army shall--
(1) prescribe such regulations as may be necessary to carry
out this section; and
(2) determine how the Place of Remembrance shall be designed.
(c) Covered Circumstances.--The Secretary of the Army shall suggest
that the Place of Remembrance be for the cremated fragments of remains
of members of the Armed Forces who died--
(1) in any war or contingency operation prior to or after the
date of the enactment of this Act; or
(2) in the line of duty prior to or after the date of the
enactment of this Act, consistent with regulations prescribed
by the Secretary with respect to burial at Arlington National
Cemetery.
(d) Remains Authorized for Interment.--Subsection (a) applies to
fragments of the remains of a deceased member of the Armed Forces
described in such subsection (or fragments reasonable believed to be
from the remains of a deceased member of the Armed Forces described in
such subsection) that--
(1) are unidentifiable by use of DNA testing or other means
because of the condition of the fragments;
(2) are unclaimed after a reasonable period of time;
(3) are identified and authorized for interment in the Place
of Remembrance by the person designated under section 1482(c)
of title 10, United States Code, to direct disposition of the
remains of the member; or
(4) are designated as ``No Further Pursuit'' remains in cases
in which the family of a deceased member has indicated to the
Secretary of Army that the family does not want to be consulted
when fragments of the remains of the member are found.
SEC. 4. FURNISHING CASKETS AND URNS FOR DECEASED VETERANS WITH NO KNOWN
NEXT OF KIN.
(a) In General.--Section 2306 of title 38, United States Code, is
amended--
(1) by redesignating subsections (f) and (g) as subsections
(g) and (h), respectively;
(2) by inserting after subsection (e) the following new
subsection (f):
``(f) The Secretary shall furnish a casket or urn, of such quality as
the Secretary considers appropriate for a dignified burial, for burial
in a national cemetery of a deceased veteran described in section
2414(b) of this title.''; and
(3) in subsection (h), as redesignated by paragraph (1), by
adding at the end the following new paragraph:
``(4) A casket or urn may not be furnished under subsection (f) for
burial of a person described in section 2411(b) of this title.''.
(b) Effective Date.--Subsections (f) and (h)(4) of section 2306 of
title 38, United States Code, as added by subsection (a), shall take
effect on the date of the enactment of this Act and shall apply with
respect to deaths occurring on or after such date.
SEC. 5. IMPROVED COMMUNICATION BETWEEN DEPARTMENT OF VETERANS AFFAIRS
AND MEDICAL EXAMINERS AND FUNERAL DIRECTORS.
(a) In General.--Chapter 24 of title 38, United States Code, is
amended by adding at the end the following new section:
``Sec. 2414. Communication between Department of Veterans Affairs and
medical examiners and funeral directors
``(a) Required Information.--With respect to each deceased veteran
described in subsection (b) who is transported to a national cemetery
for burial, the Secretary shall ensure that the local medical examiner,
funeral director, county service group, or other entity responsible for
the body of the deceased veteran before such transportation submits to
the Secretary the following information:
``(1) Whether the deceased veteran was cremated.
``(2) The steps taken to ensure that the deceased veteran has
no next of kin.
``(b) Deceased Veteran Described.--A deceased veteran described in
this subsection is a deceased veteran whom the Secretary determines--
``(1) that there is no next of kin or other person claiming
the body of the deceased veteran; and
``(2) does not have sufficient resources to cover burial and
funeral expenses.
``(c) Determination of Sufficient Resources.--If the Secretary is
unable to make a reasonable determination of the amount of the
resources of a deceased veteran under subsection (b)(2), the Secretary
shall deem such resources to be an amount that is not sufficient to
cover burial and funeral expenses.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
2413 the following new item:
``2414. Communication between Department of Veterans Affairs and
medical examiners and funeral directors.''.
(c) Effective Date.--Section 2414 of title 38, United States Code, as
added by subsection (a), shall take effect on the date of the enactment
of this Act and shall apply with respect to deaths occurring on or
after the date that is 180 days after the date of the enactment of this
Act.
SEC. 6. REPORT ON COMPLIANCE OF DEPARTMENT OF VETERANS AFFAIRS WITH
INDUSTRY STANDARDS FOR CASKETS AND URNS.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall submit
to the Committee on Veterans' Affairs of the Senate and the Committee
on Veterans' Affairs of the House of Representatives a report on the
compliance of the Department of Veterans Affairs with industry
standards for caskets and urns.
(b) Elements.--The report required by subsection (a) shall include
the following:
(1) A description of industry standards for caskets and urns.
(2) An assessment of compliance with such standards at
National Cemeteries administered by the Department with respect
to caskets and urns used for the interment of those eligible
for burial at such cemeteries.
SEC. 7. EXCLUSION OF PERSONS CONVICTED OF COMMITTING CERTAIN SEX
OFFENSES FROM INTERMENT OR MEMORIALIZATION IN
NATIONAL CEMETERIES, ARLINGTON NATIONAL CEMETERY,
AND CERTAIN STATE VETERANS' CEMETERIES AND FROM
RECEIVING CERTAIN FUNERAL HONORS.
(a) Prohibition Against.--Section 2411(b) of title 38, United States
Code, is amended by adding at the end the following new paragraph:
``(4) A person--
``(A) who has been convicted of a Federal or State
crime causing the person to be a tier III sex offender
for purposes of the Sex Offender Registration and
Notification Act (42 U.S.C. 16901 et seq.);
``(B) who, for such crime, is sentenced to a minimum
of life imprisonment; and
``(C) whose conviction is final (other than a person
whose sentence was commuted by the President or
Governor of a State, as the case may be).''.
(b) Conforming Amendments.--Section 2411(a)(2) of such title is
amended--
(1) by striking ``or (b)(2)'' each place it appears and
inserting ``, (b)(2), or (b)(4)''; and
(2) by striking ``capital'' each place it appears.
(c) Effective Date.--The amendments made by this section shall apply
with respect to interments and memorializations that occur on or after
the date of the enactment of this Act.
SEC. 8. VETERANS FREEDOM OF CONSCIENCE PROTECTION.
Section 2404 of title 38, United States Code, is amended by adding at
the end the following new subsection:
``(h)(1) With respect to the interment or funeral, memorial service,
or ceremony of a deceased individual at a national cemetery, the
Secretary shall ensure that--
``(A) the expressed wishes of the next of kin or other agent
of the deceased individual are respected and given appropriate
deference when evaluating whether the proposed interment or
funeral, memorial service, or ceremony affects the safety and
security of the national cemetery and visitors to the cemetery;
``(B) to the extent possible, all appropriate public areas of
the cemetery, including committal shelters, chapels, and
benches, may be used by the family of the deceased individual
for contemplation, prayer, mourning, or reflection; and
``(C) during such interment or funeral, memorial service, or
ceremony, the family of the deceased individual may display any
religious or other symbols chosen by the family.
``(2) Subject to regulations prescribed by the Secretary under
paragraph (5), including such regulations ensuring the security of a
national cemetery, the Secretary shall provide to any military or
volunteer veterans honor guard, including such guards belonging to a
veterans service organization or other non-governmental group that
provides services to veterans, access to public areas of a national
cemetery if such access is requested by the next of kin or other agent
of a deceased individual whose interment or funeral, memorial service,
or ceremony is being held in such cemetery.
``(3) With respect to the interment or funeral, memorial service, or
ceremony of a deceased individual at a national cemetery, the Secretary
shall notify the next of kin or other agent of the deceased individual
of funeral honors available to the deceased veteran, including such
honors provided by any military or volunteer veterans honor guard
described in paragraph (2).
``(4) Any person aggrieved by a violation of this subsection or any
regulation prescribed pursuant to this subsection may in a civil action
in an appropriate Federal court obtain any appropriate relief against
the Federal Government with respect to the violation. Standing to
assert a claim or defense under this subsection shall be governed by
the general rules of standing under Article III of the Constitution.
``(5) The Secretary shall prescribe regulations to carry out this
subsection.''.
SEC. 9. AUTHORITY FOR THE PERFORMANCE OF MEDICAL DISABILITY
EXAMINATIONS BY CONTRACT PHYSICIANS.
Section 704(c) of the Veterans Benefits Act of 2003 (38 U.S.C. 5101
note) is amended by striking ``December 31, 2012'' and inserting
``December 31, 2017''.
SEC. 10. PROVISION OF ACCESS TO CASE-TRACKING INFORMATION.
(a) In General.--Chapter 59 of title 38, United States Code, is
amended by adding at the end the following:
``Sec. 5906. Provision of access to case-tracking information
``(a) In General.--(1) In accordance with subsection (b), the
Secretary shall provide a covered employee with access to the case-
tracking system to provide a veteran with information regarding the
status of a claim submitted by such veteran, regardless of whether such
employee is acting under a power of attorney executed by such veteran.
``(2) In providing a covered employee with access to the case-
tracking system under paragraph (1), the Secretary shall ensure--
``(A) that such access--
``(i) is provided in a manner that does not allow
such employee to modify the data contained in such
system; and
``(ii) does not include access to medical records;
and
``(B) that each time a covered employee accesses such system,
the employee must certify that such access is for official
purposes only.
``(b) Privacy Certification Course.--The Secretary may not provide a
covered employee with access to the case-tracking system under
subsection (a)(1) unless the covered employee has successfully
completed a certification course on privacy issues provided by the
Secretary.
``(c) Treatment of Disclosure.--The access to information by a
covered employee pursuant to subsection (a)(1) shall be deemed to be--
``(1) a covered disclosure under section 552a(b) of title 5;
and
``(2) a permitted disclosure under regulations promulgated
under section 264(c) of the Health Insurance Portability and
Accountability Act of 1996 (42 U.S.C. 1320d-2 note).
``(d) Definitions.--In this section:
``(1) The term `case-tracking system' means the system of the
Department of Veterans Affairs that provides information
regarding the status of a claim submitted by a veteran.
``(2) The term `covered employee' means--
``(A) an employee of a Member of Congress who assists
the constituents of the Member with issues regarding
departments or agencies of the Federal Government; or
``(B) an employee of a State or local governmental
agency (including a veterans service officer) who, in
the course of carrying out the responsibilities of such
employment, assists veterans with claims for any
benefit under the laws administered by the
Secretary.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by adding at the end the following new item:
``5906. Provision of access to case-tracking information.''.
SEC. 11. NOTIFICATION BY THE SECRETARY OF VETERANS AFFAIRS OF
INDIVIDUALS WHOSE SENSITIVE PERSONAL INFORMATION IS
INVOLVED IN A DATA BREACH.
(a) In General.--Subchapter III of chapter 57 of title 38, United
States Code is amended by inserting after section 5724 the following
new section:
``Sec. 5724A. Data breach notification
``(a) Notification Requirement.--Except as provided in subsection
(d), in the event of a data breach with respect to sensitive personal
information that is processed or maintained by the Secretary, by not
later than 10 business days after the date on which the Secretary
learns of the data breach, the Secretary shall notify the appropriate
committees of Congress and each individual whose sensitive personal
information is involved in the data breach is notified of the data
breach. If the Secretary determines that providing such notification
within 10 business days is not feasible due to circumstances necessary
to accurately identify the individuals whose sensitive personal
information is involved in the data breach or to prevent further breach
or unauthorized disclosure and reasonably restore the integrity of the
data system the Secretary shall provide such notification not later
than 15 business days after the date on which the Secretary learns of
the data breach.
``(b) Contracts for Data Processing or Maintenance.--If the Secretary
enters into a contract for the performance of any Department function
that requires access to sensitive personal information, the Secretary
shall require as a condition of the contract that the contractor agree
to provide notification of data breaches in the same manner as required
of the Secretary under subsection (a).
``(c) Method and Content of Notification.--(1) Notification provided
to an individual under subsection (a) shall be provided clearly and
conspicuously by one of the following methods:
``(A) Written notification.
``(B) Notification by email or other electronic means, if the
Secretary's primary method of communication with the individual
is by email or such other electronic means.
``(2) Regardless of the method by which notification is provided to
an individual under paragraph (1), such notification shall include--
``(A) a description of the sensitive personal information
involved in the data breach;
``(B) a telephone number that the individual may use, at no
cost to the individual, to contact an appropriate employee of
the Department to inquire about the data breach or the
individual's sensitive personal information maintained by the
Department;
``(C) notice that the individual is entitled to receive, at
no cost to such individual, credit protection services under
section 5724 of this title;
``(D) the toll-free contact telephone numbers and addresses
for the major credit reporting agencies; and
``(E) a toll-free telephone number and website address
whereby the individual may obtain information regarding
identity theft.
``(d) Notification of General Public.--The Secretary, acting through
the Office of Public Affairs of the Department, shall notify the
general public concerning any data breach involving sensitive personal
information by not later than 10 business days after the date on which
the Secretary learns of the data breach, unless the Secretary
determines that to do so is not feasible due to circumstances necessary
to accurately identify the individuals whose sensitive personal
information is involved in the data breach or to prevent further breach
or unauthorized disclosure and reasonably restore the integrity of the
data system, such notification shall be made as soon as possible.
``(e) Appropriate Committees of Congress.--In this section, the term
`appropriate committees of Congress' means the Committee on Veterans
Affairs' of the House of Representatives and the Committee on Veterans'
Affairs of the Senate.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
5724 the following new item:
``5724A. Data breach notification.''.
(c) Effective Date.--The amendments made by this section shall apply
with respect to a data breach occurring on or after the date that is 90
days after the date of the enactment of this Act.
SEC. 12. LIMITATION ON BONUSES FOR DEPARTMENT OF VETERANS AFFAIRS
EMPLOYEES WHO VIOLATE FEDERAL CIVIL LAWS OR
REGULATIONS.
(a) In General.--Chapter 7 of title 38, United States Code, is
amended by adding at the end the following new section:
``Sec. 713. Limitation on bonuses
``(a) In General.--(1) The Secretary shall ensure that no employee of
the Department who, during any year, knowingly violates any law,
regulation, or policy described in paragraph (2) receives a bonus for
or during that year.
``(2) A law, regulation, or policy described in this paragraph is any
of the following:
``(A) A Federal civil law or Federal regulation, including
such civil laws or regulations covered under the Federal
Acquisition Regulation and the Veterans Affairs Acquisition
Regulation.
``(B) An internal policy of the Department.
``(b) Certification.--The Secretary shall annually certify to
Congress that each bonus awarded by the Secretary during the previous
year was awarded in accordance with subsection (a)(1).
``(c) Bonus Defined.--For purposes of this section, the term `bonus'
includes--
``(1) a retention incentive;
``(2) a retention incentive payment;
``(3) a retention incentive award; and
``(4) any other incentive requiring approval from the Central
Office Human Resource Service, the Chief Business Office
Workforce Management, or the Corporate Senior Executive
Management Office.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by adding at the end the following new item:
``713. Limitation on bonuses.''.
SEC. 13. LIMITATION ON AWARDS AND BONUSES TO EMPLOYEES OF THE
DEPARTMENT OF VETERANS AFFAIRS.
For each of fiscal years 2013 through 2017, the Secretary of Veterans
Affairs may not pay more than $357,613,229 in awards or bonuses under
chapter 45 or 53 of title 5, United States Code, or any other awards or
bonuses authorized under such title.
SEC. 14. SENSE OF CONGRESS ON PATRIOT GUARD RIDERS.
(a) Findings.--Congress finds the following:
(1) The Patriot Guard Riders were founded in 2005 in Mulvane,
Kansas, with a mission to show sincere respect for fallen
members of the Armed Forces by attending their funeral services
as invited guests of the member's family.
(2) The Patriot Guard Riders have more than 220,000 members
nationwide from all walks of life.
(3) The Patriot Guard Riders shield the mourning family and
friends from interruptions created by any protestor or group of
protestors.
(4) The Patriot Guard Riders engage only in respectful acts
in honor of a fallen member of the Armed Forces.
(5) The members of the Patriot Guard Riders willingly give
their time, energy, and money to respect the memory of fallen
members of the Armed Forces.
(6) The men and women of the Armed Forces who fight to
preserve freedom deserve the utmost respect and support of the
American people.
(7) The Patriot Guard Riders provide a unique service that
honors fallen members of the Armed Forces and their families.
(b) Sense of Congress.--Congress--
(1) commends the Patriot Guard Riders and all of the other
volunteers involved in shielding the mourning family and
friends of a fallen member of the Armed Forces from
interruptions created by any protestor or group of protestors;
and
(2) recognizes the sacrifices that veterans, members of the
Armed Forces, and their families have made, and continue to
make, on behalf of the United States.
SEC. 15. SENSE OF CONGRESS HONORING KOREAN WAR VETERANS.
(a) Findings.--Congress finds the following:
(1) On June 25, 1950, Communist North Korea invaded the
Republic of Korea with approximately 135,000 troops to initiate
the Korean War.
(2) Nearly 1,800,000 members of the Armed Forces of the
United States served along with the forces of the Republic of
Korea and 20 other Allied nations under the United Nations
Command to defend freedom and democracy in the Korean
Peninsula.
(3) The United States suffered 36,574 dead and 103,284
wounded during the Korean War in some of the most horrific
conditions in the history of warfare.
(4) Almost 60 years have passed since the signing of the
cease-fire agreement at Panmunjom on July 27, 1953, and the
Korean peninsula still technically remains in a state of war.
(5) The Korean War has become a ``Forgotten War'' for many
Americans.
(6) Many of the members of the Armed Forces who fought in the
Korean War returned home without the fanfare that greeted the
heroes of World Wars I and II.
(7) Korean War veterans deserve to be recognized by all
Americans for their honorable service during the Korean War in
defense of democracy and freedom.
(8) The tide of communism on the Korean Peninsula was halted,
liberty triumphed over tyranny, and the Republic of Korea has
developed into a modern and prosperous democracy because of the
selfless sacrifice of the Korean War veterans.
(9) The people of the United States and the Republic of Korea
are eternally grateful to the Korean War veterans.
(10) It is important to include the history of the Korean War
in the curricula of American schools so that future generations
never forget the sacrifices of the Korean War veterans.
(11) The Department of Defense 60th Anniversary of the Korean
War Commemoration Committee will implement a national campaign
to honor the Korean War veterans, remember those Korean War
veterans still counted among the missing in action, and educate
the American people concerning the ongoing relevance of the
Korean War.
(12) The commemorative campaign will include ceremonies in
the United States and the Republic of Korea in recognition of
June 25, 1950, and July 27, 1953, and a national media and
outreach campaign for Veterans Day 2012 to honor the Korean War
veterans.
(b) Sense of Congress.--On the occasion of the 60th anniversary of
the Korean War, Congress recognizes the importance of the contributions
and sacrifices made by veterans of the Korean War.
Purpose and Summary
H.R. 5948, the Veterans Fiduciary Reform Act of 2012, was
introduced by Oversight and Investigations Subcommittee
Chairman Bill Johnson on June 12, 2012. H.R. 5948, as amended,
incorporates provisions of that bill, as well as provisions of
H.R. 5735, introduced by Mr. Stivers of Ohio; H.R. 6073,
introduced by Mr. Bilirakis of Florida; H.R. 2355, introduced
by Ms. Hartzler of Missouri; H.R. 2720, introduced by Rep.
Culberson of Texas; H.R. 5880, introduced by Mr. Runyan of New
Jersey; H.R. 5881, introduced by Mr. Runyan of New Jersey; H.R.
3730, introduced by Mr. Donnelly of Indiana; H. R. 4481,
introduced by Mr. Roe of Tennessee; H. Res. 669, introduced by
Mr. Gingrey of Georgia; and H. Res. 618, introduced by Mr.
Rangel of New York. Together, these provisions would improve
fiduciary services for veterans; establish a Place of
Remembrance at Arlington National Cemetery; bar certain
convicted sex offenders from burial in veterans cemeteries;
honor a veteran's family's preferences during ceremonies at VA
national cemeteries; extend the contract authority for private
physicians to conduct medical disability examinations; improve
accessibility to case-tracking information on pending claims;
modify notification procedures to affected veterans in the
event of a data breach at VA; establish penalties for VA
employees who violate acquisition regulations; make reasonable
modifications to the overall amount of bonuses at VA; and
commend Patriot Guard Riders throughout the nation.
Background and Need for Legislation
SECTION 2--IMPROVEMENT OF FIDUCIARIES FOR VETERANS
Chapter 55 of Title 38, United States Code, provides
authority for the Department of Veterans Affairs (VA) Fiduciary
Program, which is intended to help veterans and other VA
beneficiaries who are deemed by the Secretary of Veterans
Affairs to be mentally incompetent for purposes of handling
their financial affairs. In such cases, the Secretary appoints
a fiduciary who, by statute, is only authorized to receive and
manage benefits administered by the Secretary on behalf of the
beneficiary. The fiduciary is responsible for ensuring that a
beneficiary's bills are paid on time and that a beneficiary
receives money to pay for food, shelter, clothing, medical
expenses, and other necessities.
The framework established in chapter 55 allows the
Department a great deal of latitude in implementing the
Fiduciary Program. During a hearing before the Subcommittee on
Oversight and Investigations on February 9, 2012, multiple
cases of mismanagement of veterans' funds by VA-appointed
fiduciaries and mismanagement of the program overall by VA were
discussed.
Among the numerous deficiencies highlighted within the VA
Fiduciary Program at that hearing included: fiduciaries
embezzling veterans' funds; fiduciaries refusing to pay a
veteran's utility bills; fiduciaries taking more than the
amount authorized by law as commission for services; convicted
felons appointed as fiduciaries; and fiduciaries telling
veterans to conserve money by not running air conditioning
during summer months.
Prior to the February 2012 hearing on VA's Fiduciary
Program, VA's standard form 21-4703, outlining how a fiduciary
is to account for a veteran beneficiary's funds, directed that
a fiduciary must clear all expenses through VA before
disbursing any funds to the veteran. When the problems this
requirement created were highlighted during the hearing, VA
witnesses acknowledged the hindrance this restrictive provision
placed on fiduciaries attempting to act in the best interest of
the veteran, and the provision was subsequently removed after
the hearing. However, many of the other faults within the
program continue to exist unchecked despite the Subcommittee on
Oversight and Investigations repeatedly bringing these issues
to VA's attention, not only with the policies and regulations
of the program but also in the cases of many individual
veterans.
Section 2 of H.R. 5948, as amended, overhauls the VA
Fiduciary Program, making many necessary reforms to address
problems identified before, during, and after the February 2012
hearing and realigns chapter 55 to a structure more consistent
with other amended sections of title 38.
Currently, once a VA beneficiary is appointed a fiduciary,
the beneficiary has the right to appeal the decision. The
appeals process within VA's Fiduciary Program is difficult,
slow, and often results in healthy, capable veterans being
unable to remove themselves from the program. Section 2 of H.R.
5948, as amended, would allow a veteran to appeal the finding
of incompetence at any time. This provision not only enables a
veteran to remain out of the fiduciary program if medical
evidence supports such a position, it also allows a veteran who
has sufficiently recovered at a later time to return to
managing his or her own financial affairs.
Section 2 of H.R. 5948, as amended, would also allow a
veteran to request the appointment of a new fiduciary if it is
perceived that the current fiduciary is not properly executing
the duty of the position or is abusing the veteran's funds in
any way. The Secretary may deny the removal of an appointed
fiduciary if it is determined that the request was not made in
good faith, and shall ensure that the delivery of benefits is
not interrupted if a previous fiduciary is removed and a new
one appointed.
Section 2 of H.R. 5948, as amended, would also enable a
veteran to designate a preferred fiduciary ahead of time, such
as a family member or guardian, should the Secretary determine
that the appointment of a fiduciary is necessary and in the
veteran's best interest. While the Secretary would not be
required to appoint the designated fiduciary, the reason for
not appointing that fiduciary would have to be presented in
writing to the veteran as would a notice of the veteran's right
to appeal the appointment. In many cases, a veteran may already
have a family member or court-appointed guardian acting as a
fiduciary for other benefits, and in cases where the veteran
was happy with the fiduciary's performance of those duties, a
sensible approach would be to maintain that relationship.
Under certain circumstances, the Secretary may decide that
a paid fiduciary is in a veteran's best interest. Section
5502(a)(2) of title 38, United States Code, states that a
fiduciary may receive a commission for his or her efforts, but
that commission may not exceed four percent of the monetary
benefits a beneficiary receives in one year. Investigations,
hearings, and media reports identified many problems in the
Fiduciary Program arising from paid fiduciaries receiving more
than the amount authorized under law, including receiving
commissions from retroactive and lump sum payments to veterans.
Further, evidence also revealed VA field examiners directing
fiduciaries to take income from non-VA benefits as well, an
action explicitly not authorized in law. In many of these
instances, the veteran beneficiary still did not receive basic
funding for food, clothing, and shelter that should have been
administered by the fiduciary.
Following the February 2012 hearing, the Director of VA's
Pension and Fiduciary Service issued Fast Letter 12-10
restating the limits on commissions paid to fiduciaries. As
this letter simply restated current law and policy, which were
frequently violated throughout the nation, the Fast Letter
conveyed little expectation of effecting change. In addition,
the commission rate paid to VA-appointed fiduciaries is already
higher than that paid by the Social Security Administration
(SSA) under the Representative Payee Program, the SSA's
equivalent to VA's Fiduciary Program. In comparison to the
approximately 120,000 beneficiaries under VA's Fiduciary
Program, the Social Security Representative Payee Program deals
with approximately 7.8 million beneficiaries.
Section 2 of H.R. 5489, as amended, reduces the commission
rate paid to fiduciaries, if the Secretary determines that a
paid fiduciary is in the best interest of the veteran, to not
more than 3% of the veteran's monthly benefits, or $35 per
month, whichever is less. Any desire by VA to increase this
rate would require congressional authorization. This commission
rate will give VA's Fiduciary Program a similar structure to
the SSA's Representative Payee Program and will reduce the
profit motive of predatory fiduciaries. The section also
clarifies that commission payments are not to be derived from
retroactive or lump sum payments; that fiduciaries who are
determined to misuse a veteran's benefits may not receive
commissions; that fiduciaries found to be misusing funds may
have their status as fiduciaries revoked; that the Secretary
may seek compensation in a court of law from fiduciaries found
to misuse benefits or fiduciaries who fail to adequately
account for a veteran's benefits; and that funds remaining with
a paid fiduciary after a veteran's passing shall escheat to the
federal government. Reducing the financial incentive for a
fiduciary to apply to VA's Fiduciary Program provides further
assurance that participants are working in the best interest of
vulnerable veterans.
During a hearing before the Oversight and Investigations
Subcommittee on June 20, 2012, VA opposed reducing the
commission, citing the need for paid fiduciaries when no other
options were available. VA also opposed the provision that it
consider state, local, and non-profit agencies that
historically have provided fiduciary services to necessary
individuals, citing the maintenance of such a database as
burdensome. Section 2 of H.R. 5948, as amended, addresses these
concerns by authorizing VA to use the same database used by the
Social Security Administration, which serves a vastly larger
number of individuals. The inclusion of these agencies provides
VA greatly increased options for appointing a fiduciary should
the Secretary determine that appointing a preferred fiduciary
would not be in the veteran's best interest.
During investigations and hearings, concerns also arose
regarding the qualifications of fiduciaries. Documented cases
existed of convicted felons serving as fiduciaries as well as
fiduciaries with no knowledge of or training regarding their
duties to the veteran. Many cases of embezzlement of a
veteran's funds could have been prevented with a basic
background check of a fiduciary, but VA frequently used its
authority to waive the current background check requirement for
appointment of a fiduciary, and failed to follow up at a later
point in time to determine the suitability of the appointed
fiduciary.
Section 2 of H.R. 5948, as amended, improves the
qualification process for fiduciaries as well as oversight of
fiduciaries already appointed by requiring the Secretary to
perform civil and criminal background investigations and a
face-to-face interview prior to certifying an individual as a
fiduciary; provide evidence that the individual would serve the
best interest of the veteran; would protect the veteran's
sensitive personal information; and would furnish a bond when
required by the Secretary before certifying an individual as a
fiduciary; and conduct a background investigation each time an
individual is appointed as a fiduciary. To address concerns
that performing background checks may slow the fiduciary
appointment process, authority is provided to the Secretary to
expedite background checks where necessary.
Many documented cases also exist where a veteran had never
met nor heard from his or her fiduciary, in addition to cases
where VA experienced difficulty contacting fiduciaries it had
appointed. This lack of accountability on the part of
fiduciaries, coupled with VA's lack of oversight, contributed
to veterans not receiving the necessary funds to pay basic
utilities and predatory fiduciaries making a profit at the
expense of the veteran. To address this, Section 2 of H.R.
5489, as amended, contains a provision that requires an annual
accounting by fiduciaries that will consist of benefits earned,
benefits disbursed, and the remaining balance as well as other
sources of income for that veteran that the fiduciary controls.
The fiduciary must also report any events affecting his or her
ability to serve the veteran including criminal convictions,
bankruptcy filings, and judgments filed against the fiduciary,
and any events reported in the annual accounting may be
considered by the Secretary in determining a fiduciary's
ability to serve the best interest of the veteran. This report
would then be transmitted to the veteran beneficiary or
guardian.
SECTION 3--ESTABLISHMENT OF PLACE OF REMEMBRANCE AT ARLINGTON NATIONAL
CEMETERY
Section 3 of H.R. 5948, as amended, is derived from H.R.
5735, and would create a new monument at Arlington National
Cemetery known as the Place of Remembrance.
In an article from December 7, 2011, The Washington Post
reported that ``976 fragments from 274 military personnel from
the Dover Air Force Base mortuary were cremated, incinerated
and taken to the Prince George's landfill between 2004 and
2008.'' Accordingly, this legislation aims to prevent what
happened at Dover Air Force Base from recurring by creating a
dignified resting place for certain remains of veterans that
may otherwise not have a designated final resting place.
Under Section 3, the design of the Place of Remembrance
would be deferred to the Secretary of the Army, who would
prescribe regulations as necessary to carry out the design, and
otherwise determine the logistics of establishing and
constructing the Place of Remembrance.
Specifically, remains that would be authorized for
interment at the Place of Remembrance include fragments of the
remains of a deceased member of the Armed Forces (or fragments
reasonably believed to be from the remains of a deceased member
of the Armed Forces) that: (1) are unidentifiable by use of DNA
testing or other means because of the condition of the
fragments; (2) are unclaimed after a reasonable period of time;
(3) are identified and authorized for interment in the Place of
Remembrance by the person designated under section 1482(c) of
title 10, United States Code, to direct disposition of the
remains of the member; or (4) are designated as ``No Further
Pursuit'' remains in cases in which the family of a deceased
member has indicated to the Secretary of the Army that the
family does not want to be consulted when fragments of the
remains of the member are found.
SECTION 4--FURNISHING CASKETS AND URNS FOR DECEASED VETERANS WITH NO
KNOWN NEXT OF KIN
Section 4 of H.R. 5948, as amended, is derived from H.R.
6073. This bill was introduced in direct response to an
incident at Bushnell National Cemetery where an indigent
veteran with no next of kin was buried in a cardboard box. This
section would prevent similar future occurrences of such an
incident by requiring the Secretary to furnish an appropriate
casket or urn for a deceased veteran with no known next of kin,
where no other person claims the body, and the veteran lacks
sufficient resources to cover burial and funeral expenses.
SECTION 5--IMPROVED COMMUNICATION BETWEEN DEPARTMENT OF VETERANS
AFFAIRS AND MEDICAL EXAMINERS AND FUNERAL DIRECTORS
Section 5 of H.R. 5948, as amended, is derived from H.R.
6073. This bill was introduced in direct response to an
incident at Bushnell National Cemetery where an indigent
veteran with no next of kin was buried in a cardboard box. This
section would require the Secretary, in the case of a deceased
veteran with no known next of kin or person claiming the body,
and when the veteran lacks sufficient resources to cover burial
and funeral expenses, to ensure that any entity responsible for
transporting the body of a deceased veteran to a national
cemetery submits to VA whether the deceased veteran was
cremated and steps taken to ensure the deceased veteran has no
next of kin.
SECTION 6--REPORT ON COMPLIANCE OF DEPARTMENT OF VETERANS AFFAIRS WITH
INDUSTRY STANDARDS FOR CASKETS AND URNS
Section 6 of H.R. 5948, as amended, is derived from H.R.
6073. This bill was introduced in direct response to an
incident at Bushnell National Cemetery where an indigent
veteran with no next of kin was buried in a cardboard box. This
section would require the Secretary to submit to both the House
and Senate Committees on Veteran's Affairs a report within 180
days of enactment of this legislation detailing VA's compliance
with industry standards for caskets andand urns, including a
description of the industry standards for caskets and urns and as
assessment of compliance at the National Cemeteries administered by VA.
SECTION 7--EXCLUSION OF PERSONS CONVICTED OF COMMITTING CERTAIN SEX
OFFENSES FROM INTERMENT OR MEMORIALIZATION IN NATIONAL CEMETERIES,
ARLINGTON NATIONAL CEMETERY, AND CERTAIN STATE VETERANS' CEMETERIES AND
FROM RECEIVING CERTAIN FUNERAL HONORS
Section 7 of H.R. 5948, as amended, is derived from H.R.
2355, and would bar convicted Tier III sex offenders under the
Sex Offender Registration and Notification Act from burial in
national veterans cemeteries and some state veterans
cemeteries, if the offender is convicted of such an offense,
that conviction is final, and the offender is sentenced to a
minimum of life imprisonment.
Current law prohibits individuals convicted of capital
crimes, such as murder or treason, from burial in a national
veterans' cemetery and some state veterans cemeteries. Although
Congress has been reluctant to restrict the rights that
veterans earned during service due to actions that took place
after service, some crimes are of such a serious and heinous
nature that compel revocation of those rights in an effort to
preserve the honor and dignity of the service members who would
be resting beside such offenders in a national veterans
cemetery or state veterans cemetery. A sex offense meriting
life in prison is an example of one such crime and Section 7
would appropriately include it as a disqualifier of burial
honors under Title 38.
SECTION 8--VETERANS FREEDOM OF CONSCIENCE PROTECTION
Section 8 of H.R. 5948, as amended, is derived from H.R.
2720, and would ensure that, to the extent practicable, the
express wishes of a veteran's family with regard to religious
expressions are honored during interment or inurnment
ceremonies at a VA national cemetery. This would include
ensuring the availability, to the extent practicable, of
cemetery grounds and appropriate facilities for the purposes of
mourning and reflection, and allowing VSO honor guard access to
the ceremony if requested by the family. In addition, any
person aggrieved by a violation of this subsection would have
the right to a private cause of action in an appropriate
Federal Court.
Section 8 is in direct response to an incident at the
Houston National Cemetery in May 2011. At that time, cemetery
officials were accused of banning use of religious speech
during services at the ceremony. A lawsuit was brought before
the U.S. District Court for the Southern District of Texas,
Houston Division and a settlement decree was entered into.
Although the settlement decree addressed the specific incidents
at Houston National Cemetery, this legislation was brought to
ensure that a similar incident does not take place at another
VA national cemetery.
SECTION 9--AUTHORITY FOR THE PERFORMANCE OF MEDICAL DISABILITY
EXAMINATIONS BY CONTRACT PHYSICIANS
Section 9 of H.R. 5948, as amended, is derived from H.R.
5880, which would extend VA's authority to enter into contracts
with private physicians to conduct medical disability
examinations from December 31, 2012, to December 31, 2017.
The need for this legislation was made clear at a hearing
held on April 23, 2012, entitled ``Discovering a More Efficient
Process: Improving Timeliness and Adequacy of VA Compensation
and Pension Examinations.'' Witnesses at that hearing
unanimously testified that contract examinations are an
integral part of the C&P; examination process and that VA would
be severely disadvantaged if the authority to use this type of
examination was allowed to expire.
In addition, VA specifically requested this extension in
its Fiscal Year 2013 budget submission, stating:
This proposal would extend by five years a provision
of P.L. 108-183, section 704, for the authority to use
discretionary VBA funding to procure contracted
disability examinations to supplement the examinations
provided by VHA and procured at 10 VBA regional offices
through contracts reimbursed from mandatory
Compensation and Pensions account under the authority
of P.L. 104-275, section 504. The sunset date provided
in section 704 was most recently extended to December
31, 2012, by P.L. 111-275, section 809. The requested
extension would be advantageous to planning and
executing appropriate contracts for future examinations
in the most needed regions of the country. (U.S.
Department of Veterans Affairs Fiscal Year 2013 Budget
Submission, Vol. 3, pg. 2A-24.)
SECTION 10--PROVISION OF ACCESS TO CASE-TRACKING INFORMATION
Section 10 of H.R. 5948, as amended, is derived from H.R.
5881, which would allow county veterans service officers and
some Congressional employees access to read-only information
regarding the status of pending claims. Privacy concerns would
be addressed through a certification step each time information
is accessed, and through required VA privacy certification
training.
The need for this legislation was made clear during a round
table discussion on May 14, 2012, between Committee staff and
various County Veteran Service Officers (CVSOs), to discuss
issues that affect them while trying to assist veterans. One of
the main issues discussed was lack of access to claims file
information, which impeded CVSOs ability to answer veterans'
questions about their claims. Although many veterans use a
nationally chartered veteran service organization (VSO) as
their Power of Attorney (POA) during the claims process, this
contact is often unable to timely respond to veterans' status
requests due to workload constraints. Therefore, this
legislation aims to provide such access, which should assist in
preventing veterans from filing duplicate claims and
overburdening VA's 1-800 telephone number.
SECTION 11--NOTIFICATION BY THE SECRETARY OF VETERANS AFFAIRS OF
INDIVIDUALS WHOSE SENSITIVE PERSONAL INFORMATION IS INVOLVED IN A DATA
BREACH
Section 11 of H.R. 5948, as amended, is based on language
in H.R. 3730, and is intended to provide better protections to
veterans whose sensitive information has been compromised by
VA.
Currently, a veteran may not learn of his or her personally
identifiable information (PII) having been compromised by VA
until 30 to 60 days after such a compromise has taken place.
The problem with the length of delay between a breach having
occurred, VA learning of the breach, and a veteran learning of
a breach involving his or her PII is that the damage done in
the areas of identity theft and credit ratings using that
compromised information could take years to repair.
In discussions with Committee staff, VA indicated that it
could reduce the notification time period without difficulty to
a period of 10 business days. By reducing this period of time,
a veteran has a much greater chance of being able to take
action to protect his or her identity and avoid a lengthy fight
in correcting harmful and unknown actions by an identity thief.
Section 11 of H.R. 5948, as amended, would require the
Secretary, in the event of a data breach involving PII, to
notify Congress and all individuals whose information is
compromised within 10 days of the Secretary becoming aware a
breach has occurred, or within 15 days if meeting the 10 day
timeframe is not feasible. Section 11 of H.R. 5948, as amended,
would further require the Secretary to provide all individuals
affected by the data breach with a description of the sensitive
personal information compromised and information regarding
steps they can take to protect their information from
unauthorized use, and to notify the general public through the
Office of Public Affairs by not later than 10 days after the
date on which the Secretary learns of the breach.
SECTION 12--LIMITATION ON BONUSES FOR DEPARTMENT OF VETERANS AFFAIRS
EMPLOYEES WHO VIOLATE FEDERAL CIVIL LAWS OR REGULATIONS
Section 12 of H.R. 5948, as amended, is based on H.R. 4481,
as amended.
Federal Acquisition Regulations (FAR) and their VA
counterpart, VA Acquisition Regulations (VAAR), are codified in
chapter 13 of title 41, United States Code, and chapter 8 of
title 48, United States Code of Federal Regulations. As such,
violations of these regulations are violations of U.S. law.
During questioning at a February 2012 hearing regarding illegal
purchases made by VA employees through the Department's
Pharmaceutical Prime Vendor (PPV), the Department conceded that
it did not know of any penalties that may be instituted for
violations of FAR by its employees, nor had it pursued any
actions against personnel that had violated FAR. At no time
prior to questioning at this hearing did VA note that the
actions of its employees were illegal despite that fact being
relatively clear.
The violations of FAR and VAAR referenced during the
February 2012 PPV hearing were unauthorized commitments of the
federal government by VA purchasing agents. In summary, VA
purchasers had exceeded their purchasing authority over many
years and illegally indebted the federal government for
hundreds of millions of dollars. Due to VA's inability and
unwillingness to fully track and account for all of the past
purchases, a final dollar amount for the illegal purchases will
most likely never be determined.
Even if VA continues to ignore the unauthorized commitments
by its employees and takes no action to recoup the funds from
the purchasers, the Department still has its own table of
penalties for addressing these violations. However, no
employees had been held accountable prior to the February 2012
PPV hearing, and by the time a follow-up PPV hearing was held
in June 2012, very few employees had received any disciplinary
action based on provisions within FAR and VAAR or VA's table of
penalties.
Given VA's lack of oversight over its own purchasers, as
well as a documented lack of oversight over its awarding of
bonuses and incentives, this provision will ensure that VA
employees will not be awarded for failing to comply with
Federal laws and regulations, including the FAR and VAAR, even
if these failures are not subject to disciplinary action. This
commonsense approach to stewardship of taxpayer dollars will
rein in the haphazard process of awarding bonuses and
incentives that has been prevalent within VA.
SECTION 13--LIMITATION ON AWARDS AND BONUSES TO EMPLOYEES OF THE
DEPARTMENT OF VETERANS AFFAIRS
VA currently disburses an annual average of approximately
$400,000,000 in bonuses, awards, and other incentives. These
incentives include Group Cash Awards, Travel Savings
Incentives, Individual Cash Awards (Not Rating Based),
Presidential Rank Awards, SES Performance Awards, Individual
Cash Awards (Rating Based), Individual Suggestion/Invention
Awards, Group Suggestion/Invention Awards, Foreign Language
Awards, Group Awards--Other, Specialty Certification Awards,
Exemplary Job Performance/Achievement Awards, Lump Sum
Performance Payments (Rating Based-In Lieu of Pay Adjustment),
Lump Sum Performance Payments (Rating Based Not in Lieu of Pay
Adjustment), Lump Sum Performance Payments (Not Rating Based),
Retention Incentives, Recruitment Incentives, and Relocation
Incentives. In addition, VA also awards Individual Time Off
Awards--Hours and Group Time Off Awards--Hours that are not
readily quantified into dollar amounts.
The Office of Personnel Management (OPM) issues a guide to
federal agencies for processing these awards, many of which are
covered under title 5, United States Code. Further policy for
awarding bonuses and other incentives is established by VA's
Office of Human Resources Management. This policy is then
executed at multiple levels throughout VA all the way down to
facility directors.
In a November 14, 2011, report titled ``Audit of Retention
Incentives for Veterans Health Administration and VA Central
Office Employees,'' (VAOIG 10-02887-30) VA's Office of
Inspector General (VAOIG) identified that approving officials
within both the Department of Veterans Affairs Central Office
(VACO) and the Veterans Health Administration (VHA) did not
adequately justify retention incentive awards. In the awards
reviewed, VAOIG also consistently identified missing support
documentation to accompany the award.
The VAOIG's findings were consistent with the Committee's
findings of bonuses being awarded to employees with less than
satisfactory performance evaluations and retention incentives
being awarded to employees who had stated their intention to
retire in the very near future.
Based on numbers provided by VA, the limit on bonuses
contained in Section 13 of H.R. 5948, as amended, is 90% of the
three-year average on bonuses paid of $397,348,032.90. This
modest reduction, that does not include additional time off
awards, leaves sufficient funding for VA to award suitable
bonuses and other incentives to deserving employees.
SECTION 14--SENSE OF CONGRESS ON PATRIOT GUARD RIDERS
Section 14 of H.R. 5948, as amended, is derived from H.
Res. 669. The Patriot Guard Riders have over 220,000 members
nationwide and, by invitation of the family, participate in the
funerals of armed service members killed in action. Their
participation includes shielding the family from protestors and
other disturbing interruptions.
This section would commend the Patriot Guard Riders and all
of the other volunteers involved in shielding the mourning
family and friends of a fallen member of the Armed Forces from
interruptions created by any protestor or group of protestors;
and would recognize the sacrifices that veterans, members of
the Armed Forces, and their families have made, and continue to
make, on behalf of the United States.
SECTION 15--SENSE OF CONGRESS HONORING KOREAN WAR VETERAN
Section 15 of H.R. 5948, as amended, is derived from H.
Res. 618. The 60th anniversary of the Korean cease-fire
agreement occurs in July 2013. This section recognizes the
importance of the contributions and sacrifices made by Korean
War veterans.
Hearings
On June 6, 2012, the Subcommittee on Disability Assistance
and Memorial Affairs conducted a legislative hearing on various
bills introduced during the 112th Congress, including H.R.
5735, H.R. 2355, H.R. 2720, H.R. 5880, and H.R. 5881. The
following witnesses testified: The Honorable Steve Stivers,
U.S. House of Representatives; The Honorable Vicky Hartzler,
U.S. House of Representatives; The Honorable Larry Kissell,
U.S. House of Representatives; The Honorable John Culberson,
U.S. House of Representatives; Mr. Raymond Kelley, National
Legislative Director, Veterans of Foreign Wars; Mr. James
Young, President, National Association of County Veterans'
Service Officers; Mr. Jeff Hall, Assistant National Legislative
Director, Disabled American Veterans; Ms. Debbie Lee, Founder,
America's Mighty Warriors; Ms. Lisa Ward, Widow to Major
Richard Ward, U.S. Army, Persian Gulf War; Mr. Kelly
Shackelford, President, The Liberty Institute; Jay Sanders,
Senior Vice Commander, Veterans of Foreign Wars, District 4;
Ms. Kathryn Condon, Executive Director, Army National
Cemeteries Program; and Mr. Thomas Murphy, Director of
Compensation and Pension Service, U.S. Department of Veterans
Affairs, who was accompanied by Mr. Richard Hippolit, Office of
the General Counsel, U.S. Department of Veterans Affairs.
A Statement for the Record was submitted by The Honorable
Ted Poe, U.S. House of Representatives.
On June 20, 2012, the Subcommittee on Oversight and
Investigations conducted a legislative hearing on various bill
introduced during the 112th Congress including H.R. 2985, H.R.
3730, H.R. 4481, and H.R. 5948. The following witnesses
testified: The Honorable Todd Akin, U.S. House of
Representatives; Mr. Dave McLenachen, Director of Pension and
Fiduciary Service, U.S. Department of Veterans Affairs; Mr.
Ralph Ibson, National Policy Director, Wounded Warrior Project;
Ms. Lauren Kologe, Deputy Director of Veterans Benefits
Program, Vietnam Veterans of America; Ms. Heather Ansley, Vice
President of Veterans Policy, VetsFirst; and Ms. Lori Perkio,
Assistant Director, Veterans Affairs and Rehabilitation
Commission, The American Legion.
Subcommittee Consideration
On June 27, 2012, the Subcommittee on Disability Assistance
and Memorial Affairs met in an open markup session, a quorum
being present, and favorably forwarded to the full Committee
H.R. 5735, as amended, H.R. 5880 and H.R. 5881, by voice vote.
During consideration of H.R. 5735 the following amendment
was considered and agreed to by voice vote:
An amendment in the nature of a substitute incorporating
provisions from H.R. 2355 and H.R. 2720.
On June 27, 2012, the Subcommittee on Oversight and
Investigations met in an open markup session, a quorum being
present, and favorably forwarded to the full Committee H.R.
3730, as amended, H.R. 4481, as amended, and H.R. 5948, as
amended, by voice vote.
During consideration of H.R. 3730 the following amendment
was considered and agreed to by voice vote:
An amendment by Mr. Donnelly of Indiana to change when
notifications were required.
During consideration of H.R. 4481 the following amendment
was considered and agreed to by voice vote:
An amendment in the nature of a substitute offered by Mr.
Roe of Tennessee.
During consideration of H.R. 5948 the following amendment
was considered and agreed to by voice vote:
An amendment in the nature of a substitute offered by Mr.
Johnson of Ohio.
Committee Consideration
On July 11, 2012, the full Committee met in an open markup
session, a quorum being present, and ordered H.R. 5948, as
amended, reported favorably to the House of Representatives by
voice vote. During consideration of the bill, the following
amendment was considered:
An amendment in the nature of a substitute, by Mr. Johnson
of Ohio, which contained provisions affecting veteran burial
benefits, health benefits, restricting bonus payments by VA,
commending the Patriot Guard Riders, and recognizing Korean War
veterans was agreed to by voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report the legislation and amendments
thereto. There were no recorded votes taken on amendments or in
connection with ordering H.R. 5948, as amended, reported to the
House. A motion by Ranking Member Bob Filner of California to
order H.R. 5948, as amended, reported favorably to the House of
Representatives was agreed to by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Earmarks and Tax and Tariff Benefits
H.R. 5948, as amended, does not contain any congressional
earmarks, limited tax benefits, or limited tariff benefits as
defined in clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the cost estimate on H.R.
5948, as amended, prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 5948, as amended, provided by the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 18, 2012.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5948, a bill to
amend title 38, United States Code, to improve the supervision
of fiduciaries of veterans under the laws administered by the
Secretary of Veterans Affairs, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 5948--A bill to amend title 38, United States Code, to improve the
supervision of fiduciaries of veterans under laws administered
by the Secretary of Veterans Affairs, and for other purposes
Summary: H.R. 5948 would make changes to certain
administrative procedures and programs of the Department of
Veterans Affairs (VA), including the fiduciary program, limits
on bonuses for employees, and medical disability examinations
by contract physicians. CBO estimates that implementing H.R.
5948 would have a discretionary cost of $53 million over the
2013-2017 period, assuming appropriation of the necessary
amounts. Also, CBO estimates that enacting H.R. 5948 would
increase direct spending by $1 million over the 2013-2017
period, for burial programs.
Pay-as-you-go procedures apply because enacting this
legislation would affect direct spending. Enacting H.R. 5948
would not affect revenues.
H.R. 5948 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5948 is shown in the following table.
The costs of this legislation fall within budget function 700
(veterans benefits and services).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2013 2014 2015 2016 2017 2013-2017
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Limit on Awards and Bonuses to VA Employees:
Estimated Authorization Level....................... -53 -57 -61 -65 -69 -305
Estimated Outlays................................... -53 -57 -61 -65 -69 -305
Improvement of Fiduciary Program for Veterans:
Estimated Authorization Level....................... 37 38 38 39 40 192
Estimated Outlays................................... 37 38 38 39 40 192
Disability Examinations by Contract Physicians:
Estimated Authorization Level....................... 22 29 29 29 29 138
Estimated Outlays................................... 22 29 29 29 29 138
Provision of Access to Case-Tracking System:
Estimated Authorization Level....................... 6 5 5 5 5 26
Estimated Outlays................................... 6 5 5 5 5 26
Establishment of Place of Remembrance at Arlington
National Cemetery:
Estimated Authorization Level....................... * * * * * 1
Estimated Outlays................................... * * * * * 1
Other Provisions:
Estimated Authorization Level....................... * * * * * 1
Estimated Outlays................................... * * * * * 1
Total Changes:
Estimated Authorization Level................... 12 15 11 8 5 53
Estimated Outlays............................... 12 15 11 8 5 53
----------------------------------------------------------------------------------------------------------------
Notes: In addition to the changes in spending subject to appropriation shown above, CBO estimates that enacting
H.R. 5948 would increase direct spending by $1 million over the 2013-2022 period.
Columns may not sum to totals because of rounding.
VA = Department of Veterans Affairs; * = less than $500,000.
Basis of estimate: For this estimate, CBO assumes
appropriation actions consistent with the bill, that the
legislation will be enacted near the start of fiscal year 2013,
and that outlays will follow historical patterns for similar
and existing programs.
Spending subject to appropriation
CBO estimates that implementing H.R. 5948 would cost $53
million over the 2013-2017 period, assuming appropriation of
the estimated amounts.
Limit on Awards and Bonuses to VA Employees. Section 13
would limit the amount that VA could pay in awards and bonuses
to VA employees to about $358 million per year over the 2013-
2017 period. In 2011, VA paid about $410 million in awards and
bonus payments to employees. Assuming such payments will
continue at that level, and accounting for anticipated
inflation, CBO estimates that implementing section 13 would
reduce discretionary spending for pay and performance by $305
million over the 2013-2017 period, assuming appropriation
actions consistent with the bill.
Improvement of Fiduciary Program for Veterans. Section 2
would make significant changes to VA's fiduciary program. The
provision would require VA to:
Determine the competency of individuals
appointed as fiduciaries;
Remove certain fiduciaries deemed incompetent
and review the files of fiduciaries appealing such
decisions;
Maintain a list of state, local, or nonprofit
agencies that could perform fiduciary duties;
Update the qualifications and procedures for
becoming a fiduciary to include: visits to proposed
fiduciaries, internet training, and criminal background
and credit checks;
Require that all fiduciaries provide
accounting details for VA verification; and
Notify veterans of court-ordered fiduciaries
and if a requested fiduciary is unqualified and why.
Section 2 also would require VA to maintain a database of
all fiduciaries and submit a report to the Congress on the
progress of the program.
Based on information from VA, CBO estimates that about 460
additional employees would need to be hired to accommodate the
requirements of section 2 at an average annual cost of about
$80,000 per employee. We also estimate that the information
technology systems necessary to maintain the database would
cost about $1 million per year. Therefore, CBO estimates that
implementing section 2 would cost $192 million over the 2013-
2017 period, assuming appropriation of the necessary amounts.
Disability Examinations by Contract Physicians. Section 9
would extend the authority for VA to use contract physicians to
perform medical disability examinations through December 31,
2017. Under current law, that authority expires on December 31,
2012. Based on information from VA, CBO estimates that, in
2011, VA used the current authority to have about 36,000 exams
completed by contract physicians at a cost of about $800 per
exam and expects to complete the same amount each year over the
2013-2017 period.
In the absence of such authority, VA physicians who would
otherwise be providing other types of health care to veterans
will perform the exams, at no additional cost to VA. Thus, CBO
estimates that implementing section 9 would cost $138 million
over the 2013-2017 period, assuming appropriation of the
necessary amounts.
Provision of Access to Case-Tracking System. Section 10
would require VA to provide certain individuals, referred to as
covered employees, access to VA's case-tracking system in order
to provide veterans with information regarding the status of
claims submitted to VA. A covered employee under section 10
would include Members of the Congress and their staff and
certain employees of state or local agencies who assist
veterans with claims for benefits.
This access would be limited so that no covered employee
would be able to alter any information in the system or have
access to any medical records. Also, all covered employees
would be required to complete a certification course on privacy
issues that would be provided by VA.
CBO expects that about 8,000 Congressional, state, and
local employees would take training courses and be granted
access at a cost of about $600 per employee. VA also would need
to modify their system to ensure limited access. Therefore, CBO
estimates that implementing section 10 would increase
discretionary costs for information technology by $26 million
over the 2013-2017 period, assuming appropriation of the
necessary amounts.
Establishment of Place of Remembrance at Arlington National
Cemetery (ANC). Section 3 would authorize the Army to establish
a Place of Remembrance in ANC for the interment of fragmentary
remains of members of the Armed Forces who die or have died in
any war or contingency operation or in the line of duty and are
unidentifiable or unclaimed. CBO estimates that implementing
section 3 would cost $1 million over the 2013-2017 period,
assuming the availability of appropriated funds.
Other Provisions. Implementing the following provisions
would increase discretionary spending by a total of $1 million
over the 2013-2017 period:
Section 6 would require VA to communicate with a
funeral home when a deceased veteran has been transferred to VA
and determined to have no next of kin to ensure that the
funeral home has also taken measures to locate family members.
Section 6 would require a report on VA's
compliance with industry standards for caskets and urns.
Section 7 would require VA to determine if a
veteran who dies in prison is a Tier III sex offender, and
therefore excluded from burial honors or burial in a VA
national cemetery, Arlington National Cemetery, or state
veterans' cemeteries.
Section 8 would require VA to notify the next of
kin or agent of each deceased individual eligible for burial in
a national cemetery of any funeral honors available, including
honors provided by the military or volunteer veterans honor
guard.
Section 11 would require VA to provide notice to
the Congress, affected individuals, and the general public
whenever sensitive personal information maintained by VA is
breached. Such notification would be provided by email or in
writing and should explain the nature of the breach,
information about free credit protection services, and phone
numbers where the individual can receive information on
identity theft.
Direct spending
Section 4 would require VA to provide a quality casket or
urn for deceased veterans with no known next of kin, in those
cases where they are transferred to VA in a substandard
container. Based on information from VA on the number of
veterans who die per year with no known next of kin and who are
transferred to VA in substandard containers from funeral homes
or other entities responsible for deceased individuals, CBO
expects VA would be required to provide less than 100 caskets
or urns per year for deceased veterans. CBO estimates that the
required caskets or urns would have an average cost of about
$1,000 each, and thus that section 4 would increase direct
spending by $1 million over the 2013-2022 period.
Intergovernmental and private-sector impact: H.R. 5948
contains no intergovernmental or private-sector mandates as
defined in UMRA. Local governments might incur some costs as a
result of new requirements included in the bill, but those
costs would result from participation in a voluntary federal
program.
Estimate prepared by: Federal costs: Dwayne M. Wright;
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum; Impact on the Private Sector: Elizabeth Bass.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 5948, as amended, prepared by the
Director of the Congressional Budget Office pursuant to section
423 of the Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
5948, as amended.
Statement of Constitutional Authority
Pursuant to Article I, section 8 of the United States
Constitution, the reported bill is authorized by Congress'
power to ``provide for the common Defense and general Welfare
of the United States.''
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 2--Improvement of fiduciaries for veterans
Section 2(a) would amend section 5502 of chapter 55 of
title 38, United State Code, to revise the process for
appointment of fiduciaries. Section 2(a) would require VA to
provide a written statement to the veteran detailing the
reasons for the appointment of a fiduciary and implement an
appeals process which would allow a veteran to challenge the
finding of mental incompetence. This part would also allow a
veteran to predesignate a fiduciary, request the modification
of an appointed fiduciary, and establish that a fiduciary
operates independently of VA to act in the best interest of the
beneficiary.
Section 2(b) would amend section 5502 of chapter 55 of
title 38, United States Code, to decrease the commission
appointed fiduciaries may receive to the lesser of 3% of
monthly benefits or $35. It would also allow VA attorneys to
appear in a court of appropriate jurisdiction against any
fiduciary who has failed to execute the duties of a VA
appointed fiduciary. Section 2(b) would permit VA to
temporarily make payments to the person or institution having
custody and control of an incompetent or minor beneficiary.
Upon the death of a beneficiary, section 2(b) would direct
fiduciaries to pay all remaining funds overseen by fiduciaries
to any surviving spouse, or in equal parts to any children, or
in equal parts to any dependent parents. It would also require
that if a beneficiary did not have a spouse, children, or
dependent parents and lived in a state where the beneficiary's
assets would then escheat to the state, any funds derived from
VA benefits would then escheat to the United States.
Section 2(c) would amend section 5506 of chapter 55 of
title 38, United States Code, to require VA to expand the
definition of a person eligible to serve as a fiduciary to
include state and local government agencies and nonprofits, and
compel VA to maintain a list of state or local agencies and
nonprofit social agencies who qualify to act as a fiduciary.
Section 2(d) would amend section 5507 of chapter 55 of
title 38, United States Code, to mandate that VA investigate
each fiduciary before appointment and allow VA to expedite the
investigation for certain proposed fiduciaries. The
investigation would include a face-to-face interview no more
than 30 days after the investigation begins and a background
check which would include a criminal background check and a
credit check. The background check would be performed each time
a person is proposed as a fiduciary. It would also require VA
to notify the beneficiary if a fiduciary is convicted of
certain crimes. This part would also require VA to maintain
records of any person who previously served as a fiduciary and
any fiduciary whose status was revoked and would require each
regional office to maintain a list with the name and contact
information of each fiduciary and include pertinent information
related to each fiduciary's background investigation, bond
payment, and the amount the fiduciary controls for each
beneficiary served.
Section 2(d) would also require VA to investigate alleged
misuse of benefits, and, if substantiated, to transmit the
results of the investigation to the Attorney General and each
head of a federal department or agency that pays benefits to
fiduciaries or beneficiaries. It would also require VA to
ensure that any bond furnished by a fiduciary was not paid
using funds from the beneficiary and to consider the care a
proposed fiduciary has taken to protect the interests of the
beneficiary while also considering the capacity of the proposed
fiduciary to meet the financial requirements of the bond.
Section 2(e) would amend section 5509 of chapter 55 of
title 38, United States Code, to require fiduciaries to file an
annual report to include the amount of benefits the beneficiary
accrued during the year, if the fiduciary serves the
beneficiary for non-VA benefits, an accounting of all other
sources of income the fiduciary oversees for the beneficiary,
and whether the fiduciary was convicted of any crime, filed
bankruptcy, and any judgments entered against the fiduciary. It
would require VA to perform random audits of fiduciaries who
receive a commission. Section 2(e) would also require the Under
Secretary of Benefits and the Under Secretary for Health to
promulgate regulations that would not diminish the ability of
fiduciaries providing care under chapter 17, title 38, United
States Code, to care for beneficiaries.
Section 2(f) would amend section 5509 of chapter 55 of
title 38, United States Code, to require VA to provide the
Committee on Veterans' Affairs of the Senate and the Committee
on Veterans' Affairs of the House of Representatives a report
on the implementation of the new policies and procedures
outlined in section 2 and a discussion on whether VA should
offer fiduciaries standardized financial software to comply
with reporting requirements.
Section 3--Establishment of Place of Remembrance at Arlington National
Cemetery
Section 3 would add a new section, 4727, to chapter 446 of
title 10, United States Code, to direct the Secretary of the
Army to establish a Place of Remembrance at an appropriate
location in Arlington National Cemetery for the interment of
cremated remains of certain deceased members of the Armed
Forces. It also directs that the regulations governing the
construction and placement of the Place of Remembrance be
prescribed by the Secretary of Defense.
Section 4--Furnishing caskets and urns for deceased veterans with no
known next of kin
Section 4 would amend section 2306 of chapter 23 of title
38, United States Code, by providing that the Secretary of VA
shall provide a casket or urn of such quality that the
Secretary considers appropriate for a dignified burial in a
national cemetery to deceased veterans with no known next of
kin.
Section 5--Improved communication between Department of Veterans
Affairs and medical examiners and funeral directors
Section 5 would add a new section, 2414, to chapter 24 of
title 38, United States Code, to ensure that local medical
examiners, funeral directors, or other entity responsible for
the body of a deceased veteran communicate certain information
to the Secretary of VA, including whether the veteran was
cremated and any steps taken to ensure that the deceased
veteran has no next of kin. This section also describes a
deceased veteran for purposes of this section as one who has no
next of kin or other person claiming the body of the deceased
veteran and does not have sufficient resources to cover burial
and funeral expenses.
Section 6--Report on compliance of Department of Veterans Affairs with
industry standards for caskets and urns
Section 6 directs the Secretary of VA to submit, not later
than 180 days after the enactment of this Act, a report to the
House and Senate Committees on Veterans' Affairs discussing the
industry standard for caskets and urns and assessment of the
National Cemetery Administration's compliance with such
standards.
Section 7--Exclusion of persons convicted of committing certain sex
offenses from interment or memorialization in national
cemeteries, Arlington National Cemetery, and certain State
veterans' cemeteries and from receiving certain funeral honors
Section 7 amends section 2411(b) of chapter 24 of title 38,
United States Code, by prohibiting those who have been
convicted of certain tier III sex offenses and sentenced to a
minimum of life imprisonment from burial in a VA national
cemetery, Arlington National Cemetery, and certain state
veterans' cemeteries as well as from receiving certain funeral
honors.
Section 8--Veterans freedom of conscience protection
Section 8 amends section 2404 of chapter 24 of title 38,
United States Code, by adding that the Secretary of VA shall,
to the extent practicable, honor the wishes of the next of kin
or other agent of a deceased veteran at a funeral, memorial
service or ceremony, to include using public areas of the
cemetery for prayer, mourning or reflection; display of any
religious or other symbols chosen by the family; and the use of
any military or volunteer honor guard. In addition, the section
provides that anyone who is aggrieved by a violation of this
section may bring a civil action in an appropriate federal
court.
Section 9--Authority for the performance of medical disability
examinations by contract physicians
Section 9 would amend section 5101 of subchapter I of
chapter 51 of title 38, United States Code, by extending the
authority for the performance or medical disability
examinations by contract physicians from December 31, 2012, to
December 31, 2017.
Section 10--Provision of access to case-tracking information
Section 10 adds a new section, 5906, to chapter 59 of title
38, United States Code, to provide certain employees, such as
county veteran service officers and Congressional caseworkers,
with access to case-tracking information at VBA. The covered
employee must complete a required privacy certification course
and must certify that the access is for official purposes only.
The covered employee would not have access to certain private
records such as medical records and will not be able to modify
data in the system.
Section 11--Notification by the Secretary of Veterans Affairs of
individuals whose sensitive personal information is involved in
a data breach
Section 11 would amend subchapter III of chapter 57 of
title 38, United States Code, to mandate VA to notify Congress
and affected individuals when sensitive data has been breached.
It would require VA to inform Congress and all individuals
whose PII was compromised within 10 days of the Secretary
becoming aware a breach has occurred or 15 days if the 10 day
timeframe is not possible. It would also mandate VA to notify
the general public within 10 days of the Secretary learning of
the breach. It would also compel VA to notify individuals of a
description of what PII was compromised and provide information
on the steps they can take to protect their information.
Section 12--Limitation on bonuses for Department of Veterans Affairs
employees who violate Federal civil laws or regulations
Section 12 would amend chapter 7 of title 38, United States
Code, to deny bonuses to any employee of the Department who
knowingly violates any law, regulation, or policy, including
Federal Acquisition Regulations and Veterans Affairs
Acquisition Regulations. Section 12 defines bonuses as (1) a
retention incentive, (2) a retention incentive payment, (3) a
retention incentive award, and (4) any other incentive
requiring approval from the Central Office Human Resource
Service, the Chief Business Office Workforce Management, or the
Corporate Senior Executive Management Office. It would also
require the Secretary to certify annually to the Congress that
each bonus awarded was in accordance to this section.
Section 13--Limitation on awards and bonuses to employees of the
Department of Veterans Affairs
Section 13 would require VA to limit the amount paid in
performance awards or bonuses to $357,613,229.
Section 14--Sense of Congress on Patriot Guard Riders
This section is a sense of Congress that commends the
Patriot Guard riders for their volunteer efforts in shielding
the mourning family and friends of fallen members of the Armed
Forces from any protest groups, and recognizes the sacrifices
that veterans, members of the Armed Forces, and their families
have made on behalf of the United States.
Section 15--Sense of Congress honoring Korean War Veterans
This section is a sense of Congress that, on the occasion
of the 60th anniversary of the Korean War, Congress recognizes
the importance and sacrifices made by veterans of the Korean
War.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART I--GENERAL PROVISIONS
* * * * * * *
CHAPTER 7--EMPLOYEES
Sec.
701. Placement of employees in military installations.
* * * * * * *
713. Limitation on bonuses.
* * * * * * *
Sec. 713. Limitation on bonuses
(a) In General.--(1) The Secretary shall ensure that no
employee of the Department who, during any year, knowingly
violates any law, regulation, or policy described in paragraph
(2) receives a bonus for or during that year.
(2) A law, regulation, or policy described in this paragraph
is any of the following:
(A) A Federal civil law or Federal regulation,
including such civil laws or regulations covered under
the Federal Acquisition Regulation and the Veterans
Affairs Acquisition Regulation.
(B) An internal policy of the Department.
(b) Certification.--The Secretary shall annually certify to
Congress that each bonus awarded by the Secretary during the
previous year was awarded in accordance with subsection (a)(1).
(c) Bonus Defined.--For purposes of this section, the term
``bonus'' includes--
(1) a retention incentive;
(2) a retention incentive payment;
(3) a retention incentive award; and
(4) any other incentive requiring approval from the
Central Office Human Resource Service, the Chief
Business Office Workforce Management, or the Corporate
Senior Executive Management Office.
* * * * * * *
PART II--GENERAL BENEFITS
* * * * * * *
CHAPTER 23--BURIAL BENEFITS
* * * * * * *
Sec. 2306. Headstones, markers, and burial receptacles
(a) * * *
* * * * * * *
(f) The Secretary shall furnish a casket or urn, of such
quality as the Secretary considers appropriate for a dignified
burial, for burial in a national cemetery of a deceased veteran
described in section 2414(b) of this title.
[(f)] (g)(1) * * *
* * * * * * *
[(g)] (h)(1) * * *
* * * * * * *
(4) A casket or urn may not be furnished under subsection (f)
for burial of a person described in section 2411(b) of this
title.
* * * * * * *
CHAPTER 24--NATIONAL CEMETERIES AND MEMORIALS
Sec.
2400. Establishment of National Cemetery Administration; composition of
Administration.
* * * * * * *
2414. Communication between Department of Veterans Affairs and medical
examiners and funeral directors.
* * * * * * *
Sec. 2404. Administration
(a) * * *
* * * * * * *
(h)(1) With respect to the interment or funeral, memorial
service, or ceremony of a deceased individual at a national
cemetery, the Secretary shall ensure that--
(A) the expressed wishes of the next of kin or other
agent of the deceased individual are respected and
given appropriate deference when evaluating whether the
proposed interment or funeral, memorial service, or
ceremony affects the safety and security of the
national cemetery and visitors to the cemetery;
(B) to the extent possible, all appropriate public
areas of the cemetery, including committal shelters,
chapels, and benches, may be used by the family of the
deceased individual for contemplation, prayer,
mourning, or reflection; and
(C) during such interment or funeral, memorial
service, or ceremony, the family of the deceased
individual may display any religious or other symbols
chosen by the family.
(2) Subject to regulations prescribed by the Secretary under
paragraph (5), including such regulations ensuring the security
of a national cemetery, the Secretary shall provide to any
military or volunteer veterans honor guard, including such
guards belonging to a veterans service organization or other
non-governmental group that provides services to veterans,
access to public areas of a national cemetery if such access is
requested by the next of kin or other agent of a deceased
individual whose interment or funeral, memorial service, or
ceremony is being held in such cemetery.
(3) With respect to the interment or funeral, memorial
service, or ceremony of a deceased individual at a national
cemetery, the Secretary shall notify the next of kin or other
agent of the deceased individual of funeral honors available to
the deceased veteran, including such honors provided by any
military or volunteer veterans honor guard described in
paragraph (2).
(4) Any person aggrieved by a violation of this subsection or
any regulation prescribed pursuant to this subsection may in a
civil action in an appropriate Federal court obtain any
appropriate relief against the Federal Government with respect
to the violation. Standing to assert a claim or defense under
this subsection shall be governed by the general rules of
standing under Article III of the Constitution.
(5) The Secretary shall prescribe regulations to carry out
this subsection.
* * * * * * *
Sec. 2411. Prohibition against interment or memorialization in the
National Cemetery Administration or Arlington
National Cemetery of persons committing Federal or
State capital crimes
(a)(1) * * *
(2) In the case of a person described in subsection (b)(1)
[or (b)(2)], (b)(2), or (b)(4), the prohibition under paragraph
(1) shall not apply unless written notice of a conviction
referred to in subsection (b)(1) [or (b)(2)], (b)(2), or
(b)(4), as the case may be, is received by the appropriate
Federal official before such official approves an application
for the interment or memorialization of such person. Such
written notice shall be furnished to such official by the
Attorney General, in the case of a Federal [capital] crime, or
by an appropriate State official, in the case of a State
[capital] crime.
(b) A person referred to in subsection (a) is any of the
following:
(1) * * *
* * * * * * *
(4) A person--
(A) who has been convicted of a Federal or
State crime causing the person to be a tier III
sex offender for purposes of the Sex Offender
Registration and Notification Act (42 U.S.C.
16901 et seq.);
(B) who, for such crime, is sentenced to a
minimum of life imprisonment; and
(C) whose conviction is final (other than a
person whose sentence was commuted by the
President or Governor of a State, as the case
may be).
* * * * * * *
Sec. 2414. Communication between Department of Veterans Affairs and
medical examiners and funeral directors
(a) Required Information.--With respect to each deceased
veteran described in subsection (b) who is transported to a
national cemetery for burial, the Secretary shall ensure that
the local medical examiner, funeral director, county service
group, or other entity responsible for the body of the deceased
veteran before such transportation submits to the Secretary the
following information:
(1) Whether the deceased veteran was cremated.
(2) The steps taken to ensure that the deceased
veteran has no next of kin.
(b) Deceased Veteran Described.--A deceased veteran described
in this subsection is a deceased veteran whom the Secretary
determines--
(1) that there is no next of kin or other person
claiming the body of the deceased veteran; and
(2) does not have sufficient resources to cover
burial and funeral expenses.
(c) Determination of Sufficient Resources.--If the Secretary
is unable to make a reasonable determination of the amount of
the resources of a deceased veteran under subsection (b)(2),
the Secretary shall deem such resources to be an amount that is
not sufficient to cover burial and funeral expenses.
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 55--MINORS, INCOMPETENTS, AND OTHER WARDS
Sec.
5501. Commitment actions.
[5502. Payments to and supervision of fiduciaries.]
5502. Appointment of fiduciaries.
5502A. Supervision of fiduciaries.
* * * * * * *
[5509. Authority to require fiduciary to receive payments at regional
offices of the Department when failing to provide required
accounting.]
5509. Annual reports and accountings of fiduciaries.
* * * * * * *
[Sec. 5502. Payments to and supervision of fiduciaries
[(a)(1) Where it appears to the Secretary that the interest
of the beneficiary would be served thereby, payment of benefits
under any law administered by the Secretary may be made
directly to the beneficiary or to a relative or some other
fiduciary for the use and benefit of the beneficiary,
regardless of any legal disability on the part of the
beneficiary. Where, in the opinion of the Secretary, any
fiduciary receiving funds on behalf of a Department beneficiary
is acting in such a number of cases as to make it impracticable
to conserve properly the estates or to supervise the persons of
the beneficiaries, the Secretary may refuse to make future
payments in such cases as the Secretary may deem proper.
[(2) In a case in which the Secretary determines that a
commission is necessary in order to obtain the services of a
fiduciary in the best interests of a beneficiary, the Secretary
may authorize a fiduciary appointed by the Secretary to obtain
from the beneficiary's estate a reasonable commission for
fiduciary services rendered, but the commission for any year
may not exceed 4 percent of the monetary benefits under laws
administered by the Secretary paid on behalf of the beneficiary
to the fiduciary during such year. A commission may not be
authorized for a fiduciary who receives any other form of
remuneration or payment in connection with rendering fiduciary
services for benefits under this title on behalf of the
beneficiary.
[(b) Whenever it appears that any fiduciary, in the opinion
of the Secretary, is not properly executing or has not properly
executed the duties of the trust of such fiduciary or has
collected or paid, or is attempting to collect or pay, fees,
commissions, or allowances that are inequitable or in excess of
those allowed by law for the duties performed or expenses
incurred, or has failed to make such payments as may be
necessary for the benefit of the ward or the dependents of the
ward, then the Secretary may appear, by the Secretary's
authorized attorney, in the court which has appointed such
fiduciary, or in any court having original, concurrent, or
appellate jurisdiction over said cause, and make proper
presentation of such matters. The Secretary, in the Secretary's
discretion, may suspend payments to any such fiduciary who
shall neglect or refuse, after reasonable notice, to render an
account to the Secretary from time to time showing the
application of such payments for the benefit of such
incompetent or minor beneficiary, or who shall neglect or
refuse to administer the estate according to law. The Secretary
may require the fiduciary, as part of such account, to disclose
any additional financial information concerning the beneficiary
(except for information that is not available to the
fiduciary). The Secretary may appear or intervene by the
Secretary's duly authorized attorney in any court as an
interested party in any litigation instituted by the Secretary
or otherwise, directly affecting money paid to such fiduciary
under this section.
[(c) Authority is hereby granted for the payment of any court
or other expenses incident to any investigation or court
proceeding for the appointment of any fiduciary or other person
for the purpose of payment of benefits payable under laws
administered by the Secretary or the removal of such fiduciary
and appointment of another, and of expenses in connection with
the administration of such benefits by such fiduciaries, or in
connection with any other court proceeding hereby authorized,
when such payment is authorized by the Secretary.
[(d) All or any part of any benefits the payment of which is
suspended or withheld under this section may, in the discretion
of the Secretary, be paid temporarily to the person having
custody and control of the incompetent or minor beneficiary, to
be used solely for the benefit of such beneficiary, or, in the
case of an incompetent veteran, may be apportioned to the
dependent or dependents, if any, of such veteran. Any part not
so paid and any funds of a mentally incompetent or insane
veteran not paid to the chief officer of the institution in
which such veteran is a patient nor apportioned to the
veteran's dependent or dependents may be ordered held in the
Treasury to the credit of such beneficiary. All funds so held
shall be disbursed under the order and in the discretion of the
Secretary for the benefit of such beneficiary or the
beneficiary's dependents. Any balance remaining in such fund to
the credit of any beneficiary may be paid to the beneficiary if
the beneficiary recovers and is found competent, or if a minor,
attains majority, or otherwise to the beneficiary's fiduciary,
or, in the event of the beneficiary's death, to the
beneficiary's personal representative, except as otherwise
provided by law; however, payment will not be made to the
beneficiary's personal representative if, under the law of the
beneficiary's last legal residence, the beneficiary's estate
would escheat to the State. In the event of the death of a
mentally incompetent or insane veteran, all gratuitous benefits
under laws administered by the Secretary deposited before or
after August 7, 1959, in the personal funds of patients trust
fund on account of such veteran shall not be paid to the
personal representative of such veteran, but shall be paid to
the following persons living at the time of settlement, and in
the order named: The surviving spouse, the children (without
regard to age or marital status) in equal parts, and the
dependent parents of such veteran, in equal parts. If any
balance remains, such balance shall be deposited to the credit
of the applicable current appropriation; except that there may
be paid only so much of such balance as may be necessary to
reimburse a person (other than a political subdivision of the
United States) who bore the expenses of last sickness or burial
of the veteran for such expenses. No payment shall be made
under the two preceding sentences of this subsection unless
claim therefor is filed with the Secretary within five years
after the death of the veteran, except that, if any person so
entitled under said two sentences is under legal disability at
the time of death of the veteran, such five-year period of
limitation shall run from the termination or removal of the
legal disability.
[(e) Any funds in the hands of a fiduciary appointed by a
State court or the Secretary derived from benefits payable
under laws administered by the Secretary, which under the law
of the State wherein the beneficiary had last legal residence
would escheat to the State, shall escheat to the United States
and shall be returned by such fiduciary, or by the personal
representative of the deceased beneficiary, less legal expenses
of any administration necessary to determine that an escheat is
in order, to the Department, and shall be deposited to the
credit of the applicable revolving fund, trust fund, or
appropriation.]
Sec. 5502. Appointment of fiduciaries
(a) Appointment.--(1) Where it appears to the Secretary that
the interest of the beneficiary would be served thereby,
payment of benefits under any law administered by the Secretary
may be made directly to the beneficiary or to a relative or
some other fiduciary for the use and benefit of the
beneficiary, regardless of any legal disability on the part of
the beneficiary.
(2) When in the opinion of the Secretary, a temporary
fiduciary is needed in order to protect the benefits provided
to the beneficiary under any law administered by the Secretary
while a determination of incompetency is being made or appealed
or a fiduciary is appealing a determination of misuse, the
Secretary may appoint one or more temporary fiduciaries for a
period not to exceed 120 days. If a final decision has not been
made within 120 days, the Secretary may not continue the
appointment of the fiduciary without obtaining a court order
for appointment of a guardian, conservator, or other fiduciary
under the authority provided in section 5502(b) of this title.
(b) Appeals.--(1) If the Secretary determines a beneficiary
to be mentally incompetent for purposes of appointing a
fiduciary under this chapter, the Secretary shall provide such
beneficiary with a written statement detailing the reasons for
such determination.
(2) A beneficiary whom the Secretary has determined to be
mentally incompetent for purposes of appointing a fiduciary
under this chapter may appeal such determination.
(c) Modification.--(1) A beneficiary for whom the Secretary
appoints a fiduciary under this chapter may, at any time,
request the Secretary to--
(A) remove the fiduciary so appointed; and
(B) have a new fiduciary appointed.
(2) The Secretary shall comply with a request under paragraph
(1) unless the Secretary determines that the request is not
made in good faith.
(3) The Secretary shall ensure that any removal or new
appointment of a fiduciary under paragraph (1) does not delay
or interrupt the beneficiary's receipt of benefits administered
by the Secretary.
(d) Independence.--A fiduciary appointed by the Secretary
shall operate independently of the Department to determine the
actions that are in the interest of the beneficiary.
(e) Predesignation.--A veteran may predesignate a fiduciary
by--
(1) submitting written notice to the Secretary of the
predesignated fiduciary; or
(2) submitting a form provided by the Secretary for
such purpose.
(f) Appointment of Non-Predesignated Fiduciary.--If a
beneficiary designates an individual to serve as a fiduciary
under subsection (e) and the Secretary appoints an individual
not so designated as the fiduciary for such beneficiary, the
Secretary shall notify such beneficiary of--
(1) the reason why such designated individual was not
appointed; and
(2) the ability of the beneficiary to modify the
appointed fiduciary under subsection (c).
(g) Priority of Appointment.--In appointing a fiduciary under
this chapter, if a beneficiary does not designate a fiduciary
pursuant to subsection (e), to the extent possible the
Secretary shall appoint a person who is--
(1) a relative of the beneficiary;
(2) appointed as guardian of the beneficiary by a
court of competent jurisdiction; or
(3) authorized to act on behalf of the beneficiary
under a durable power of attorney.
Sec. 5502A. Supervision of fiduciaries
(a) Commission.--(1)(A) In a case in which the Secretary
determines that a commission is necessary in order to obtain
the services of a fiduciary in the best interests of a
beneficiary, the Secretary may authorize a fiduciary appointed
by the Secretary to obtain from the monthly benefits provided
to the beneficiary a reasonable commission for fiduciary
services rendered, but the commission for any month may not
exceed the lesser of the following amounts:
(i) The amount that equals three percent of the monthly
monetary benefits under laws administered by the Secretary paid
on behalf of the beneficiary to the fiduciary.
(ii) $35.
(B) A commission paid under this paragraph may not be derived
from any award to a beneficiary regarding back pay or
retroactive benefits payments.
(C) A commission may not be authorized for a fiduciary who
receives any other form of remuneration or payment in
connection with rendering fiduciary services for benefits under
this title on behalf of the beneficiary.
(D) In accordance with section 6106 of this title, a
commission may not be paid to a fiduciary if the Secretary
determines that the fiduciary misused any benefit payments of a
beneficiary.
(E) If the Secretary determines that the fiduciary has
misused any benefit or payments of a beneficiary, the Secretary
may revoke the fiduciary status of the fiduciary.
(2) Where, in the opinion of the Secretary, any fiduciary
receiving funds on behalf of a Department beneficiary is acting
in such a number of cases as to make it impracticable to
conserve properly the estates or to supervise the persons of
the beneficiaries, the Secretary may refuse to make future
payments in such cases as the Secretary may deem proper.
(b) Court.--Whenever it appears that any fiduciary, in the
opinion of the Secretary, is not properly executing or has not
properly executed the duties of the trust of such fiduciary or
has collected or paid, or is attempting to collect or pay,
fees, commissions, or allowances that are inequitable or in
excess of those allowed by law for the duties performed or
expenses incurred, or has failed to make such payments as may
be necessary for the benefit of the ward or the dependents of
the ward, then the Secretary may appear, by the Secretary's
authorized attorney, in the court which has appointed such
fiduciary, or in any court having original, concurrent, or
appellate jurisdiction over said cause, and make proper
presentation of such matters. The Secretary, in the Secretary's
discretion, may suspend payments to any such fiduciary who
shall neglect or refuse, after reasonable notice, to render an
account to the Secretary from time to time showing the
application of such payments for the benefit of such
incompetent or minor beneficiary, or who shall neglect or
refuse to administer the estate according to law. The Secretary
may require the fiduciary, as part of such account, to disclose
any additional financial information concerning the beneficiary
(except for information that is not available to the
fiduciary). The Secretary may appear or intervene by the
Secretary's duly authorized attorney in any court as an
interested party in any litigation instituted by the Secretary
or otherwise, directly affecting money paid to such fiduciary
under this section.
(c) Payment of Certain Expenses.--Authority is hereby granted
for the payment of any court or other expenses incident to any
investigation or court proceeding for the appointment of any
fiduciary or other person for the purpose of payment of
benefits payable under laws administered by the Secretary or
the removal of such fiduciary and appointment of another, and
of expenses in connection with the administration of such
benefits by such fiduciaries, or in connection with any other
court proceeding hereby authorized, when such payment is
authorized by the Secretary.
(d) Temporary Payment of Benefits.--All or any part of any
benefits the payment of which is suspended or withheld under
this section may, in the discretion of the Secretary, be paid
temporarily to the person having custody and control of the
incompetent or minor beneficiary, to be used solely for the
benefit of such beneficiary, or, in the case of an incompetent
veteran, may be apportioned to the dependent or dependents, if
any, of such veteran. Any part not so paid and any funds of a
mentally incompetent or insane veteran not paid to the chief
officer of the institution in which such veteran is a patient
nor apportioned to the veteran's dependent or dependents may be
ordered held in the Treasury to the credit of such beneficiary.
All funds so held shall be disbursed under the order and in the
discretion of the Secretary for the benefit of such beneficiary
or the beneficiary's dependents. Any balance remaining in such
fund to the credit of any beneficiary may be paid to the
beneficiary if the beneficiary recovers and is found competent,
or if a minor, attains majority, or otherwise to the
beneficiary's fiduciary, or, in the event of the beneficiary's
death, to the beneficiary's personal representative, except as
otherwise provided by law; however, payment will not be made to
the beneficiary's personal representative if, under the law of
the beneficiary's last legal residence, the beneficiary's
estate would escheat to the State. In the event of the death of
a mentally incompetent or insane veteran, all gratuitous
benefits under laws administered by the Secretary deposited
before or after August 7, 1959, in the personal funds of
patients trust fund on account of such veteran shall not be
paid to the personal representative of such veteran, but shall
be paid to the following persons living at the time of
settlement, and in the order named: The surviving spouse, the
children (without regard to age or marital status) in equal
parts, and the dependent parents of such veteran, in equal
parts. If any balance remains, such balance shall be deposited
to the credit of the applicable current appropriation; except
that there may be paid only so much of such balance as may be
necessary to reimburse a person (other than a political
subdivision of the United States) who bore the expenses of last
sickness or burial of the veteran for such expenses. No payment
shall be made under the two preceding sentences of this
subsection unless claim therefor is filed with the Secretary
within five years after the death of the veteran, except that,
if any person so entitled under said two sentences is under
legal disability at the time of death of the veteran, such
five-year period of limitation shall run from the termination
or removal of the legal disability.
(e) Escheatment.--Any funds in the hands of a fiduciary
appointed by a State court or the Secretary derived from
benefits payable under laws administered by the Secretary,
which under the law of the State wherein the beneficiary had
last legal residence would escheat to the State, shall escheat
to the United States and shall be returned by such fiduciary,
or by the personal representative of the deceased beneficiary,
less legal expenses of any administration necessary to
determine that an escheat is in order, to the Department, and
shall be deposited to the credit of the applicable revolving
fund, trust fund, or appropriation.
* * * * * * *
Sec. 5506. Definition of ``fiduciary''
[For purposes] (a) For purposes of this chapter and chapter
61 of this title, the term ``fiduciary'' means--
(1) * * *
* * * * * * *
(b)(1) For purposes of subsection (a), the term ``person''
includes any--
(A) State or local government agency whose mission is
to carry out income maintenance, social service, or
health care-related activities;
(B) any State or local government agency with
fiduciary responsibilities; or
(C) any nonprofit social service agency that the
Secretary determines--
(i) regularly provides services as a
fiduciary concurrently to five or more
individuals; and
(ii) is not a creditor of any such
individual.
(2) The Secretary shall maintain a list of State or local
agencies and nonprofit social service agencies under paragraph
(1) that are qualified to act as a fiduciary under this
chapter. In maintaining such list, the Secretary may consult
the lists maintained under section 807(h) of the Social
Security Act (42 U.S.C. 1007(h)).
[Sec. 5507. Inquiry, investigations, and qualification of fiduciaries
[(a) Any certification of a person for payment of benefits of
a beneficiary to that person as such beneficiary's fiduciary
under section 5502 of this title shall be made on the basis
of--
[(1) an inquiry or investigation by the Secretary of
the fitness of that person to serve as fiduciary for
that beneficiary, such inquiry or investigation--
[(A) to be conducted in advance of such
certification;
[(B) to the extent practicable, to include a
face-to-face interview with such person; and
[(C) to the extent practicable, to include a
copy of a credit report for such person issued
within one year of the date of the proposed
appointment;
[(2) adequate evidence that certification of that
person as fiduciary for that beneficiary is in the
interest of such beneficiary (as determined by the
Secretary under regulations); and
[(3) the furnishing of any bond that may be required
by the Secretary.
[(b) As part of any inquiry or investigation of any person
under subsection (a), the Secretary shall request information
concerning whether that person has been convicted of any
offense under Federal or State law which resulted in
imprisonment for more than one year. If that person has been
convicted of such an offense, the Secretary may certify the
person as a fiduciary only if the Secretary finds that the
person is an appropriate person to act as fiduciary for the
beneficiary concerned under the circumstances.
[(c)(1) In the case of a proposed fiduciary described in
paragraph (2), the Secretary, in conducting an inquiry or
investigation under subsection (a)(1), may carry out such
inquiry or investigation on an expedited basis that may include
waiver of any specific requirement relating to such inquiry or
investigation, including the otherwise applicable provisions of
subparagraphs (A), (B), and (C) of such subsection. Any such
inquiry or investigation carried out on such an expedited basis
shall be carried out under regulations prescribed for purposes
of this section.
[(2) Paragraph (1) applies with respect to a proposed
fiduciary who is--
[(A) the parent (natural, adopted, or stepparent) of
a beneficiary who is a minor;
[(B) the spouse or parent of an incompetent
beneficiary;
[(C) a person who has been appointed a fiduciary of
the beneficiary by a court of competent jurisdiction;
or
[(D) being appointed to manage an estate where the
annual amount of veterans benefits to be managed by the
proposed fiduciary does not exceed $3,600, as adjusted
pursuant to section 5312 of this title.
[(d) Temporary Fiduciaries.--When in the opinion of the
Secretary, a temporary fiduciary is needed in order to protect
the assets of the beneficiary while a determination of
incompetency is being made or appealed or a fiduciary is
appealing a determination of misuse, the Secretary may appoint
one or more temporary fiduciaries for a period not to exceed
120 days. If a final decision has not been made within 120
days, the Secretary may not continue the appointment of the
fiduciary without obtaining a court order for appointment of a
guardian, conservator, or other fiduciary under the authority
provided in section 5502(b) of this title.]
Sec. 5507. Inquiry, investigations, and qualification of fiduciaries
(a) Investigation.--Any certification of a person for payment
of benefits of a beneficiary to that person as such
beneficiary's fiduciary under section 5502 of this title shall
be made on the basis of--
(1) an inquiry or investigation by the Secretary of
the fitness of that person to serve as fiduciary for
that beneficiary to be conducted in advance of such
certification and in accordance with subsection (b);
(2) adequate evidence that certification of that
person as fiduciary for that beneficiary is in the
interest of such beneficiary (as determined by the
Secretary under regulations);
(3) adequate evidence that the person to serve as
fiduciary protects the private information of a
beneficiary in accordance with subsection (d)(1); and
(4) the furnishing of any bond that may be required
by the Secretary, in accordance with subsection (f).
(b) Elements of Investigation.--(1) In conducting an inquiry
or investigation of a proposed fiduciary under subsection
(a)(1), the Secretary shall conduct--
(A) a face-to-face interview with the proposed
fiduciary by not later than 30 days after the date on
which such inquiry or investigation begins; and
(B) a background check of the proposed fiduciary to--
(i) in accordance with paragraph (2),
determine whether the proposed fiduciary has
been convicted of a crime; and
(ii) determine whether the proposed fiduciary
will serve the best interest of the
beneficiary, including by conducting a credit
check of the proposed fiduciary and checking
the records under paragraph (5).
(2) The Secretary shall request information concerning
whether that person has been convicted of any offense under
Federal or State law. If that person has been convicted of such
an offense, the Secretary may certify the person as a fiduciary
only if the Secretary finds that the person is an appropriate
person to act as fiduciary for the beneficiary concerned under
the circumstances.
(3) The Secretary shall conduct the background check
described in paragraph (1)(B)--
(A) each time a person is proposed to be a fiduciary,
regardless of whether the person is serving or has
served as a fiduciary; and
(B) at no expense to the beneficiary.
(4) Each proposed fiduciary shall disclose to the Secretary
the number of beneficiaries that the fiduciary acts on behalf
of.
(5) The Secretary shall maintain records of any person who
has--
(A) previously served as a fiduciary; and
(B) had such fiduciary status revoked by the
Secretary.
(6)(A) If a fiduciary appointed by the Secretary is convicted
of a crime described in subparagraph (B), the Secretary shall
notify the beneficiary of such conviction by not later than 14
days after the date on which the Secretary learns of such
conviction.
(B) A crime described in this subparagraph is a crime--
(i) for which the fiduciary is convicted while
serving as a fiduciary for any person;
(ii) that is not included in a report submitted by
the fiduciary under section 5509(a) of this title; and
(iii) that the Secretary determines could affect the
ability of the fiduciary to act on behalf of the
beneficiary.
(c) Investigation of Certain Persons.--(1) In the case of a
proposed fiduciary described in paragraph (2), the Secretary,
in conducting an inquiry or investigation under subsection
(a)(1), may carry out such inquiry or investigation on an
expedited basis that may include giving priority to conducting
such inquiry or investigation. Any such inquiry or
investigation carried out on such an expedited basis shall be
carried out under regulations prescribed for purposes of this
section.
(2) Paragraph (1) applies with respect to a proposed
fiduciary who is--
(A) the parent (natural, adopted, or stepparent) of a
beneficiary who is a minor;
(B) the spouse or parent of an incompetent
beneficiary;
(C) a person who has been appointed a fiduciary of
the beneficiary by a court of competent jurisdiction;
(D) being appointed to manage an estate where the
annual amount of veterans benefits to be managed by the
proposed fiduciary does not exceed $3,600, as adjusted
pursuant to section 5312 of this title; or
(E) a person who is authorized to act on behalf of
the beneficiary under a durable power of attorney.
(d) Protection of Private Information.--(1) A fiduciary shall
take all reasonable precautions to--
(A) protect the private information of a beneficiary,
including personally identifiable information; and
(B) securely conducts financial transactions.
(2) A fiduciary shall notify the Secretary of any action of
the fiduciary that compromises or potentially compromises the
private information of a beneficiary.
(e) Potential Misuse of Funds.--(1) If the Secretary has
reason to believe that a fiduciary may be misusing all or part
of the benefit of a beneficiary, the Secretary shall--
(A) conduct a thorough investigation to determine the
veracity of such belief; and
(B) if such veracity is established, transmit to the
officials described in paragraph (2) a report of such
investigation.
(2) The officials described in this paragraph are the
following:
(A) The Attorney General.
(B) Each head of a Federal department or agency that
pays to a fiduciary or other person benefits under any
law administered by such department of agency for the
use and benefit of a minor, incompetent, or other
beneficiary.
(f) Bond.--In requiring the furnishing of a bond under
subsection (a)(4), the Secretary shall--
(1) ensure that any such bond is not paid using any
funds of the beneficiary; and
(2) consider--
(A) the care a proposed fiduciary has taken
to protect the interests of the beneficiary;
and
(B) the capacity of the proposed fiduciary to
meet the financial requirements of the bond
without sustaining hardship.
(g) List of Fiduciaries.--Each regional office of the
Veterans Benefits Administration shall maintain a list of the
following:
(1) The name and contact information of each
fiduciary, including address, telephone number, and
email address.
(2) With respect to each fiduciary described in
paragraph (1)--
(A) the date of the most recent background
check and credit check performed by the
Secretary under this section;
(B) the date that any bond was paid under
this section;
(C) the name, address, and telephone number
of each beneficiary the fiduciary acts on
behalf of; and
(D) the amount that the fiduciary controls
with respect to each beneficiary described in
subparagraph (C).
* * * * * * *
Sec. 5509. [Authority to require fiduciary to receive payments at
regional offices of the Department when failing to
provide required accounting] Annual reports and
accountings of fiduciaries
(a) Required Reports and Accountings.--The Secretary [may
require a fiduciary to file a], subject to regulations
prescribed pursuant to subsection (f), shall require a
fiduciary to file an annual report or accounting pursuant to
regulations prescribed by the Secretary. The Secretary shall
transmit such annual report or accounting to the beneficiary
and any legal guardian of such beneficiary.
* * * * * * *
(c) Matters Included.--An annual report or accounting under
subsection (a) shall include the following:
(1) For each beneficiary that a fiduciary acts on
behalf of--
(A) the amount of the benefits of the
beneficiary accrued during the year, the amount
spent, and the amount remaining; and
(B) if the fiduciary serves the beneficiary
with respect to benefits not administered by
the Secretary, an accounting of all sources of
benefits or other income the fiduciary oversees
for the beneficiary.
(2) A list of events that occurred during the year
covered by the report that could affect the ability of
the fiduciary to act on behalf of the beneficiary,
including--
(A) the fiduciary being convicted of any
crime;
(B) the fiduciary declaring bankruptcy; and
(C) any judgments entered against the
fiduciary.
(d) Random Audits.--The Secretary shall annually conduct
random audits of fiduciaries who receive a commission pursuant
to subsection 5502A(a)(1) of this title.
(e) Status of Fiduciary.--If a fiduciary includes in the
annual report events described in subsection (c)(2), the
Secretary may take appropriate action to adjust the status of
the fiduciary as the Secretary determines appropriate,
including by revoking the fiduciary status of the fiduciary.
(f) Regulations.--(1) In prescribing regulations to carry out
this section, the Secretary, in consultation with the Under
Secretary for Benefits and the Under Secretary for Health,
shall ensure that the care provided by a fiduciary described in
paragraph (2) to a beneficiary is not diminished or otherwise
worsened by the fiduciary complying with this section.
(2) A fiduciary described in this paragraph is a fiduciary
who, in addition to acting as a fiduciary for a beneficiary,
provides care to the beneficiary pursuant to this title
(including such care provided under section 1720G of this
title).
Sec. 5510. Annual report
[The Secretary shall include in the Annual Benefits Report of
the Veterans Benefits Administration or the Secretary's Annual
Performance and Accountability Report] Not later than July 1 of
each year, the Secretary shall submit to the Committees on
Veterans' Affairs of the House of Representatives and the
Senate a separate report containing information concerning
fiduciaries who have been appointed to receive payments for
beneficiaries of the Department. As part of such information,
the Secretary shall separately set forth the following:
(1) * * *
* * * * * * *
CHAPTER 57--RECORDS AND INVESTIGATIONS
SUBCHAPTER I--RECORDS
Sec.
5701. Confidential nature of claims.
* * * * * * *
SUBCHAPTER III--INFORMATION SECURITY
* * * * * * *
5724A. Data breach notification.
* * * * * * *
SUBCHAPTER III--INFORMATION SECURITY
* * * * * * *
Sec. 5724A. Data breach notification
(a) Notification Requirement.--Except as provided in
subsection (d), in the event of a data breach with respect to
sensitive personal information that is processed or maintained
by the Secretary, by not later than 10 business days after the
date on which the Secretary learns of the data breach, the
Secretary shall notify the appropriate committees of Congress
and each individual whose sensitive personal information is
involved in the data breach is notified of the data breach. If
the Secretary determines that providing such notification
within 10 business days is not feasible due to circumstances
necessary to accurately identify the individuals whose
sensitive personal information is involved in the data breach
or to prevent further breach or unauthorized disclosure and
reasonably restore the integrity of the data system the
Secretary shall provide such notification not later than 15
business days after the date on which the Secretary learns of
the data breach.
(b) Contracts for Data Processing or Maintenance.--If the
Secretary enters into a contract for the performance of any
Department function that requires access to sensitive personal
information, the Secretary shall require as a condition of the
contract that the contractor agree to provide notification of
data breaches in the same manner as required of the Secretary
under subsection (a).
(c) Method and Content of Notification.--(1) Notification
provided to an individual under subsection (a) shall be
provided clearly and conspicuously by one of the following
methods:
(A) Written notification.
(B) Notification by email or other electronic means,
if the Secretary's primary method of communication with
the individual is by email or such other electronic
means.
(2) Regardless of the method by which notification is
provided to an individual under paragraph (1), such
notification shall include--
(A) a description of the sensitive personal
information involved in the data breach;
(B) a telephone number that the individual may use,
at no cost to the individual, to contact an appropriate
employee of the Department to inquire about the data
breach or the individual's sensitive personal
information maintained by the Department;
(C) notice that the individual is entitled to
receive, at no cost to such individual, credit
protection services under section 5724 of this title;
(D) the toll-free contact telephone numbers and
addresses for the major credit reporting agencies; and
(E) a toll-free telephone number and website address
whereby the individual may obtain information regarding
identity theft.
(d) Notification of General Public.--The Secretary, acting
through the Office of Public Affairs of the Department, shall
notify the general public concerning any data breach involving
sensitive personal information by not later than 10 business
days after the date on which the Secretary learns of the data
breach, unless the Secretary determines that to do so is not
feasible due to circumstances necessary to accurately identify
the individuals whose sensitive personal information is
involved in the data breach or to prevent further breach or
unauthorized disclosure and reasonably restore the integrity of
the data system, such notification shall be made as soon as
possible.
(e) Appropriate Committees of Congress.--In this section, the
term ``appropriate committees of Congress'' means the Committee
on Veterans Affairs' of the House of Representatives and the
Committee on Veterans' Affairs of the Senate.
* * * * * * *
CHAPTER 59--AGENTS AND ATTORNEYS
Sec.
5901. Prohibition against acting as claims agent or attorney.
* * * * * * *
5906. Provision of access to case-tracking information.
* * * * * * *
Sec. 5906. Provision of access to case-tracking information
(a) In General.--(1) In accordance with subsection (b), the
Secretary shall provide a covered employee with access to the
case-tracking system to provide a veteran with information
regarding the status of a claim submitted by such veteran,
regardless of whether such employee is acting under a power of
attorney executed by such veteran.
(2) In providing a covered employee with access to the case-
tracking system under paragraph (1), the Secretary shall
ensure--
(A) that such access--
(i) is provided in a manner that does not
allow such employee to modify the data
contained in such system; and
(ii) does not include access to medical
records; and
(B) that each time a covered employee accesses such
system, the employee must certify that such access is
for official purposes only.
(b) Privacy Certification Course.--The Secretary may not
provide a covered employee with access to the case-tracking
system under subsection (a)(1) unless the covered employee has
successfully completed a certification course on privacy issues
provided by the Secretary.
(c) Treatment of Disclosure.--The access to information by a
covered employee pursuant to subsection (a)(1) shall be deemed
to be--
(1) a covered disclosure under section 552a(b) of
title 5; and
(2) a permitted disclosure under regulations
promulgated under section 264(c) of the Health
Insurance Portability and Accountability Act of 1996
(42 U.S.C. 1320d-2 note).
(d) Definitions.--In this section:
(1) The term ``case-tracking system'' means the
system of the Department of Veterans Affairs that
provides information regarding the status of a claim
submitted by a veteran.
(2) The term ``covered employee'' means--
(A) an employee of a Member of Congress who
assists the constituents of the Member with
issues regarding departments or agencies of the
Federal Government; or
(B) an employee of a State or local
governmental agency (including a veterans
service officer) who, in the course of carrying
out the responsibilities of such employment,
assists veterans with claims for any benefit
under the laws administered by the Secretary.
* * * * * * *
CHAPTER 61--PENAL AND FORFEITURE PROVISIONS
* * * * * * *
Sec. 6107. Reissuance of benefits
(a) Negligent Failure by Secretary.--(1) * * *
(2) There shall be considered to have been a negligent
failure by the Secretary to investigate and monitor a fiduciary
in the following cases:
(A) * * *
* * * * * * *
(C) In any other case in which actual negligence is
shown, including by the Secretary not acting in
accordance with section 5507 of this title.
* * * * * * *
----------
VETERANS BENEFITS ACT OF 2003
* * * * * * *
TITLE VII--OTHER MATTERS
* * * * * * *
SEC. 704. TEMPORARY AUTHORITY FOR PERFORMANCE OF MEDICAL DISABILITIES
EXAMINATIONS BY CONTRACT PHYSICIANS.
(a) * * *
* * * * * * *
(c) Expiration.--The authority in subsection (a) shall expire
on [December 31, 2012] December 31, 2017. No examination may be
carried out under the authority provided in that subsection
after that date.
* * * * * * *
