Text: S.Hrg. 115-299 — HEARING ON PENDING LEGISLATION
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[Senate Hearing 115-299]
[From the U.S. Government Publishing Office]
S. Hrg. 115-299
HEARING ON PENDING LEGISLATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MAY 17, 2017
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
Johnny Isakson, Georgia, Chairman
Jerry Moran, Kansas Jon Tester, Montana, Ranking
John Boozman, Arkansas Member
Dean Heller, Nevada Patty Murray, Washington
Bill Cassidy, Louisiana Bernard Sanders, (I) Vermont
Mike Rounds, South Dakota Sherrod Brown, Ohio
Thom Tillis, North Carolina Richard Blumenthal, Connecticut
Dan Sullivan, Alaska Mazie K. Hirono, Hawaii
Joe Manchin III, West Virginia
Thomas G. Bowman, Staff Director \1\
Robert J. Henke, Staff Director \2\
Tony McClain, Democratic Staff Director
Majority Professional Staff
Amanda Meredith
Gretchan Blum
Leslie Campbell
Maureen O'Neill
Adam Reece
David Shearman
Jillian Workman
Minority Professional Staff
Dahlia Melendrez
Cassandra Byerly
Jon Coen
Steve Colley
Simon Coon
Michelle Dominguez
Eric Gardener
Carla Lott
Jorge Rueda
\1\ Thomas G. Bowman served as Committee majority Staff Director
through September 5, 2017, after being confirmed as Deputy Secretary of
Veterans Affairs on August 3, 2017.
\2\ Robert J. Henke became the Committee majority Staff Director on
September 6, 2017.
C O N T E N T S
----------
May 17, 2017
SENATORS
Page
Isakson, Hon. Johnny, Chairman, U.S. Senator from Georgia........ 1
Tester, Hon. Jon, Ranking Member, U.S. Senator from Montana...... 2
Murray, Hon. Patty, U.S. Senator from Washington................. 3
Prepared statement........................................... 3
Brown, Hon. Sherrod, U.S. Senator from Ohio...................... 4
Heller, Hon. Dean, U.S. Senator from Nevada...................... 37
Blumenthal, Hon. Richard, U.S. Senator from Connecticut.......... 42
Sullivan, Hon. Dan, U.S. Senator from Alaska..................... 49
Manchin, Hon. Joe, III, U.S. Senator from West Virginia.......... 52
Boozman, Hon. John, U.S. Senator from Arkansas................... 55
WITNESSES
Hatch, Hon. Orrin, U.S. Senator from Utah........................ 5
Rubio, Hon. Marco, U.S. Senator from Florida..................... 7
Lee, Jennifer S., M.D., Deputy Under Secretary for Health for
Policy and Services, Veterans Health Administration, U.S.
Department of Veterans Affairs; accompanied by Meghan Flanz,
Acting General Counsel, Office of General Counsel; Donnie
Hachey, Chief Counsel for Operations, Board of Veterans'
Appeals; Dave McLenachen, Director of Appeals Management
Office, Veterans Benefits Administration; Margaret Kabat,
National Director, Caregiver Support Program, Veterans Health
Administration; James Ruhlman, Assistant Director for Policy
and Procedures, Veterans Benefits Administration; and Phil
Parker, Acting Associate Deputy Assistant Secretary, Office of
Acquisitions, Logistics, and Construction...................... 10
Prepared statement........................................... 12
Response to request arising during the hearing by:
Hon. Dean Heller........................................... 39
Hon. Patty Murray.......................................... 45,47
Response to posthearing questions submitted by:
Hon. Bill Cassidy.......................................... 117
Hon. Mazie K. Hirono....................................... 118
Celli, Louis J., Jr., Director, National Veterans Affairs and
Rehabilitation Division, The American Legion................... 57
Prepared statement........................................... 58
Keleher, Kayda, Associate Director, National Legislative Service,
Veterans of Foreign Wars of the United States.................. 70
Prepared statement........................................... 71
Atizado, Adrian, Deputy Legislative Director, Disabled American
Veterans....................................................... 79
Prepared statement........................................... 81
Jaslow, Allison, Executive Director, Iraq and Afghanistan
Veterans of America............................................ 97
Prepared statement........................................... 99
Cox, J. David, Sr., National President, American Federation of
Government Employees, AFL-CIO.................................. 103
Prepared statement........................................... 104
Response to posthearing questions submitted by Hon. Mazie K.
Hirono..................................................... 119
APPENDIX
Tillis, Hon. Thom, U.S. Senator from North Carolina; prepared
statement...................................................... 121
Reilly, Michael V., Executive Director, American Association of
Collegiate Registrars and Admissions Officers (AACRAO); letter. 122
Broad, Molly Corbett, President, American Council on Education
(ACE); letter.................................................. 124
Webb, Amy, Legislative Policy Advisor, AMVETS (American
Veterans); prepared statement.................................. 126
Augustine, Lauren, Director of Government Relations, Got Your 6;
prepared statement............................................. 134
Military Officers Association of America (MOAA); prepared
statement...................................................... 137
Wells, CDR John B., USN (Ret.), Executive Director, Military-
Veterans Advocacy (MVA); prepared statement.................... 141
Kriesel, John, Legislative Chairman, National Association of
County Veterans Service Officers; prepared statement........... 145
Wescott, Dr. Joseph, Legislative Director, National Association
of State Approving Agencies (NASAA); prepared statement........ 146
Reeves, Randy, President, National Association of State Directors
of Veterans Affairs, Inc. (NASDVA); letter..................... 148
Sganga, Fred S., Legislative Officer, National Association of
State Veterans Homes (NASVH); prepared statement............... 150
Spagnolo, Samuel V., M.D., President, National Association of VA
Physicians and Dentists (NAVAPD); prepared statement........... 153
Rauber, Diane Boyd, Esq., Executive Director, National
Organization of Veterans' Advocates, Inc. (NOVA); prepared
statement...................................................... 154
Stichman, Barton F., and Ronald B. Abrams, Joint Executive
Directors, National Veterans Legal Services Program (NVLSP);
prepared statement............................................. 161
Lerner, Carolyn N., Special Counsel, U.S. Office of Special
Counsel (OSC).................................................. 166
Hempowicz, Liz, Policy Counsel, Project on Government Oversight
(POGO); prepared statement..................................... 167
Paralyzed Veterans of America (PVA); prepared statement.......... 172
Valdez, Bill, President, Senior Executives Association (SEA);
prepared statement............................................. 183
Davis, Hon. Robert N., Chief Judge, U.S. Court of Appeals for
Veterans Claims................................................ 185
Scott, Carol Wild, Esq., Legislative Chair, The Veterans &
Military Law Section (V&MLS), Federal Bar Association; letter.. 187
Linnington, Lt. Gen. Michael S. (Ret.), Chief Executive Officer,
Wounded Warrior Project (WWP); prepared statement.............. 201
Exhibit A.................................................... 205
Exhibit B.................................................... 212
HEARING ON PENDING LEGISLATION
----------
WEDNESDAY, MAY 17, 2017
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
418, Russell Senate Office Building, Hon. Johnny Isakson,
Chairman of the Committee, presiding.
Present: Senators Isakson, Boozman, Heller, Cassidy,
Sullivan, Tester, Murray, Brown, Blumenthal, and Manchin.
OPENING STATEMENT OF HON. JOHNNY ISAKSON, CHAIRMAN, U.S.
SENATOR FROM GEORGIA
Chairman Isakson. I call the hearing of the Senate
Veterans' Affairs Committee to order. I would like to thank all
of you for coming and visiting with us today. I want to
particularly thank Cindy Rampley--where is Cindy? That is one
Georgian who came to see--and Barbara Kennon. Thank you all so
much for being here. When the home folks come you have got to
brag about them, so I apologize for that.
Let me thank all of you for being here, for a very
important hearing of the Senate Veterans' Affairs Committee. I
will begin with my opening remarks, which will be very brief,
followed by Senator Tester's. After his, he will have to leave
for a few minutes to go to Indian Affairs Committee, at which
time we will begin the testimony of our distinguished guests,
Chairman Hatch and Senator Rubio. Following those we will have
the Veterans Administration testimony, followed by questions
and answers by the Committee Members, followed by testimony
from our VSOs and other important guests, followed by Q&A for
them.
Thank you all for being here for what is the most important
hearing that we have had in this Committee all year. I am not
going to go over every issue, but I am going to say this: we
are about to hear testimony on accountability, meaningful
accountability, which addresses the concerns that for 2 years
have plagued this Committee and plagued the Veterans
Administration. We have all come together--I am very
appreciative of the Ranking Member and what he has done to make
it possible, plus other Members of the Committee, Republican
and Democrat alike. We have worked through some thorny issues.
We have navigated some rough seas. But, thanks to Senator
Tester and the other Members of the minority, as well as the
Members of the majority, we have come forward with the
legislation you will hear about today.
In terms of the appeals process, we are on the cusp of
dealing with what has been the black eye of the Veterans
Administration for decades, and that is long backlogs of
appeals that are heard over and over and over again without
resolution. One of the things I had hoped to accomplish before
I left the Committee as its Chairman would be to have
meaningfully dealt with that appeals process. We are close to
having done it; I worked closely with Senator Blumenthal in
that process and will continue to so this Committee can, in
fact, deal with it.
Then, as every Member knows, Choice has been a big issue
since Choice became an issue, and it became an issue about 3
years ago when this Committee passed the first Choice bill,
dealing with the veterans' backlog, veterans' problems, and the
veterans' claims. We now are in the process of trying to
perfect Choice--and that is my word. We will be talking about
some bills that are being introduced today to be completed
before this session is over, where with the Choice Act, we
waived the sunset unanimously a couple of weeks ago on the
floor of the Senate. The bill and its corrections will be in
place. Then, we will have dealt with appeals, we will have
dealt with Choice, and we will have dealt with accountability,
which will be a major accomplishment for this Committee, or any
committee in this year. It has been an honor for me to work
with the Ranking Member, whom I will introduce now, by simply
saying, here is big Jon.
OPENING STATEMENT OF HON. JON TESTER, RANKING MEMBER, U.S.
SENATOR FROM MONTANA
Senator Tester. Thanks, Senator Isakson. I appreciate your
work as Chairman, too. You are a straight-up guy. It is a
pleasure to work with you, which is a fact.
There are a number of bills on the agenda today that I am
excited about, and bills that I think are going to go do some
great things for our veterans across this country. These bills
are also representative of the bipartisan work of this
Committee and they reflect the fact that we are taking our cues
directly from the veterans and the organizations who represent
them here today.
With that said, I want to also recognize a couple of key
Members of our Committee who are not with us here today, Tom
Tillis and Mazie Hirono. Both those folks are tough as nails.
They are tremendous advocates for veterans and for their
States. They are in our thoughts today and we look forward to
welcoming them back very soon.
In terms of accountability legislation, I am glad that the
Chairman and I could work together with Senator Rubio to make
some changes to the House bill. The end result is a compromise
in which none of us got all that we wanted, but which better
allows the VA to hold bad actors accountable while ensuring
employee protections and rights to appeal are protected.
I appreciate the VA and the VSOs for their constructive
input and for their strong bipartisan support of this
legislation. I am also pleased that the Deborah Sampson Act,
which I introduced with Senator Boozman, is on today's agenda.
Allison Jaslow with IAVA, it is good to see you again, and
thank you for your tremendous advocacy on this legislation.
It is critical that the Members of this Committee hear from
you and other women veterans about how and why we need to move
forward on this legislation. Women are courageously signing up
to serve our country at a higher rate than ever before and we
need to make sure that the VA is fully capable of addressing
their needs.
We also need to take steps to increase accountability in VA
contracting to establish more medical residencies at the VA, to
expand the caregiver program, and to reform an outdated appeals
process that has left veterans waiting months, or even years,
for their claims to be resolved. Many of the bills that we will
discuss today will do that just.
Again, thank you, Senator Isakson, for your leadership, and
I look forward to the discussion.
Chairman Isakson. Thank you, Senator Tester.
To the other Members of the Committee, we will leave the
record open for 10 days to submit opening statements that you
might want to submit.
I want to echo and repeat what Senator Tester said, both
about Senator Hirono as well as Senator Tillis. I understand
Senator Tillis is doing well. He had a collapse this morning in
a 5K or a 3K, but he is OK. As for Mazie, we all got the report
today. She obviously is going to be confronted with dealing
with kidney cancer, but she is doing it. She has done
everything she has ever done bravely, so she is going to be
here with us; we are going to be pulling with her together to
pull her all the way through. So, thanks, Jon, for mentioning
that, and thanks to all the Members of the Committee for your
support for our fellow Committee Members.
Do you want to say something?
STATEMENT OF HON. PATTY MURRAY,
U.S. SENATOR FROM WASHINGTON
Senator Murray. Mr. Chairman, if I could just say, I will
submit my full comments in an opening statement for the record.
I know you want to get to many witnesses. I want to thank you
for holding this hearing and especially I wanted to mention the
bill on caregivers that I have been working on for a long time.
I know time is important here, but this is a critical
issue. We have a responsibility to take care of those
caregivers. There are a number of important parts of this bill,
which I will speak to later during the questioning.
[The prepared statement of Senator Murray follows:]
Prepared Statement of Hon. Patty Murray, U.S. Senator from Washington
Thank you, Mr. Chairman, for holding this hearing. We have some
critically important bills on the agenda today that could really
improve care for the men and women in our military--something I believe
everyone in this room is interested in doing.
caring for our veterans shouldn't be a partisan issue.
I think we all agree that our country has a duty to do whatever we
can to improve the lives of those who have sacrificed so much for our
country.
I was very pleased to introduce my military caregivers legislation
that will help us do just that. This program recognizes the sacrifice
of the friends and family who take care of our injured servicemembers
by offering assistance to ease their burden. This bill would finally
open the caregiver program to veterans of all eras, through a
responsible, phased-in approach that will allow VA to manage the
additional workload.
I was very concerned when just this year we heard stories from
veterans and their caregivers of the inconsistent application of the
current program's eligibility rules. We got reports of veterans and
their caregivers abruptly losing access to the program, which is a
terrible way to treat our military families. The VA must take
responsibility for ensuring that consistent, comprehensive guidelines
are applied throughout the country to protect the caregivers who have
earned this resource.
I believe VA should address these concerns and strengthen the
program, while also finally opening up the program to veterans of all
eras who desperately need these services.
I am committed to working with my colleagues to make sure VA has
the resources it needs to effectively administer this program, which is
why I authored an amendment to the Fiscal Year 2017 VA appropriations
bill that invested $10 million to hire more caregiver support
coordinators, because it's critical we do this right. This additional
staff is essential for strengthening the current program and preparing
VA to finally meet the needs of veterans of all eras.
This bill also expands the services available for caregivers, and
aligns eligibility for VA and DOD services.
Finally, the bill takes a major step toward improving caregiver
support for the whole country by coordinating the many services offered
across the government.
We know that treating a veteran through the Caregiver Program is
far less expensive than through a private nursing home or through a VA
nursing home, but most importantly, it helps veterans stay out of the
hospital, and have shorter stays when they do have to go in. It allows
veterans to be in their own homes, surrounded by their loved ones.
Giving veterans a better quality of life is not just the cost-effective
thing to do, it's the right thing to do.
This is just common sense, and it's the right thing to do for our
veterans and their caregivers. Our veterans shouldn't have to wait any
longer for these important improvements to their care.
Finally, thank you to our witnesses and a special thank you to the
VSOs for appearing today and for your support for this bill.
Thank you, Mr. Chairman, and I look forward to working with you to
get these bills through markup and then through the Senate floor.
Senator Brown. Mr. Chairman, real quick.
Chairman Isakson. Senator Brown.
STATEMENT OF HON. SHERROD BROWN,
U.S. SENATOR FROM OHIO
Senator Brown. Thank you, Mr. Chairman. I echo Senator
Murray's words about the importance of this hearing. Welcome,
Senator Hatch, and, Mr. Chairman, thank you for your
leadership.
I am working one bill particularly, S. 764, the Veterans
Education Priority Enrollment Act, which I announced with
Youngstown State President Jim Tressel, and am working with
Senator Tillis, who is the other sponsor.
There are a number of pieces of legislation with Senator
Murray, Senator Moran, Senator Tester, and with the Chairman
that will be a priority. It is important this Committee
continues to do its bipartisan work together, as we do in the
Finance Committee, Mr. Chairman.
Chairman Isakson. Well, I thank two great Members of the
Committee, Senator Brown from Ohio and my favorite
Northwesterner.
Senator Murray. Thank you.
Chairman Isakson. We will go that far. Anyway, she is in
the north and she is on the west.
Senator Brown. I thought Tester was your favorite
Northwesterner.
Chairman Isakson. Well, he is not----
Senator Brown. Is that not west enough? He is not west
enough.
Chairman Isakson. When he is here, he is my favorite.
Senator Brown. To me, Mr. Chairman, Iowa is west, so I do
not know.
Chairman Isakson. Well, you are one of my favorites and you
and I have got a mutual friend that tells on both of us.
I just want to add one particular thing, Senator Murray. I
would not be here today were it not for a caregiver over the
last 12 weeks. So, I do not even see anything more appropriate
for us to be dealing with today than the people who make it
possible for our soldiers to transition from care to
independence. It is the greatest contribution people make in
this country and I think it is very appropriate that you
brought it up. I thank you for crafting that Bill.
Senator Brown, we will hear your testimony, I mean hear
your questions later on.
Senator Rubio has arrived so I am going to introduce both
of our special guests from our membership, who will testify,
and then we will hear from our two panels.
I had the good pleasure, when I got elected to the U.S.
Senate 13 years ago, of meeting Orrin Hatch and getting to know
him. He is everything he looks like. He is distinguished,
intelligent, kind, generous, and the most knowledgeable person
on the financial affairs of the United States of America of any
member of the U.S. Senate. It is an honor for us to have him
here today to testify. We welcome you, Senator Hatch, for being
here today.
I cannot say all those things about Senator Rubio because
he is young, he does not have gray hair, has not been here near
as long, but he does one hell of a job promoting what he
believes in, and he has done a great job on bringing together
the accountability bill, which is before us today.
I heard him three times over the weekend, where he did the
best job of articulating the hard work that went into both
these products. I am so glad that he is here today and a member
of the U.S. Senate.
So, I welcome both of you to be recognized for up to 5
minutes. You may submit your remaining remarks for the record,
you do not have to submit yourselves to questions, and you are
welcome to be excused after your testimony is over.
First of all, Senator Hatch.
STATEMENT OF HON. ORRIN HATCH,
U.S. SENATOR FROM UTAH
Senator Hatch. Well, thank you, Mr. Chairman and other
Members of the Committee. I appreciate the leadership you
provide, and Ranking Member Tester as well.
I welcome the opportunity to join you as a guest of the
Committee for this year. Today the Committee will hear
testimony on pending legislation, including one of my bills,
S. 324, the State Veterans Home Adult Day Health Care
Improvement Act of 2017. I appreciate the opportunity to speak
in support of this bipartisan legislation and the many veterans
whose lives it would improve.
Veterans have served and sacrificed on behalf of our
country. It is, therefore, the duty of every Senator here to
ensure that our country makes good on the promises we have made
to them. Every person's presence in this room indicates an
interest in working for--or working to fulfill our country's
commitments to our veterans. How to provide quality long-term
care is an important question for everyone, particularly for
aging veterans, many of whom need long-term care to live with
service-connected disabilities.
Traditionally, long-term care is provided in an
institutional setting like a nursing home. Nursing home care
for one person can easily cost thousands of dollars a month and
that does not include the added cost of specialized health care
services which are especially important for some of our most
disabled veterans.
Moreover, in many areas, more people are in need of long-
term care than there are available beds in nursing homes. This
scarcity drives up costs and forces individuals to travel
farther away from home and family to access care, in my home
State of Utah, and I think other States as well. Our waiting
list for State veterans home nursing care is over 600 people
long.
Adult day health care is a sensible, cost-saving
alternative to traditional long-term care. ADHC is a home- and
community-based program that hosts participants in a care
setting during the day but allows them to live at home at
night, and it provides participants assistance with activities
of daily living and coordinates medical, dental, and mental
health services. At the end of each day, ADHC participants
return home to their family or caregiver.
Most home caregivers for individuals in need of long-term
care are spouses and adult children, and this is especially
true for veterans. Many caregivers need to work during the day,
making care for a disabled family member challenging. ADHC
gives caregivers, in many cases veterans' families, the respite
and some security in the knowledge that their loved one is safe
and in good hands, receiving specialized care.
Medical professionals and adult day care users agree and
studies confirm that medical model ADHC provides an equal
standard of quality health care services, as nursing home care
at less cost to participants. In fact, the ADHC programs this
bill opens to veterans, are offered by VA-approved State
veterans' nursing homes as an alternative to full-time care.
These nursing homes offer ADHC programs because they want to
help more of our veterans receive the quality care they need.
My bill helps them to do that. My legislation also enables
veterans access to ADHC by setting the per diem rate the
Department of Veterans' Affairs pays for these services at 65
percent of the nursing home per diem rate paid for veterans
with service-connected disabilities of 70 percent or more. The
VA already pays 100 percent of the cost of nursing home care
for these veterans. It makes no sense--indeed, it is wrong--to
deny veterans the flexibility to maintain their independence
and live at home in their communities, especially when we can
do so at a lower cost to everyone involved.
My State Veterans Home ADHC Improvement Bill is a cost-
neutral, bipartisan bill. It enjoys widespread support from
veterans' organizations and is based on the most up-to-date
research on the best ways to improve long-term care quality and
options.
I want to thank the Committee for considering my bill as
part of today's hearing, and I thank the Chairman and Ranking
Member again for their invitation to join the Committee as a
guest. I also wish to thank all those in attendance here today.
I trust that my bill will be given open and fair consideration
and I hope for its timely passage out of Committee and on to
the Senate floor.
I am very grateful to all of you and thank you for inviting
me to be able to testify here today.
Chairman Isakson. Well, thank you, Senator Hatch. I can
assure you it will be open and it will be fair. We are glad to
have you on the agenda today and appreciate very much your
attendance. Thank you.
Senator Hatch. Thank you. If I can leave I would be happy.
[Laughter.]
Chairman Isakson. With your seniority, you can do anything
you want to do.
Senator Hatch. I like that, Mr. Chairman. Thanks so much.
Chairman Isakson. We are delighted to have you, Orrin.
Senator Hatch. Glad to be here.
Chairman Isakson. It is now my pleasure to introduce the
Senator from Florida, my friend, Marco Rubio.
STATEMENT OF HON. MARCO RUBIO,
U.S. SENATOR FROM FLORIDA
Senator Rubio. Thank you to the Chairman. Thank you very
much for this, to the Ranking Member and to all the Members of
the Committee. First, thank you for allowing me to appear today
to speak on Senate Bill 10994, the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of
2017.
I want to, at the outset, I know that the majority of
people that work at the VA are good, they are hard-working,
they are competent, and they serve our Nation's heroes
admirably. They act in the best interest of veterans, they are
passionate about their work, and many of them are veterans
themselves, so nothing in this bill is designed to punish them,
stigmatize them, or in any way hurt them. On the contrary, it
is designed to reward those who work so hard.
But, it is necessary because the Secretary of the Veterans
Administration currently does not have the authority he needs
to remove, to demote, or to suspend employees who are unwilling
and/or unable to do their jobs, or employees engaged in
misconduct or illegal activity.
Americans who do not work for the Federal Government
understand that if they violate their employers' policies they
will face consequences. They may even lose their jobs. And
things should be no different at the Department of Veterans
Affairs. Indeed, the Federal employees charged with taking care
of military men and women must be held to the highest standard.
The bipartisan legislation that you will consider today has
been refined over the course of several years, thanks to you,
Mr. Chairman, the Ranking Member, and many others, and it
includes real reforms that are aimed at fixing the problems
that have plagued the Department for many years. These are
formed to ensure the best interest of our veterans come first
at the VA.
To craft this legislation, we worked with a number of the
veteran service organizations represented here today, including
the Paralyzed Veterans of America, The American Legion, the
Veterans of Foreign Wars, the Concerned Veterans of America,
the Reserve Officers Association, Iraq and Afghanistan Veterans
of America, American Veterans, the Military Officers
Association of America, and several others. The members of
these organizations have borne the brunt of the VA's
mismanagement and failures. They understand the VA must be
properly managed so it can provide timely quality care to our
veterans.
I thank these organizations and their members, not just for
their service to our country and to their fellow men and women
in uniform, but also for helping to inform our policy
solutions.
Since the passage of the Veterans Access, Choice, and
Accountability Act in 2014, poor performance and misconduct by
a few but significant number of VA employees has continued to
come to light, and it is clear that there is, sadly, a
pervasive lack of accountability. Just to list a few examples,
one VA employee was arrested and spent time in jail for armed
robbery. Another employee was caught watching pornography on
the job. In my home State of Florida there have been several
instances of prescription drugs being diverted, gone missing
from VA facilities. It is terrible to think that some VA
employees may have actively contributed to the opioid epidemic
gripping the State of Florida and the country.
In all these cases, the employees involved were ultimately
allowed to keep their jobs, or resign with their benefits
intact. Other management failures at the VA include
construction projects that are over budget and behind schedule,
and billions of taxpayer dollars wasted through the illegal use
of government purchase cards.
It is clear that under existing civil service rules and
pressure from unions and others, VA leaders are not--have not
been able to hold individuals accountable for their actions.
Over and over again, we have seen the VA attempt to take
disciplinary action against an employee, only to see the
appeals process prove so complex, lengthy, and lenient that
real accountability was virtually impossible to achieve.
So, the bipartisan, common sense provision of the
legislation that you will consider will put our veterans first,
by reforming the Department's broken civil service system,
maintaining appropriate due process protections, and empowering
whistleblowers to come forward without having to fear
retaliation from bureaucrats who would rather sweep wrongdoing
under the rug.
Last week, Secretary Shulkin appeared before the
Appropriations Subcommittee on Military Construction and
Veterans Affairs, where I asked him about this bill, and what
he needs to ensure capable workforce, and he stated, and I
quote, ``I wish today I could tell you I have the tools to do
the right thing, to be able to remove those employees. I do
not, so, unfortunately, I need a new set of tools if I am going
to be held accountable for turning this system around and doing
what we all want to do to serve veterans. So, I thank you for
introducing this bill. I think it is necessary.''
Mr. Chairman, to the Ranking Member, Senator Tester, to
Senators Moran, Heller, and Boozman, thank you for your hard
work and leadership on this bill and for considering it today.
I am hopeful we will see this bill signed into law soon, so
that our veterans will be more likely to receive the quality
health care they earned and deserve.
Thank you again, Mr. Chairman, for having me today, and I
look forward to working with you, with your staff on the
Committee and others to move the bill forward.
Chairman Isakson. Well, thank you, Senator Rubio. For the
benefit of the entire audience here today, as well as those
watching on the network, Senator Rubio has worked tirelessly
over the last 2 years, along with almost every Member, if not
every Member of the Committee. There have been a lot of issues
that we have worked on. He has been cooperative in working
toward those to a responsible bill which brings about
accountability and pride in the Department, allows us, for the
first time, to be able to, as Members of the Senate Veterans'
Affairs Committee to answer tough questions on television in
terms of what we have done to keep, or help prevent bad things
from happening at the Veterans Administration. The rank and
file veterans employees at the Administration are the best in
the country. They are fantastic people. But one bad apple can
drag down an entire agency, even one as large as the Veterans
Administration.
I am appreciative--I want to publicly thank Senator Rubio
for his conscientious effort, and Senator Tester for working
time and again to go to meetings, to bring people together, so
we have a bipartisan bill that deals with the accountability of
the VA and the employees in that agency. Thank you, Senator
Rubio, for doing that.
You are both--Senator Hatch is already excused. Senator
Rubio, you may be excused if you like, and you can stay and
listen to the entire hearing if you like.
Senator Rubio. I will watch it on TV. [Laughter.]
Chairman Isakson. That is the right choice.
We have two great panels today. I am going to introduce
Panel I. As I call your names, if you will come forward. There
will be a nameplate in front of the place where you are to sit.
After we hear the opening statements by Panel I we will have
questions from Members of the Committee, then we will go to
Panel II. After that, we will do both questions of Panel II as
well, as Members who come back to catch up with questions on
Panel I, if necessary.
First, Dr. Jennifer S. Lee, Deputy Under Secretary for
Health for Policy and Services, Veterans Health Administration,
U.S. Department of Veterans Affairs; accompanying Dr. Lee are
Meghan Flanz, Acting General Counsel, Office of General
Counsel; Donnie Hachey--did I do that right? I did it right?
OK, well, that is close enough--Chief Counsel for Operations,
Board of Veterans' Appeals; David McLenachen, Director of
Appeals Management Office, Veterans Benefits Administration;
Margaret Kabat, National Director, Caregiver Support Program,
Veterans Health Administration; James Ruhlman, Assistant
Director for Policy and Procedures, Veterans Benefits
Administration; and Phil Parker, Acting Associate Deputy
Assistant Secretary, Office of Acquisition, Logistics, and
Construction.
Hopefully I did not miss anybody, and I apologize to
anybody whose name I did not do a good job with. I apologize
for that.
Dr. Lee, you are on board, and I think everybody else is
here in a supporting role. Is that correct?
Dr. Lee. It is a team effort.
Chairman Isakson. A team effort.
Dr. Lee. Yes, sir.
Chairman Isakson. Well, it is my pleasure to introduce Dr.
Jennifer Lee, Deputy Under Secretary for Health for Policy and
Services, Veterans Health Administration. Dr. Lee.
STATEMENT OF JENNIFER S. LEE, M.D., DEPUTY UNDER SECRETARY FOR
HEALTH FOR POLICY AND SERVICES, VETERANS HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY MEGHAN
FLANZ, ACTING GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL;
DONNIE HACHEY, CHIEF COUNSEL FOR OPERATIONS, BOARD OF VETERANS'
APPEALS; DAVE McLENACHEN, DIRECTOR OF APPEALS MANAGEMENT
OFFICE, VETERANS BENEFITS ADMINISTRATION; MARGARET KABAT,
NATIONAL DIRECTOR, CAREGIVER SUPPORT PROGRAM, VETERANS HEALTH
ADMINISTRATION; JAMES RUHLMAN, ASSISTANT DIRECTOR FOR POLICY
AND PROCEDURES, VETERANS BENEFITS ADMINISTRATION; AND PHIL
PARKER, ACTING ASSOCIATE DEPUTY ASSISTANT SECRETARY, OFFICE OF
ACQUISITION, LOGISTICS, AND CONSTRUCTION
Dr. Lee. Good afternoon, Chairman Isakson, Ranking Member
Tester, and Members of the Committee. Thank you for inviting us
here today to present our views on several bills that would
affect the VA's programs and services. Joining me today are a
number of my esteemed colleagues from across the Department,
with a wide array of subject matter expertise.
First I would like to thank the Members of this Committee
as well as our colleagues from the VSOs for your hard work and
commitment to advancing legislation we believe is absolutely
critical to modernizing the VA accountability and appeals
reform.
The Department also supports many of the bills on today's
agenda, or their intent, as they provide us with authorities to
better meet the needs of veterans and their families.
Regarding S. 23, VA agrees with the objectives of this bill
but does not support the bill, as written, as it may limit VA's
ability to maintain distinct identifiers for biologics of human
origin and could impair our ability to obtain implants quickly
when a clinical need arises.
VA supports the intent of S. 112 as long as additional
resources are available. We feel this authority is needed to
fully reach the entire homeless population.
While VA does not support S. 324 as written, VA does
support growing adult day health care programs in general, as
they are an important aspect of the continuum of VA's home- and
community-based programs. VA would like the opportunity to
establish mutually agreeable adult day health rates with our
State veteran home partners.
Although VA agrees with the overall intent of S. 543, we
are still examining the effect this bill would have and would
appreciate the opportunity to discuss this further with the
Committee. VA agrees there are opportunities to improve
oversight of contractors and program management associated with
the contracting process.
While VA does not support S. 591, VA does favor providing
comprehensive support to family caregivers of veterans of all
eras. Currently VA is undergoing an internal review of the
caregiver program to ensure current eligibility criteria are
applied consistently. VA welcomes further discussion with this
Committee about the current program as well as the proposed
expansion.
VA does not support S. 609. While VA is very supportive of
increasing access to chiropractic care for veterans, we do not
believe that it would be prudent to add chiropractic clinics in
areas where demand may not exist to justify the investment.
We support much of S. 681, the Deborah Sampson Act. VA has
placed a high priority on ensuring equitable and high-quality
care for women veterans and we appreciate this Committee's
support of this priority. The bill would provide a number of
authorities to accelerate and expand our efforts to improve
care for women veterans.
VA supports the intent of S. 764, the Veterans Education
Priority Enrollment Act, though we do have concerns we would
like to discuss with the Committee.
VA strongly supports S. 784, which expresses in a tangible
way the Nation's gratitude for the sacrifices made by service-
disabled veterans and their surviving spouses and children. The
bill would also ensure that the value of dependency indemnity
compensation keeps pace with increases in consumer prices.
VA is appreciative of the support for women veterans'
issues in S. 804, but has, in fact, initiated several of the
actions required by the bill. As some provisions may be
duplicative of our current effort, VA does not support the
proposed legislation.
VA also supports S. 899, which would require VA to
establish a leave transfer program and leave bank for the
benefit of certain disabled VA health care professionals.
S. 1024 provides much-needed comprehensive reforms to the
VA appeals process, to ensure veterans receive a timely VA
decision on their appeal. VA strongly supports the intent of
S. 1024 and looks forward to working with the Committee to
address concerns with a few provisions, as drafted. The
Department stands committed to getting appeals reform
accomplished for veterans this year.
VA strongly supports the aims of S. 1094, the
Accountability and Whistleblower Protection Act. This would
improve our oversight and investigation of whistleblower
disclosures and retaliation complaints, and would allow for
more timely disciplinary action against employees whose
misconduct or performance undermines veterans' and the public's
trust in VA care and services. We deeply appreciate the
Committee's efforts to meet VA's needs for greater flexibility
in dealing with underperforming and misbehaving employees. With
the assistance of the Department of Justice, VA looks forward
to working with the Committee through the technical assistance
process to resolve the few remaining concerns.
VA supports, in principle, the draft bill serving our rural
veterans, in the interest of building graduate medical
education capacity to better meet the needs of veterans in
rural and underserved areas, such as Alaska.
Finally, VA has no objection to the Veteran PEER Act but
notes VA already has the authority to execute this program to
include more PEER specialists and patient-aligned care teams,
subject to the availability of funding.
My written statement provides the Department's full view on
each of the bills.
Thank you, Mr. Chairman, and thank you, Ranking Member
Tester, for the opportunity to testify before you today. My
colleagues and I would be pleased to respond to questions that
you or other Members may have at this time.
[The prepared statement of Dr. Lee follows:]
Prepared Statement of Dr. Jennifer S. Lee, Deputy Under Secretary for
Health for Policy and Services of Veterans Health Administration, U.S.
Department of Veterans Affairs
Good morning, Chairman Isakson, Ranking Member Tester, and Members
of the Committee. Thank you for inviting us here today to present our
views on several bills that would affect the Department of Veterans
Affairs' (VA) programs and services. Joining me today is Ms. Margaret
Kabat, National Director, Caregiver Support Program, Veterans Health
Administration (VHA); Phil Parker; Acting Associate Deputy Assistant
Secretary, Office of Acquisition and Logistics, Office of Acquisition,
Logistics, and Construction (OALC); Mr. James Ruhlman, Assistant
Director for Policy & Procedures, Veterans Benefits Administration
(VBA); Ms. Meghan Flanz, Interim General Counsel; Dave McLenachen,
Director, Appeals Management Office, VBA; and Donnie Hachey, Chief
Counsel for Operations, Board of Veterans Appeals (BVA).
There are a number of bills on the agenda today, and we are unable
at this time to provide views and cost estimates on a few of these
provisions. Specifically, we do not have cost estimates on S. 543 and
S. 764.
s. 23, biological implant tracking and veteran safety act of 2017
S. 23 would direct VA to adopt and implement a standard
identification protocol for use in the tracking and procurement of
biological implants by VA.
Section 2(a) would add a new section 7330B to title 38 to require
VA to adopt the unique device identification system developed by the
Food and Drug Administration (FDA) for medical devices (or implement a
comparable standard identification system) for use in identifying
biological implants intended for use in VA medical procedures conducted
in medical facilities of the Department. In procuring biological
implants under this section, VA would be required to permit a vendor to
use any of the accredited entities identified by the FDA as an issuing
agency pursuant to 21 Code of Federal Regulations (CFR) Sec. 830.100.
The Secretary would be required to implement a system for tracking
biological implants from donor to implantation that is compatible with
the tracking system to be adopted and implemented. VA would be required
to implement inventory controls compatible with the tracking system to
enable VA to notify, as appropriate (based on an evaluation by
appropriate VA medical personnel), VA patients who are in receipt of
biological implants that are subject to a recall. In addition, section
2 of the bill would provide that in cases of conflict between the
proposed revision to title 38 and a provision of 21 United States Code
(U.S.C.) Sec. 301 et seq. or 42 U.S.C. Sec. Sec. 262 and 264,
(including any regulations issued pursuant to these statutes), the
provisions of these other statutes or regulations would apply.
Section 2 of the bill would define the term ``biological implant''
as any human cell, tissue, or cellular or tissue-based product or
animal product: (1) under the meaning given the term ``human cells,
tissues, or cellular or tissue-based products'' in 21 CFR Sec. 1271.3
(or any successor regulation); or (2) that is regulated as a device
under 21 U.S.C. Sec. 321(h). Under section 2(c), the standard
identification system for biological implants would have to be adopted
or implemented not later than 180 days after the Act's enactment. With
respect to products that are regulated as a device, the Secretary would
be required to adopt or implement such standard identification system
in compliance with the compliance dates established by the FDA pursuant
to 21 U.S.C. 360i(f).
If the tracking system for biological implants is not operational
within 180 days of the bill's enactment, section 2(d) would require the
Secretary to submit a written explanation to the Committees on
Veterans' Affairs explaining why the system is not operational for each
month until the system is operational.
Initially, we note that section 2(a) of the bill attempts to create
a new section 7330B; however, there already is a section 7330B,
requiring VA to issue an annual report on the Veterans Health
Administration (VHA) and furnishing of hospital care, medical services,
and nursing home care. This was enacted last December as part of the
Jeff Miller and Richard Blumenthal Veterans Health Care and Benefits
Improvement Act of 2016 (Public Law 114-315, section 612(a)). We
recommend as a technical matter the bill propose to create a new
section 7330C, as that would be the next available statute in the
U.S.C., and that references throughout the bill to 7330B be updated to
7330C.
While VA agrees with the bill's intentions, VA does not support
section 2 of the bill as written. The bill recognizes the need for a
higher standard for human biologics as indicated by the requirement in
section 3 for the use of a distinct identifier at all stages in
distribution. However, as written, the bill could force VA to treat
human tissues the same as other biologics in terms of identification.
Additionally, the bill states that VA shall permit vendors to use
any of the FDA accredited entities identified as an issuing agency for
a standard identification system for biological implants. This
effectively limits VA to the use of FDA's minimum issuing agency
accreditation standards. VA already tracks blood and cellular products
successfully using ISBT 128 identifiers in its facilities, and as a
result, VA should be able to extend this system to ISBT 128-labeled
human tissue products providing both electronic health record
documentation and inventory control. VA is working with the Department
of Health and Human Services (HHS) and other Federal partners to
identify the optimal tracking and tracing systems to ensure the highest
safety standards for human tissues.
VA intends to institute new recommendations from HHS for tissue
tracking. On April 7-8, 2015, the HHS Advisory Committee on Blood and
Tissue Safety and Availability voted unanimously to recommend that the
HHS Secretary adopt a step-wise, risk-based approach to standardizing
the identification, tracking, and tracing of medical products of human
origin. In particular, the Committee recommended establishing ISBT 128
labeling as ``a universal standard for mandatory implementation of
unique donation identifiers for all human tissue products.'' It
suggested that the HHS Secretary promote the integration of
transplantation records into searchable, electronic patient records. It
further recommended taking steps to ensure that patients are informed
when they receive a tissue product and provided a means of tracing it.
The Committee asked that the HHS Secretary promote education for health
care providers regarding the risks of human tissue transplants, the
need for meaningful informed consent, and the necessity of engaging in
activities to ensure tracking and tracing of tissue products. Last, it
noted the importance of promoting international collaboration and data
sharing on outcomes of tissue transplantation.
VA notes that HHS does not consider FDA's Unique Device Identifier
(UDI) appropriate for use as a tracking system for all biological
implants. Human and animal derived implants, which are not regulated as
devices, have different requirements from the devices for which the UDI
was created.
Section 3 would add a new section 8129 to title 38 to govern the
procurement of biological implants. VA would be limited to procuring
human biological implants from vendors that meet several conditions.
First, the vendors supplying biological implants of human origin would
have to use the standard identification system adopted or implemented
by VA under new section 7330B (as added by section 2 of the bill) with
safeguards to ensure that a distinct identifier has been in place at
each step of distribution from its donor. Additionally, each vendor
would have to be registered with the FDA, ensure that donor eligibility
determinations and other records accompany each biological implant at
all times, and agree to cooperate with all biological implant recalls
initiated by the vendor, the manufacturer, or the FDA. Vendors would
have to agree to notify VA of any adverse event or reaction report it
provides to FDA as required by 21 CFR Sec. Sec. 1271.3 and 1271.350 or
any warning letter from the FDA within 60 days of the vendor's receipt
of such report or warning letter. Vendors would also have to agree to
retain all records associated with procuring a biological implant for
at least 10 years and would have to provide assurances that the
biological implants provided are acquired only from tissue processors
that maintain accreditation with the American Association of Tissue
Banks or a similar national accreditation.
VA would be required to procure biological implants under the
Federal Supply Schedules (FSS) of the General Services Administration
(GSA) unless such implants are not available under these schedules. VA
would be required to accommodate reasonable vendor requests to
undertake outreach efforts to educate VA medical professionals about
the use and efficacy of biological implants with respect to implants
that are listed on the FSS. In the case of biological implants
unavailable on FSS, VA would be required to procure such implants using
competitive procedures in accordance with applicable law and the
Federal Acquisition Regulation (FAR). The bill would also clarify that
38 U.S.C. Sec. 8123, which addresses procurement of prosthetic
appliances, does not apply to the procurement of biological implants.
Additionally, section 3 would establish penalties, in addition to
any penalty under another provision of law, for procurement employees
who are found responsible for a biological implant procurement
transaction with intent to avoid or with reckless disregard of the
requirements of this section. Such an official would be ineligible to
hold a certificate of appointment as a contracting officer or to serve
as the representative of an ordering officer, contracting officer, or
purchase card holder.
The new section 8129 would take effect 180 days after the date on
which the tracking system required by the new section 7330B is
implemented. The bill also contains a special rule for cryopreserved
products, allowing VA 3 years to procure biological implants produced
and labeled before the effective date of section 8129 without
relabeling the products under the standard identification system
adopted or implemented under the new section 7330B.
VA does not support section 3 of the bill as drafted. Vendors would
be required to retain records for up to 10 years under the bill. VA
notes that some institutions permanently retain these records. In
particular, some types of biologics may be stored for extended periods
prior to use and it may take several years for an adverse outcome to
manifest. Disposal of records, in particular, the actual production
identifier and donor documentation, will prevent the ability to track
human derived biologics to their donor and lead to the use of biologics
in VHA that cannot reliably be tracked back to the original donor.
Requiring providers to retain records for only 10 years could produce
problems in the future, and we believe that permanent record retention
would be preferable.
VA also has concerns with the requirement that biological implants
be procured from FSS sources (unless the products are not available
from these sources). This would unduly restrict VA clinicians' best
judgment as to the right implants for a given patient. Clinicians are
not involved in the decision to place biological implants on the FSS.
Additionally, VHA has determined that biological implants should be
procured through national contracts that would take precedence over
FSS. VA is developing an appropriate initial contract vehicle to
acquire such products.
VA is specifically concerned that enactment of the bill would end
the applicability of 38 U.S.C. Sec. 8123 to the procurement of
biological implants. This change would have an immediate, measurable,
and adverse effect on wait times and patient care. This could result in
considerable morbidity in the Veteran population, who would be forced
to wait until GSA contracting can arrange for specific implants
required to restore function. It is important to stress that, for many
patients, there is an optimal window of opportunity for the use of an
implant to prevent permanent loss of function. Many of these items are
custom made and purchased in low volume or single units and will not be
on a GSA contract or be cost effective for the U.S. Government to place
on a full contract. Full contracting may take much longer than is
clinically appropriate for Veterans. Further, it is not uncommon to
purchase inventory in emergency situations from other local hospitals
to meet acute needs. This occurs under the authority of 38 U.S.C.
Sec. 8123. Limiting this authority as provided in the bill will prevent
this activity and could jeopardize timely patient care. VA may then be
forced to refer these patients to providers in the community, which
could increase costs to the Department and reduce patient care if these
community providers are not subject to the same requirements in terms
of procurement and tracking of biological implants.
VA is also concerned that the penalties imposed under proposed
section 8129(b) could produce unfair results if a procurement employee
needs to purchase a product off-contract to meet the immediate needs of
a patient and provider. This could be exacerbated by vendors choosing
not to contract with VA given the new requirements imposed upon them,
thereby eliminating or limiting the availability of products for our
patients. Shortages of biologic products could also affect VA's ability
to obtain products under contract or through competitive processes. As
a result, Veterans' medical care could be delayed. VA recommends this
provision either be stricken or revised to apply penalties only for the
procurement employees whose off-contract procurement is for
irresponsible reasons. This would provide the Secretary the authority
to distinguish between cases when a violation was willful and
jeopardized patient care and when it was willful, but done with the
purpose of supporting patient care.
We estimate that S. 23 would cost $11.2 million in fiscal year (FY)
2018, $33.6 million over 5 years, and $66.3 million over 10 years.
s. 112, creating a reliable environment for veterans' dependents act
S. 112 would amend 38 U.S.C. Sec. 2012(a) to permit a grantee
receiving per diem payments under the Homeless Providers Grant and Per
Diem (GPD) Program to use part of these payments for the care of a
dependent of a homeless Veteran who is under the care of such homeless
Veteran who is receiving services covered by the GPD grant. This
authority would be limited to the time period during which the Veteran
is receiving services under the grant.
VA supports the intent of S. 112, conditioned on the availability
of additional resources to implement this provision. We feel that this
authority is needed to fully reach the entire homeless population.
However, full implementation of the legislation would require
additional funding to avoid diminished services in VA's full complement
of programs for homeless Veterans.
VA estimates this bill would cost $29.8 million in FY 2018, $159.3
million over 5 years, and $347.6 million over 10 years.
s. 324, state veterans homes adult day health care improvement act of
2017
S. 324 would amend 38 U.S.C. Sec. 1745 to require the Secretary to
enter into a contract or agreement with each State Veterans Home (SVH)
for payment by VA for adult day health care (ADHC) provided to an
eligible Veteran. Eligible Veterans would be those in need of nursing
home care for a service-connected disability or who have a service-
connected disability rated at 70 percent or more and are in need of
nursing home care. Payments for each Veteran who receives medical
supervision model adult day health care would be made at a rate that is
65 percent of the payment VA would make if the Veteran received nursing
home care, and payment by VA would constitute payment in full for such
care. The term ``medical supervision model adult day health care''
would be defined to mean adult day health care that includes the
coordination of physician services, dental services, the administration
of drugs, and such other requirements as determined appropriate by the
Secretary. Currently, under a grant mechanism, VA pays States not more
than half the cost of providing ADHC. States may currently obtain
reimbursement for this care from other sources in addition to VA's per
diem payments.
VA supports growing ADHC programs in general as they are a part of
VA's home- and community-based programs that have been demonstrated to
benefit the health and well-being of older Veterans. However, VA does
not support this bill as written for several reasons.
First, VA notes that the bill would base payment rates for ADHC on
nursing home care rates, though these are two distinctly different
levels of care and are furnished for different periods of time. VA pays
per diem for three levels of care at SVHs: nursing home care,
domiciliary care, and adult day health care. The prevailing nursing
home rate is calculated based on the cost of providing nursing home
care, and VA negotiated that rate in conjunction with SVHs. Nursing
home residents live at the facility and receive 24-hour skilled nursing
care, including services after normal business hours with registered
nurses involved in care at all times. ADHC is a distinctly different
level of care that provides health maintenance and rehabilitative
services to eligible Veterans in a group setting during daytime hours
only. ADHC participants live at home and only use ADHC services for a
portion of time during the day, normally about 8 hours, or one third of
the length of time that skilled nursing care is provided. A per diem
payment is made only if the participant is under the care of the
facility for at least 6 hours (which can be 6 hours in one calendar
day, or any two periods of at least 3 hours each in any 2 calendar days
of the month). The nursing home rates that would be used to compute the
ADHC rates under this bill are based on a formula that was developed in
partnership with VA's state home partners and is specific to nursing
home care. VA would like the opportunity to thoroughly review the cost
of providing ADHC and, as was accomplished for nursing home care,
establish a mutually agreeable ADHC rate with our SVH partners. VA
believes revising the language to allow for VA to propose a formula for
computing ADHC rates and for SVHs to provide comments on the formula
would be consistent with the way the nursing home care rates were
developed under 38 U.S.C. Sec. 1745. While this bill would specifically
apply these payment rates to ADHC programs providing medical
supervision, rather than any ADHC program, we still believe basing any
ADHC payment rate on the rate for skilled nursing care is
inappropriate.
Second, we note that the bill would direct VA to ``enter into a
contract or agreement'' with each SVH. Agreements reached under this
provision would still generally be contracts. VA has requested specific
authority that would allow VA to enter into individual agreements not
subject to certain provisions of law governing Federal contracts. We
request this authority be granted before requiring VA to transition
state payments from a grant to a contract mechanism.
We do support the bill's focus on ADHC programs providing medical
supervision. A medical supervision model would include physician
services, dental services, and administration of drugs, whereas these
would not be required for a socialized model.
Additionally, VA expects the numbers of both socialized and medical
supervision model ADHCs to increase after publication of the proposed
regulation. VA is not able to predict how many SVHs will adopt the new
socialized model, nor how the new model's use will affect costs. Until
VA has such information, VA recommends against codifying a payment
rate, as such a limitation could result in VA overpaying or underpaying
states in the future.
VA estimates S. 324 would cost an additional $492,972 in FY 2018,
$3.8 million over 5 years, and $11.6 million over 10 years.
s. 543, performance accountability and contractor transparency (pact)
act of 2017
S. 543 would amend section 513 of title 38, U.S.C., to require VA
to include performance metrics to service contracts under such
authority and safeguards that will allow VA to levy financial penalties
on service providers who fail to meet established thresholds of
quality. The bill proposes to place additional requirements for
contracts over $100 million to include requiring the service provider
to document its work in a database and submit reports to VA and the
Committees on Veterans' Affairs of the House of Representatives and the
Senate. VA would be required to submit a report to these Congressional
Committees if a service provider fails to meet its contractual
obligations or if there are any modifications made on the contract. VA
would be required to publish online information on the contract,
including any modifications to the contract.
We are still examining the effect this bill would have, and would
appreciate the opportunity to discuss this further with the Committee.
VA agrees that there are opportunities to improve our oversight of
contractors and program management associated with the contracting
process; however, we believe the bill could impose undue additional
costs to VA and taxpayers, duplicate existing requirements, and/or
require clarifying language. Of note, the recently signed Program
Management Improvement Accountability Act (Public Law 114-264) requires
Agencies to implement program management policies and develop a
strategy for enhancing the role of program managers within the Agency.
This law aligns to a program execution and governance model VA is
currently executing, the Acquisition Program Management Framework
(APMF). The APMF has been recognized by the Office of Federal
Procurement Policy (under the Office of Management and Budget), the
Federal Acquisition Institute, and the Government Accountability Office
as addressing the critical needs of stronger program management and
governance.
Many of the requirements in section 2 of the bill are already
mandated by various parts of the Federal Acquisition Regulation (FAR)
and/or Veterans Affairs Acquisition Regulation (VAAR). These
regulations govern the process by which VA acquires goods and services
by contract with appropriated funds. VA Quality Assurance, for example,
requires government-led contract quality assurance at all times and
places as may be necessary to determine that the supplies or services
conform to contract requirements. Quality Assurance Surveillance Plans
(QASP) should be prepared in conjunction with the preparation of the
Performance Work Statement. These plans should specify: (1) all work
requiring surveillance; and (2) the method of surveillance. Each
contract shall designate the place or places where VA reserves the
right to perform quality assurance.
Moreover, all major programs should have a Program Management Plan
(PMP). PMP should identify key milestones, detail activities necessary
to reach milestones, identify risks and issues, and develop strategies
to mitigate risks and correct issues. Program Managers should also be
measuring the health of the program as it relates to cost, schedule,
and execution of contract through metrics.
Importantly, VA regulations recognize that a one-size-fits-all
approach does not work for contracting and that there are times when it
is not in VA's best interest to be overly prescriptive. Therefore, VA
encourages work to be described in terms of required results rather
than either ``how'' the work is to be accomplished or the number of
hours to be provided; to enable assessment of work performance against
measurable performance standards; and to rely on the use of measurable
performance standards and financial incentives in a competitive
environment to encourage competitors to develop and institute
innovative and cost-effective methods of performing the work.
When utilized, such contracts include: (1) a performance work
statement (PWS); (2) measurable performance standards (i.e., in terms
of quality, timeliness, quantity, etc.) and the method of assessing
contractor performance against performance standards; and (3)
performance incentives where appropriate. In short, VA incorporates
metrics for incentive or award fees into contracts when it is in VA's
best interest to do so.
Furthermore, VA Contracting Officers may utilize liquidated damages
clauses when appropriate. Before using a liquidated damages clause, VA
Contracting Officers must consider the potential impact on pricing,
competition, and contract administration. Liquidated damages clauses
are only used when: (1) the time of delivery or timely performance is
so important that the Government may reasonably expect to suffer damage
if the delivery or performance is delinquent; and (2) the extent or
amount of such damage would be difficult or impossible to estimate
accurately or prove.
Although VA agrees with the overall intent of the proposed
legislation, VA would like to express a few concerns with key sections
of the legislation.
VA also requests clarity on the types of modifications for which
reports would have to be submitted. The FAR identifies many types of
contract modifications, some of which may not be of congressional
interest.
While VA agrees with much of the language in the bill, there are
sections of the legislation where VA recommends modest changes such as
placing ``contract'' with ``program'' (e.g., ``use the appropriate
project management accountability system of the Department to ensure
that the contract provides an adequate return on the investment of the
Secretary'' in proposed section 513(b)(2)(B)) to clarify the broader
responsibility of the Program Manager in ensuring adequate return on
investment of programs that may have one or more contracts.
VA would appreciate the opportunity to discuss the proposed
legislation with the Acquisition Community, as well as to conduct a
more formal technical review of the proposed legislation at a later
juncture. We look forward to ongoing collaboration with the sponsors of
this legislation.
VA does not have a cost estimate for this bill at this time.
s. 591, military and veteran caregivers service improvement act of 2017
S. 591 would expand eligibility for VA's Program of Comprehensive
Assistance for Family Caregivers, expand benefits available to
participants under such program, enhance special compensation for
certain members of the uniformed services who require assistance, and
make other amendments to increase the provision of benefits.
The Caregivers and Veterans Omnibus Health Services Act of 2010,
Public Law 111-163, signed into law on May 5, 2010, provided expanded
support and benefits for caregivers of eligible and covered Veterans.
While the law authorized certain support services for caregivers of
covered Veterans of all eras, other benefits were authorized only for
qualified family caregivers of eligible Veterans who incurred or
aggravated a serious injury in the line of duty on or after
September 11, 2001. These new benefits for approved family caregivers,
provided under the Program of Comprehensive Assistance for Family
Caregivers, include a monthly stipend paid directly to designated
primary family caregivers and medical care under CHAMPVA for designated
primary family caregivers who are not eligible for TRICARE and not
entitled to care or services under a health-plan contract.
Section 2 of S. 591, the Military and Veteran Caregiver Services
Improvement Act of 2017, would remove ``on or after September 11,
2001'' from the statutory eligibility criteria for the Program of
Comprehensive Assistance for Family Caregivers, and thereby expand
eligibility under the program to Veterans of all eras who otherwise
meet the applicable eligibility criteria. Family caregivers could not
receive assistance under this expanded eligibility until FYs 2018,
2020, or 2022 depending on the monthly stipend tier for which their
eligible Veteran qualifies. Section 2 would also add ``or illness'' to
the statutory eligibility criteria, and thereby expand eligibility to
include those Veterans who require a caregiver because of an illness
incurred or aggravated in the line of duty. In addition, the bill would
expand the bases upon which a Veteran could be deemed to be in need of
personal care services, to include ``a need for regular or extensive
instruction or supervision without which the ability of the Veteran to
function in daily life would be seriously impaired.''
This section would also expand the assistance available to primary
family caregivers under the Program of Comprehensive Assistance for
Family Caregivers to include child care services, financial planning
and legal services ``relating to the needs of injured and ill Veterans
and their caregivers,'' and respite care that includes peer-oriented
group activities. The bill would ensure that in certain circumstances
VA accounts for the family caregiver's assessment and other specified
factors in determining the primary family caregiver's monthly stipend
amount. In addition, the bill would require VA to periodically evaluate
the needs of the eligible Veteran and the skills of the family
caregiver to determine if additional instruction, preparation,
training, or technical support is needed, and it would require certain
evaluation be done in collaboration with the Veteran's primary care
team to the maximum extent practicable.
Section 2 would also authorize VA, in providing assistance under
the Program of Comprehensive Assistance for Family Caregivers, to
``enter into contracts, provider agreements, and memoranda of
understanding with Federal agencies, states, and private, nonprofit,
and other entities'' in certain circumstances. It would expand the
definition of family member to include a non-family member who does not
provide care to the Veteran on a professional basis, and it would amend
the definition of ``personal care services.'' The bill would also end
the Program of General Caregiver Support Services on October 1, 2022,
but would ensure that all of its activities are carried out under the
Program of Comprehensive Assistance for Family Caregivers. Finally, the
bill would amend the annual reporting requirements for the Program of
Comprehensive Assistance for Family Caregivers.
In September 2013, VA sent a report to the Committees on Veterans'
Affairs of the Senate and House of Representatives (as required by
Section 101(d) of Public Law 111-163) on the feasibility and
advisability of expanding the Program of Comprehensive Assistance for
Family Caregivers to family caregivers of Veterans who incurred or
aggravated a serious injury in the line of duty before September 11,
2001. In that report, VA noted that expanding the Program of
Comprehensive Assistance for Family Caregivers would allow equitable
access to seriously injured Veterans from all eras (who otherwise meet
the program's eligibility criteria) and their approved family
caregivers.
In the report, however, VA noted difficulties with making reliable
projections of the cost effect of opening the Program of Comprehensive
Assistance for Family Caregivers to eligible Veterans of all eras, but
estimated a population range of 32,000 to 88,000 additional Veterans in
the first year (estimated for FY 2014), at a cost of $1.8 billion to
$3.8 billion in the first year (estimated for FY 2014). After VA
provided this report to Congress, the RAND Corporation published a
report titled, ``Hidden Heroes: America's Military Caregivers,'' which
estimates a significantly larger eligible population (1.5 million) that
may be eligible if the program were expanded to caregivers of pre-9/11
Veterans and those qualifying due to illness. VA's estimates in its
2013 report did not account for expansion to eligible Veterans with an
illness incurred or aggravated in the line of duty, other Veterans who
would become eligible for the program based on the amendments in
section 2, or the additional assistance that would become available to
primary family caregivers under the bill. This estimate also did not
factor in a phased implementation of stipend expansion, as contemplated
by the bill.
VA cannot responsibly provide a position in support of expanding
the Program of Comprehensive Assistance for Family Caregivers without a
realistic consideration of the resources necessary to carry out such an
expansion, including an analysis of the future resources that must be
available to fund other core direct-to-Veteran health care services.
This is especially true as VA presses to strengthen mental health
services and ensure the fullest possible access to care across the
system.
We wish to make it very clear that VA believes an expansion of
those benefits that are currently limited by era of service would
result in equitable access to the Program of Comprehensive Assistance
for Family Caregivers for long-deserving caregivers of those who have
sacrificed greatly for our Nation. However, VA cannot endorse this
measure before further engaging with Congress on these fiscal
constraints, within the context of all of VA health care programs.
Additionally, before expanding eligibility under the Program, we
believe it prudent for VA to ensure that the current eligibility
criteria are applied in a consistent manner across the program. For
example, the National Caregiver Support Program is undergoing an
internal review to evaluate consistency in revocations and reductions
from the Program and standardize communication with Veterans and
Caregivers. On April 17, 2017, VA suspended certain VA-initiated
revocations in order to carry out this review.
VA welcomes further discussion of these issues with the Committee.
Section 3 of this bill proposes to add a new section 3319A to title
38 to authorize individuals who are eligible for and participating in a
program of comprehensive assistance for family caregivers under 38
U.S.C. Sec. 1720G(a) the opportunity to transfer their unused Post-9/11
GI Bill education benefits to their dependents. Veterans may complete
the transfer of entitlement any time during the 15-year period
beginning on the date of their last discharge or release from active
duty. There is no length of service requirement, and the monthly rate
of educational assistance would be the same rate payable to the
individual making the transfer. The Secretary would be authorized to
prescribe regulations to carry out this section. We note that the
Survivors' and Dependents' Educational Assistance (DEA) program, or
chapter 35, currently offers education and training benefits to
eligible dependents of members of the Armed Forces and Veterans who
have a service-connected disability rated as permanently and totally
disabling, including individuals who are eligible for a program of
comprehensive assistance for family caregivers. Assistance includes up
to 45 months of full-time benefits.
VA supports the intent of section 3 to take care of caregivers;
however, VA cannot support this section as written. The transfer of
entitlement provisions of the Post-9/11 GI Bill were established as a
recruitment and retention tool for the uniformed services. As such, the
Department of Defense (DOD) determines eligibility for transfer of
entitlement. If enacted, the proposed legislation would require VA to
develop procedures to receive requests to transfer entitlement for
certain individuals, determine eligibility, and award benefits for the
transfer of entitlement program. However, VA notes that Congress would
need to identify appropriate offsets for the cost of this legislation
Additionally, under the proposed section 3319A, dependents would
receive the same rate of payment as otherwise payable to the individual
making the transfer. This is different than the rate payable for a
dependent child using transferred entitlement under section 3319.
Currently, a dependent child is awarded benefits as if the individual
making the transfer were not on active duty. As such, a child is
entitled to the monthly housing allowance stipend even though the
individual transferring benefits is still on active duty. Under the
proposed legislation, a child would not be eligible for the housing
allowance while the individual described in 38 U.S.C. Sec. 1720G(a)(2)
is on active duty. This change would impact the Long-Term Solution for
processing Post-9/11 GI Bill claims, as VA would have to make system
modifications in order to apply a blended set of rules for claims
involving transferred education benefits.
Section 4(a) would amend 37 U.S.C. 439, providing for special
compensation for members of the uniformed services with catastrophic
injuries or illnesses requiring assistance in everyday living, by
amending the definition of covered members to include those
Servicemembers who have a serious injury or illness that was incurred
or aggravated in the line of duty and are in need of personal care
services as a result of such injury or illness. Section 4(b) would
further amend section 439 by requiring VA to provide family caregivers
of a Servicemember in receipt of monthly special compensation the
assistance available to family caregivers of eligible Veterans under 38
U.S.C. Sec. 1720G(a)(3)(A), other than the monthly caregiver stipend.
VA would provide assistance under this subsection in accordance with a
memorandum of understanding (MOU) between VA and DOD, and an MOU
between VA and the Secretary of Homeland Security. VA would be required
to ensure that a family caregiver in receipt of assistance under this
subsection is able to transition seamlessly to the receipt of
assistance under 38 U.S.C. Sec. 1720G. Section 4(c) would require DOD,
in collaboration with VA, to ensure that members of the uniformed
services in receipt of monthly special compensation are aware of the
eligibility of such members for family caregiver assistance. Section
4(d) would define the term ``serious injury or illness,'' which would
replace the term ``catastrophic injury or illness,'' to mean an injury,
disorder, or illness that (1) renders the afflicted person unable to
carry out one or more activities of daily living; (2) renders the
afflicted person in need of supervision or protection due to the
manifestation by such person of symptoms or residuals of neurological
or other impairment or injury; (3) renders the afflicted person in need
of regular or extensive instruction or supervision in completing two or
more instrumental activities of daily living; or (4) otherwise impairs
the afflicted person in such manner as the Secretary of Defense or
Homeland Security prescribes.
Regarding section 4 of the bill, VA defers to DOD and the
Department of Homeland Security regarding sections 4(a), 4(c), and
4(d). VA does not support section 4(b) because DOD already provides
many of the services and supports available under VA's Program of
Comprehensive Assistance for Family Caregivers including health care
coverage, mental health services, and respite care. Requiring VA to
provide services under its program would result in a duplication of
efforts.
Section 5 would authorize the Office of Personnel Management (OPM)
to promulgate regulations under which a covered employee, which would
include a caregiver defined in 38 U.S.C. Sec. 1720G or a caregiver of
an individual receiving compensation under 37 U.S.C. Sec. 439, to use a
flexible schedule or compressed schedule or to telework. VA defers to
OPM on this section.
Section 6 would amend the Public Health Service Act (42 U.S.C.
Sec. 300ii), which governs lifespan respite care, to amend the
definition of ``adult with a special need'' to include a Veteran
participating in the family caregiver program under 38 U.S.C.
Sec. 1720G(a). It would also amend the definition of ``family
caregiver'' to include family caregivers under 38 U.S.C. Sec. 1720G.
Furthermore, in awarding grants or cooperative agreements to eligible
state agencies to furnish lifespan respite care, HHS would be required
to work in cooperation with the interagency working group on policies
relating to caregivers of Veterans established under section 7 of this
bill. Section 6 would also authorize appropriations of $15 million for
FYs 2017 through 2022 for these grants. VA defers to HHS on this
section.
Section 7 would establish an interagency working group on policies
relating to caregivers of Veterans and Servicemembers. The working
group would be composed of a chairperson selected by the President, and
representatives from VA, DOD, HHS (including the Centers for Medicare &
Medicaid Service), and the Department of Labor. The working group would
be authorized to consult with other advisors as well. The working
group's duties would include regularly reviewing policies relating to
caregivers of Veterans and Servicemembers, coordinating and overseeing
the implementation of policies relating to these caregivers, evaluating
the effectiveness of such policies, developing standards of care for
caregiver and respite services, and others. Not later than December 31,
2017, and annually thereafter, the working group would be required to
submit to Congress a report on policies and services relating to
caregivers of Veterans and Servicemembers.
VA generally supports a working group that would provide a forum
for analyzing and evaluating different issues that family caregivers of
Veterans and Servicemembers face. Such a working group would be ideally
suited to considering in depth the types of issues other provisions of
this bill are intended to address and would also be able to evaluate
emerging issues.
The Department of Justice advises, however, the bill's method for
selecting members of the working group raises Appointment Clause
concerns, which DOJ will convey in greater detail under separate cover.
We also note several technical concerns with the legislation in
terms of the creation of the working group, its role, the potential
applicability of the Federal Advisory Committee Act to such a group,
and which agency (if any) would be responsible for initiating,
managing, and funding the working group. We would be happy to discuss
these issues with you upon your request.
Section 8(a) would require VA to conduct a longitudinal study on
Servicemembers who began their service after September 11, 2001. VA
would be required to award a grant to or enter into a contract with an
appropriate entity unaffiliated with VA to conduct the study. Within 1
year of the date of the enactment of the Act, VA would be required to
submit to the Committees on Veterans' Affairs a plan for the conduct of
the study. Not later than October 1, 2021, and not less frequently than
once every 4 years thereafter, VA would be required to submit to the
Committees on Veterans' Affairs a report on the results of the study.
Section 8(b) would require VA to provide for the conduct of a
comprehensive study on Veterans who have incurred a serious injury or
illness and individuals who are acting as caregivers for Veterans. VA
would be required to award a grant to or enter into a contract with an
appropriate entity unaffiliated with VA to conduct the study. The study
would be required to include the health of the Veteran and the impact
of the caregiver on the health of the Veteran, the employment status of
the Veteran and the impact of the caregiver on that status, the
financial status and needs of the Veteran, the use by the Veteran of VA
benefits, and any other information VA considers appropriate. No later
than 2 years after the date of the enactment of this Act, VA would be
required to submit to the Committees on Veterans' Affairs a report on
the results of this study.
VA does not support section 8, as it would duplicate research in
several ongoing or in-development studies. DOD and VA have a
collaboration on the Millennium Cohort Study, a longitudinal cohort
study that has and will continue to produce findings on health issues
of multiple eras of military service. The Million Veterans Program
creates a repository of clinical and genetic information on Veterans,
including post-9/11 Veterans, which will provide data for targeted
studies on health for years to come. VA's Cooperative Studies Program
is developing a study on the respiratory health of Gulf War and post-9/
11 Veterans. Finally, a study of the life transitions of military
Servicemembers who served in Iraq or Afghanistan is funded and in
development.
VA estimates section 8 would cost $4.3 million in FY 2018, $17.5
million over 5 years, and $34 million over 10 years, with additional
close out expenses of $3.3 million in FY 2028 for a total cost of $37.3
million.
s. 609, chiropractic care available to all veterans act of 2017
S. 609 would require VA to carry out a program to provide
chiropractic care and services to Veterans through VA medical
facilities at not fewer than 75 VA medical centers (VAMC) by not later
than December 31, 2018, and at all VAMCs by not later than December 31,
2020. It would also modify 38 U.S.C. Sec. 1701 to amend the definition
of ``medical services'' to include chiropractic services, the
definition of ``rehabilitative services'' to include chiropractic
services and treatment programs, and the definition of ``preventive
health services'' to include periodic and preventive chiropractic
examinations and services.
VA does not support this bill. While adding chiropractic clinics
would be consistent with ongoing VA initiatives to improve Veteran
access to non-pharmacological pain treatment options, this can be
accomplished through VA's existing policies and processes for hiring,
credentialing, and privileging chiropractors. Chiropractic treatment
has been shown to be clinically effective, cost effective, and in high
demand by Veterans. Patients who have access to chiropractic care are
less likely to receive opiate medications and spinal surgeries. VA has
already been expanding access to chiropractic services for Veterans.
Currently, about half of the Level 1a VAMCs have chiropractic clinics,
and other facilities offer chiropractic services as well. However,
mandating that all VAMCs provide chiropractic services by the end of
2020 is unnecessary. The need for more chiropractic clinics across the
VA health care system can most effectively be determined by continually
assessing demand for chiropractic services and usage, and adding
chiropractic care at those sites as warranted to meet demand. We do not
believe it would be prudent as a matter of fiscal or clinical
responsibility to increase the number of clinics in areas where demand
is insufficient to support investment in such a clinic.
We recommend the legislation not amend the definition of preventive
health services in section 1701(9). Chiropractic services are provided
as part of the medical benefits package and are administered based on
clinical need, similar to all other medical care. It would be
inconsistent with the professional standards for other medical
disciplines and inappropriate to provide periodic and preventative
chiropractic examination and services when there are no clinical
indications that such care is needed.
VA estimates S. 609 would cost $1.68 million in FY 2018, $60.23
million over 5 years, and $155.9 million over 10 years.
s. 681, deborah sampson act
S. 681 would amend title 38 of the U.S. Code to seek to improve the
benefits and services provided by VA to women Veterans in a variety of
ways.
Section 101 would require VA to carry out a 3-year pilot program to
assess the feasibility and advisability of facilitating peer-to-peer
assistance for women Veterans, including those who are separating or
are newly separated from service in the Armed Forces, with an emphasis
on women who suffered sexual trauma during their service, have Post
Traumatic Stress Disorder or suffer from another mental health
condition, or are otherwise at risk of becoming homeless. Peer-to-peer
assistance would consist of: (1) providing information about VA
services and benefits, and (2) employment mentoring. VA would be
required to commence the pilot program no later than January 1, 2018,
and conduct outreach to inform women Veterans about the pilot program
and assistance available under the pilot program. The pilot program may
include training and the development of training materials for peer
counselors. Under the pilot program, VA would be required to coordinate
with specified government and community organizations to facilitate the
transition of women Veterans into their communities. VA would also be
required, to the degree practicable, to coordinate the pilot program
with the Transition Assistance Program carried out under 10 U.S.C.
Sec. 1144.
VA supports section 101. Women Veterans who experienced military
sexual trauma, who have mental health conditions, and/or who are at
risk of becoming homeless face numerous barriers in seeking and
accessing assistance, including through VA. Such women Veterans are
considered to be among VA's most clinically complex patients. The
program that would be required by section 101 has the potential to
offer meaningful and powerful support to assist these women Veterans in
connecting with needed services and assistance. Although section 101
would focus the provision of information about VA services and benefits
and provision of employment mentoring, VA's experience with its
existing peer program suggests that perhaps the biggest benefit the
program would offer would be role modeling and the instillation of
hope, as peer specialists have already overcome many of the obstacles
the participants are experiencing.
Section 101 would expand VA's existing, well-established peer
support program, which has demonstrated effectiveness in assisting
Veterans in outpatient, inpatient, and residential mental health
settings who are struggling with issues such as Post Traumatic Stress
Disorder, substance use disorders, serious mental illness, and
homelessness. These programs include women Veterans, and there are many
women Veterans currently working as mental health peer specialists in
VA. VA believes that, if enacted, development of this program would
have to proceed carefully given the complexity of the clinical needs of
the target population. In this context, the bill's proposed creation of
a pilot program seems most appropriate.
VA estimates section 101 would cost approximately $723,000 in FY
2018 and approximately $3.7 million over the 3 years of the program.
Section 102 would require VA to expand the capabilities of the
Women Veterans Call Center of the Department to include a text
messaging capability.
VA supports section 102. To meet the needs of women Veterans, VA
needs to provide information and answer questions via methods that are
convenient to them. The Women Veterans Call Center routinely answers
questions by phone and by chat, and the logical next step would be to
provide convenient and accessible information for women Veterans via
text messages. VA understands that women Veterans have expressed
interest in such a text messaging capability. VA currently includes a
text messaging response capability for its Veterans Crisis Line.
VA estimates section 102 would cost approximately $174,000 in FY
2018, $924,000 over 5 years, and $2.0 million over 10 years.
Section 103 would amend section 1712A of title 38, U.S.C., to
authorize VA to furnish counseling in group retreat settings to persons
eligible for Readjustment Counseling Services from VA. The
reintegration and readjustment services furnished would include
information on reintegration of the individual into family, employment,
and community; financial counseling; occupational counseling;
information and counseling on stress reduction; information and
counseling on conflict resolution; and such other information and
counseling as the Secretary considers appropriate. VA would be required
to offer women the opportunity to receive such services in group
retreat settings in which the only participants are women. These
readjustment and counseling services would be available upon the
request of the individual.
VA supports section 103. We agree that providing these retreats is
beneficial to women Veterans, and believe other Veteran and
Servicemember cohorts could also benefit from this treatment modality.
Examples include those who have experienced military sexual trauma,
Veterans and their families, and families that experience the death of
a loved one while on active duty.
VA estimates that section 103 would cost approximately $467,000 to
conduct six retreats in FY 2018, $2.5 million over 5 years, and $5.6
million over 10 years.
Section 201 would require VA to establish a partnership with at
least one non-governmental organization to provide legal services to
women Veterans, focused on the 10 highest unmet needs of women Veterans
as set forth in the most recently completed Community Homelessness
Assessment, Local Education and Networking Groups for Veterans (CHALENG
for Veterans) survey.
VA supports section 201. The consistency of legal issues arising in
VA's annual CHALENG survey strongly suggests a relationship between
Veterans' unmet legal needs and the risk of becoming homeless. Legal
issues can be a significant barrier to resolving homelessness, as these
issues may be discovered in background checks conducted by landlords
and employers, subsequently resulting in rejections for leases and
employment offers. Additionally, legal issues may result in seizure of
income or bank accounts, making it impossible to pay rent, or could
result in the suspension of a driver's license, creating significant
challenges for Veterans seeking employment or needing health care. A
number of organizations stand ready to serve homeless or at-risk
Veterans with legal services, but face financial limitations on their
capacity to do so. The declining accessibility of civil legal aid,
combined with persistent indicators of unmet need for it among
Veterans, indicates that this passive approach is no longer viable.
Providing additional funding for legal assistance would have a direct
bearing on the housing stability of Veteran households. However, male
Veterans who are homeless are also in need of legal services, as
demonstrated by the CHALENG survey referenced in the proposed
legislation. In the most recent CHALENG survey, five of the top ten
unmet needs amongst both male and female homeless Veterans are legal
needs, such as evictions/foreclosures, outstanding warrants/fines,
child support, restoration of drivers' licenses, and discharge
upgrades. Consequently, we recommend the bill be modified to make legal
assistance available for both male and female Veterans needing such
aid.
We note, though, that it is unclear what exactly is contemplated by
entering into a ``partnership'' with a non-governmental organization.
Typically, VA provides grants (when authorized by statute) or enters
into contracts or cooperative agreements with non-governmental
organizations to provide services, particularly to homeless Veterans.
However, with only the term ``partnership'' in the bill, it is unclear
that it would provide clear authority for VA to expend Federal funds to
support legal services for women Veterans; VA would require more
explicit authority in that regard. It is also unclear why the provision
only mentions ``at least one nongovernmental organization,'' to
potentially exclude other public entities from participation. VA would
be happy to discuss this section further with the Committee to
understand better what is intended, and we would be pleased to provide
technical assistance upon request.
Section 202 would amend section 2044(e) of title 38, U.S.C., to
authorize additional amounts for the Supportive Services for Veteran
Families (SSVF) grant program to support organizations that have a
focus on providing assistance to women Veterans and their families.
Specifically, section 202 would amend paragraph (1)(E) to strike 2017
and insert 2016, and add a new subparagraph (F) providing that $340
million shall be available to carry out the SSVF grant program for each
of FYs 2017 and 2018. In addition, section 202 would add a new
paragraph (4) providing that not less than $20 million shall be
available under paragraph (e)(1)(F) for the provision of financial
assistance to organizations that have a focus on providing assistance
to women Veterans and their families.
VA supports section 202. SSVF is designed to rapidly re-house
homeless Veteran families and prevent homelessness for those at
imminent risk due to a housing crisis. Funds are granted to private
non-profit organizations and consumer cooperatives that will assist
very low-income Veteran families by providing a range of supportive
services designed to promote housing stability. In FY 2016, 13.3
percent of Veterans served by SSVF were women, the largest such
percentage of any homeless services program. As women represent only 8
percent of the homeless Veteran population, it is evident that SSVF's
unique blend of services and capacity to serve all household members,
including dependent children, has been successful at addressing the
needs of homeless women Veterans. Further evidence of this success can
be found in the composition of SSVF enrolled households headed by women
Veterans: 42 percent have dependent children compared to just 18
percent for men. The unique needs of these households led by women
Veterans have imposed increased demands upon SSVF grantees, justifying
a commensurate increase in resources to organizations providing support
to these families.
The SSVF program supports rapid re-housing interventions. Such
interventions generally are defined as permanent housing opportunities
and, therefore, are likely subject to fair housing laws. It may be
helpful for the bill to be amended to indicate that recipient
organizations that have a focus on providing assistance to women and
their families would still be subject to complying with all Federal
fair housing laws.
VA estimates section 202 would result in additional costs of $20
million for FY 2017 and FY 2018.
Section 301 would amend section 1786 of title 38, U.S.C., to extend
from 7 to 14 days coverage of newborns of a woman Veteran receiving
delivery care.
VA supports section 301. A newborn needing care for a medical
condition may require treatment extending beyond the current 7 days
that are authorized by law. Additionally, the standard of care is to
have further evaluations during the first two weeks of life to check
infant weight, feeding, and newborn screening results. Pending these
results, there may be a need for additional testing and follow-up.
There are also important psychosocial needs that may apply, including
monitoring stability of the home environment or providing clinical and
other support if the newborn requires monitoring for a medical
condition. Extending care to 14 days would provide time for further
evaluations appropriate for the standard of care, as well as sufficient
time to identify other health care coverage for the newborn.
VA estimates section 301 would cost $8.8 million in FY 2018, $46.6
million over 5 years, and $100.6 million over 10 years.
Section 302 would amend section 1786 of title 38, U.S.C., to
clarify that amounts paid by VA for medically necessary travel in
connection with health care services furnished under this section would
be derived from the Medical Services appropriations account.
VA supports the intent of section 302. While most travel of a
newborn is not a concern as the mother and newborn travel together to
appointments, for those newborns that require transport from a
community hospital to a neo-natal intensive care unit by ambulance or
helicopter, VA lacks clear authority currently to pay for this travel
if the care is exclusively for the newborn. However, we are concerned
the language in this section, which refers only to a source of funding
for such travel, does not specifically authorize VA to furnish or pay
for such transportation expenses under 38 U.S.C. Sec. 1786.
Depending on how the bill is interpreted, we estimate section 302
could cost approximately $587,000 in FY 2018, $3.95 million over 5
years, and $11.86 million over 10 years.
Section 401 would require VA to retrofit existing VA medical
facilities with fixtures, materials, and other outfitting measures to
support the provision of care to women Veterans at such facilities.
Within 180 days of enactment, VA would be required to submit to the
Committees on Veterans' Affairs of the House of Representatives and the
Senate a plan to address deficiencies in environment of care for women
Veterans at VA medical facilities. There would be authorized to be
appropriated $20 million in addition to amounts otherwise available to
VA to carry out this section.
While we appreciate the intent of this provision, we do not support
section 401. VA currently has the authority, and has made it a
priority, to renovate or improve its facilities to protect the privacy,
safety, and dignity of women Veterans. We are concerned that subsection
(a), for example, would legislate specific requirements that are better
addressed through current construction standards. These standards are
subject to review and revision on a regular basis, which provides
flexibility for VA to identify and prioritize emerging needs. A
statutory requirement would provide no such flexibility.
We believe the current process for identifying needs and obligating
available resources to remedying them is more appropriate and better
for Veterans. While we currently have authority to, and in fact do,
conduct routine evaluations of our facilities to identify deficiencies,
we would have no objection to a requirement for a recurring, system-
wide assessment to identify deficiencies, similar to the requirement
contemplated in subsection (b). We recommend that such a review occur
only periodically, as some projects can take several years to complete,
and that VA be given flexibility to take the time it needs to complete
these reviews thoroughly and accurately instead of attempting to
complete them within a statutory deadline. Such a revised requirement
to review medical facilities would provide a comprehensive list of the
specific needs of each facility. We would be happy to discuss our
thoughts on this further with the Committee and to provide technical
assistance as needed.
Without having completed a current, comprehensive review, we are
unable to estimate the cost of section 401. However, we have reason to
believe the costs for retrofitting every VA medical facility would be
more than the $20 million that would be authorized for appropriation
under subsection (c).
Section 402 would require VA to ensure that each VA medical
facility has at least one full-time or part-time women's health primary
care provider whose duties include, to the extent possible, providing
training to other VA health care providers on the needs of women
Veterans.
VA fully supports the intent of section 402, but notes that the
provision is unnecessary because VA already has authority to employee
women's health primary care providers, resources permitting. Currently,
approximately 475,000 women Veterans receive care at a VA facility, and
there are approximately 2,500 designated women's health providers in
our health care system. There are 102 VA sites of care without a
designated women's health provider. For many sites, there is no
justification to hire a full-time designated women's health provider
due to the small number of women Veterans assigned to the clinic, so
instead, VA trains an existing provider who will treat both men and
women on their panel. There is approximately a 20 percent turnover each
year for women's health providers, so training new providers is a
constant need.
Section 403 would require VA to ensure that the VA Women Veteran
Program Manager program is supported at each VAMC with a Women Veteran
Program Manager and a Women Veteran Program Ombudsman, and that such
individuals receive the proper training to carry out their duties.
VA supports the intent of section 403 in part. Currently, VHA
Directive 1330.01, Health Care Services for Women Veterans, requires
each VA health care system to have a full-time Women Veterans Program
Manager. To that extent, the legislation is generally consistent with
current practice. At the end of FY 2016, VA had 130 permanent Women
Veteran Program Managers, 9 acting managers, and 1 vacancy. VA conducts
training for these managers both virtually and face-to-face. VA does
not support the requirement to appoint a Women Veteran Program
Ombudsman, as we think this would be duplicative of services already
available to women Veterans through the Patient Advocate Program.
Section 404 would authorize to be appropriated $1 million for each
fiscal year for the Women Veterans Health Care Mini-Residency Program
to provide opportunities for participation by primary care and
emergency care clinicians. The $1 million would be authorized to be
appropriated in addition to amounts otherwise made available to VA for
purposes of this program.
VA supports section 404. Today, women are the fastest growing
subgroup of U.S. Veterans. There are more than 2.2 million women
Veterans in the United States, and women make up 15.1 percent of
today's active duty military and 18.8 percent of National Guard and
Reserve forces; the number of women Veterans is expected to grow in the
future. VHA's efforts to train clinicians to meet the needs of an ever
increasing number of women Veterans seeking care has included large
scale initiatives to deploy core curricula covering the highest
priority topics in women's health care (i.e., ``Women's Health Mini-
Residencies''). VA has developed four mini-residency programs in recent
years and offers mini-residency programs as large, national training
conferences each year. Since 2008, VA has provided mini-residency
training to over 3,000 primary care providers and more recently to
approximately 500 primary care nurses and 250 emergency care providers
and nurses. However, there is an ongoing need to train additional
primary care and emergency care providers in the care of women Veterans
to ensure that equitable, high-quality care is provided at all VA
sites.
VA estimates section 404 would cost approximately $920,000 in FY
2018, $4.84 million over 5 years, and $9.84 million over 10 years.
Section 501 would require VA to collect and analyze data on each VA
program that provides a service or benefit to a Veteran, to
disaggregate such data by sex and minority status when the data lend
itself to such disaggregation, and to publish the data collected and
analyzed, except for such cases in which the Secretary determines that
some portions of the data would undermine the anonymity of a Veteran.
VA opposes section 501 because we are concerned about the breadth
and potential implications of this legislation. While VA tracks various
demographic information about Veterans, it does so only to the extent
that these factors are related to eligibility for benefits or services
or would assist in the delivery of benefits or services. Many programs
and services offered by VBA and the National Cemetery Administration
(NCA) do not differ in any way based upon gender, race, ethnicity, or
other factors. Many of VHA's programs, though, do collect this
information, as it is critical to providing quality health care.
Moreover, many of our existing forms do not collect this information,
or at least do not require a respondent to report such information (for
example, for race or ethnicity). If the legislation is intended to
require VA to collect this information, such an effort would increase
costs for Veterans and VA. VA could be forced to remove other, more
mission-critical collections of information to account for these costs
in order to reduce the burden on the public. New requirements could
also duplicate other reporting requirements if, for example, this
section also applied to grants programs.
We would appreciate the opportunity to discuss this section to
better understand specifically what information this provision is
intended to produce. VA would be happy to provide such information upon
the Committee's request, but we do not believe a statutory requirement
to provide such information would be appropriate.
VA is unable to develop a cost estimate for this section at this
time because we are unsure of the intended scope and effect of this
provision.
Section 502 would require VA, not later than 1 year after the date
of enactment, to submit to the Committees on Veterans' Affairs of the
House of Representatives and the Senate a report on the availability
from VA of prosthetics made for women Veterans, including an assessment
of the availability of such prosthetics at each VA medical facility.
VA does not support section 502. VA provides comprehensive
prosthetic and sensory aids and services that support and optimize the
health and independence of all Veterans, regardless of gender. While VA
does not oppose providing a national report at the end of each FY
detailing the types of prosthetic items, quantity of items, and amount
expended on women Veterans, VA opposes providing an assessment of the
availability from VA of prosthetics made for women Veterans, including
an assessment of the availability of such prosthetics at each medical
facility of the Department. We oppose this provision because the
process for procuring prosthetic items for Veterans is initiated by the
clinician. Hence, the types of prosthetic items cannot be predicted due
to prescription dependency on medical necessity. VA could produce a
retroactive report regarding the type of prosthetic items provided to
women Veterans, but providing a report on the availability of such
items at a specific point in time would not provide meaningful
information.
We estimate that section 502 would not have significant costs.
Section 503 would require VA to survey its Internet websites and
information resources and publish a website that serves as a
centralized source of information about VA benefits and services
available to women Veterans. The website would provide women Veterans
with information about all services available in the district where the
Veteran is seeking such services, including the name and contact
information of each women's health coordinator, a list of appropriate
staff for other benefits from VBA and NCA, and any other information
the Secretary considers appropriate. VA would be required to update the
information on the website at least once every 90 days. Outreach
conducted under 38 U.S.C. Sec. 1720F(i) would include information about
the website. VA would be directed to derive funds for this section from
the amounts made available to publish VA internet websites.
VA supports the intent of section 503, but the provision is
unnecessary because VA can accomplish the objectives of the provision
under existing authority. VA already has in place for each medical
center a website specific to women Veterans that highlights the
services available and a point of contact at the facility. In addition,
VA offers two national websites that offer facility locators on the
site. The website required by section 503 would complement this
information and could be more accessible to Veterans.
Section 504 would express the sense of Congress that the Secretary
should change the motto of VA to be more inclusive. VA defers to
Congress in terms of expressing its sense on policy matters.
s. 764, veterans education priority enrollment act of 2017
S. 764 would add a new section, 3680B, to subchapter II of chapter
36 of title 38 U.S.C. that would prohibit the Secretary or a State
Approving Agency (SAA) from approving a program of education offered by
an institution that allows certain students priority enrollment, unless
the institution allows ``covered individual[s]'' to enroll at the
earliest possible time pursuant to such a priority enrollment system.
``Covered individual[s]'' would be those individuals using educational
assistance under chapters 30, 31, 32, 33, or 35 of title 38, U.S.C.; or
under chapter 1606 or 1607 of title 10, U.S.C.
VA supports the intent of S. 764 but has some concerns. As
currently written, the proposed legislation would not impact programs
that are ``deemed approved'' as per the provisions of 38 U.S.C.
Sec. 3672(b)(2)(A), which includes accredited standard college degree
programs at public and private, not-for-profit institutions of higher
learning. If the intent is to have the requirement apply to programs at
all types of institutions, then VA recommends inserting a conforming
amendment to add reference to the new proposed section 3680B to the
list of requirements affecting ``deemed approval'' section
3672(b)(2)(A) of title 38, U.S.C.
In addition, while the proposed amendment prohibits the Secretary
or a SAA from approving programs that do not meet the specified
criteria, it does not clearly require the disapproval of non-compliant
programs that were approved prior to enactment or that cease to be
compliant after approval. If the disapproval of non-compliant programs
is intended to be a requirement as well, then we would recommend that
this be specified in the bill as well. In the event that program
disapproval is desired, VA would also suggest a future effective date
of 12 months from the date of enactment in order to allow time for
schools to change their policies and, thus, minimize the disruption of
the educational pursuits of beneficiaries that are currently enrolled
in such programs.
VA supports the intent of S. 764, and is willing to provide
technical assistance as needed to ensure that the bill has the intended
outcome.
VA does not have a cost estimate for this bill at this time.
s. 784, veterans' compensation cost-of-living adjustment (cola) act of
2017
S. 784 would require the Secretary to increase the rates of
disability compensation and Dependency Indemnity Compensation by the
same percentage as any increase to Social Security benefits effective
on December 1, 2017. The bill would also require VA to publish these
increased rates in the Federal Register.
VA strongly supports this bill because it would express, in a
tangible way, this Nation's gratitude for the sacrifices made by our
service-disabled Veterans and their surviving spouses and children. The
bill would also ensure that the value of these benefits keeps pace with
increases in consumer prices.
VA estimates the cost of this bill to be $1.3 billion in FY 2018,
$8.1 billion over 5 years, and $17.5 billion over 10 years. However,
the cost of these increases is included in VA's baseline budget because
VA assumes that Congress will enact a cost-of-living adjustment each
year. Therefore, enactment of the bill would not result in additional
costs, beyond what is included in VA's baseline budget.
s. 804, women veterans access to quality care act
S. 804 would seek to improve the provision of health care for women
Veterans by VA through several different provisions.
Section 2 would require VA to establish standards to ensure that
all VA medical facilities have the structural characteristics necessary
to adequately meet the ``gender specific'' health care needs, including
privacy, safety, and dignity, of Veterans at these facilities. VA would
be required to promulgate regulations within 180 days of the date of
enactment to carry out this section. Within 270 days of the date of
enactment, VA would be required to integrate these standards into the
prioritization methodology used by VA with respect to requests for
funding of major medical facility projects and major medical facility
leases. Not later than 15 months after the date of enactment, VA would
be required to report to the Committees on Veterans' Affairs of the
House and Senate on the standards established under this section,
including a list of VA medical facilities that fail to meet the
standards; the minimum total cost to ensure that all VA medical
facilities meet such standards; the number of projects or leases that
qualify as a major medical facility project or major medical facility
lease; and where each such project or lease is located in VA's current
project prioritization.
VA appreciates the intent of section 2, but we do not believe it is
necessary given other actions we are already taking. For example, in
2012, VA developed and published a Space Planning Criteria Chapter for
Women Veterans Clinical Service, which identifies space standards for
the delivery of primary care services to Women Veterans Clinical
services within VA. These space standards support care for women
Veterans from basic primary care to ultrasound and mammography
services. A standard examination room plan for Women Veterans Clinics
was developed including access to bathroom facilities directly
connected to the examination room and including such details as privacy
curtains, locking hardware, and exam table placement. VA's Medical/
Surgical Inpatient Units and Intensive Care Nursing Units Design Guide,
developed in 2011 and 2012, addresses the needs of women Veterans.
These standards are available online at: www.cfm.va.gov/TIL. Since
2012, the health care needs of women Veterans have been an instrumental
consideration in the development and update of the standards that are
utilized in the planning and design of all VA facilities to support the
delivery of Veterans' health care. Moreover, it is unclear why VA would
need to promulgate regulations for this section. Absent the requirement
in the bill, VA would not need to promulgate regulations. VA's
construction standards have been established through policy for years,
and revising our standards through this process is less resource
intensive and faster than formal regulations.
Section 3 would require VA, not later than 60 days after the date
of enactment, to establish policies for environment of care inspections
at VAMCs. These inspections would include an alignment of the
requirements for such inspections with the women's health VHA Handbook,
a requirement for the frequency of such inspections, and a delineation
of the roles and responsibilities of staff at the VAMC who are
responsible for compliance. It would also require the Secretary to
certify to the Committees on Veterans' Affairs of the House and Senate
that the policies required under this section have been finalized and
disseminated to VAMCs.
VA also appreciates the intent of section 3 but does not believe
this provision is necessary because VA established a Comprehensive
Environment of Care (CEOC) Program policy in February 2016. VHA
Directive 1608, Comprehensive Environment of Care (CEOC) Program,
outlines the requirements of a CEOC Program and assigns
responsibilities and accountability from VA Central Office, through the
Veterans Integrated Service Network (VISN), to the medical centers,
detailing the requirements for leadership involvement, routine
environment of care rounds, discipline-based standardized checklists,
and a requirement to identify and track deficiencies through
resolution. VHA Directive 1608 is aligned with VHA Directive 1330.01,
Health Care Services for Women Veterans, and VA believes this meets the
intent of the proposed language in the bill. We note that the bill
specifically refers to a ``women's health handbook,'' but the current
form of this policy is in a Directive. We recommend the language be
revised to simply refer to a ``policy,'' rather than either a
``handbook'' or a ``directive'' to avoid possible confusion.
Section 4 would require the Secretary to use health outcomes for
women Veterans furnished hospital care, medical services, and other
health care by VA in evaluating the performance of VAMC directors. It
would also require VA to publish on an Internet Web site information on
the performance of directors of VAMCs with respect to health outcomes
for women Veterans, including data on health outcomes pursuant to key
health outcome metrics, a comparison of how such data compares to data
on health outcomes for male Veterans, and explanations of this data to
help the public understand this information.
VA already is focused on tracking access and outcomes for women
Veterans, and on addressing disparities in care, and thus we do not
believe section 4 is necessary. VA has a robust method for evaluating
ambulatory care using the Healthcare Effectiveness Data and Information
Set (HEDIS) measures and inpatient care quality using The Joint
Commission ORYX measure set. VA also evaluates Veteran assessments of
their health care experiences by administering the Consumer Assessment
of Healthcare Providers and Systems survey that focuses on inpatient
and outpatient services. Both the clinical quality measures and Veteran
experience measures are collected for men and women, so that
comparative analyses and reporting are possible. These results are used
to assess individual medical center Directors and to compare facility
results to internal and external benchmarks. Results also are posted on
a publicly available internet Web site.
Section 5 would seek to increase the number of obstetricians and
gynecologists employed by VA. Paragraph (a) of this section would
require, not later than 18 months after enactment, that VA ensures that
every VAMC have a full-time obstetrician or gynecologist.
VA supports the intent of section 5(a) and already is taking steps
to expand access to gynecological care throughout VA. Currently,
approximately 76 percent of VAMCs have a gynecologist on staff, and we
plan to add this service at roughly another 20 facilities. This will
ensure that all facilities with a surgical complexity of intermediate
or complex will have a gynecologist on staff. At facilities with a
surgical complexity designation of standard or less, we do not believe
that there is sufficient patient demand to support a full-time
gynecologist or obstetrician. For Veterans needing these services at
these facilities, VA uses its community care authorities to ensure
these Veterans are able to access care. Moreover, in some areas of the
country, particularly in smaller or more rural areas, VA faces
recruitment challenges in hiring new staff, and we anticipate we would
face similar challenges if this legislation were enacted.
Paragraph (b) of section 5 would require VA, within 2 years of
enactment, to carry out a pilot program in not fewer than three VISNs
to increase the number of residency program positions and graduate
medical education positions for obstetricians and gynecologists (OB-
GYN) at VA medical facilities.
VA supports the intent of paragraph (b) of section 5, and would
respectfully submit that VA already has this authority and is using it.
VA currently funds 31 OB-GYN residency positions across 40 sites.
Family Medicine also provides many aspects of gynecological care that
meet the needs of women Veterans for which VA funds 154 residency
positions at 81 VAMCs. We would welcome Committee feedback as to how we
could improve these efforts. While gynecologic services are widely
available across VA, the limited number of women Veterans seeking care
and the scope of services at some sites makes it difficult to provide
the educational resources to fulfill the accreditation needs for
training in obstetrics and gynecology. This limits an approach to
national increases in these residency positions. A three VISN pilot
program would be limited in its ability to start within 2 years given
the need to develop relationships with residency programs in this area,
as well as understand the needs of women Veterans in those VISNs.
Section 6 would require VA to develop procedures to share
electronically certain information with State Veterans agencies to
facilitate the furnishing of assistance and benefits to Veterans. The
information would include military service and separation data, a
personal email address, a personal telephone number, and a mailing
address. Veterans would be able to prevent their information from being
shared with State Veterans agencies by using an opt-out process to be
developed by VA. VA would be required to ensure that the information
shared with State Veterans agencies is only shared by such agencies
with county government Veterans service offices for such purposes as VA
would determine for the administration and delivery of assistance and
benefits.
VA believes strong relationships with State Veterans agencies, as
well as outreach to Veterans, are critical. However, we do have
concerns with this section. The information required, we believe, would
have Privacy Act implications. Also, managing opt-out requests would
require additional resources, although the amount cannot be projected
with specificity. We would be glad to discuss with the Committee VA's
collaborative efforts with State Veterans agencies on outreach and how
the goals of section 6 could be fulfilled while avoiding the concerns
expressed above.
Finally, section 7 would direct VA to carry out an examination of
whether VAMCs are able to meet the health care needs of women Veterans
and to submit this report within 270 days of enactment. Again, we would
respectfully submit that VA has this authority, and is using it in this
way. VA fully agrees with the importance of assessing access for women
Veterans and implementing comprehensive primary care at all sites. We
are already tracking wait times, access, the number of designated
women's health providers at each site, recruitment efforts, and staff
training. VA believes that the additional examination required by this
section is unnecessary as it would include examining sites that we know
are performing well. VA has begun efforts to use evaluation data to
work with those sites that have challenges to assist them in improving
services for women Veterans. Since 2010, VA has assessed the
implementation of comprehensive women's health through national site
visits. Women's Health Services contracted with a private company to
develop the methodology, metrics, and tools needed to evaluate Women's
Health Programs (WHP) across VA. By end of FY 2016, 100 percent (140)
of the VA health care system WHPs comprehensive evaluations were
completed. Additionally, VA monitors access, including wait time data,
for women Veteran appointments. VA also has evaluated disparities in
health outcomes since 2008, and we lead the Nation in reducing health
disparities for women Veterans.
VA estimates a contract to conduct the examination and prepare the
report required would cost approximately $10.3 million.
s. 899, va transition improvement act
VA supports S. 899, which would require VA to establish a leave
transfer program for the benefit of health care professionals appointed
under 38 U.S.C. Sec. 7401(1) and authorize the establishment of a leave
bank program for the benefit of such health care providers. Inclusion
of this provision would ensure that disabled Veteran employees
performing health care services in Title 38 occupations have the same
opportunity to schedule medical appointments and receive medical care
related to their disability without being charged leave as employees in
Title 5 and Hybrid Title 38 occupations. The bill would also provide
disabled Veteran employees an opportunity to undergo medical treatments
for their disabilities without having to consider their leave balances
or work-life issues to obtain such services outside of scheduled work
hours.
It is projected that VA will continue to hire Veterans with
service-connected disabilities of 30 percent or greater into Title 38
occupations at a rate that mirrors the current percentage (3.5 percent)
of employees occupying such positions within VHA. VA estimates that
this legislation would be cost neutral as it does not increase full-
time employee equivalent levels or salaries of the employees hired into
the positions.
s. 1024, veterans appeals improvement and modernization act of 2017
Modernizing the appeals process is a top priority for VA. It is
more critical than ever that we continue to work together to transform
an appeals process that is failing Veterans. There are currently over
470,000 appeals pending in VA, some 40 percent more than were pending
only 5 years ago. Those Veterans are waiting much too long for answers
on their appeals. Although Veterans wait an average of only 116 days
for a decision on VA disability compensation claims, they are waiting
an average of 3 years for their appeal to be resolved. Appeals that go
all the way to the Board of Veterans' Appeals (Board) take even
longer--an average of 6 years to resolve. A system that can deliver an
answer on an initial claim in 116 days, but takes many years to resolve
an appeal is a system that is not working for Veterans. If appeals
reform is not passed, these already unacceptable wait times will only
get worse.
S. 1024 would provide much-needed comprehensive reform for the VA
appeals process to ensure that Veterans receive a timely, VA decision
on their appeal. It would replace the current, lengthy, complex,
confusing VA appeals process with a new appeals process that makes
sense for Veterans, their advocates, VA, and stakeholders. VA supports
the intent of S. 1024; however, we have some concerns with certain
provisions in S. 1024 as drafted, such as the provisions that would
remove finality from the process upon judicial review and require the
Secretary to certify that he has the resources necessary to timely
process appeals in the future. We look forward to working with the
Committee to address those concerns. The Department stands committed to
getting appeals reform accomplished for Veterans this year.
The current VA appeal process, which is set in law, is broken and
provides Veterans a frustrating experience. In the current process,
appeals have no defined endpoint. Veterans and VA adjudicators are
instead engaged in continuous evidence gathering and repeated re-
adjudication of the same appeal. This cycle of evidence gathering and
re-adjudication means that appeals often churn for years between the
Board and the agency of original jurisdiction (AOJ) to meet complex
legal requirements, with little to no benefit flowing to the Veteran.
The multiple layers of adjudication built into the current appeals
process exacerbate delays even more. Jurisdiction is also split between
the Board and the AOJ, meaning that Veterans often don't fully
understand where in VA their appeal is located any given time. All of
this has resulted in a system that is complicated, inefficient,
ineffective, and confusing. Due to this complex and inefficient
process, Veterans wait much too long for final resolution of their
appeal.
Without significant legislative reform, wait times and the cost to
taxpayers will only increase. It was this stark reality that led to
VA's unprecedented level of collaboration with stakeholders to design a
modernized appeals process. The new appeals process contained in
S. 1024 would provide Veterans an appeals decision that is timely,
transparent, and fair. The new process is not just a VA idea. It is the
product of over a year of collaboration between the Board, Veteran
Benefits Administration, Veteran Service Organizations, the private
bar, and other stakeholders. The new appeals process we designed is
simpler and easier for Veterans to understand. It provides a
streamlined process focused on early resolution of appeals, and
generating long-term saving for taxpayers. VA is grateful to all of the
stakeholders for their contributions of time, energy, and expertise in
this effort.
S. 1024 would empower Veterans by providing them with the ability
to tailor the process to meet their individual needs--choice that is
not available in the current appeals process. Veterans in the new
process can pursue one of three different lanes. One lane would be for
review of the same evidence by a higher-level claims adjudicator at the
AOJ. One lane would be for submitting new and relevant evidence with a
supplemental claim at the AOJ, and one lane would allow Veterans to
take their appeal directly to a Veterans Law Judge at the Board. In
this last lane, the intermediate and duplicative steps currently
required by statute to receive Board review, such as the Statement of
the Case and the Substantive Appeal, would be eliminated. Furthermore,
hearing and non-hearing options at the Board would be handled on
separate dockets so these distinctly different types of work can be
managed more efficiently.
As a result of this new design, the AOJ would be the claims
adjudication agency within VA and the Board would be the appeals
agency. This design would remove the confusion caused by the current
process, in which a Veteran initiates an appeal in the AOJ, but the
appeal is really a years-long continuation of the claim development
process. It would ensure that all claim development occurs in the
context of a supplemental claim filed with the AOJ, which the AOJ can
quickly adjudicate, rather than in an appeal.
Currently, VA has a statutory duty to assist the Veteran in the
development of a claim for benefits. This duty includes obtaining
relevant Federal records, obtaining other records identified by the
claimant, and providing a medical examination in certain circumstances.
The new design contains a mechanism to correct any duty to assist
errors by the AOJ. If the higher-level claims adjudicator or Board
discovers an error in the duty to assist that occurred before the AOJ
decision being reviewed, the claim/appeal would be returned to the AOJ
for correction unless the claim/appeal could be granted in full.
However, the Secretary's duty to assist would not apply to the lane in
which a Veteran requests higher-level review by the AOJ or review on
appeal to the Board. The duty to assist would, however, continue to
apply whenever the Veteran initiated a new claim or supplemental claim.
Moreover, S. 1024 would require VA to modify its claims decision
notices to ensure they are clearer and more detailed. This notice would
help Veterans and their advocates make informed choices as to which a
review option makes the most sense.
The disentanglement of processes achieved by S. 1024 would be
enabled by one crucial innovation. In order to make sure that the
Veteran fully understands the process and can adapt to changed
circumstances, a Veteran who is not fully satisfied with the result of
any lane would have 1 year to seek further review while preserving an
effective date for benefits based upon the original filing date of the
claim. For example, a Veteran could go straight from an initial AOJ
decision to an appeal to the Board. If the Board decision was not
favorable, but helped the Veteran understand what evidence was needed
to support the claim, then the Veteran would have 1 year to submit new
and relevant evidence to the AOJ in a supplemental claim without
fearing an effective-date penalty for choosing to go to the Board
first. The robust effective date protections built into the draft bill
enhance Veterans' rights and ensure that Veterans and their advocates
cannot make a wrong turn in navigating the new appeals process.
Beyond stopping the flow of appeals into the existing broken
system, S. 1024 provides opt-ins to allow as many Veterans as possible
to benefit from the streamlined features of the new process. A claimant
who receives a decision after enactment and prior to the applicability
date of the law could elect to participate in the new process, which
would give VA discretion regarding whether to apply the new process to
the claimant. However, while subsection (x)(3) envisions the
possibility of processing individual claimants who opt-in under the new
system prior to the applicability date, as a practical matter, VA
cannot realistically offer the new system on a piecemeal basis before
the entire new system is ready, which in turn depends on the
certification date. Therefore, in practice, only Veterans who receive
notice of decision within the 1 year period prior to the effective date
of the law would be able to opt-in. Veterans who received an earlier
notice of decision would not be able to submit a timely appeal into the
new process within 1 year of their decision. Also, a claimant who
receives a statement of the case or supplemental statement of the case
in a legacy appeal could elect to participate in the new appeals
system.
While VA strongly supports the fundamental features of the new
process outlined in S. 1024, we have concerns with some aspects of the
proposed legislation as presently drafted, as discussed below.
VA opposes a substantive change that would make the effective date
protection afforded by the filing of a supplemental claim within 1 year
of a decision applicable to supplemental claims filed within 1 year of
a decision by the United States Court of Appeals for Veterans Claims
(CAVC). This provision goes against an essential construct of the new
process, which encourages Veterans to stay within VA to achieve the
earliest resolution possible. It would be unfortunate to eliminate
sources of unnecessary churn in VA, only to create new incentives for
endless appeal at the CAVC. To the greatest extent possible, judicial
review should be for substantive legal disagreements between a claimant
and VA, not for record development questions that can easily be
obviated simply by pursuing additional development and assistance in
the supplemental claim lane.
With regard to applicability and the proposed certification of the
readiness to carry out the new system by the Secretary, the requirement
that the Secretary submit a statement to Congress that he has the
resources necessary to timely operate the system is problematic, given
the annual budget cycle. While VA will be prepared to implement the new
system at the end of the 18-month period prescribed in S. 1024 and shut
off the flow of appeals to the broken process, the Secretary cannot
predict the outcome of future budget cycles. Therefore, the Secretary
will only be able to make a certification regarding resources available
at the time of the certification and not into the future.
Moreover, if S. 1024 was enacted with this provision, it would
create significant uncertainty in implementing the opt-in component of
the law. We note that S. 1024 provides VA discretion to apply the new
process to claimants who elect to participate in the modernized appeals
system at any time after enactment and before the applicability date.
The applicability date in S. 1024 is necessarily indeterminate because
it depends upon when the Secretary will be able to certify under
subsection (x)(1) that VA has the resources it needs to operate the
modernized system; it is not possible to know when the one year period
allowing claimants the functional ability to elect begins. As
previously noted, although S. 1024 does not set the 1 year period for
opt-ins, current law provides that claimants must submit a notice of
disagreement within 1 year of a decision, and it will not be
administratively feasible to provide claimants with the new system on a
piecemeal basis before the administrative and regulatory work necessary
to stand up the new system is complete. In order to provide Veterans
with meaningful choice in how their appeal is handled, we must be able
to inform them as to whether they will have the option of appealing
into the new system. We would be happy to continue working with the
Committee to discuss alternative approaches to the applicability date
of the law.
S. 1024 also adds notice requirements to higher-level review and
Board decisions, for the purpose of explaining whether the claimant
submitted evidence that was not considered, and if so, what the
claimant or appellant can do to have that evidence considered. VA views
this addition as unnecessary, as a claimant who had elected either a
higher-level review or an appeal to the Board would have already
received notice addressing all lane options in the new process,
including restrictions on the submission of new evidence. They would
also be aware of the option to file a supplemental claim, where they
would have the opportunity to submit new evidence for consideration by
the AOJ. Additionally, the issue of how to handle improperly submitted
evidence is an administrative matter that would best be determined by
VA.
S. 1024 also includes reporting requirements that we believe could
be adjusted to be less onerous but still provide valuable information
to the Congress. We look forward to working with the Committee to
better shape these provisions in a manner that achieves adequate
protection for Veterans and robust information for Congressional
oversight, while at the same time using administrative resources
wisely.
VA stands ready to provide additional technical assistance on
several other aspects of the proposed legislation. We appreciate any
opportunity to work with Congress to further refine this legislation.
s. 1094, department of veterans affairs accountability and
whistleblower protection act
S. 1094, the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017, would amend and create a number
of new authorities regarding the Department of Veterans Affairs (VA)
employment practices.
VA strongly supports the aims of this bill, which would improve our
oversight and investigation of whistleblower disclosures and
retaliation complaints, and allow for more timely disciplinary action
against employees whose misconduct or poor performance undermines
Veterans' and the public's trust in VA care and services. We deeply
appreciate the Committee's efforts to understand and meet VA's needs
for greater flexibility in dealing with under-performing and
misbehaving employees. We look forward to continuing to work with the
Committee, through the technical assistance process, to resolve a few
concerns we have with the bill, including constitutional ones. The
Department of Justice (DOJ) has informed us that it also looks forward
to working with the Committee in the technical assistance process, to
address these constitutional concerns. DOJ believes that this can be
done without impeding the aims of the bill.
By our reading, the bill addresses five different policy areas,
sometimes in different sections. For ease of discussion, we will
summarize our understanding of each of these sections individually,
then relay VA's position on these policy areas in general.
Section 101 would establish a new Office of Accountability and
Whistleblower Protection, under the leadership of a new Assistant
Secretary reporting directly to the Secretary. Among other things, the
new office would be responsible for receiving and investigating
whistleblower disclosures, and for investigating allegations of
misconduct, retaliation and poor performance involving Senior
Executives, other specified management officials, and supervisors who
are alleged to have retaliated against employees for making
whistleblower disclosures. The new Assistant Secretary would also be
responsible for recommending disciplinary action against individuals
who are found to have committed misconduct, including whistleblower
retaliation.
This section would also require the new office to track
recommendations made by VA's Inspector General and by external
oversight bodies such as the Office of Special Counsel and the
Comptroller General, and to provide annual reports to this Committee
and to the House Committee on Veterans' Affairs on matters within its
responsibility.
Section 102 would strengthen protections for whistleblowers by
holding supervisors accountable for promoting such protections and by
requiring VA to provide training to all employees on whistleblower
processes and protections.
Section 103 would require VA to report to this Committee and the
House Committee on Veterans' Affairs on methods used to investigate
employees, with an eye toward ensuring that investigations are not used
to retaliate against whistleblowers.
Section 201 would provide a new framework for removal, demotion,
suspension, reassignment, or reprimand of Senior Executives for
misconduct or poor performance. This section would set timelines for
pre-decisional due process and provide for post-discipline appeals
through an internal grievance process and/or appeal to a U.S. District
Court.
Section 202 would provide a new framework for removal, demotion, or
suspension of employees who are not in the Senior Executive Service.
Like section 201, section 202 would set timelines for pre-decisional
process and authorizes post-discipline appeals. This section would
provide for appeals to the Merit Systems Protection Board, or for
bargaining unit employees through the negotiated grievance process, and
would specify that such appeals would be subject to a more deferential
burden of proof and penalty review than are applicable under current
law.
Section 203 would provide for reduction of retirement benefits for
an employee who has been removed from service (or retired with a
proposed removal pending) and is convicted of a felony that influenced
the employee's performance while employed at VA. This section seeks to
provide for pre-decisional due process and for post-decisional appeal
to the Office of Personnel Management (OPM).
Section 204 would authorize recoupment of a bonus or award paid to
an employee who engaged in misconduct or poor performance prior to
receiving the award, where the Secretary determines the award or bonus
would not have been paid had the misconduct or poor performance been
known prior to payment. Like section 203, this section seeks to provide
for pre-decisional due process and for post-decisional appeal to OPM.
Section 205 would provide for recoupment of relocation expenses
that were authorized following an act of fraud or malfeasance that
influenced the authorization. Like the prior sections, this section
seeks to provide for internal pre-decisional due process and an
external post-decision appeal to OPM. We have a small technical edit to
offer on this section and will provide that separately.
Section 206 would reduce the pre-decisional notice period from 14
days to 10 days for actions against supervisors who are found to have
engaged in whistleblower retaliation.
Section 207 would add Medical Center Directors and Network
Directors to our title 38 direct hire authority.
Section 208 would align pre-decisional timelines for title 38
adverse actions to match the timelines in sections 201 and 202. This
section would also revamp the appeal process for title 38 disciplinary
actions that do not involve issues of professional conduct or
competence.
Section 209 would require periodic training for supervisors on
whistleblower rights, motivating/managing/rewarding employees, and
managing poor performers.
Section 210 would require the Secretary to report to this
Committee, and to the House Committee on Veterans' Affairs, on the
impact of sections 201-208 on Senior Executive morale, engagement,
hiring, promotion, retention, productivity, and discipline.
Section 211 would require the Secretary to measure, collect, and
report information on the outcomes of disciplinary actions taken under
these new authorities.
As noted, the bill addresses five different policy areas:
whistleblower protections, accountability, recoupment authorities,
hiring authorities, and reporting requirements. Each of these will be
discussed below in turn. By way of technical assistance, we note that
the current wording of section 308(a)(1) of title 38 limits VA to seven
Assistant Secretaries. That would need to be amended to authorize eight
Assistant Secretaries to include the new position established by this
bill.
In general, VA is supportive of the sections regarding
whistleblower protections and of the Committee's assistance in
strengthening whistleblower protections and in enhancing VA's oversight
of whistleblower disclosures.
Regarding the accountability provisions, VA is strongly supportive
of these sections, which afford the Secretary much-needed flexibilities
to hold employees accountable and to take necessary actions more
quickly and to sustain well-founded actions on appeal. We believe these
authorities would fix some of the legal problems we had exercising the
authority contained in the Veterans Access, Choice, and Accountability
Act of 2014, and would provide the Secretary with the authority needed
to take timely, decisive action.
Several sections of the bill would also address recoupment of pay
or benefits. We appreciate the care with which the Congress has drafted
these to be narrowly tailored, and to apply only in cases of egregious
misconduct.
We strongly support the provisions concerning direct hiring
authority, which would provide the Secretary with sorely needed
flexibility in hiring top talent into these critical leadership
positions. We look forward to working with the Committee to fill in
some of the blanks around this new authority, such as what pay
authority would apply to these positions and whether and how Senior
Executives hired under other authorities could move into or out of
these roles.
Finally, several sections of the draft bill would require VA to
provide detailed reports to this Committee, and to the House Committee
on Veterans' Affairs, on matters relating to whistleblower protections,
employee accountability, and Senior Executive recruitment and
management. While we have some concerns about the administrative burden
imposed by these requirements, we understand the Committee's interest
in such information.
draft, veteran partners' efforts to enhance reintegration (peer) act
The draft bill would require the Secretary to phase in and conduct
a program whereby peer specialists would be included in patient aligned
care teams at VAMCs to promote the use and integration of mental health
services in a primary care setting. Not later than 180 days after the
date of enactment, this program would have to be established at not
fewer than 10 VAMCs. By not later than 2 years from the date of
enactment, it would have to be in place at not fewer than 25 VAMCs.
Under the bill, the Secretary would be directed to consider specified
factors when selecting sites for this program, but, not fewer than five
would have to be established at VA designated Polytrauma Centers, and
not fewer than ten would have to be established at other VAMCs. The
draft bill would also require that all peer specialist programs
established under this mandate: (1) ensure that the needs of female
Veterans are considered and addressed; and (2) include female peer
specialists. Finally, this measure would establish initial, periodic,
and final Congressional reporting requirements, as detailed in the
bill.
VA has no objection to the bill, but notes that it is not necessary
because VA already has the authority to execute this program. However,
we would require additional funding to implement it. We also note that
a few technical changes are needed for clarity. This legislation, if
enacted, would complement VA's ongoing pilot program (commenced in
2014) whereby peer support through peer specialists has been extended
beyond traditional mental health sites of care to include Veterans
receiving mental health care in primary care settings. Under the pilot
program, trained peer specialists work with VA primary care teams to,
in general terms, help improve the health and well-being of other
Veterans being treated in VA primary care settings. All 25 sites now
have assigned one peer specialist to work in Primary Care at least 10
hours per week. The first cohort of eight sites began seeing Veterans
in primary care in January 2016, the second cohort of eight began in
August 2016, and the final nine sites began April 1, 2017. To date, the
peers in this program have provided services to more than 3,000
Veterans. The response from Veterans, peers, and primary care
clinicians has been overwhelmingly positive. Sites made a 1- year
commitment to participate in the project, and VA will have a formal
program evaluation based on clinical and other outcomes in 2018. It is
likely that some of the existing sites will not be able to continue the
pilot program after FY 2017 without additional funding.
The bill specifies program participation of female peer
specialists. I am pleased to report that women peer specialists are
already well represented, with 16.2 percent of the national peer
specialist workforce being women. While at first glance 16.2 percent
may seem a low rate, please bear in mind that this figure is higher
than the percentage of Veterans seeking services through VA who are
women. We do recognize, however, that the current number of women
Veteran peer specialists in the pilot is unevenly distributed across
the country, with some VAMCs having greater difficulty than others in
attracting qualified applicants.
Also, it is unclear if the peers will address substance use
disorders under the umbrella of their mental health duties. Given the
comorbidity of these issues, the need for integration of substance use
disorder identification and care, the need for overdose prevention and
links as needed to Medication Assisted Treatment for opioid use
disorders, and the need to increase the numbers of Veterans achieving
long-term recovery, we recommend that this be clarified and, if
possible, included.
We estimate this bill would cost $4.94 million in FY 2018, $25.99
million over 5 years, and $55.48 million over 10 years.
draft, serving our rural veterans act of 2017
The draft bill would amend 38 U.S.C. Sec. 7406(c) to authorize
training and supervision of residents at facilities operated by an
Indian tribe, a tribal organization, or the Indian Health Service,
federally-qualified health centers, and community health centers. It
would also direct VA, in consultation with the Director of the Indian
Health Service, to carry out a pilot program to establish graduate
medical education residency training programs at such facilities and to
affiliate with established programs. VA would be required to carry out
the pilot program at not more than four covered facilities and would
carry out the pilot program for a period of 8 years beginning on the
date that is 180 days after the date of enactment. VA would be required
to reimburse certain costs associated with the program and to enter
into agreements with individuals participating in the pilot program
under which they would agree to serve a period of 1 year at a covered
facility (including a VA facility) service for each year in which the
individual participates in the pilot program. The bill would provide
terms related to breach of the agreement, loan repayment, and
concurrent service. VA would be required to submit a report to the
Committees on Veterans' Affairs of the House of Representatives and the
Senate not later than 3 years before the termination of the pilot
program on the feasibility and advisability of expanding the pilot
program to additional locations and making the pilot program or any
part of it permanent. The draft bill would authorize to be appropriated
to VA $20 million per year to carry out the pilot program and would
also authorize appropriations for the Secretary of HHS, acting through
the Director of the Indian Health Service, and to VA such sums as may
be necessary to cover loan repayments under each agency's respective
loan repayment programs.
VA supports the draft bill in principle. VA strongly supports the
imperative to build Graduate Medical Education capacity in rural and
underserved areas with the strategic intent to address a geographically
inequitable distribution of the Nation's physician and clinical
workforce.
While we appreciate the purpose of this bill, it is likely that a
relatively small proportion of the patients seen by residents in such
programs would be Veterans, yet VA would incur much of the burden for
program initiation and maintenance including resident salaries, faculty
time and development, curriculum development, and recruitment efforts.
Under the draft bill, a medical resident who participates in the
pilot program would be eligible for participation in the Indian Health
Service Loan Repayment Program under section 108 of the Indian Health
Care Improvement Act (section 1616a of title 25, U.S.C.) and the VA
Education Debt Reduction Program. The draft bill also would include a
period of obligated service (1 year of service at VA for each year of
participation in the program). VA supports such a loan repayment and
obligated service scheme, but recommends requiring 2 years of service
for each year of program participation. Moreover, because residents
typically receive a salary and are not obligated, post-residency, to
perform services as a result of participating in a residency program,
VA requests the authority to concurrently provide educational loan
repayment to residents in the program(s) as a tool to recruit highly
qualified residents.
VA fundamentally believes that supporting the practice of rural
health care in the United States is crucial to fulfilling its mission
to provide the highest quality care for Veterans and that we must
include within our broad health professions education portfolio a focus
on rural health in order to meet our statutory mission to provide
medical education for VA and for the Nation. VA endorses educating all
physicians regarding the unique health needs of Veterans and providing
clinical training opportunities in rural health care delivery systems.
VA estimates the cost of implementation at four sites would be
$20.3 million in FY 2018, $90.6 million over 5 years, and $201.8
million over 10 years.
Mr. Chairman and Members of the Committee, this concludes my
statement. I would be happy to answer any questions you may have.
Chairman Isakson. Well, Dr. Lee, thank you very much for
being here and thank you for your concise testimony on a lot of
subject matter which, obviously--you know, I have got a check
mark over here. I make marks to keep notes as we go by, yes
meaning VA supports it, no meaning they do not support it. I
have added a new one called ``yes, but.'' [Laughter.]
On almost every response except one the answer was ``yes,
but,'' so I want to talk about some of those buts for a second
to make sure we find out where we have got something we need to
work on.
In particular, on the Veterans Affairs Accountability and
Whistleblower Protection Act, which I have been a part of for
some years now, working with the Secretary and others to
develop--and Senator Tester has been invaluable in working with
that, as has Senator Rubio, Senator Moran, and Senator Heller--
in fact, almost everybody on the Committee, at one time or
another, has had their mark on that piece of legislation.
You were universally, if I am not mistaken, completely
satisfied with S. 1094 as it was introduced, as it now exists,
the Whistleblower Protection Act. Is that correct?
Dr. Lee. I would like to ask Meghan Flanz, our Acting
General Counsel, to answer the question.
Ms. Flanz. Mr. Chairman, we are very happy with the aims of
it. We did, over the weekend, receive some concerns from our
colleagues in Department of Justice about a couple of minor
edits that they would like to see to avoid some of the
constitutional issues that we saw with the Choice Act, SES
expedited removal authority, they are minor.
Chairman Isakson. Would you elaborate on that?
Ms. Flanz. Sure. I do not want to bore anybody in the room,
but we had an issue under the Choice Act with the appointments
clause of the Constitution, in that it specifically directed
that a decision by the VA Secretary to remove a senior
executive was reviewable only at the level of an administrative
judge, before the Merit Systems Protection Board.
Administrative judges are not Presidentially-appointed and
Senate-confirmed.
There is a bit of an issue in the part of this bill that
deals with a grievance process after a senior executive action
and directs that the Secretary will ensure that the grievance
process is handled by a VA employee. As worded, that would put
an inferior officer, not a Presidentially-appointed, Senate-
confirmed individual, in a position of reviewing decisions by
the VA Secretary. Very minor fix. Just trying to avoid the same
litigation outcome with this bill that we had with the Choice
Act.
Chairman Isakson. Did any of their concerns arise out of
the decision made in the Phoenix case----
Ms. Flanz. Only the----
Chairman Isakson [continuing]. To your knowledge?
Ms. Flanz. No. Only to the extent that now that we have a
decision from the Federal Circuit, pointing out an appointments
clause issue in a VA bill, our friends at Department of Justice
are looking at this one very carefully just to make sure that
there is no similar problem here.
Chairman Isakson. And what specifically would they have us
do to make sure that problem does not exist?
Ms. Flanz. I think it is probably as simple as not having
the bill specifically state that the grievances will be heard
by a VA employee, and then in our implementing regulations we
can ensure that we do not have an issue with an inferior
officer potentially overruling a VA Secretary.
Chairman Isakson. OK. Thank you very much.
On the appeals process, when you were talking, Ms. Lee, I
think you were generally supportive of what we are trying to do
on the appeals process modernization. Is that correct?
Dr. Lee. Yes.
Chairman Isakson. It is my understanding there have been
some comments about treating--making sure the case remains open
for the filing of any corroborating testimony necessary or any
facts and figures before a final decision is made, but for it
to be able to be reopened again and again. The intent we are
trying to do in terms of the appeals process is get to a
position where once filed, and once everybody has had a chance
to put their information in, we do not reopen a case and start
all over again. Do you think we are doing that in S. 1024, or
are we not?
Mr. McLenachen. Mr. Chairman, I will take that question.
Chairman Isakson. I knew somebody was on that one.
Mr. McLenachen. Yes.
Chairman Isakson. You are welcome. You are not as pretty
she is but it is your department. [Laughter.]
Mr. McLenachen. I will do the best I can.
Senator, that is one of the major concerns we have left
with the bill. We strongly support it, of course, and we have
worked hard on it, but we do still believe that there needs to
be some finality in the process. There was a provision that was
added, in the bill that was introduced, to remove that
finality, so that even after a claim goes to a Federal court, a
veteran could still submit a supplemental claim and keep their
effective date for benefits. That is not available in current
law, and we think it is critical to have that finality in the
process. So, that is one of the concerns that we do have.
Chairman Isakson. Is it not true that there is one claim
yet to be resolved that is 25 years old, because it has been
reopened so many times?
Mr. McLenachen. Yes. We have a lot of examples like that in
the current process, where we have extremely old appeals that
are churning in the process. There have been several examples
like that, where there were 30, 40, 50 decisions made by both
the Board of Veterans' Appeals and BVA, in that appeal.
So, that is what we are trying to avoid in this current
process that we have designed. Right now, in this new process,
you would have a beginning and end point for each of those
lanes that we have set up for review. In the current process,
there is no beginning and end point.
Chairman Isakson. I think it is important that all of us
stop and think for a second about what that really means.
Twenty-five years of submission on a claim made for a benefit
to the Veterans Administration, still open. We have been trying
for some time to get fully-developed claims, or meaningful
processes in the Veterans Administration, so the veteran has
every opportunity to develop a claim, and once it is developed,
let the decision be made on the information that is submitted,
not reopened time and time again. So, that is the issue, I
think, on this particular issue.
Mr. McLenachen. Yes, and in our view, there is no reason
for a veteran to go to a court to continue to develop the
claim. The whole design was earliest possible resolution in VA.
So if veteran can file a supplemental claim with VA, and still
maintain their effective date for benefits, and we could decide
that within 125 days, there would be no reason to go to a court
first to get a review, which is why we think that finality is
important.
Chairman Isakson. The delay not only hurts the veteran, it
hurts the Veterans Administration as well.
Mr. McLenachen. Yes. The veteran is not getting the
benefits when they could get them at the earliest point, if we
can adjudicate a supplemental claim earlier.
Chairman Isakson. Thank you very much.
Senator Heller.
STATEMENT OF HON. DEAN HELLER,
U.S. SENATOR FROM NEVADA
Senator Heller. Mr. Chairman, thank you, and to the panel,
thank you also for being here. If you do not mind, Mr.
Chairman, I would like to read an opening statement.
Chairman Isakson. Without objection.
Senator Heller. First of all, I want to commend you for the
commitment of getting to view all these bills and, frankly, for
doing it on a bipartisan basis. Mr. Chairman, you promised to
work together on the Committee and I do respect that you have
fulfilled that promise, so thank you for that.
Chairman Isakson. You are going to be recognized for a
longer statement if you keep that up. [Laughter.]
Senator Heller. All right. Today I have two bills on the
agenda, the Women Veterans Access to Quality Care Act and the
Care for Veterans' Dependents Act. I am proud to have worked on
both of these bipartisan bills with Senator Murray, and
appreciate the input that the VA and the veteran service
organizations have provided. While the VA has come a long way
in improving its care to women veterans, there are still some
gaps that need to be filled, which I think our bill will do.
The VA needs to improve access to doctors that can meet
their gender-specific health needs and ensure their policies on
safety and privacy for women veterans are properly carried out
in all VA facilities. I appreciate the VA's willingness to work
with us on this issue and look forward to finding a path
forward for this particular bill.
Another bill Senator Murray and I have worked on for years
is the Care for Veterans' Dependents Act. The concept is quite
simple: if you are a homeless facility that receives VA
funding, you want to ensure that you can get reimbursed for
providing care to dependents who accompany a veteran. We do not
want to see veterans getting turned away from any facility just
because they have dependents with them. With over 700 homeless
veterans still living on the streets in shelters in Las Vegas
and other parts of Nevada, we must continue working to address
the needs of veterans who have fallen on hard times.
I am also proud to support a bill in today's agenda from
Senator Hatch that ensures that veterans have access to adult
day care--day health care benefits.
Last, I want to thank Chairman Isakson and Ranking Member
Tester for their work in coming to an agreement on an
accountability bill that has support from both sides of the
aisle. It is so important that we get the VA the tools that
they need to get rid of bad employees, and anyone who has
wronged a veteran should not get to stay on administrative
leave for months on end. That has to stop and the VA needs to
have the authority to get rid of these individuals.
With that, Mr. Chairman, I have a couple of questions and
comments for Dr. Lee.
I guess the first question--this is a question I wanted to
raise with Secretary Shulkin, and I will the next time he is
here, but have you heard of Ely, NV?
Dr. Lee. I know there was a gathering there recently----
Senator Heller. There was.
Dr. Lee [continuing]. But I have not personally been there.
Senator Heller. I do not expect you to have been there. I
just want to make sure you have heard of Ely, NV. We have
veterans there that were able to get their care from a local
hospital instead of having to drive to Salt Lake City, which is
several hundred miles away. The choice out in Ely, and other
rural small towns in Nevada, is you either have to drive to
Reno, which is 300 miles one way, or you have to drive to Salt
Lake, which is 300 miles the other way.
That contract that they had with the local hospital
expired, and, frankly, they do not want to use the Choice
program, and I understand why. One veteran called to schedule
an appointment with the contractor for Choice and he was told
that Ely, NV, did not exist. Another veteran called to schedule
an appointment with the contractor for Choice and was told--
actually, he was a week out from an appointment and still had
not been told whether the appointment had been authorized.
Service through the Choice program is not good and Ely
veterans do not want to be part of it. Last week we learned
that veterans would be able to access local hospitals through
September without having to use the Choice program, which was
good news, but obviously these veterans want a permanent
solution. I will be asking the same questions to the Secretary
about what permanent solutions they may have for these Ely
veterans, yet I do have a couple of questions for you.
The first question is, what are you doing to hold the
contractors accountable for their performances?
Dr. Lee. Senator, we definitely need a better solution for
those veterans in your home State and Ely. We know there are a
lot of issues with the program and we are working on them. I
can get back to you with specifics on that--in that particular
area, what we are doing, but it also speaks to the larger need
to look at the entire program and evolve it to better meet the
needs of veterans.
Senator Heller. What would be a timeframe that you could
get back to me on this?
Dr. Lee. As soon as we possibly can, sir.
Senator Heller. A couple of weeks? A month? I just want to
get some kind of timeline. Like I said, they are extended
through September, which was good news. I just want to make
sure we are not talking in October.
Dr. Lee. I think we can get you some response back within a
few weeks on what we are----
Senator Heller. Prior to----
Dr. Lee [continuing]. Yes.
Senator Heller. OK. OK.
Dr. Lee. We will put a priority on that.
Senator Heller. I understand you have a pilot program that
allows VAs to schedule appointments for veterans in Choice
programs. Tell me a little bit about this pilot program, and
has it been successful?
Dr. Lee. Are you referring to the self-scheduling?
Senator Heller. It is a pilot program, from what I
understand, that allowed the VA to schedule appointments for
veterans in the Choice program. Does that make sense?
Dr. Lee. Yes. Sir, I have to take that for the record and
just get some specifics back to you.
[Ongoing communication between VA and Senator Heller's
office sufficiently fulfilled these queries.]
Senator Heller. OK. We can broaden those questions.
Can you tell me why you think veterans currently dislike
the Choice program? Why do you think they dislike it?
Dr. Lee. We want to--I think we strive to make access to
care very convenient and centered around the veterans' needs,
and I think some of the issues with the Choice program
currently are well known, and have to do with cumbersome
process to get to that care in the community.
Senator Heller. Can I share a couple of stories with you?
We have a veteran from Battle Mountain who is fighting cancer
and needs surgery, but the day before the surgery it was still
not authorized. Have you heard stories like this before?
Dr. Lee. Unfortunately, they are----
Senator Heller. We have another veteran in Reno who had an
authorized--who had an authorization for surgery that was later
revoked by the VA, leaving him with a $17,000 bill. Have you
heard stories like this before?
Dr. Lee. Senator, that is unacceptable.
Senator Heller. Is this unique, or is it something you have
heard before?
Dr. Lee. Again, I think the problems with the program are
well documented. I do not know about the exact--the volume or
the numbers of those particular kinds of cases, but it is
absolutely not the kind of service that we strive for.
Senator Heller. So, tell me, what it is going to take? Tell
me, what it is going to take to change problems like this in
the system?
Dr. Lee. We have made a lot of progress already. My
colleague, Dr. Yehia, in particular, spent a lot of time and
energy reforming the Choice program through a number of
contract modifications and other changes. I think that we would
just ask if we could work together to continue that process as
we think about how that program should evolve to better meet
veterans' needs.
Senator Heller. Mr. Chairman, my time has run out.
Chairman Isakson. I want to thank you and commend you on
your questions. For the record, for you and everybody's benefit
here--Senator Tester is aware of this--Secretary Shulkin and
the VA have been working for some time to recognize they have
problems like the ones you have outlined, in terms of Ely, NV,
in terms of surgery being revoked and things of that nature. As
we speak, we have been working with Secretary Shulkin to come
forward with new parameters to try and deal with these glitches
so it does not happen again. And, this Committee will be
dealing with it in the not too distant future.
So, as we modernize the Choice program it is truly a
choice. It is timely in its responsiveness. It is not as
cumbersome and difficult as it has been for the veterans. Dr.
Shulkin has been invaluable as has--what is his name, the
doctor--Dr. Baligh?
[Cell phone rings.]
Chairman Isakson. The Chairman is violating his own rule
here.
Senator Heller. Who is calling you now?
Chairman Isakson. Dr. Baligh has done invaluable work with
us in making this happen, so we are going to continue to work
for it and bring it to the Committee to make sure it is
corrected, because many of those things are basically
inexcusable. We need to make it work good for our veterans and
for the Veterans Administration. So, thank you for bringing it
up.
Senator Heller. Mr. Chairman, thanks for your attention
also.
Chairman Isakson. Senator Tester.
Senator Tester. Thank you, Mr. Chairman. I have some
questions on the accountability bill so I am going to probably
direct most of these to you, Ms. Flanz. Would it be fair to say
that you are the VA's top lawyer?
Ms. Flanz. That is what my business card says, yes.
Senator Tester. That is good. That is not a bad business
card, top lawyer of VA. That is good.
Ms. Flanz. Job security.
Senator Tester. That is it.
Ms. Flanz. There is always something.
Senator Tester. And you deal with personnel law quite a
bit; I would assume, just about exclusively, right?
Ms. Flanz. Yes.
Senator Tester. So, when it comes to employee
accountability, it is something you are up on. It is also true
that you are a career civil servant within the VA, not a
political appointee. Correct?
Ms. Flanz. Yes, that is correct.
Senator Tester. There is a lot of misinformation about what
the VA accountability bill would actually do. I have got a few
clarifying questions and I would appreciate your perspective on
this. Would this bill allow VA managers to get away with firing
anybody who challenges them?
Ms. Flanz. No, sir.
Senator Tester. Does this bill trample on workers' rights?
Ms. Flanz. No, sir.
Senator Tester. Does it provide senior executives within
the VA with more favorable treatment than rank-and-file
employees?
Ms. Flanz. No, it does not.
Senator Tester. Would you say that senior executives and
rank and file are treated on parity--equal?
Ms. Flanz. As I read the bill, each would receive pre-
decisional due process and enough process after a decision to
pass constitutional muster. The processes would be different.
Senator Tester. OK. So could you just kind of discuss why
the VA needs a substantial evidence portion, and the MSPB
difference provision?
Ms. Flanz. Sure. Under current law, the Merit Systems
Protection Board, which is the board that hears all or almost
all Federal employee appeals. It recognizes two different
burdens of proof, two different evidentiary standards that
apply in different circumstances. One is the preponderant
evidence standard, which is, in essence, a mathematical
standard. It requires the judge to take a look at all the
available relevant evidence and decide whether more of it, 51
percent, supports the agency's view of the case than supports
the employee's view of the case.
The other standard, which MSPB currently applies, in some
cases, in performance-based actions taken under Chapter 43 of
Title 5, is the substantial evidence standard. That is more of
a common sense standard. It is more of a ``reasonable person''
standard. Under that standard, the judge takes a look to see
whether the evidence is sufficient that a reasonable person
could make the decision that the deciding official (the
individual who imposed an action against an employee) makes,
even if another reasonable person could make a different
decision.
So, under current law, most conduct-based cases have the
preponderant evidence standard and then the performance-based
cases, under one of our Title 5 authorities, have the
substantial evidence standard.
The difficulty for us--and let me give you kind of a real-
life example----
Senator Tester. I was just going to ask for that, so you
beat me to it.
Ms. Flanz. We had a case recently with a mental health
provider who was photographed by a veteran patient having a
pornographic movie playing on an iPad in the exam room while
the veteran patient was there. We have got photographic
evidence of misconduct. In this particular case, the
individual, the psychologist or psychiatrist, also admitted,
confessed to the issue.
We had evidence that I think a reasonable supervisor in
almost any organization would believe is sufficient to take
action against an employee. But, under the preponderant
evidence standard, we do not know the total universe of
evidence. We know what we have but we do not know whether all
of the evidence together, 51 percent or more, favors the action
that the supervisor wants to take.
In a case like that, the concern and the process,
generally, has been to undertake a thorough investigation so
that we have the total universe of evidence before an action is
proposed, so that we, as lawyers, in supporting the Department,
can sit in the shoes of a judge and say, yes, mathematically,
more of that total universe of evidence supports the action
than supports the defense.
From our perspective, the substantial evidence standard,
which is by no means a rubber stamp by a judge--the judge still
has to look at was there a common-sense business reason for the
action taken--would a reasonable person have looked at the
evidence and said, yes, that evidence supports the action
taken? It is not a rubber stamp. It just allows us to get to
the proposal and decision state faster.
Senator Tester. And it sounds like that psychologist needed
a psychiatrist. But would this bill apply to that psychologist?
Ms. Flanz. Yes, sir.
Senator Tester. OK. I am out of time. If we have a second
round I have got some more.
Chairman Isakson. Senator Blumenthal.
HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thank you, Mr. Chairman. Thank you all
for being here today. I am the supporter and sponsor of the
Veterans' Partners Efforts to Enhance Reintegration, or Veteran
PEER Act, as it is called, and I have advocated for
improvements in behavioral health services. I think mental
health services are critical in so many ways. I do not need to
elaborate for this panel. Often PEER specialists are borrowed
from behavioral health centers to assist the primary care
treatment teams that improve patient outcomes.
Unfortunately, there is a shortage--the result of this
practice has been a shortage of PEER specialists in both
behavioral health and primary care. We have essentially robbed
Peter to pay Paul. Ensuring there are female PEER specialists
available to work with women veterans and reporting on the
outcomes of the program as a whole is also included in this
measure.
I would like to ask Dr. Lee whether you are a supporter of
the Veteran PEER Act. Do you believe that PEER support
specialists are a necessary and integral part of mental health
services and primary care for our veterans?
Dr. Lee. Senator, thank you for your support of PEER
specialists. VA has no objection to the draft bill, but we
currently have the authority to implement the increase in PEER
support specialists, including them in the PACT team, in
primary care. Currently VA has over 1,000 PEER support
specialists. About 16 percent of them are women, and we are
very supportive of growing that because it benefits veterans.
Veterans who interact with peers are more likely to seek care
when they need it and to have a better experience with the care
team.
Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
Chairman Isakson. Senator Murray, did you have a question
that you would like to ask?
Senator Murray. [Inaudible.]
Chairman Isakson. You are on. Senator Tester. OK, I will
recognize Senator Tester, who had another question, and then we
will go to you.
Senator Murray. [Inaudible.]
Senator Tester. OK. You give me a kick when you are ready,
Patty.
This is for Mr. Parker. One of the biggest problems I have
got with Choice is that it had little or no visibility in what
is going on with our third-party administrator, HealthNet, from
Montana. We cannot do oversight or help you when you need it,
when there are contract modifications that are happening
literally every other month, and we have no reliable
information as to whether the company is meeting those
standards. That is why I introduced a bill to require the VA to
provide the Committee with contract modifications and
information about contracting performance.
This kind of goes on to what Senator Heller said. Do you
see problems with Congress having this type of data on
performance?
Mr. Parker. No, sir, and, in fact, I will restate what Dr.
Lee said, which was, you know, we do support the intent of that
bill. We want to make sure that we work it appropriately. I
think sharing that information with the Congress is absolutely
proper.
Senator Tester. Good.
Mr. Parker. What I would suggest is that it comes from the
Secretary to this body.
Senator Tester. Yes. OK. So, the bill also requires the
contracts include authority for the Secretary to level
financial penalties if the contractor's performance does not
meet those contractual standards. Your testimony indicates you
believe you have all the tools you need. If that is the case,
why has not more been done to hold HealthNet accountable for
poor performance? And I do not think it is just Montana.
Mr. Parker. No. I would agree with that. I do argue that
the tools are available. I think that we need to make sure that
we, as an organization, use the tools that are available to us.
The liquidated damages clause gives us remedies. The quality
performance tool such as a QASP, a surveillance plan, gives us
the ability to look in and see what performance is.
We need to do a better job, frankly, on the program
management side to make sure that we are doing our jobs and
holding contractors accountable.
Senator Tester. I appreciate you taking responsibility. Let
me give you an example of two of the things that have been
particularly reckless with what is going on. Number 1, people
who call up and get put on hold and then they get put back on
hold; and 2, they call up and are told to call back days later.
This is before they even get the appointment set up. Then, when
they get the appointment set up it is a hell of a lot longer
than if they just went to the VA to begin with.
Then, those providers, initially--this has since changed
because we entered into that picture and told some folks they
had to change it--were not paying their providers. We are
paying these third-party contractors. I do not know how much we
paid HealthNet and I do not know how many States they are in,
but I have got a notion it is a fair chunk of change. They
should not have to hold that money in their bank account to
collect interest on top; they ought to just pay the damn
providers.
So, you pretty much told me it is on you.
Mr. Parker. Well, what I am trying to impart is that I
think we, as a Department, need to do a better job of managing
some of our contracts, and our program, really. I look at it
more as a program basis than in just a contract-by-contract. We
are doing things such as putting in the acquisition program
management framework to have a better program management
culture, mindset, and practices, which aligns with the new
PAMIA legislation that still has not been fully implemented
yet. We are waiting on guidelines coming out of OMB.
So, we have a couple of big initiatives there that are
early on, and I am optimistic that once we get those going, I
am hopeful that we are going to see some very good results
there. Because you are right--the things that you are citing
are absolutely unacceptable.
Senator Tester. OK. Thank you, Mr. Chairman.
Chairman Isakson. For the benefit of the Members who just
came in, Senator Murray is next, to be followed by Senator
Manchin and then Senator Sullivan, unless Senator Sullivan can
go after Senator Murray and then we do it in Republican-
Democrat order. Will you be ready in 5 minutes?
Senator Sullivan. Sure, if my friend from West Virginia
does not mind.
Senator Manchin. The Senator from Alaska was born ready.
[Laughter.]
Chairman Isakson. Given that compliment, you are going to
be next, after Senator Murray. How about that?
Thank you, Senator Manchin.
Senator Murray?
Senator Murray. Thank you very much, Mr. Chairman. Ms.
Kabat, I was very concerned when I got reports about veterans
and their families who were cut off from the Caregiver Program
really abruptly, so I am glad your department announced it had
stopped that practice until it can get a better handle on
things and figure out the program's eligibility rules.
But, I am very concerned by the Department's plan to issue
guidance on enrollment criteria and seek to reprioritize who is
helped by this program. As I talked with Dr. Shulkin last
month, I am open to hearing your ideas on changes to the
eligibility criteria, but I expect you will consult with me
before the Department attempts to make any changes to who can
be helped by this critical program.
Ms. Kabat. Absolutely. While I certain cannot speak
directly for Dr. Shulkin, I believe what he and I have
discussed is that he really wants to look at the overall way
that VA is approaching supporting family caregivers, and
certainly the program of comprehensive assistance is one way
that we do that. We need to make sure we are doing that well,
and be able to then look at all of the other areas in which we
are supporting caregivers, including veterans who are
caregivers themselves--that is an important piece--as well as
our caregivers of veterans who were injured or ill prior to
September 11th.
So, there are a lot of different options and lots of
different discussion. There is no definitive plan right now to
change eligibility. We are working diligently on issuing a
directive which is the official policy on the current program,
and I am hopeful that that will be published within the next
month, which will really provide a framework that is consistent
with the eligibility that we have now. It will make decisions
more transparent for veterans and their families.
Senator Murray. Well, will you keep the suspension in place
until you have completed all the actions needed to improve the
program, including the pending GAO and IG recommendations?
Ms. Kabat. The GAO recommendations surrounding the
development of an IT solution? I do not believe that our plan
is to keep the suspension in place until we have that new IT
solution. I can get you a more specific update on what is going
on with the IT solution. I can take that for the record and get
that back to you.
[The information requested during the hearing follows:]
Response to Request Arising During the Hearing by Hon. Patty Murray to
Margaret Kabat, National Director, Caregiver Support Program, Veterans
Health Administration, U.S. Department of Veterans Affairs
Response. VA's Program of Comprehensive Assistance for Family
Caregivers (PCAFC) is expected to resume in the coming months following
a strategic review of the program which, indicated a need for better
communication with Veterans and caregivers, improved internal processes
and procedures, and additional staff training. Since that review, VA
has made significant advancements in communication about eligibility
determinations, clinical discharges and the appeals process, internal
processes and procedures, and staff training. Specifically, those
advancements include:
Increased communication and engagement with Veterans
Service Organizations, Military Service Organizations, Members of
Congress, VA Veterans Integrated Service Network directors, and other
stakeholders.
Ongoing work to revise the PCAFC website to include a
section about connecting caregivers and Veterans to home and community
based services.
Work is in progress on a Veterans Health Administration
(VHA) national policy directive on caregivers, with an expected 80,000
subscribers to the PCAFC list-serve to promote transparency.
Work is in progress to promulgate a new, standardized
letter for use by all VA medical centers when communicating program
discharges with Veterans and Family Caregivers.
Implementation a new ``Roles, Responsibilities and
Requirements'' document that reaffirms that all family caregivers are
collaborative partners with VHA.
Throughout this time, the PCAFC has continued to collaborate with
VA's Office of Information Technology on development efforts for an
information technology (IT) solution intended to replace the current
Caregiver Application Tracker. When fully developed and available for
field use, the new Caregiver Tool (CareT) will enable improved tracking
and monitoring of Veteran and caregiver participation in PCAFC.
Senator Murray. OK. I would like to see that. And I want to
know if you can assure me that the veterans and VA staff across
the country are going to get very clear national guidance on
enrollment criteria?
Ms. Kabat. Yes, I can assure you of that. I can also assure
you that we are going to increase our oversight from the
central office perspective. We have a variety of different
things that are being discussed and will be implemented prior
to returning to discharging veterans and caregivers from the
program.
Senator Murray. OK. Well, in an earlier study by the VA,
the Department found that for veterans in the caregiver program
their inpatient hospital admissions decreased by 30 percent,
and the VA also found that when a veteran was hospitalized,
their length of stay decreased by 2\1/2\ days. So, tell me, how
important is it to veteran's health and quality-of-life to
spend less time in the hospital and more time at home?
Ms. Kabat. It is essential, and I think everyone in VA
believes that, so we are moving forward with working to
providing comprehensive support to all caregivers of veterans.
I do think it is important to note that that initial study
that you are referencing was done without a comparison group.
More recently we have been able to compare veterans whose
family caregivers participate in the program of comprehensive
assistance to veterans whose caregivers have not participated
in the program of comprehensive assistance, and those veterans
whose caregivers do participate access more outpatient care,
more specialty care, more mental health care. They are more
engaged in treatment, which is really an important part of
helping veterans get to their highest level of independence.
That research--I am happy to meet with you and discuss this
in more detail and actually have the VA researcher with me to
talk more about it--did not demonstrate that there was a
significant difference in terms of inpatient stay or ER visits.
Part of it is that the post-9/11 veteran population are fairly
low users of inpatient stays and ER visits, so there is not--it
is difficult to get a substantial difference, because they use
those services less than other cohorts of veterans.
Senator Murray. Are you working at all to expand research
to find out what the improvements are?
Ms. Kabat. Absolutely. We have ongoing work with VA
researchers at the Durham, NC, VA. Again, I am happy to meet
with you and your staff and talk more about all that we are
looking at.
Senator Murray. OK. I also just want to say that there was
a September 2014 GAO report that had some really important
concerns about the Caregivers Program, including very high
workloads of our veterans per caregiver support coordinator.
You can get it back to me in the record, but I want to find out
where you are on hiring new caregiver support coordinators and
getting those personnel in the field so that this program can
work.
Ms. Kabat. Absolutely. We have made significant strides. We
are up to about 350 caregiver support coordinators across the
country, but I am happy to get you the specific around ratios.
[The information requested during the hearing follows:]
Response to Request Arising During the Hearing by Hon. Patty Murray to
Margaret Kabat, National Director, Caregiver Support Program, Veterans
Health Administration, U.S. Department of Veterans Affairs
Response. The PCAFC monitors Caregiver Support Coordinator (CSC)
positions to approved Veteran/Caregiver dyads ratios and works with
sites to discuss facility staffing needs to support local
administration of the PCAFC. Please see the attached document, titled
Ratio of CSCs to Caregivers. The most recent and accurate data
currently available is as of August 18, 2017, at which time the PCAFC
Office was funding 446 positions. Seventy of these positions are vacant
and in various stages of recruitment. An update to the CSC staffing
data set will be available November 2018.
Senator Murray. OK, because I did include additional
dollars on the fiscal year 2017----
Ms. Kabat. Yes, you did.
Senator Murray [continuing]. For that, and I want it used.
Ms. Kabat. You did. Yes. Absolutely. And we appreciate
that. Thank you.
Senator Murray. All right. Thank you.
Chairman Isakson. Senator Sullivan.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Mr. Chairman. I know we are
talking health issues today so I want to take the opportunity
to first welcome you back, sir. We all missed you and we are
glad you are doing well. I know we have some health issues with
a couple of other Senators, namely Senator Hirono, and I know
we are all wishing her well. I am going to read a statement
briefly here from Senator Tillis right now, if that is OK, Mr.
Chairman. He also had a bit of a health issue today and he
wanted me to read his statement.
I think he is doing well, so, do not worry about that.
Senator Tester. Senator Sullivan, since you are confused
with Senator Tillis all the time, I think you can just say you
are Senator Tillis. [Laughter.]
Senator Sullivan. Well, this will really freak out----
[Laughter.]
Senator Sullivan. That is only if I keep his 5 minutes and
then I get my 5 minutes. No. I am just kidding, Joe. I will
read it quickly.
This is a statement from Senator Tillis:
``Please accept my apologies for not being here this
afternoon. I was running in the Capital Challenge 5K
this morning and unfortunately was not able to finish
the race, even though I was well on my way to easily
eclipsing my time from last year.
``I want to just briefly comment on two bills on the
agenda. On the Veterans Education Priority Enrollment
Act I appreciate the VA's support and the valuable
feedback we received from all the stakeholders. I
understand some of the compliance concerns that were
raised and I look forward to discussing with Senator
Brown to identify the best path forward that will allow
flexibility for schools that are already setting the
gold standard while ensuring that all veterans have the
opportunity to use their GI Bill to the fullest extent.
``And with regard to the State Veterans Home Adult
Day Care--Day Health Care Improvement Act, I thank
Senator Hatch for his leadership and I look forward to
engaging with the VA to address their recommendations
that would improve the bill. Together we can empower
veterans to receive daily care while living and
spending more time at home with their families.''
Thank you, Mr. Chair.
Dr. Lee, I want to talk briefly about the Serving Our Rural
Veterans Act, and I appreciate Senator Tester's commitment to
that issue as well. As you know, this goes to an issue that
actually was raised--and the idea was not mine or even Senator
Tester's, it was actually Dr. Shulkin's. When we were up in
Alaska visiting he had this idea of, hey, how do we get more
health providers in rural areas, extreme rural areas; and then,
is that a way to help get them working at the VA?
So, we discussed this. This bill is getting ready. We want
to finalize a couple of elements of that. I appreciate your
testimony, talking about how you are supportive of the bill.
What we want to be able to do, though, is just kind of iron
out some of the final elements. We have gotten some conflicting
recommendations from the VA, particularly on the issue of a
service commitment that relates to this, what you guys think
about that. I think in previous testimony and consultations
with my staff there has been an interest in that from VA,
though now I think in your public statement there is not an
interest.
We want full VA support. I know Dr. Shulkin does. Like I
said, he has been not only supportive but was in many ways the
brainchild of this entire bill. So, we want to work with you on
that. We want to get this in and we want to get this passed. It
is an important bill that we think can benefit a lot of our
veterans, and is very bipartisan.
So, can I get your commitment on that?
Dr. Lee. Senator, thank you for raising this issue. We are
very supportive of wanting to build the capacity for care
through graduate medical education investments in rural areas,
and I think where we are--well, we look forward to working with
you on the specifics of your bill.
Our concerns just come from wanting to get the most bang
for our buck, if you will----
Senator Sullivan. Sure. Absolutely.
Dr. Lee [continuing]. And service to veterans from those
residents.
Senator Sullivan. Yes.
Dr. Lee. And looking at what the service commitment is back
for the chance to be a part of the program, and also looking at
authorities for expanding debt reduction----
Senator Sullivan. Great. Oh, great.
Dr. Lee [continuing]. To resident physicians.
Senator Sullivan. Wonderful.
Dr. Lee. We look forward to working with you.
Senator Sullivan. If we can do that sooner rather than
later, I think that we are all anxious to introduce this bill.
I think it will have strong bipartisan support in the
Committee, and we really want to move on it this year.
Dr. Lee. We would be happy to work with you.
Senator Sullivan. Great. I just have one final question.
You know, I have been very interested in the appeals issue. I
know that we have S. 1024, which is the Chairman, Senator
Blumenthal, and the Ranking Member's bill.
My question that relates to that bill, as somebody who has
been very focused on the appeals issue and concerns about the
backlog, I believe that bill authorizes kind of the ability to
test facets of the new appeals system. Is the VA planning on
using that? And my only concern--I would encourage you once
this bill becomes law, because we all know we have a challenge
on the appeals process, but we also do not want to go to out
with a full--in my view, a full comprehensive approach and then
realize, uh-oh, there is another problem here, and kind of
crash the system the way, say, for example, the Choice Act was
in certain States like mine, where it was fully implemented and
it just did not work.
Can you talk to that issue of kind of the ability to test
case how we are doing appeals correctly under this bill so we
do not--I am sure there are a lot of good ideas, but this is a
comprehensive bill, and if we go full authority and then we
realize something in the bill is actually not working, I do not
want to have an appeals system that is further broken. Does
anyone want to talk to that issue?
Mr. McLenachen. Yes, Senator, I will start, and then maybe
Mr. Hachey has something to add.
I think there may be a little bit of a misconception about
this bill. We are not changing the way that we decide appeals
or decide claims in BVA, where I work. It is really how we are
routing the work to the point where you make those decisions.
So, I think some people believe that, you know, this is a
very significant change. It is, in fact, somewhat of a
historical change. On the one hand, what we are really doing is
just streamlining the process that gets to the point where the
decision is made, and we are kind of pulling the current
process apart and realigning it so that it gets to a point
where a veteran has a choice about how they want to handle the
review process.
So, you know, there has been some concern expressed, in
particular referring to the GAO report that was done on the
appeals process. But, the critical point to understand is that
the board is not changing how they are doing their decisions
and we are not changing how we are doing ours. We are applying
the law to the facts in the same way. It is just how we get the
appeals and the claims to the end point where the person makes
the decision more streamlined.
We have worked very closely with some of the other
panelists you are going to hear from today on developing this
process, the VSOs and other stakeholders. This is a situation
where we believe that we have the right solution. If we were
unsure of that, then certainly; it would be important to do a
pilot or some other type of implementation. But we have such a
severe problem right now that it would be the wrong thing to
do, in VA's opinion, to make it only available to certain
veterans. In fact, it would be unfair if we did that, when we
know that we have the right solution.
It is better than what we have today. There is no doubt
about that. So, it does not make much sense to do a pilot or
something similar to that.
Donnie, do you have anything you want to add?
Mr. Hachey. I would agree with everything that Dave just
said. I think the substantive law here that is being used to
decide appeals is the same. What we are really doing is
simplifying the process and pulling it apart and making it
easier for veterans by providing them with more choice. We know
that the system we are working with now is broken, so a
piecemeal solution, we do not think is the right approach right
now. We have brought all of the major stakeholders together and
come up with something we believe is the right answer for
veterans, that is going to get them faster decisions and
provide a simpler process. We think the time to do it is now,
and we cannot delay it any further by engaging in a pilot or
having a phased-in implementation.
Senator Sullivan. OK. Thank you. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Sullivan.
Senator Manchin?
STATEMENT OF HON. JOE MANCHIN III,
U.S. SENATOR FROM WEST VIRGINIA
Senator Manchin. Thank you very much, Mr. Chairman, and
thank you all for being here.
I think you all have seen this. It is a report last week of
the VA--the DC VA, stopped surgical because of the equipment.
So, you all know about that, right? OK.
A lot of my West Virginia veterans use this clinic because
of our proximity to DC. What are you all doing, or how are you
handling that--the Inspector General's recommendations on
what--to correct the problems you have had there, so when they
call our office we can give an update?
Dr. Lee. Senator, ensuring the safety of our veterans is
our top priority----
Senator Manchin. Sure.
Dr. Lee [continuing]. Especially at DC VA, and we agree
with the Inspector General that no patient harm was documented.
But there is a lot of work left to do and we are actively
working to support the DC VA in addressing all the issues
raised, including----
Senator Manchin. Do you have any other--I mean, I
understand it was a vascular operation that was going on. They
put the man under and they found out that they did not have the
equipment to do the operation with.
Dr. Lee. I do not have any other details to add to the
investigation----
Senator Manchin. Yeah.
Dr. Lee [continuing]. But we have--we are lending support--
--
Senator Manchin. OK.
Dr. Lee [continuing]. From Central Office, from the very
top.
Senator Manchin. You can keep me----
Dr. Lee. We will be happy to update you.
Senator Manchin [continuing]. Apprised and my staff, I
would appreciate it, so we can keep our constituents apprised.
Dr. Lee. Absolutely.
Senator Manchin. I am happy to join Senator Tester's--he is
right there--Performance, Accountability, and Contractor
Transparency. I notice that we are doing more and more with
contractors, and the problem we have with the contractor is
this: when there is a problem with the VA and our VA employees,
they can call our office and we can work with you all, and we
get an answer. When there is a third party involved, we are out
of the loop. We just--we cannot connect.
This is what, I think, we are all concerned about,
especially in rural States. We here are basically the
connector. We are the facilitator for that. It looks like you
are moving more and more to contractors, which is going to take
us out of the mainstream to where we can have connectivity.
Is that where you are going, and how do you correct what
you have already got? Does anybody want to speak to that one? I
think you are up, Dr. Lee. No one jumped in so I figured it was
you.
Dr. Lee. Well, I will ask, on a specific bill I will ask
Mr. Parker if he wants to----
Senator Manchin. Well, forget about the bill. Just tell me
what you are doing with contractors.
Dr. Lee. All across the board? We--I think it makes sense
for us to leverage our strengths wherever we are strong and to
leverage contractors in the private sector wherever we need
that to complement the services.
Senator Manchin. Well, let us talk about HealthNet.
HealthNet is a problematic one we have. How do we have better
connectivity with them? How can my staff call and help a
veteran, and you have them as a third-party administrator?
Dr. Lee. I think the specific issues with HealthNet--
addressing those actually goes back to the greater work that we
need to do with this Committee and the whole Choice program. I
know that Secretary Shulkin and my colleague, Baligh, will be
engaged along with all of us on that work in the weeks and
months ahead. But that is our priority, to look at the entire
program and see how do we redesign it to better meet the needs
of veterans, because we are not doing so well right now.
Senator Manchin. How much time is that going to take? I
have been here for a while on this Committee, and I still have
that same question.
Dr. Lee. We are just as pressed as you are, sir. We would
like to move that quickly.
Senator Manchin. OK. Let us move on.
Again, I thank my good friend, Senator Murray, for her work
on the caregiver issue. Some of my Vietnam veterans back home,
forty percent of my veterans are Vietnam-era veterans--40
percent. They have concerns, they have needs that were not
identified, were not recognized, and were not treated. So, they
need full-time care for their injuries, and if they do not have
a family caregiver then they are basically institutionalized.
Are you all looking at that, thinking of this more from a
moral, humane approach, and also cost-effectiveness, if we can
have some type of care at home, as we do with caregivers in our
senior citizens? Where are you on that issue? Does anybody want
to jump in? How about you--I can tell----
Ms. Kabat. I am happy to----
Senator Manchin. You are eager to go. Let us go.
Ms. Kabat. I am happy to answer at least part of that
question. I think the Caregiver Support Program, which is my
area of expertise, is certainly really only one way that VA
supports veterans who require a lot of assistance in a home
setting, and we certainly want our veterans to remain at home,
in their communities.
So, we offer a lot of different home- and community-based
services.
Senator Manchin. Are you having a hard time finding people
that will give these type of services in-home? Can you contract
with the same people that do senior services? Do you all
piggyback on senior services?
Ms. Kabat. We do work very closely with the aging and
disability network. We have some partnerships with HHS around
doing that. I think I am not an expert in that area, but we
would be happy to have our----
Senator Manchin. One thing I am saying is I am sure that
Alaska, and I am sure that Montana and Washington--we have
senior services to try to keep people living in--with a little
bit of assistance in their own home, and a lot of veterans,
especially our Vietnam veterans, would love to do that, but we
just do not have that service offered, so they end up--they
cannot live by themselves any longer.
Ms. Kabat. We would be happy to come talk to you about our
home- and community-based programs, our in-home nursing, and
home health aides.
Senator Manchin. I know Senator Murray has been leading the
charge on this and I appreciate it very much, but, boy, I am
sure we all have the same problem. So, I would be happy if you
would, you know, follow up with us on that.
Ms. Kabat. Absolutely.
Senator Manchin. We just--these people deserve answers. It
really is a shame. Some of them come for the services they need
and it is not that much. They do not ask for a lot.
I think that is my time. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Manchin.
Senator Boozman.
STATEMENT OF HON. JOHN BOOZMAN,
U.S. SENATOR FROM ARKANSAS
Senator Boozman. Thank you, Senator Isakson and Senator
Tester for having this very important hearing. There are so
many good initiatives that we are talking about today. As we
all know, supporting our Nation's veterans is one of the most
important responsibilities that we do as Members of Congress. I
know that you all are working hard to do that also, which we
really appreciate.
I would like to talk a little bit about S. 681, the Deborah
Sampson Act, which I am proud to cosponsor with Senator Tester
and many other Members of the Committee. It is, as you know, a
bipartisan bill that just tries to put much-needed parity to
the benefits for our women veterans.
As you all point out in your testimony, women are the
fastest-growing subgroup of veterans, 2.2 million women
veterans in the United States, over 20,000 in my home State of
Arkansas, which, again, we are very, very proud of.
The problem is, as we all know, the VA facilities or the VA
programs, to some extent, have not changed to a large extent,
yet we are now living in a different era. In fact, it was
interesting. When we had our press conference, one of the
female veterans, one of the lady veterans talked about being in
the VA hospitals, and invariably they were asked if they were
looking for their husband. So, that is really what we are
dealing with. Those are honest mistakes, but it is something
that we simply need to do away with.
So, I appreciate you, Dr. Lee, in the sense that you voice
strong support of several of the bill's provisions to include
the pilot program for peer-to-peer assistance for women
veterans and expanding the supporting service for veterans'
families program. These are really important issues and we are
pleased with that.
I would like to talk to you a bit, though, about the
opposition to ensuring that each VA medical facility has at
least one full- or part-time--and I emphasize part-time, at
least, women's health care provider. I appreciate the VA may
already have the authority to make this happen. The fact is
that, you know, we talk a lot about getting these things fixed,
but we truly do hear a lot about the issue that are not fixed,
and I think that is just a common sense way of stepping out in
the right direction.
So, I really encourage the VA to think rethink your
opposition to the provision. The bill is not requiring a full-
time provider. The requirement is at least one full- or part-
time provider. Can you all comment on that?
Dr. Lee. Senator, as you said, women veterans are the
fastest-growing segment of the veteran population and VA is
very committed to ensuring high-quality care and services for
all of our women veterans.
We have made a lot of progress. We know now that we have a
designated women's health provider at every medical center and
almost every community-based outpatient clinic. Those
designated women's health providers are trained to especially
meet the needs of women veterans and address their post-
deployment health issues, including military sexual trauma. We
also have gynecologists at approximately 130 of our sites of
care. We have almost 200 gynecologists employed in VA. So, we
are expanding and interested in expanding that access to
specialized GYN care as well.
And we think that some of the results really show the
investment that we have made. We actually exceed the private
sector in some of our quality outcomes when it comes to breast
cancer and cervical cancer screening.
Senator Boozman. We are going to hold you to that. The
other thing--because I am running out of time, and I apologize
for interrupting--but the other thing I would like for you to
comment on is the--I was surprised at VA's opposition to
tracking data related to women veterans. Can you tell me the
metrics that are in place now, so that we know what is going
on? How we identify health care needs for veterans currently?
Again, I am a little bit surprised as to why we would not go
forward with actually tracking data to give us a better idea.
As we solve this problem--it is not a new problem. It has been
going on for a little bit.
Dr. Lee. Sir, we are very committed to transparency of our
data, and what we are striving to do is to use the private
sector benchmarks, like HEDIS and CAHPS, which measure quality
outcomes and also patient satisfaction, and measures like that.
In particular, with this provision, our only concern was just
the breadth of the applicability to all of our data. In some
cases, for instance, in our cemeteries, in the NCA, we may not
collect gender-based data, and it could impose some additional
cost to be able to do that.
So, I would be happy to work with you on narrowing some of
the scope of the data collection requirements.
Senator Boozman. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Boozman, and thanks to
all the Members. Thank you for your testimony for the VA today,
and we will excuse you at this time. You are welcome to stay
for the second panel, but I ask the second panelists to come
forward if you would, at this time.
Thank you very much, Dr. Lee.
Our second panel will consist of the following: Louis J.
Celli, Jr., Director, National Veterans Affairs and
Rehabilitation Division, The American Legion; Kayda Keleher,
Associate Director, National Legislative Service, Veterans of
Foreign Wars; Adrian Atizado, Deputy National Legislative
Director, Disabled American Veterans; Allison Jaslow, Executive
Director, Iraq and Afghanistan Veterans of America; and J.
David Cox, National President, American Federation of
Government Employees.
If you would come forward to your designated seat, we will
start the hearing. [Pause.]
Chairman Isakson. Let me begin by thanking all of you for
your patience. You have been sitting through a long but very
important hearing on the legislation pending before us today,
and we appreciate our veteran service organizations coming
forward to offer their testimony on the proposed legislation.
We look forward to hearing from each and every one of you.
We will recognize you for up to 5 minutes. If you have an
additional statement you want to submit for the record, we will
submit that for the record, and then afterwards, if there are
any questions, we will have questions.
We will start with Dr. Celli--Mr. Celli.
STATEMENT OF LOUIS J. CELLI, JR., DIRECTOR, NATIONAL VETERANS
AFFAIRS AND REHABILITATION DIVISION, THE AMERICAN LEGION
Mr. Celli. Access to veterans' health care, ensuring our
veterans are able to receive the benefits they have earned,
quality and services across the spectrum of veterans who
faithfully served in defense of this Nation, regardless of
conflict, accountability, and transparency are some of the very
foundational pillars that The American Legion continues to
build on.
Chairman Isakson, Ranking Member Tester, and distinguished,
dedicated defenders of veterans who proudly serve on this
Committee, on behalf of Charles Schmidt, the National Commander
of the largest veteran service organization in the United
States of America, representing more than 2.2 million dues-
paying members, and combined with our American Legion family
whose members exceed 3.5 million voters, living in every State
and American territory, it is my duty and honor to present The
American Legion's position on more than a dozen or so bills
being considered by this Committee today.
In addition to the Deborah Sampson Act, The American Legion
supports Senate Bill 804, the Women Veterans Access to Quality
Care Act, the Military and Veteran Caregiver Service
Improvement Act of 2017, the draft bill addressing
accountability and whistleblower protections, the tracking of
biological implants, and a variety of other bills detailed in
our written testimony today, and, of course, the Appeals
Modernization Act being reintroduced here today, with
overwhelming bipartisan administration and stakeholder support.
The American Legion has been calling on Congress and the VA
to bring women veterans' issues in line with the availability
and quality of services provided to their male counterparts for
years. Throughout the System Worth Saving program, The American
Legion has been evaluating and reporting on VA medical centers
for more than 15 years. Over the years, the gap in services
between men and women who have served, side by side, has been
so prevalent that in 2013, The American Legion dedicated an
entire year of this program to detailing and highlighting some
of the much-needed improvements we are still fighting for
today.
Our 2013 report on women's health care addresses all of the
vital components of the Deborah Sampson Act, as well as in
Senate Bill 804, which is why we strongly urge this Congress
and the VA to immediately address these issues. Transparency
and accountability are the cornerstone of leadership and good
governance. The American Legion fully supports holding bad
actors accountable for their actions, and criminals should be
prosecuted as soon as possible.
The American Legion supports giving the Secretary any and
all tools necessary to lead his agency as needed, but wants to
ensure that congressional language does not cause a type of
unintended consequences that we have struggled with in the
past.
As stated in our written testimony, The American Legion
wants to ensure that Congress provides VA with the tools that
are functional, enforceable, and allow the agency to act in a
manner that promotes good order, discipline, and esprit de
corps. Poorly crafted legislative language that fails legal and
constitutional standards only serves to ruin morale and create
a system of indecision and lack of surety.
Our first concern with the evidence threshold reduction to
substantial evidence is that the bill will encourage an
atmosphere that reduces the burden of managers to collect
appropriate documentation. Managers need to be held accountable
to perform expert leadership and oversight, and that includes
being diligent about documenting poor performance or bad
behavior. Egregious behavior would not be affected by this
provision as it would surpass the already established
evidentiary threshold of preponderance of evidence.
The second concern we raise is with the provision that
strips judges of the ability to mitigate penalties. While on
its face it seems logical to force the judge to accept the
agency's decision, regardless of discipline or termination, The
American Legion is reminded of the Linda Weiss decision, in
which the presiding judge states, in part, ``In conclusion, I
find the appellant has rebutted the presumption that the
penalty was reasonable. If the statute did not prohibit it, I
would mitigate the penalty. However, because that is not
allowed, the only option is to reverse the action outright.''
Please review this language.
Next, as important as our caregiver program is, it is
imperative that Senate Bill 591 not only pass but that benefits
be extended to all pre-9/11 veterans. The American Legion is
committed and resolute on this issue, and will not waiver in
our support to ensure all veterans are treated equally under
the law.
Finally, it is with great pleasure that The American Legion
testifies in support of the Appeals Modernization Act. This
support will streamline and modernize a program that
desperately needs it, while preserving and expanding veteran
protections and, in the long run, the increased efficiency will
save money with providing benefits faster and more efficiently.
As one of the founding organizations who helped develop this
new program, The American Legion is proud to support S. 1024,
the Veterans Appeals Improvement and Modernization Act of 2017.
[The prepared statement of Mr. Celli follows:]
Prepared Statement of Louis J. Celli, Jr., Director of National
Veterans Affairs & Rehabilitation Division, The American Legion
Chairman Isakson, Ranking Member Tester, and distinguished Members
of the Committee; On behalf of our National Commander, Charles E.
Schmidt, and the over 2.2 million members of The American Legion, we
thank you for this opportunity to testify regarding The American
Legion's positions on pending legislation before this Committee.
Established in 1919, and being the largest veteran service organization
in the United States with a myriad of programs supporting veterans, we
appreciate the Committee focusing on these critical issues that will
affect veterans and their families.
s. 23: biological implant tracking and veteran safety act of 2017
To amend title 38, United States Code, to direct the Secretary of
Veterans Affairs to adopt and implement a standard
identification protocol for use in the tracking and procurement
of biological implants by the Department of Veterans Affairs,
and for other purposes.
The American Legion remains concerned about the Veterans Health
Administration's (VHA) lack of a robust prosthetic supply tracking
system. The American Legion has testified about the Department of
Veterans Affairs' (VA) prosthetic tracking system at numerous hearings.
On January 15, 2014, The American Legion testified before House
Veterans' Affairs Subcommittee on Oversight and Investigations urging
Congress to require VA to implement an automated tracking system that
addresses vulnerabilities. The recommendations were: one, initially
record the serial number of a surgical implant device when procured and
placed into VA's inventory; two, record the expiration date; and three,
that a record tracking flag be put into place to alert VA staff when
the product is nearing its expiration date.
On March 19, 2015, The American Legion's written testimony for the
record was presented to the House Veterans' Affairs Subcommittee on
Oversight and Investigations in support of H.R. 1016: The Biological
Implant Tracking and Veteran Safety Act of 2015.
VA's Office of Inspector General (VAOIG) has conducted numerous
audits looking at VA's prosthetic inventory system with the last audit
completed in 2012. VAOIG issued Report No. 11-02254-102 on March 8,
2012, titled ``Audit of VA's Management and Acquisition of Prosthetic
Limbs.'' The VAOIG identified the following challenges:
VHA needed to strengthen the VA medical centers (VAMC)
management of prosthetic supply inventories to avoid spending
funds on excess supplies and disruptions to patient care due to
supply shortages. VHA also needs to improve the
comprehensiveness of its inventory information and standardize
annual physical inventory requirements. It was estimated that
during April through October 2011, VAMCs maintained inventories
of nearly 93,000 prosthetic supply items with a total value of
$70 million. Of the 93,000 items, it was estimated that VAMC
inventories exceeded current needs for almost 43,500 items (47
percent) and were too low for nearly 10,000 items (11 percent),
increasing the risk of supply shortages.
VAMCs did not maintain optimal inventory levels because of
the following reasons:
Lack of integration between the prosthetic inventory
system and other VHA systems,
Inefficiencies from using two inventory systems,
Inadequate staff training on inventory management
principles and techniques,
Insufficient VHA Central Office and Veterans
Integrated Service Network (VISN) oversight of VAMC inventory
management practices, and
Inadequacies in VHA's Inventory Management Handbook.
As a result, VAMCs spent $35.5 million to purchase unnecessary
prosthetic supplies and increased the risk of supply expiration, theft,
and supply shortages. In addition, VHA could not accurately account for
these inventories.
VHA responded to the report stating the VA would work to develop a
plan to replace the Prosthetic Inventory Package (PIP) and the Generic
Inventory Package (GIP) with a more comprehensive system. The target
completion date was March 30, 2015. As noted in the 2012 VAOIG report,
VHAs hope is to ``removing recalled products from inventory within 24
hours of a recall.''
The American Legion is concerned that there is still no clear
policy on how veterans who have received implants are tracked.
Attention must be paid to veterans who are already downstream in the
process. Without consistent tracking of implants, including positive
identification by serial number and other identifying factors,
uncertainty remains as to how veterans are served in the case of
recalls. The American Legion wants to see a more comprehensive
procedure and policy clearly defined by Central Office to ensure
consistency in all Veteran Integrated Service Networks (VISNs).
In 2014, VHA required VA Medical facilities to begin using the
Catamaran Point of Use (POU) Inventory System that interfaces with the
Veterans Health Information Systems and Technology Architecture
(VistA). The system is not utilized at every VA medical center, case in
point, the Washington DC VA Medical Center.
In response to allegations made by a confidential complainant, the
VAOIG investigated equipment and supply issues at the Washington DC VA
Medical Center. The VAOIG released an Interim Summary Report on
April 12, 2017, which identified some serious and troubling
deficiencies at the Medical Center that place patients at unnecessary
risk. Although VAOIG has not identified at this time any adverse
patient outcomes, they found that there was no effective system to
ensure that supplies and equipment that were subject to patient safety
recalls were not used on patients and over $150 million in equipment or
supplies had not been inventoried in the past year and therefore had
not been accounted for.
Five years have passed since VAOIG reported on this issue and VA
promised Congress, veterans, and American taxpayers that they would
develop a plan to replace the Prosthetic Inventory Package (PIP) and
the Generic Inventory Package (GIP) with a more comprehensive system.
We are here today because the plan VA put in place is not working.
Implementing a biological implant tracking system is essential to
assuring the health, safety and the life of a veteran is safeguarded.
Resolution No. 377: Support for Veteran Quality of Life, supports
any legislation and programs within the VA that will enhance, promote,
restore or preserve benefits for veterans and their dependents,
including, but not limited to, the following: timely access to quality
VA health care; timely decisions on claims and receipt of earned
benefits; and final resting places in national shrines and with lasting
tributes that commemorate their service.\1\
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\1\ American Legion Resolution No. 377 (2016): Support for Veteran
Quality of Life
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The American Legion supports passage of S. 23.
s. 112: creating a reliable environment for veterans' dependents act
To amend title 38, United States Code, to authorize per diem payments
under comprehensive service programs for homeless veterans to
furnish care to dependents of homeless veterans, and for other
purposes.
S. 112 will help ensure that VA funded homeless shelters may be
reimbursed for services provided to the dependent of a veteran, thereby
reducing the risk of separating families during a difficult time. Based
upon the Point-in-Time count on a single night in January 2016, almost
all veterans were experiencing homelessness in households without
children (97 percent or 38,340 veterans). About 3 percent (1,131) were
veterans who were homeless as part of a family. If enacted, S. 112
would provide reimbursement for VA grantees who house homeless veterans
with a dependent.
This would be quite beneficial for those homeless veterans with
dependents, particularly women veterans who often carry the most
responsibility of taking care of their children. Housing is a key
component in stabilizing the veteran and putting him/her back on track
to independent living. This bill would provide an avenue where the
veteran would not separate from their child and/or spouse to obtain
housing, and crucial services, for a successful reintegration back into
mainstream society.
The American Legion strongly believes that homeless veteran
programs should be granted sufficient funding to provide supportive
services such as, but not limited to, outreach, health care,
rehabilitation, case management, personal finance planning,
transportation, vocational counseling, employment, and education.
Furthermore, The American Legion continues to place special priority on
the issue of veteran homelessness. With veterans making up
approximately 11 percent of our Nation's total adult homeless
population, there is plenty of reason to give this issue special
attention. Along with various community partners, The American Legion
remains committed to seeing VA's goal of ending veteran homelessness
come to fruition. Our goal is to ensure that every community across
America has programs and services in place to get homeless veterans
into housing (along with necessary healthcare/treatment) while
connecting those at-risk veterans with the local services and resources
they need. We hope to see that with the expansion of assistance
afforded to homeless veterans and their dependents, there will also be
an increase in funding to support. We estimate that an additional $10
million annually will be sufficient to accomplishing this goal.
Resolution No. 324: Support Funding for Homeless Veterans, supports
any legislation and programs within and outside the VA that will
enhance, promote, and assist homeless veterans in a timely fashion.\2\
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\2\ American Legion Resolution No. 324 (2016): Support Funding for
Homeless Veterans
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The American Legion supports S. 112.
s. 324: state veterans home adult day health care improvement act of
2017
To amend title 38, United States Code, to improve the provision of
adult day health care services for veterans.
State Veterans Homes are facilities that provide nursing home and
domiciliary care. They are owned, operated and managed by state
governments and date back to the post-Civil War era when many states
created them to provide shelter to homeless and disabled veterans.
Currently, there are only two Adult Day Health Care programs at
State Veterans Homes in the United States. Both are located on Long
Island, New York. However, these programs could easily be offered at
the other 151 State Veterans Homes located throughout the country.
S. 324 would provide a no cost, medical model Adult Day Health Care
to veterans at State Veterans Homes who are 70 percent or more service-
connected disabled. This bill is an extension of Public Law (P.L.) 109-
461: Section 211, Veterans Benefits Health Care, and Information
Technology Act of 2006, which currently provides no cost nursing home
care at any State Veterans Home to veterans who are 70 percent or more
disabled for their service-connected disability and who require
significant assistance from others to carry out daily tasks.
Adult Day Health Care is a daily program for disabled veterans who
need extra assistance and special attention in their day to day lives.
Adult Day Health Care programs provide disabled veterans and their
families with a high-quality alternative to nursing home care and
quality outpatient services for those suffering from debilitating
illnesses or disabilities. These programs provide a range of services,
from daily activities such as bathing, full medical services, and
physical therapy. The focus of the program is on improving a disabled
veterans' quality of life, which is why we support expanding this great
option of care for our veterans.
American Legion Resolution No. 377: Support for Veteran Quality of
Life supports any initiative that urges Congress and the Department of
Veterans Affairs (VA) to enact legislation and programs within the VA
that will enhance, promote, restore or preserve benefits for veterans
and their dependents, including, but not limited to, the following:
timely access to quality VA health care; timely decisions on claims and
receipt of earned benefits, and final resting places in national
shrines and with lasting tributes that commemorates their service.\3\
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\3\ American Legion Resolution No. 377 (2016): Support for Veteran
Quality of Life
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The American Legion supports passage of S. 324.
s. 543: performance accountability and contractor transparency act of
2017
To amend title 38, United States Code, to require the Secretary of
Veterans Affairs to include in each contract into which the
Secretary enters for necessary services authorities and
mechanism for appropriate oversight, and for other purposes.
The provisions of this bill falls outside the scope of established
resolutions of The American Legion. As a large, grassroots
organization, The American Legion takes positions on legislation based
on resolutions passed by the membership in meetings of the National
Executive Committee. With no resolutions addressing the provisions of
the legislation, The American Legion is researching the material and
working with our membership to determine the course of action which
best serves veterans.
The American Legion has no current position on S. 543.
s. 591: military and veteran caregiver services improvement act of 2017
To expand eligibility for the program of comprehensive assistance
for family caregivers of the Department of Veterans Affairs, to expand
benefits available to participants under such program, to enhance
special compensation for members of the uniformed services who require
assistance in everyday life, and for other purposes.
The struggle to care for veterans wounded in defense of this Nation
takes a terrible toll on families. In recognition of this, Congress
passed, and President Barack Obama signed into law, the Caregivers and
Veterans Omnibus Health Services Act of 2010. The unprecedented package
of caregiver benefits authorized by this landmark legislation includes
training to help to ensure patient safety, cash stipends to partially
compensate for caregiver time and effort, caregiver health coverage if
they have none, and guaranteed periods of respite to protect against
burnout.
The comprehensive package, however, is not available to most family
members who are primary caregivers to severely ill and injured
veterans. Congress opened the program only to caregivers of veterans
severely ``injured,'' either physically or mentally, in the line of
duty on or after Sept. 11, 2001. It is not open to families of severely
disabled veterans injured before 9/11, nor is it open to post-9/11
veterans who have severe service-connected illnesses, rather than
injuries.
The American Legion has long advocated for expanding eligibility
and ending the obvious inequity it created. Simply put, a veteran is a
veteran, and all veterans should receive the same level of benefits for
equal service. As affirmed in American Legion Resolution No. 259:
Extend Caregiver Benefits to Include Veterans Before September 11,
2001, The American Legion supports legislation to remove the date
September 11, 2001, from Public Law 111-163 and revise the law to
include all veterans who otherwise meet the eligibility
requirements.\4\
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\4\ American Legion Resolution No. 259 (2016): Extend Caregiver
Benefits to Include Veterans Before September 11, 2001
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The American Legion is aware of the obstacles to an expansion of
the program, though. Perhaps the biggest is protracted frustration over
how the current caregiver program operates. Thus, we applaud the
Department of Veterans Affairs (VA) recent decision to conduct an
internal review of the program. That decision is an acknowledgment that
the VA cares about the success of this program, and is committed to the
difficult task of improvement.
The American Legion is also committed to the success of this
program. We have long supported our veteran caregivers by providing
accredited representation, advice and education. We created a new
Caregiver Coordinator position in our Washington Office. We
participated in the numerous roundtables conducted during the present
review of the program. We are honored to be working with a broad
coalition to identify and bolster support for caregivers, both now and
long-term.
We have joined on to a coalition letter organized by the Elizabeth
Dole Foundation to Secretary Shulkin dated May 15, 2017. This letter
offers some perspective on the issues that have clouded this program
since its inception, and its recommendations are informed by the
experiences and stories of caregivers themselves. The letter is
incorporated by reference, and we think action based on the letter will
go a long way to righting the program and preparing it for
expansion.\5\
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\5\ VA Caregiver Program Coalition Letter
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The American Legion is also rolling out a comprehensive caregiver
program to our Departments and recently passed Resolution No. 24:
Caregiver Program. The program promises to ``address the needs of
military and veteran caregivers by assisting with, but not limited to
employment/vocational referral, Federal and state education assistance,
Post-9/11 caregiver benefit support, veteran directed care, partner
support with the Elizabeth Dole Foundation and various caregiver
support organizations, assistance with death gratuity, and terminal
illness.'' \6\
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\6\ American Legion Resolution No. 24: Caregiver Program
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The American Legion, together with The American Legion Auxiliary,
is building a comprehensive program that is sustainable and replicable
and will be included in the department and post activities and programs
through our network of more than 15,000 posts and detachments across
the United States and abroad. The American Legion's Caregiver
Coordinator will work to ensure that veterans and their caregivers are
well informed and educated about the benefits and resources available
to them. The burden of ensuring support for these caregivers does not--
and should not--fall to the VA alone.
The American Legion is optimistic that providing expanded support
services and stipends to caregivers of veterans to all eras is not only
possible but also feasible. We are, therefore, proud to offer our
support for S. 591, the Military and Veteran Caregiver Services
Improvement Act of 2017.
The American Legion supports passage of S. 591.
s. 609: chiropractic care available to all veterans act of 2017
To amend the Department of Veterans Affairs Health Care Programs
Enhancement Act of 2001 and title 38, United States Code, to
require the provision of chiropractic care and services to
veterans at all Department of Veterans Affairs medical centers
and to expand access to such care and services, and for other
purposes.
It is not uncommon for veterans who suffer from musculoskeletal and
connective system diseases to go untreated at VA medical centers
because of a lack of available chiropractic care and services. At
present, less than one-third of VA medical centers offer chiropractic
care. S. 609 will require a program under which the Secretary of
Veterans Affairs will provide chiropractic care and services through
the VA at (1) no fewer than 75 medical centers by December 31, 2018,
and (2) all medical centers by December 31, 2020.
According to VA, the most frequent medical diagnosis among Iraq and
Afghanistan veterans are musculoskeletal and connective system
diseases.\7\ Since 2002, there have been over 195,000 Post-9/11
veterans that have pursued care for these conditions. The American
Legion, thus, views easy access to chiropractic care as a priority
necessity for veterans.
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\7\ Sally G. Haskell, M.D., Post-Deployment Pain: Musculoskeletal
Conditions in Male and Female OEF/OIF Veterans (August 2012)
---------------------------------------------------------------------------
American Legion Resolution No. 377: Support for Veteran Quality of
Life, supports any legislation and programs within the VA that will
enhance, promote, restore or preserve benefits for veterans and their
dependents, including, but not limited to, the following: timely access
to quality VA health care, timely decisions on claims and receipt of
earned benefits, and final resting places in national shrines and with
lasting tributes that commemorate their service.\8\
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\8\ American Legion Resolution No. 377 (2016): Support for Veteran
Quality of Life
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The American Legion supports passage of S. 609.
s. 681: deborah sampson act
To amend title 38, United States Code, to improve the benefits and
services provided by the Department of Veterans Affairs to
women veterans, and for other purposes.
Women veterans have consistently been overlooked by the Department
of Veterans Affairs for decades. The American Legion feels that it is
time that we thank this growing military demographic with, at a
minimum, the healthcare they deserve. Women veterans are the fastest
growing demographic serving in the military, so we can expect the
number of women veterans using Department of Veterans Affairs (VA)
healthcare to increase dramatically. The United States has more than 2
million women veterans who live in every Congressional district in the
Nation, and the number of women veterans seeking VA health care has
doubled since 2000.
Although the VA has made improvements in women's healthcare, many
challenges remain. The Deborah Sampson Act would help rectify many
issues women veterans face by improving the ability of the VA to
provide women's care, improve services, and change its culture to
embrace this growing population. It does so by, inter alia:
Enhancing services that empower women veterans to support
each other,
Establishing a partnership between the Department of
Veterans Affairs and at least one community entity to provide legal
services to women veterans,
Make adjustments to care that the VA can provide newborns,
Addressing significant barriers women veterans face when
seeking care,
Require the VA to collect and analyze data for every
program that serves veterans, including the Transition Assistance
Program, by gender and minority status, and require that they publish
data as long as it does not undermine the anonymity of a veteran.
The American Legion recommends the following change to the bill. A
separate track to address specific needs of women veterans attending
the Transition Assistance Program. It has been noted that women
veterans are more likely to seek assistance by talking with other women
on gender-sensitive assistance. For example, the VA Trauma Service
Program (TSP) allows women veterans to choose to partake in a TSP
information session with a group or with an individual woman
coordinator. More women veterans opt to conduct the information session
with an individual woman coordinator.
Additionally, The American Legion requests the Department of
Defense transfer contact information of all transitioning women
veterans to the VA and the Department of Labor (DOL). This would
provide an opportunity for the VA, DOL, and Veterans Service
Organizations to follow-up with women veterans after separation to
offer additional support, programs, and services.
American Legion Resolution No. 147: Women Veterans, calls on The
American Legion to work with Congress and the VA to ensure that the
needs of current and future women veteran populations are met. It calls
on the VA to provide full comprehensive health services for women
veterans department-wide.\9\
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\9\ American Legion Resolution No. 147 (2016): Women Veterans
---------------------------------------------------------------------------
American Legion Resolution No. 364: Department of Veterans Affairs
to Develop Outreach and Peer to Peer Program for Rehabilitation
supports the President of the United States and the U.S. Congress
passing legislation to call on the Secretary of Veterans Affairs to
develop a national program to provide peer to peer rehabilitation
services based on the recovery model tailored to meet the specialized
needs of current generation combat-affected veterans and their
families.\10\
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\10\ American Legion Resolution No. 364 (2016): Department of
Veterans Affairs to Develop Outreach and Peer to Peer Program for
Rehabilitation
---------------------------------------------------------------------------
The American Legion supports passage of S. 681 with amendments as
noted above.
s. 764: veterans education priority enrollment act of 2017
To amend title 38, United States Code, to improve the enrollment of
veterans in certain courses of education, and for other
purposes.
S. 764, the Veterans Education Priority Enrollment Act of 2017
would mandate that if an educational institution administers priority
enrollment to certain students and receives educational benefits from
the VA, then they shall also administer priority enrollment to student
veterans and active military students.
Resolution No. 318: Ensuring the Quality of Servicemembers and
Veteran Student's Education at Institutions of Higher Education urges
Congress to find a solution that ensures colleges and universities that
receive Federal tuition payments grant priority enrollment to those
individuals who qualify for either the Department of Defense or
Department of Veterans Affairs education benefits.
However, due to inherent complexities with priority enrollment, The
American Legion requires consultation and endorsement from the military
education collaborative Servicemembers Opportunity Colleges and the
National Association of Veterans' Program Administrators before
supporting. If the present language of the Veterans Education Priority
Enrollment Act of 2017 results in reputable institutions of higher
learning choosing to stop processing GI Bill benefits, than it will do
more harm than good. Additionally, implementation concerns such as
equity questions (should a freshman student veteran get priority over
the last semester senior who needs the course to graduate) and existing
priority systems on public institutions need to be resolved. While we
applaud the attention that has been shown on this, the unknown second
and third-order affect preclude our immediate support.
The American Legion has no current position on S. 764.
s. 784: veterans' compensation cost-of-living adjustment act of 2017
To increase, effective as of December 1, 2017, the rates of
compensation for veterans with service-connected disabilities
and the rates of dependency and indemnity compensation for the
survivors of certain disabled veterans, to amend title 38,
United States Code, to improve the United States Court of
Appeals for Veterans Claims, to improve the processing of
claims by the Secretary of Veterans Affairs, and for other
purposes.
S. 784 would provide a Cost-of-Living Allowance (COLA) effective
December 1, 2017. Disability compensation and pension benefits awarded
by the Department of Veterans Affairs (VA) are designed to compensate
veterans for medical conditions incurred through service, or who earn
below an income threshold. When the cost of living increases due to
inflation, it is only appropriate that veterans' benefits
correspondingly increase.
For nearly 100 years, The American Legion has advocated on behalf
of our Nation's veterans, to include the awarding of disability
benefits associated with chronic medical conditions that manifest
related to service of this Nation. Annually, veterans and their family
members are subjects in the debate regarding the annual COLA for these
disability benefits. For these veterans and their family members, COLA
is not simply an acronym or a minor adjustment in benefits; instead, it
is a tangible benefit that meets the needs of the increasing costs of
living in a nation that they bravely defended.
As affirmed in The American Legion's Resolution No. 187: Department
of Veterans Affairs Disability Compensation, passed at the 2016
National Convention, The American Legion supports legislation ``to
provide a periodic cost-of-living adjustment increase and to increase
the monthly rates of disability compensation.'' \11\
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\11\ American Legion Resolution No. 187 (2016): Department of
Veterans Affairs Disability Compensation
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The American Legion supports S. 784.
s. 804: women veterans access to quality care act
To improve the provision of health care for women veterans by the
Department of Veterans Affairs, and for other purposes.
Women veterans are the fastest growing demographic currently
serving in the military. They deserve a robust and comprehensive VA
health care system to care for them when they transition from active
duty to civilian life. Over the years, VA has made great strides in
making healthcare services available for women veterans, such as
ensuring more women veterans see providers who meet their gender-
specific health care needs. However, there is still much work to be
done to meet the overall healthcare needs of women veterans. Even
though the military has seen a significant increase in the number of
women joining the military, the number of women veterans enrolling in
the VA health care system remains relatively low when compared to their
male counterparts.
Despite improvements VA has taken to broaden their healthcare
programs and services for women veterans, The American Legion has found
there are still numerous challenges, and barriers women veterans face
with enrolling in the VA including:
Women veterans often do not self-identify as veterans,
Women veterans are often not recognized by VA staff as
veterans,
Among women veterans, there can be a lack of awareness,
knowledge, and understanding of their VA benefits,
There is an incorrect, but prevalent stigma, that the VA
healthcare system is an ``all-male'' healthcare system, and
The VA does not provide all of the gender-specific health
care needs of their enrolled women veterans.
As a result, The American Legion believes in ensuring women
veterans receive the highest quality VA health care, and that the care
is tailored to meet their gender-specific health care needs.
This legislation directs VA to establish standards ensuring all VA
facilities meet gender-specific healthcare needs, integrate those
standards into VA's prioritization methodology when determining funding
needs, and issue reports on those standards, especially where
facilities may be failing to meet standards. S. 804 would make VA's
compliance with women's healthcare needs transparent through public
dissemination of information on VA websites. Finally, S. 804 would
ensure greater representation within the VA's women's healthcare
provider positions including obstetricians and gynecologists. These
measures will help address concerns of women veterans and improve the
comprehensive nature of healthcare available to women throughout the
VA.
American Legion Resolution No. 147: Women Veterans, supports, inter
alia:
That the VA provides full comprehensive health services
for women veterans department-wide, including, but not limited to,
increasing treatment areas and diagnostic capabilities for female
veteran health issues, improved coordination of maternity care, and
increase the availability of female therapists/female group therapy to
better enable treatment of Post-Traumatic Stress Disorder from combat
and MST in women veterans;
That the VA furnish gender-specific prosthetic appliances,
orthotics, and services while eliminating the male-only approach to the
treatment of all injuries and illnesses.\12\
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\12\ American Legion Resolution No. 147 (2016): Women Veterans
The American Legion supports S. 804.
s. 899: department of veterans affairs veteran transition improvement
act
To amend title 38, United States Code, to ensure that the requirements
that new Federal employees who are veterans with service-
connected disabilities are provided leave for purposes of
undergoing medical treatment for such disabilities apply to
certain employees of the Veterans Health Administration, and
for other purposes.
Wounded Warrior Federal Leave Act (P.L. 114-75) was signed into law
after unanimous passage by Congress. The Act allowed up to 104 hours of
paid sick leave available to new Federal employees hired by ``Title 5''
Federal agencies with service-connected veteran disabilities rated at
30 percent or more to attend medical treatment related to these
conditions.
Some employers are not required by law to allow veterans with
service-connected disabilities to be absent from the workplace to
receive the necessary medical treatment for their disabilities. In its
current state, the Wounded Warrior Federal Leave Act does not protect
veterans working for the Department of Veterans Affairs (VA). Senator
Hirono's bill extends this protection to VA employees, who are ``Title
38 employees'' and don't have the same level of protection as ``Title
5'' Federal employees.
If enacted, this bill would amend Title 38, United States Code, to
prohibit discrimination and acts of reprisal against persons who
receive treatment for illnesses, injuries, and disabilities incurred in
or aggravated by service in the Armed Forces. In addition, it would
promote the well-being of the veteran and create an atmosphere for
efficiency and productivity within the agency. The American Legion
believes it is in the best interest of the veteran, and the VA, that
this bill pass.
American Legion Resolution No. 307: Prohibit Discrimination and
Acts of Reprisal by Employers Against Veterans that Seek Treatment for
their Service-Connected Disabilities, supports any legislation that
prohibits the discrimination and acts of reprisals by employers against
veterans that seek treatment for their service-connected
disabilities.\13\
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\13\ American Legion Resolution No. 307 (2016): Prohibit
Discrimination and Acts of Reprisal by Employers Against Veterans that
Seek Treatment for their Service-Connected Disabilities
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The American Legion supports this S. 899.
s. 1024: veterans appeals improvement and modernization act of 2017
To amend title 38, United States Code, to reform the rights and
processes related to appeals of decisions regarding claims for
benefits under the laws administered by the Secretary of
Veterans Affairs, and for other purposes.
The American Legion currently holds power of attorney on more than
three-quarters of a million claimants. We spend millions of dollars
each year defending veterans through the claims and appeals process,
and our success rate at the Board of Veterans Appeals (BVA) continues
to hover around 80 percent.
When VA invited stakeholders to the table to discuss appeals
modernization, The American Legion knew that appeals modernization
could not start with looking at the appellate process; the conversation
needed to begin at the point of the initial adjudication; so the first
things the group looked at was the VBA decision notice. As a negotiated
component of this framework, VBA has promised to improve their decision
notice which will better inform veterans and their advocates. More
importantly, a better decision letter will not only help veterans
better prepare if they need to appeal, but it will help prevent appeals
from being introduced because the veterans were not properly informed
about the basis for denial. After VA's commitment to improving the
initial decision letter, stakeholders helped sort through barriers that
slowed appeals processing and highlighted another of The American
Legion's primary concerns--centralized training.
VA further argued that if there were a process within the appeals
system that allowed judges to review disputed decisions that were
adjudicated at the regional offices, based only on the same information
that the regional office had at the time the claim was originally
decided, then BVA would be able to provide a ``feedback loop'' they
could use to help train and educate VBA's regional offices.
Additionally, this would help identify regional offices where the
decisions uniformly fail to address specific legal issues and improve
initial decisions.
It was with these two foundational underpinnings that the big six
VSOs, in addition to state and county service officers, veteran
advocate attorneys, and other interested groups worked with senior VA
officials from VBA and BVA to design the framework of the legislation
being discussed again here today.
The guiding principle leading all of our discussions was ensuring
that we preserved all of the claimant's due process rights while
ensuring that they did not lose any claims effective date time, which
we were not only able to do successfully, but we were able to increase
protections for veterans through this new process.
As you are aware, the design of the proposed appeals process allows
for multiple options for claimants, as well as options for additional
claim development, the option to have the decision reviewed by another
adjudicator (difference of opinion) and the chance to take your case
straight to the court to have a law judge review the decision and make
a ruling on your claim.
The proposed bill provides veterans additional options while
maintaining the effective dates of original claims. Veterans can elect
to have an original decision reviewed at the ROs through a Difference
of Opinion Review (DOOR) which is similar to the current functions of
the Decision Review Officers (DROs). A DOOR provides an opportunity for
a claimant to discuss concerns regarding the original adjudication of a
particular issue, or the entire claim, prior to appealing to the BVA.
Additionally, the administrative actions remove the need for a Notice
of Disagreement (NOD), a process that took 412.8 days, according to a
report released to The American Legion following the end of last fiscal
year. The April 24, 2017, VA Monday Morning Workload Report indicates
the delay has increased over two weeks, to 429.4 days VA Monday Morning
Workload Report, April 24, 2017.
Beyond improvements in administrative functions, the proposed bill
enables claimants to select a process other than the standard multi-
year long backlog, if they want to have an appeal addressed more
expediently if they believe they have already provided all relevant and
supporting evidence. Similar to the Fully Developed Claims program,
veterans will be able to elect to have their appeals reviewed more
expeditiously by attesting that all information is included within the
claim, VA's records, or submitted with VA Form 9 indicating the intent
to have their claims expeditiously forwarded to BVA for review.
Veterans indicating that they may need additional evidence or time
could elect to have their claim reviewed in BVA's current format of
allowing additional evidence entered. For veterans requiring additional
evidence, such as lay statements from friends and families or a private
medical examination rebutting VA's medical examinations, this is a
viable alternative to allow the time and opportunity to prove a
veteran's case and secure the benefits they have earned.
Recognizing that an increased burden is placed upon veterans, VA
will ensure veterans maintain their effective dates, even if BVA denies
the claim. If a veteran's appeal is denied by BVA, the veteran can
submit new and minimally relevant evidence to reopen the claim at the
RO while holding the original effective date that may have been
established long before the second filing for benefits.
Similar to FDC, The American Legion will work tirelessly to ensure
this program is successful and appreciates the Committee's support by
including stakeholders in the certification process as this program is
officially launched. We recognize the increased burden it can place on
veterans; we also recognize that our approximately 3,000 accredited
representatives have the tools to ensure success for the veterans and
claimants we represent. Throughout the year we will continue to work
with our representatives, our members, and most importantly our
veterans to understand the changes in law, and how they will be able to
succeed with these new changes.
The American Legion recognizes that this is a huge undertaking and
that as with any contract, the agreement is only as good as the people
who sign it. We agree that there is a lot that is not going to be
included in the statutory language and that this initiative places a
lot of trust and responsibility on VA to do the right thing. The
American Legion believes that the Secretary needs this flexibility to
set this program up effectively and that VA will continue to work with
stakeholders and Congress as we move forward. Any deviation from that
plan will upset overseers and stakeholders alike, and will surely
result in veterans being cheated as we all will ending up right back
here in this hearing room to fix it.
To come to an agreement, stakeholders needed to trust VA to do the
things they promised to do, and do them in good faith. There are a lot
of nuances that aren't able to be legislated, and the VSOs are going to
be providing constant feedback as we move forward with appeals
modernization. We believe that the architects of this proposal have
acted in good faith, and we support their efforts to modernize the
appeals process for the good of veterans, for the good of the process,
and for the good of the American taxpayer.
As affirmed in The American Legion's Resolution No. 5: Department
of Veterans Affairs Appeals Process, The American Legion urges the
Department of Veterans Affairs to address all claims, to include its
growing inventory of appeals in an expeditious and accurate manner.\14\
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\14\ American Legion Resolution No. 05 (2016): Department of
Veterans Affairs Appeals Process
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The American Legion supports S. 1024: Veterans Appeals Improvement
and Modernization Act of 2017.
draft bill: department of veterans affairs accountability and
whistleblower protection act
To amend title 38, United States Code, to improve the accountability of
employees of the Department of Veterans Affairs, and for other
purposes.
Reacting to the firing of Phoenix VA Healthcare System Director in
2014, then National Commander of The American Legion Mike Helm noted:
``This is one long-overdue step in a journey that is far from
over. Unfortunately, as we all soon discovered after the story
broke last April, this problem was not isolated to Phoenix. It
was widespread, and we expect to see additional consequences,
even criminal charges if they are warranted, for anyone who
knowingly misled veterans and denied them access to medical
services.'' \15\
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\15\ ``Legion: VA director's overdue firing applauded'': Nov. 24,
2014
The American Legion believes it is important to ensure there is
accountability at all levels within VA and that the process is
transparent. Where VA employees are found to have engaged in
wrongdoing, The American Legion supports any legislation that increases
the authority given to the Secretary of VA to remove unscrupulous
employees.
The American Legion supports increased accountability, and those
employees found guilty of having committed crimes at the expense of the
veterans entrusted to their care should never profit from those crimes.
To receive bonuses based on manipulation and lies, to abuse relocation
reimbursement, or to remain employed found watching pornographic
material at work is unacceptable. We also believe in providing the
Department of Veterans Affairs (VA) whistleblowers with a means to
solve problems at the lowest level possible, while offering them
protection from reprisals and genuine protection for those who reprise
against them. This bill would establish a new system that employees
could use to report retaliation claims, and supervisors would be
required to report all retaliation claims to facility directors,
eliminating the possibility for facility leaders to claim plausible
deniability of such assertions.
There are some apprehensions with this bill we would like to
address. The provision that seeks to lower the threshold of evidence
from ``preponderance of the evidence'' to ``substantial evidence'' is
concerning. We do not want to encourage an atmosphere that reduces the
burden of managers to collect appropriate documentation. Managers need
to be held accountable to perform expert leadership and oversight, and
that includes being diligent about documenting poor performance or bad
behavior. Egregious behavior would not be affected by this provision as
it would surpass the already established evidentiary threshold of a
preponderance of evidence.
The second concern we raise is with the provision that strips the
Merit Systems Protection Board (MSPB) of the ability to mitigate
penalties. While on its face it seems logical to accept the agency's
decision regarding discipline or termination, The American Legion is
reminded of the Linda Weiss decision which the presiding judge stated,
in part:
``In conclusion, I find that appellant has rebutted the
presumption that the penalty was reasonable. If 38 U.S.C.
Sec. 713 did not prohibit it'; I would mitigate the penalty.
However, because that is not allowed, the only option is to
reverse the action outright. 5 CFR Sec. Sec. 1210.18(a), (d).
Therefore, agency's decision to remove the appellant from the
Federal service is reversed.'' \16\
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\16\ Weiss v. DVA, 2016 MSPB (February 16, 2016)
The American Legion wants to ensure that Congress provides the VA
with tools that are functional, enforceable, and allow the agency to
act in a manner that promotes good order, discipline, and esprit de
corps. Poorly crafted legislative language that fails legal and
constitutional standards only serves to ruin morale and create a system
of indecision and lack of surety.
The American Legion applauds this bipartisan effort to provide
Secretary Shulkin additional tools to increase accountability and
address poor performance within the Department of Veterans Affairs.
Despite multiple verified cases of gross misconduct for multiple
employees, the Secretary of the VA had little authority to hold
employees accountable, and many veterans subsequently lost faith in the
system. This is why The American Legion vociferously urged Congress to
provide the Secretary much-needed authorities so that he may take
action to improve morale, incentivize desired behavior, deter
misconduct, and eliminate corrupt or uncaring employees.
American Legion Resolution No. 3: Department of Veterans Affairs
Accountability, supports any legislation that provides the Secretary of
Veterans Affairs the authority to remove any individually from the VA
that the Secretary determines warrants such authority or to transfer or
demote an individual to a General Schedule position without any
increased monetary benefit.\17\
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\17\ American Legion Resolution No. 3 (2016): Department of
Veterans Affairs Accountability
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The American Legion supports the Draft Bill titled: Department of
Veterans Affairs Accountability and Whistleblower Protection Act.
draft bill: serving our rural veterans act
To authorize payment by the Department of Veterans Affairs for the
costs associated with service by medical residents and interns
at facilities operated by Indian tribes, tribal organizations,
and the Indian Health Service, to require the Secretary of
Veterans Affairs to carry out a pilot program to expand medical
residencies and internships at such facilities, and for other
purposes.
The provisions of this bill fall outside the scope of established
resolutions of The American Legion. As a large, grassroots
organization, The American Legion takes positions on legislation based
on resolutions passed by the membership in meetings of the National
Executive Committee. With no resolutions addressing the provisions of
the legislation, The American Legion is researching the material and
working with our membership to determine the course of action which
best serves veterans.
The American Legion has no current position on this Draft Bill
titled: Serving our Rural Veterans Act
draft bill: veteran partners' efforts to enhance reintegration (peer)
act
A bill to require the Secretary of Veterans Affairs to carry out a
program to establish peer specialists inpatient aligned care
teams at medical centers of the Department of Veterans Affairs,
and for other purposes.
A peer support specialist is a person with significant life
experience who works to assist individuals with chemical dependency,
mental disorder, or domestic abuse and other life effecting issues. Due
to a PEER's life experiences, such persons have expertise that
profession training cannot replicate. Tasks performed by peer support
specialists may include:
Assisting their peers in articulating their goals for
recovery,
Learning and practicing new life skills,
Helping monitor their progress,
Assisting them in their treatment,
Modeling effective coping techniques and self-help
strategies based on the specialist's own recovery experience, and
Supporting in obtaining effective services in and outside
the VA.
This draft bill would expand VA's current use of peer specialists
being utilized in primary care settings including mental health
clinics. The PEER Act would require the Department of Veterans Affairs
(VA) to establish a pilot program of peer specialists to work as
members of VA's patient-aligned care teams (PACT), for the purpose of
promoting the integration of mental health services in a VA primary
care setting. This bill would authorize the establishment of this pilot
program in 25 VA sites, to include the VA's five Polytrauma centers
across the country. The bill would also require a series of reports,
including a final report to recommend whether the program should be
expanded beyond the pilot program sites.
As affirmed in The American Legion's Resolution No. 364: Department
of Veterans Affairs to Develop Outreach and Peer to Peer Program for
Rehabilitation, The American Legion urges the President of the United
States and the U.S. Congress to call on the Secretary of Veterans
Affairs to develop a national program to provide peer to peer
rehabilitation services based on the recovery model tailored to meet
the specialized needs of current generation combat-affected veterans
and their families.\18\
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\18\ American Legion Resolution No. 364 (2016): Department of
Veterans Affairs to Develop Outreach and Peer to Peer Programs for
Rehabilitation
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The American Legion supports the Draft Bill titled: Veteran
Partners' Efforts to Enhance Reintegration (PEER) Act
conclusion
The American Legion thanks this Committee for the opportunity to
elucidate the position of the over 2.2 million veteran members of this
organization. For additional information regarding this testimony,
please contact the Deputy Director of Legislative Affairs, Mr. Derek
Fronabarger, at The American Legion's Legislative Division at (202)
861-2700 or [email protected]
Chairman Isakson. Thank you very much, Mr. Celli. Ms.
Keleher?
STATEMENT OF KAYDA KELEHER, ASSOCIATE DIRECTOR, NATIONAL
LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED
STATES
Ms. Keleher. Chairman Isakson, Ranking Member Tester, and
Members of the Committee, it is my honor to represent nearly
1.7 million members of the Veterans of Foreign Wars of the
United States and our Auxiliary.
In 2016, the VFW launched our In Their Words campaign,
which prioritized the needs of women veterans. To do this, we
knew we needed to hear directly from women veterans to get
their feedback on what it is that they need and want. We set up
our women's committee and conducted a survey of 51 questions,
with nearly 2,000 female servicemembers and veterans who
responded.
Since the conclusion of this survey, the VFW has worked
tirelessly to priority the need to improve gender-specific
health care, recognition of women veterans, improved outreach
to them, and to break down the unique barriers that they face
for homelessness.
This is why the VFW supports and applauds the work put into
both the Deborah Sampson and Women Veterans Access to Quality
Care Acts. Both of these pieces of legislation would greatly
improve the quality of and access to care and benefits for
women who use VA.
Peer-to-peer support is something the VFW has long been
supportive of and found immense value in. The Deborah Sampson
Act would greatly expand these programs, providing women
veterans with more peer and gender-based one-on-one assistance.
Peer-to-peer support has been proven greatly effective in
assisting veterans within VA time and time again, and it
provides low-cost access to basic needs to veterans.
The VFW does suggest Congress amend the Deborah Sampson Act
in Title IV, eliminating barriers to access, and recommends
removing the option of having one part-time provider. One part-
time provider has too much room to leave patients with limited
access. It is also a common complaint we hear from our
membership. The VFW believes all clinics must be properly
employed, which includes maintaining at least one full-time
primary care provider in every women's clinic.
The VFW also supports the Creating a Reliable Environment
for Veterans' Dependents Act, which we believe would be
invaluable in assisting women veterans who may be single
mothers to overcome homelessness. No veteran deserves to be
sleeping on the streets at night, and their children should not
be forced to sleep alongside them under bridges, without a
home. This is why the VFW suggests amending the language saying
that the recipient ``may'' receive per diem payments to the
recipient ``shall'' receive per diem payments.
The VFW also strongly supports the Military and Veteran
Caregiver Services Improvement Act of 2017. This legislation
would greatly enhance services provided to the caregivers of
those severely disabled in the line of duty, regardless of
which era they served in. These improvements are desperately
needed and the VFW has long supported them. Severely wounded
and ill veterans of all conflicts have made incredible
sacrifices, and all their family members who care for them are
equally deserving of our recognition and support. The
caregivers from pre-9/11 conflicts, whether they be World War
II, Vietnam, Korea, or Desert Storm, have suffered long enough.
It is time Congress properly recognizes their sacrifice and
supports them with everything that they have deserved.
The VFW supports the Veteran Appeals Improvement and
Modernization Act of 2017. The VA claims and appeals process
has long been in need of reform and reconstruction. The current
process has become a bureaucratic system impossible for the
average veteran to understand, and with the time for
decisionmaking sometimes taking up to 6 years. This legislation
would provide veterans with three options of how their appeals
could be reviewed, drastically shortening wait times. That is
why Congress must pass this legislation to simplify, expedite,
and modify veterans' appeals.
The VFW supports the Department of Veteran Affairs
Accountability and Whistleblower Protection Act of 2017. This
legislation would ensure VA has the authority to remove their
bad actors from payroll in a timely manner, while still
allowing these employees their due process rights. Instances
where VAs trying to fire an employee but it takes 2 years,
while the employee is still maintaining their salary, is
unsatisfactory. It is also unsatisfactory when employees are
afraid to speak up about wrongdoings for fear of retaliation.
This legislation would provide a security net of protection
allowing these employees to voice possible wrongdoings, without
fearing any form of backlash from their superiors. Those
employees who are afraid to speak up and uphold--those
employees who are unafraid to speak up and uphold principles of
VA should be cherished and not made afraid of what they need to
do to do the right thing.
Chairman Isakson, Ranking Member Tester, and Members of the
Committee, this concludes my testimony. Thank you again for the
opportunity to represent the Nation's largest and oldest major
combat veterans organization. I look forward to your questions.
[The prepared statement of Ms. Keleher follows:]
Prepared Statement of Kayda Keleher, Associate Director Of National
Legislative Service, Veterans of Foreign Wars of the United States
Chairman Isakson, Ranking Member Tester and Members of the
Committee, on behalf of the men and women of the Veterans of Foreign
Wars of the United States (VFW) and its Auxiliary, thank you for the
opportunity to provide our remarks on pending legislation.
s. 23, biological implant tracking and veteran safety act of 2017
The VFW supports this legislation that would direct the Department
of Veterans (VA) to implement a standard identification protocol for
use in the tracking and procurement of biological implants. By
implementing one standard for device identification and tracking
medical devices, such as prosthetics, which is developed and approved
by the Food and Drug Administration (FDA), VA will be better able to
inventory, track expiration dates and flag devices nearing their
expiration. This would also assist in ensuring women veterans are able
to obtain gender-specific prosthetics in a timely manner.
In the past, the VA Office of Inspector General (VAOIG) has
consistently reported on shortcomings within VA in regard to their
management of prosthetics. The most recent audit--Report No. 11-02254-
102, published March 8, 2012--highlighted challenges the VFW still
believes must be addressed. VAOIG suggested that VA better manage their
prosthetic inventories to avoid surplus spending and lack of patient
access to prosthetics due to supply shortages. This excessive spending
and prosthetic supply shortages are due to the lack of VA systems
integrating with the prosthetic inventory system, which causes dilemmas
between the two inventory systems.
s. 112, creating a reliable environment for veterans' dependents act
The VFW supports adding per diem reimbursement for those homeless
veterans with dependents to the list of services available for veterans
in need. The struggle for homeless veterans is enough of a burden as
is, and providing some financial support for veterans with dependents
while they seek help is something that the VFW sees as an important
change. While the VFW supports this bill, we ask that some improvements
be made. The language of the bill states that the recipient of the
grant ``may'' receive per diem payments under this subsection. We would
like to see this language changed to ``shall.'' This would ensure
veterans in the greatest need will receive financial assistance.
s. 324, state veterans home adult day health care improvement act of
2017
The VFW supports this legislation, which would expand adult day
health care benefits for veterans who are eligible for long-term
inpatient care. Currently, veterans who are at least 70 percent
service-connected are eligible to receive cost-free nursing home or
domiciliary care at any of the more than 120 state veterans' homes
throughout the country. While nursing home care is a necessity for
veterans who can no longer live in the comfort of their home, the VFW
strongly believes veterans should remain in their homes as long as
possible before turning to inpatient and long-term care options. This
legislation would ensure veterans have the opportunity to receive adult
day care so they can remain in their homes as long as possible.
s. 543, performance accountability and contractor transparency act of
2017
The VFW supports the intent of this bill, but we do not believe
this legislation is needed. There are a few sections of this bill that
seem redundant with laws or practices already in place. We understand
the effort to place VA officials, and not contractors, as the first in
line for accountability for underperforming projects, but that seems to
be an administrative issue. As for the penalties and website posting,
we believe those already exist, and adding legislation to those would
further obscure an already complicated system.
s. 591, military and veteran caregiver services improvement act of 2017
The VFW strongly supports this legislation, which would greatly
enhance the services provided to caregivers of servicemembers and
veterans who were severely disabled in the line of duty. Family
caregivers choose to put their lives and careers on hold, often
accepting great emotional and financial burdens, and the VFW believes
that our Nation owes them the support they need and deserve. This bill
would accomplish this in a number of ways, including extending benefits
to caregivers of veterans with service-connected illnesses, offsetting
the costs of their child care, providing them with financial advice and
legal counseling, expanding their respite care options, and requiring
VA to report on the progress of the program.
This legislation would extend caregiver eligibility to severely
injured and ill veterans of all eras. This is a desperately needed
change that the VFW has long supported. Severely wounded and ill
veterans of all conflicts have made incredible sacrifices, and all
family members who care for them are equally deserving of our
recognition and support. The fact that caregivers of previous era
veterans are currently excluded from the full complement of program
benefits implies that their service and sacrifices are not as
significant, and we believe this is wrong. We support the five year
phase-in plan, which would incrementally grant program eligibility
based on the severity of the veteran's conditions, as we believe this
would give VA the opportunity to responsibly expand and improve the
program without compromising services to current beneficiaries.
The VFW hears from our member often about eligibility for VA's
Program of Comprehensive Assistance for Family Caregivers and their
message is clear: they strongly support expanding full caregiver
benefits to veterans of all eras. As an intergenerational Veterans
Service Organization that traces its roots to the Spanish American War,
this is not surprising. Our members are combat veterans from World War
II, the wars in Korea and Vietnam, the Gulf War, and various other
short conflicts, in addition to current era veterans. They rightly see
no justifiable reason to exclude otherwise deserving veterans from
program eligibility simply based on the era in which they served.
This legislation would require an annual evaluation report to
determine how many caregivers are receiving benefits, assess training
that VA provides caregiver coordinators, and review outreach
activities. The VFW believes Congress should also track the number of
times and reasons why VA revokes the benefit from veterans. The VFW has
heard from too many veterans that they were kicked out of the program
despite still needing the assistance of a caregiver for daily living
activities.
The VFW commends VA for recently extending the temporary suspension
of revocations until it is able to properly address the inconsistent
implementation of the program throughout the VA health care system. VA
must make several improvements to the existing program including the
appeals process when veterans disagree with the eligibility
determination of their care teams, ensuring eligibility determinations
are consistent throughout the system, and enhancing the off-ramp
process to ensure veterans and their caregivers are given enough time
and support to properly adjust before graduating from the program.
The VFW strongly believes VA must review previous revocations for
accuracy and improve the program, specifically instances of veterans
whose eligibility was revoked despite being in the highest tier.
However, the VFW does not believe that it is necessary to delay
expansion of the program. The caregivers of pre-9/11 veterans have
suffered long enough. It is time Congress properly recognizes their
sacrifice and provides them the support they deserve.
s. 609, chiropractic care available to all veterans act of 2017
The VFW supports this legislation which would provide chiropractic
care and services to veterans receiving health care at VA. According to
VA, musculoskeletal and connective tissue diseases are commonly
diagnosed medical issues for Post-9/11 veterans, with nearly 200,000 of
these veterans pursuing care at VA for these conditions since 2002. Our
nation is also facing an opioid epidemic, with many Americans and
veterans struggling with addiction to painkillers. This is why the VFW
believes it is absolutely crucial that VA be able to provide access to
chiropractic care to veterans in need. Studies have long proven
chiropractic adjustments can reduce chronic pain, joint swelling and
inflammation. Some studies even show chiropractic care can help reduce
headaches and migraines. The VFW urges Congress to pass this
legislation which would help improve the quality of care veterans
receive at VA, as well as provide another avenue to combat opioid
addiction for patients with chronic pain.
s. 681, deborah sampson act
The VFW supports this legislation to improve VA benefits and
services for women veterans. As the population of women veterans
continues to be the fastest growing within the veteran community, the
VFW has adamantly worked alongside Congress and VA to improve access,
care and benefits to women veterans. In 2016, the VFW launched our In
Their Words campaign which focused on the needs of women veterans. To
evaluate whether VA is meeting the needs and expectations of women
veterans, we conducted an extensive survey of nearly 2,000 women
veterans. From that data, the VFW broke down the areas in most need of
attention into four categories: health care, recognition, outreach and
homelessness. The Deborah Sampson Act addresses all four of these
critical areas, which is why we urge Congress to pass this legislation.
Title I--Peer-to-Peer Assistance
Peer-to-peer support has proven time and again to be invaluable to
veterans and VA. This is why the VFW advocates so strongly for the
constant expansion of peer-to-peer support programs. This legislation
would greatly expand these programs for women veterans, providing them
more peer and gender-based one-on-one assistance from others to whom
they can relate and connect. This is extremely crucial in instances
where a female may suffer from mental health conditions, but especially
in instances where a female veteran is on the verge of homelessness. In
our survey, 72 women reported being homeless or at risk of becoming
homeless. Of those women, 38 percent reported having children. These
women face unique barriers to overcoming homelessness, and frequently
commented on the lack of people who actually understand those barriers.
By providing peer-to-peer support for women with others who have gone
through the same hardships, VA would provide a level of understanding
and trust they desperately need.
Title II--Legal and Supportive Services
Since President Obama and then Secretary Shinseki launched the
campaign to end veteran homelessness, the VFW has been pleased to see
the homeless veteran population nearly cut in half, as well as more
attention brought to this important issue. That is not to say there are
not more challenges ahead on the road to eradicating veteran
homelessness. The VFW has long advocated for improvements to voucher
programs for women veterans, as well as access to gender-specific, safe
housing for those with families. This legislation would improve access
to legal and supportive services, which is crucial in instances such as
preventing homelessness, keeping families together and settling issues
that may complicate veterans' abilities to find meaningful employment.
Title III--Newborn Care
Typically, in private sector health care, a new mother has a month
to enroll her newborn child into an insurance program. Currently, VA
only covers newborn care for seven days. This week of coverage is not
enough to provide coverage if anything goes wrong--even in the not
uncommon instance of false positive testing--nor is it enough to ease
the new mother of unnecessary stress. Congress must expand coverage for
newborn children.
Title IV--Eliminating Barriers to Access
Barriers to health care have not been shunned from the spotlight in
regard to access at VA. This is all the more reason why VA must
continue being more proactive than reactive when it comes to access to
gender-specific care for women veterans. As the women veteran
population continues to grow, VA must ensure it provides care and
services tailored to their unique health care needs. Women deserve
access to the best treatment and care this Nation has to offer. That is
why it is crucial VA outfit existing facilities with basic necessities,
such as curtains for privacy, in women's clinics. These clinics also
need to maintain at least one primary care provider with expertise in
women's health who is able to train others. However, the VFW recommends
removing the option of one part-time provider. A part-time provider
would limit access to care for woman veterans and decrease the
provider's ability to maintain gender-specific expertise.
Title V--Data Collection and Reporting
VA has an extensive history of not gathering data which would allow
the statistical analysis necessary to better veterans' lives. This is
why the VFW strongly urges Congress to pass this legislation which
would collect and analyze data by sex and minority status.
s. 764, veterans education priority enrollment act
The VFW supports adding legislation that allows veterans using GI
Bill benefits to enroll in classes before the standard enrollment date.
Veterans have finite time to use their education benefits, and being
locked out of required classes due to capacity issues is a real problem
for student veterans. Many veterans take longer than the 36 months of
GI Bill eligibility to complete their education due to a combination of
factors such as the inability to enroll in the necessary classes
because of capacity issues; limited offering of classes throughout the
academic year; and restrictions on registration due to academic
progress or transferal from another school. Therefore, the creation and
implementation of a priority enrollment system--similar to other
special college populations such as college athletes--as well as
revised class enrollment and transfer policies, are necessary to ensure
that veterans are able to complete their educational goals within the
36 months of benefits allotted by the GI Bill.
Priority enrollment for student veterans was an issue championed by
a recent VFW-Student Veterans of America fellow Robert Davis. In his
proposal, Veterans Priority Enrollment, Davis highlighted how this no-
cost solution will enable veterans to complete their degrees in a more
expedient fashion, so as not to waste any unnecessary education
benefits while doing so. Veterans using the GI Bill have shown to be a
great return on investment for this country, and we should do
everything we can to enable their progress toward completion of their
degrees.
s. 784, veterans cost-of-living adjustment act of 2017
The VFW supports this legislation which would increase VA
compensation for veterans and survivors, and adjust other benefits by
providing a cost-of-living adjustment (COLA). The VFW is pleased to
support any bill increasing COLA for our veterans, however, we would
prefer to make COLA increases permanent and automatic.
Disabled veterans, along with their surviving spouses and children,
depend on their disability compensation, plus dependency and indemnity
compensation, to bridge the gap of lost earnings caused by the
veteran's disability. Each year veterans wait anxiously to find out if
they will receive a COLA. There is no automatic trigger that increases
these forms of compensation for veterans and their dependents.
Annually, veterans wait for a separate act of Congress to provide the
same adjustment that is automatically granted to Social Security
beneficiaries.
s. 804, women veterans access to quality care act of 2017
The VFW supports this legislation, which would improve health care
for women veterans using VA. As the fastest growing demographic within
the veteran population, women veterans have long deserved access to
high quality, equitable gender-specific health care. This legislation
would prioritize integrated standards to determine funding to ensure VA
facilities meet standard requirements of gender-specific care in areas
such as gynecology.
When the VFW conducted its survey of nearly 2,000 female veterans
in 2016, one of the most overwhelming open ended responses on how to
improve women's health care in VA was by increasing the number of
gynecologists. While VA offers gynecology, women veterans prefer seeing
a gynecologist rather than their primary care provider for this gender-
specific necessity.
This legislation would also greatly improve the quality of care
available to women veterans by increasing the number of providers who
specialize in gynecology, as well as thoroughly examining other areas
of gender-specific need, such as women veteran wait times, health
outcomes based on gender, and availability of gender-specific
equipment.
s. 899, department of veterans affairs veteran transition improvement
act
The VFW supports the Veteran Transition Improvement Act, which
would authorize service-connected disabled veterans to access care for
their service-connected injury during their first year of employment
with VA. Disabled veterans seeking Federal employment are rightly given
special preference during the hiring process. However, newly hired VA
employees begin with a paid sick leave balance of zero. This means that
within their first year of employment, newly hired disabled veterans
must choose between taking unpaid leave to seek medical care for their
service-connected conditions, or forego receiving care altogether. At
this time, disabled veterans who work for VA are the only Federal
employees forced to make this choice, as recently enacted laws have
permitted newly hired disabled veterans in other agencies the
opportunity to receive care for injuries sustained during their
military service. This legislation would increase the chances for a
successful transition into the civilian workforce and eliminate a
barrier to health care access.
s. 1024, veterans appeals improvement and modernization act of 2017
The VFW supports this legislation to reform and modernize the VA
claims and appeals process to better serve the needs of the veterans'
community. Over the years, the VA claims and appeals process has
morphed into a bureaucratic leviathan the average veteran cannot
possibly understand. Moreover, for veterans who disagree with their
assigned rating decision, they currently have no way to determine
whether choosing to appeal is a reasonable course of action without
seeking assistance from an accredited representative or legal counsel.
Then, should veterans choose to appeal VA's decision, exercising their
due process rights can take up to five years. To the VFW, this does not
seem like a veteran-centric, non-adversarial process.
The goal of this legislation is to once again build a veteran-
centric process that is easy to navigate and protects a veteran's
rights every step of the way. Last year, the VFW was one of more than a
dozen veteran community stakeholders that convened to discuss the way
forward in modernizing the VA claims and appeals processes. At the
time, the acknowledgement was that the system was cumbersome and no
longer satisfied the needs of veterans who rightfully expect timely and
accurate rating decisions on the benefits they earned. The resultant
product of these discussions is the framework included in this draft
legislation, and the VFW is proud to support it.
Through this legislation, Congress will modify the options for
veterans to pursue accurate rating decisions prior to filing a formal
appeal, while simultaneously preserving their earliest possible
effective date. This legislation also directs VA to improve its award
notifications for veterans, outlining seven specific pieces of
information each decision notice to a veteran shall include. Improved
notification letters have been a top priority of the VFW and our
partner organizations for years, and we are happy to see the Committee
pursue this aggressively. To the VFW, inadequate notification letters
have been a fundamental failure in the VA claims process for decades.
In their current format, veterans have no reasonable way to understand
how VA arrived at their benefit decision, meaning veterans have no way
to reasonably conclude whether or not the decision is accurate and
whether or not they need to pursue another avenue of recourse.
As accredited representatives, one of our top responsibilities is
explaining rating decisions to veterans and deciphering which evidence
was used to render a decision and how VA evaluated that evidence.
Improved decision notices will put some of this power back into the
veteran's hands, ensuring they are well informed of their rating and
how VA arrived at its conclusion. This sets the veteran up for success
in navigating the process and has the potential to cut down on appeals
where the veteran simply may have misunderstood their rating decision.
Coupled with improved notifications, this legislation codifies
three specific paths through which veterans can arrive at a fair and
understandable rating decision, while preserving the earliest possible
effective date. Two of these paths--higher level review and
supplemental claims readjudication--offer recourse for the veteran
without filing a formal appeal, offering the veteran and VA the
opportunity to rectify discrepancies before the veteran formalizes an
appeal.
Currently, when a veteran receives a rating decision, they must
choose whether or not to formally file a notice of disagreement,
kicking off a potential years-long process to arrive at a new decision,
sometimes when only small matters of evidence or interpretation of the
law need to be addressed. By redesigning appeal options, the process
remains non-adversarial as long as possible, and also encourages VA to
produce quality rating decisions at the local level, instead of punting
more complicated cases for the Board of Veterans Appeals (BVA) to
review.
Critics have called these two new paths at the regional office an
``erosion'' of veterans' due process rights. This is an inaccurate
assessment that fails to acknowledge that the VA claims process is
supposed to be veteran friendly and easily navigable by any veteran who
seeks to access his or her earned benefits. Moreover, the new framework
actually expands veterans' due process rights by offering additional
recourse at the local level, preserving routes to the BVA and the
courts, and preserving a veteran's right to seek legal counsel after an
initial rating decision.
Though the VFW always encourages veterans to seek professional
assistance from an accredited representative whenever possible, a
perfect system would be one where veterans do not need professional
assistance, and certainly do not need to retain a lawyer, simply to
claim an earned benefit. The VFW believes this proposed framework, if
properly implemented, moves veterans closer to such a system.
The most critical new protection for veterans is the lane in which
veterans can continually submit new and relevant evidence to VA within
one year of a rating decision and receive a new rating decision on the
evidence of record, preserving their original effective date. Coupled
with improved notification letters, this option could be a game changer
for veterans, resulting in more favorable decisions at the local level.
First, lowering the evidentiary threshold to receive a new rating
decision to only new and relevant is an improvement for veterans. The
old standard was new and material. While the VFW would prefer that VA
only be required to consider new evidence, we support this change which
would ease the evidentiary burden for veteran claimants, potentially
resulting in more favorable decisions.
Key to the success of this lane is communication among VA, the
veteran, and the veteran's advocate where applicable. If a veteran
receives a clear and understandable rating decision, but notices that
certain evidence was not contained in the record, they now have an
opportunity to formally submit this and receive a new, timely rating
decision, instead of pursuing years of a formal, contentious appeal.
Moreover, accredited veterans' advocates now have a new tool to help
resolve claims at the earliest possible time, ensuring that their
clients receive every benefit they have earned.
To the VFW, this is the best possible outcome. According to VA's
own data, more veterans are seeking our assistance every year to access
their earned benefits. Last year, the VFW took on four new claimants
for every claimant we lost. While we like to tout that this is a
testament to the professionalism of our staff, we also know that this
kind of growth means that we need to help VA get it right the first
time. Prolonging a veteran's claim is bad all around. It puts
unnecessary stress on the veteran and it makes VA look like an
irresponsible steward of benefits. At a time when more veterans need
access to benefits, the VFW supports offering more non-adversarial
recourse at the local level to arrive at quality rating decisions. This
is what our veteran clients expect, and this is why we support this new
framework.
The VFW also supports the maintenance of two separate dockets at
BVA to adjudicate new appeals, though we have persistent concerns about
the timeliness of decisions in each docket and the potential
disincentive for veterans to pursue an appeal with a hearing. That
being said, the VFW supports docket flexibility so that BVA can
properly manage its workload and provide veterans with timely
decisions. However, in testimony earlier this year, VFW Commander-in-
Chief Brian Duffy called for the simultaneous maintenance of five
separate dockets at BVA to best reflect the legacy workload as well as
the new system workload, including one docket for appeals with no new
evidence and no hearing; one for appeals with new evidence but no
hearing; and one for appeals with both new evidence and a hearing.
When the Committee first started discussing the concept of appeals
reform for the 115th Congress, the VFW and several of our partner
Veterans Service Organizations saw this as an opportunity to once again
discuss potential conflicts that arose in the initial discussions in
2016. One significant conflict was the ability of veterans with appeals
languishing in the legacy system to be able to opt into the new
framework. In this legislation, we are pleased to see that the
Committee addressed these concerns by articulating formal ``off ramps''
for legacy appeals to opt into the new system at critical decision
points.
To the VFW, this is a benefit to affected veterans and to VA.
First, veterans whose appeals have been mired in the old appeals system
will have several opportunities to take advantage of new processes,
such as submitting new and relevant evidence when their claims are
remanded back to the Regional Office. This will allow veterans an
opportunity to avoid another lengthy appeal process and allow VA to
address the issues at the Regional Office in a timely manner. For VA,
the VFW believes this will be a critical tool in helping to adjudicate
the backlog of legacy appeals, resulting in more timely, favorable
decisions for veterans.
The VFW understands that VA had some concerns about these off ramps
and the strain on resources at the local level. The VFW does not share
these concerns as VA has the responsibility to adjudicate its workload
regardless of where the claim happens to be in the process. Moreover,
this reinforces the VFW's calls on Congress to properly resource the
Veterans Benefits Administration (VBA) and BVA to manage their
workload. Without proper resources, any claims and appeals framework
will fall prey to dangerous backlogs, resulting in unacceptable benefit
delays for veterans.
Since the first discussions on appeals reform with VA, the VFW has
been very clear that any changes to the system must be coupled with
aggressive initiatives to adjudicate legacy appeals in a timely manner
through both legislative authority and proper resourcing. The VFW had
asked for off ramps to allow veterans with legacy appeals to opt into
the new process, and we thank the Committee for including these off
ramps in this legislation.
The VFW must stress the importance of properly resourcing BVA and
VBA to adjudicate the legacy appeals backlog and the potential influx
of supplemental claims and higher level review requests at the VA
Regional Office. The VFW's former National Veterans Service Director,
Jerry Manar, used to say that VA liked to play Whack-a-Mole with its
pending workload. When initial claims were backlogged, they
concentrated resources on initial claims. This has since set off a
chain reaction that has resulted in a backlog of appeals and other
claim actions at the Regional Office level. Every time there is a
crisis, VA has the habit of reallocating its resources to address the
latest crisis. This only leads to other crises. VA must be properly
resourced to manage its workload if we expect this new framework to
succeed.
The VFW was also happy to see that the Committee is asking for
extensive reporting from VA on legacy appeals. The VFW supports many of
these data points, and has had similar questions about the appeals
process over the years, particularly the disaggregated time that VA
waits for a claimant to take action and the time a claimant waits for
VA to take action. We believe that this report will help to better
understand the pitfalls that led to the appeals backlog and help avoid
them in the new framework.
A modernized appeals system must be responsive to future needs of
veterans. Veterans benefits date from the beginning of the United
States, and our citizens and government have stepped up to care for
veterans as the nature of war and society has changed. Judicial review
of veterans' benefits decisions has been in place for almost thirty
years, and a decision this past week by the Federal Circuit in Monk v.
Shulkin recognized veterans have a right to aggregate their appeals
into class actions. While this decision does not directly affect the
modernized appeals framework, it will also help to eliminate the
``hamster wheel'' appeals process, and will affect regulations handling
new procedural directives from the courts. Congress must maintain close
oversight over the timely handling of appeals for veterans who have
been waiting the longest.
At the same time, the modernized appeals system also needs the
oversight of Congress to continually improve the process. We believe
the changes proposed in the legislation being considered today would go
a long way in forming a more veteran-centric process. But appeals do
not exist in a vacuum, and the feedback we receive must drive
improvements to the processes used by VA and stakeholders to obtain
fair, accurate decisions at the earliest point possible, and improve
the quality of life for veterans and their families.
The VFW is encouraged by the legislation you are considering today
and strongly supports efforts to reform the claims and appeals system
to build a more veteran-centric appeals process. For years, we have
been stuck in the same place, afraid to take action out of fear we will
make the wrong decision. The problem is that if we stay put, the
situation will never improve. That is unacceptable for the veterans who
deserve timely access to their earned benefits. The VFW believes it is
time to improve this process. We encourage the Committee to include the
VFW's recommendations when marking up this legislation, and we look
forward to continuing to work with the Committee to advance these
critical reforms.
s. 1094, department of veterans affairs accountability and
whistleblower protection act of 2017
The VFW believes that VA and Congress must ensure the Secretary of
Veterans Affairs has authority to quickly hold employees accountable
for wrongdoing which may endanger the lives of veterans. That is why we
support this important legislation. However, we also believe it is as
important to ensure VA can quickly fill vacancies within its workforce
left open by removing bad actors within VA.
This important bill includes strong accountability reform for VA
employees who do not live up to the standards that veterans deserve.
Three years after the patient wait time manipulation crisis at the
Phoenix VA Health Care System put a national spotlight on employee
accountability, the Secretary of Veterans Affairs still lacks the
proper authority to swiftly terminate workers who do not deserve to
work at VA. The Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017 would improve the Secretary of
Veteran Affairs' authority to discipline employees who commit
malfeasances.
The VFW salutes Chairman Isakson, Ranking Member Tester, Senator
Rubio and the House Committee on Veterans' Affairs leadership for
reaching a bipartisan deal on this important bill which would better
protect whistleblowers and hold employees accountable for their conduct
or performance. The need for legislation follows a Federal appellate
court decision this past week that rendered unconstitutional the
process used to fire the former director of the Phoenix VA Health Care
System.
The VFW believes whistleblower protection is an essential addition
to the accountability legislation. A Federal survey shows that less
than 50 percent of VA employees feel that arbitrary action, personal
favoritism and coercion for partisan political purposes are not
tolerated. More so, only 43 percent felt senior leaders maintain high
standards of honesty and integrity; only 37 percent are satisfied with
policies and practices of senior leaders; and only 36 percent feel
senior leaders generate high levels of motivation and commitment in the
workforce. These statistics are alarming and suggest that for a culture
of accountability to be established, change must start from the top,
not the bottom.
The VFW also believes VA needs improved authorities to hire high
quality employees. In our report, Hurry Up and Wait, we highlight
deficiencies in VA human resources practices, outlining several
recommendations to improve the hiring process and customer service
training. We feel that VA's hiring process moves too slowly. Northern
Virginia Technology Council suggested that for VA to be successful, it
should aggressively redesign its human resources processes by
prioritizing efforts to recruit, train, and retain clerical and support
staff. In today's economy, hiring the best people is extremely
critical. In many cases, it is more effective to coach a current
employee, even a poor performing one, than it is to find, interview,
engage and train new employees.
We fear that VA's workforce productivity could decline due to
staffing shortages and low employee morale if VA does not reform its
hiring processes. The VFW looks forward to working with Congress to
expedite passage of this legislation and find workable solutions to VA
human resources' issues to ensure VA can move quickly to fire employees
who put veterans at risk, and at the same time move quickly to hire the
best applicants to set VA on a path to restore trust in the system.
draft bill, serving our rural veterans act (sullivan, tester)
This legislation would allow for VA to make payments for the
training of interns and residents at approved locations other than VA
facilities and to establish a pilot program for additional training.
The VFW supports this legislation. The use of Indian Health Service
facilities and other approved Federal locations is a common sense
answer for VA to use in solving their need to train medical
professionals. Those who participate in the program would spend time at
an approved facility as defined in the legislation. This could be an
opportunity to help solve a known problem and allow VA to recruit
capable and dedicated medical professionals to care for those who have
borne the battle.
draft bill, veteran partners' efforts to enhance reintegration
act (blumenthal)
The VFW supports this legislation, which would require VA to
integrate peer support specialists into Primary Care Patient Align Care
Teams (PACT). Peer support specialists provide a valuable service to
veterans coping with mental health conditions. Such veterans often look
for guidance from fellow veterans who have successfully completed
treatment and have learned to cope with conditions they are
experiencing. While current law requires each VA medical center to hire
a minimum of two peer support specialists, it does not require VA
medical facilities to incorporate them into the clinical settings. As a
result, many peer support specialists are not used to their full
potential. Many peer support specialists currently lead successful
mental health care programs and services. The VFW supports efforts to
expand such best practices.
The VFW is glad to see this legislation would require each medical
center that participates in the pilot program to consider the gender-
specific needs of women veterans when carrying out the pilot program.
In our survey of women veterans, survey participants identified the
lack of gender-specific services as the greatest need in VA health care
facilities. Survey participants also indicated their desire to select a
provider of the same gender, specifically for veterans who have mental
health conditions that may be a result of military sexual trauma. The
VFW supports efforts to hire women peer support specialists to ensure
women veterans have the opportunity to seek guidance from other women
veterans who have learned to cope with mental health conditions related
to military sexual trauma.
Mr. Chairman, this concludes my testimony. I am prepared to answer
any questions you or the Committee Members may have.
Chairman Isakson. Thank you, Ms. Keleher.
Mr. Atizado?
STATEMENT OF ADRIAN ATIZADO, DEPUTY NATIONAL LEGISLATIVE
DIRECTOR, DISABLED AMERICAN VETERANS
Mr. Atizado. Chairman Isakson, Ranking Member Tester,
Senator Murray, distinguished Members of the Committee, first I
want to thank you for inviting DAV to testify on the bills
under consideration for today's hearing. As many of you know,
DAV is a nonprofit organization, about 1.3 million strong, all
wartime service-disabled veterans, and we have one purpose: to
ensure veterans lead high-quality lives with respect and
dignity.
Mr. Chairman, DAV operates the Nation's largest claims and
appeals assistance program, providing free representation to
more than 1 million veterans and their families. DAV fully
supports S. 1024, the Veterans Appeals Improvement and
Modernization Act of 2017, and we remain committed to reform
the appeals and claims process.
As my colleagues have mentioned, the new appeals framework
proposed within this bill will protect the due process rights
of veterans, while creating multiple options for them to
receive their decisions in a more judicious manner.
The critical core of the new framework would allow veterans
to have multiple options to reconcile unfavorable claims
decisions. It would introduce new evidence at both the Board
and at BVA, and protect earliest effective dates without having
to be locked into a current long and arduous formal appeals
process at the board. Now claimants with legacy appeals would
be able to enter the new system at various junctures, and for
assurance that BVA and the board are prepared to make this
major transition, the Secretary is required to submit a
detailed transition and implementation plan, and, with
consultation with stakeholders, certify that the new system is
ready.
We are also pleased to express our full support for the two
bills before you today responding to the needs of women
veterans, S. 681, the Deborah Sampson Act, and S. 804, the
Women Veterans Access to Quality Care Act of 2017. Together,
these bills would address longstanding concerns and barriers to
care that have been discussed in our report, the 2014 report,
``Women Veterans: A Long Journey Home,'' as well as our
national resolution number 129, which calls for enhanced
services for women veterans.
To name just a few of the important provisions in both of
these bills, we believe the peer retreats and increased use of
evidence-based peer specialists will help ease transition,
isolation, and assist woman veterans with post-deployment
readjustment issues. A more robust maternity care benefit for
woman veterans would be offered by extending days of coverage
for newborn care from 7 to 14 days. It would also cover
transportation of newborns, if medically necessary.
There is a provision authorizing $20 million to address
VA's facility and environmental deficiencies that would ensure
women veterans' safety, confidentiality, and privacy, as well
as dignity, as patients in the VA health care system. Requiring
VA facilities to have either a full- or part-time women's
health primary care provider and establish a woman veterans
program ombudsman to help women navigate the very large system
of the VA, and overcome any access to barriers to care.
Mr. Chairman, DAV strongly supports S. 591, the Military
and Veterans Caregiver Services Improvement Act of 2017. This
measure will allow severely ill and injured veterans from all
eras, who meet the requisite clinical eligibility criteria, to
be permitted to participate in VA's comprehensive program for
caregiver assistance. To ensure the program's integrity, this
measure would phase in this expansion based on who needs the
support the most, thus allowing VA to manage the new work load.
The bill would also improve the comprehensive caregiver program
by including child care and provide caregivers financial advice
and legal counsel.
DAV firmly believes it is simply unconscionable to deny
comprehensive caregiver support services to caregivers of
veterans severely injured in prior wars, and to deny same
services to family caregivers who clearly need help today--
today, after decades of sacrifice. For each year caregivers
programs keep a veteran at home, outside an institution, that
can save the taxpayer anywhere from $8,300 to as much as
$295,000. That is one veteran, 1 year.
Not only is this bill good for taxpayers, family
caregivers, and veterans, it is also the right thing to do.
This concludes my statement, Mr. Chairman. I would be happy
to answer any questions you or other Members of the Committee
may have. Thank you.
[The prepared statement of Mr. Atizado follows:]
Prepared Statement of Adrian M. Atizado, Deputy National Legislative
Director, Disabled American Veterans
Chairman Isakson, Ranking Member Tester, and Members of the
Committee: Thank you for inviting DAV (Disabled American Veterans) to
present our views on the bills under consideration at today's hearing.
As you know, DAV is a non-profit veterans service organization
comprised of nearly 1.3 million wartime service-disabled veterans. DAV
is dedicated to a single purpose: empowering veterans to lead high-
quality lives with respect and dignity.
s. 23, biological implant tracking and veteran safety act of 2017
This bill would require the Department of Veterans Affairs (VA) to
establish a biological implant inventory identification and management
system with the same features and requirements of an existing system in
use by the Food and Drug Administration to regulate origin, movement,
surgical implantation, and recall (if necessary) of any such biological
material.
The term biological implant would be defined as any ``animal or
human cell, tissue, or cellular or tissue-based product,'' and would
tie that definition to the existing regulatory definition under the
Federal Food, Drug, and Cosmetic Act.
The bill would set a number of milestone and deadline dates for
implementation, and would require VA to submit a series of reports to
document its progress in implementation of this system. Procurement of
biological implants would be restricted to vendors who meet certain
conditions laid out in the bill, and would sanction any VA procurement
employee involved in the procurement of biological implants who acted
with intent to avoid, or with reckless disregard of the requirements of
the bill.
A January 2015 report by the Government Accountability Office
discussed weaknesses in procedures and compliance of those procedures
on the purchase and tracking of surgical implants at VA facilities.
Since the report was issued, we understand VA's ability to identify
veterans who received an implant that is being recalled by the
manufacturer or the Food and Drug Administration has been sufficiently
strengthened, but that the compliance and requirements for purchasing
surgical implants remains a concern.
VA medical centers (VAMC) or the Veterans Health Administration's
(VHA) regional network contracting offices (NCO) can purchase, from the
open market, a specific surgical implant requested by a clinician with
appropriate clinical justification, rather than purchasing a similar
item through a VA-negotiated competitive contract.
However, not recording the serial number or lot number for a
surgical implant makes it difficult to systematically determine which
veteran received an implant subject to a subsequent manufacturer or
Food and Drug Administration recall. VHA policy stipulates that all
open-market purchases of non-biological implants require a waiver
approved by the VAMC Chief of Staff when a comparable item would have
been available through a VA-negotiated national committed-use contract.
DAV has received no resolution from our membership that deals with
the specific topic of surgical implants. However, DAV's Resolution No.
244 calls for VA to provide a comprehensive health care service for all
enrolled veterans. Better control of the origins, movement, surgical
implantation and recall, if necessary, of implantable biological
material would be in keeping with the intent of our resolution.
Therefore, DAV supports the intent of this bill.
As a technical matter, we recommend the bill language be amended to
add a new section ``Sec. 7330C,'' including subsequent references to
this new section rather than the currently referenced ``Sec. 7330B,''
which was has already been added by Public Law 114-315, title VI,
Sec. 612(a) on December 16, 2016.
s. 112, to amend title 38, united states code to authorize per diem
payments under comprehensive service program for homeless veterans to
furnish care to dependents of homeless veterans
Many community housing and supportive service programs available
for homeless veterans do not have appropriate and safe accommodations
to serve single-parent families. According to the National Coalition
for Homeless Veterans, many organizations with Grant Per-Diem (GPD)
programs do not have sufficient resources to provide housing for the
children of veterans, or have major restrictions on the services they
can provide, including age limits and the number of children per
veteran they can accept. If enacted, this bill would authorize per diem
payments under comprehensive service programs for homeless veterans to
provide services and housing to dependents of homeless veterans funded
by the VA GPD program.
According to the United States Housing and Urban Development Annual
Homeless Assessment Report (AHAR) in 2016, about 9 percent (39,471)
adults are homeless veterans and 3 percent (1,131) of these veterans
are homeless and part of a family. Several factors related to military
service can contribute to an increased risk of being homeless, such as
having a mental health diagnosis and combat or wartime service. For
women veterans these factors are increased. Over 300,000 women
servicemembers served in Iraq or Afghanistan--some with multiple tours
that exposed them to combat and other hazardous situations during
deployment. Research finds that women veterans are more likely to have
experienced sexual trauma than women in the general population, and are
more likely than male veterans to be single parents.
According to the Department of Defense (DOD), more than 30,000, of
the women who served in the wars of Iraq and Afghanistan, were single
parents and sole providers of dependent children. In its 2014
Sourcebook, VA reported about 46 percent of its women patients who
served in Operations Enduring and Iraqi Freedom and Operation New Dawn
had a mental health or substance use disorder diagnosis. Overall, it is
estimated that women veterans are between two and four times as likely
to be homeless as their non-veteran counterparts (according to a
Congressional Research Service report dated November 6, 2015).
DAV is pleased to support S. 112. This measure is consistent with
DAV Resolution No. 139, which calls for support of sustained and
sufficient funding to improve services for homeless veterans, including
homeless veterans with children.
s. 324, state veterans home adult day health care improvement act of
2017
If enacted, this bill would authorize the Secretary to enter into
new agreements with state veterans homes who provide medical
supervision model adult day health care (ADHC) for veterans who are
eligible for, but do not receive, skilled nursing home care under
section 1745(a) of title 38, United States Code. Eligible veterans are
those who require such care due to a service-connected disability, or
who have a VA disability rating of 70 percent or greater and are in
need of such care. Under this new authority, the payment to a state
home for medical supervision model ADHC would be at the rate of 65
percent of the amount payable to the state home if the veteran were an
inpatient for skilled nursing care, and payment by VA would be
considered payment in full to the state home.
Viewed as a more cost-effective option than institutional services,
adult day services today provided in elderly and adult day centers
include day care, day health, and respite for family caregivers, which
allows patients requiring long-term services and support to remain in
their homes near family and friends, and delays institutionalization in
nursing homes.
Adult day services have been divided into three models of care:
social, medical, or combined. Social models tend to focus on
socialization and prevention services, while medical models include
skilled assessment, treatment, and rehabilitation goals, and combined
models cover all areas. The distinction among these models has become
increasingly unclear as these models have evolved into a dynamic,
comprehensive model of care. Additionally, access to these centers is a
challenge and transportation costs of patients must be considered.
The state veterans home ADHC medical model program is designed not
just to promote socialization, stimulation, and maximize independence
while enhancing quality of life, but also to ensure veterans have
access to comprehensive medical, nursing, and personal care services.
In addition, veterans have access to a full array of clinical and
rehabilitative services during their day visits, equivalent to what is
offered to full time nursing home residents. Currently, VA's per diem
rate for state home ADHC is financially inadequate for most states to
operate a medical supervision model program, of which there are only
three in the Nation at present. This legislation, which is based on the
same concept as the existing ``full cost of care'' skilled nursing care
program for severely disabled veterans, would measurably support the
creation of more such programs, and thereby provide more veterans, and
their families, with options to avoid full-time institutionalization.
As this Committee is aware, there are many factors that impact the
sustainability of adult day centers, including state regulatory
requirements, staffing requirements and wages within a service area.
DAV is pleased to support S. 324 based on DAV Resolution No. 142. In
calling for enhancing VA's comprehensive program of long-term services
and supports for service-connected disabled veterans irrespective of
their disability ratings, this resolution also recognizes the need for
VA to optimize its relationship with State Veterans Homes to ensure
veterans in need of institutional and alternative forms of long-term
services and supports may avail themselves of state home facilities to
consider all options for their provision.
In addition, DAV understands that VA is close to finally releasing
long overdue regulations that may create separate per diem rates for
social and medical supervision model ADHC programs. Should such
regulations be implemented, Congress should consider expanding this
legislation to offer a ``full cost of care'' per diem rate for medical,
social and combined models of Adult Day Services programs for severely
disabled veterans.
s. 543, the performance accountability and contractor transparency
act of 2017
This measure would require entities entering into service contracts
with VA to include performance metrics on cost, schedule and
fulfillment of contract requirements. It further requires that the
Secretary to ensure that contracts set forth plans and milestones for
delivering specified services. For the largest contracts it requires
use of VA IT systems to ensure that contractors are fulfilling their
obligations and maintaining at least a threshold level of quality in
services rendered. DAV has no resolution on this legislation, but does
not object to its intent.
s. 591, the military and veteran caregivers services improvement act of
2017
DAV strongly supports S. 591, the Military and Veteran Caregivers
Services Improvement Act of 2017. This measure would allow severely ill
and injured veteran from all eras who meet the requisite clinical
eligibility criteria to be permitted to participate in VA's Program of
Comprehensive Assistance for Family Caregivers. To ensure the program's
integrity, the measure would phasing in veterans based on need,
allowing VA to manage the new workload, while keeping service quality
high. It would add a greater emphasis on mental health injuries and
Traumatic Brain Injury (TBI), and remove certain restrictions in
current law on those eligible to become caregivers.
The bill would also make improvements to the VA caregiver program
by including child care programs. Many family caregivers and veterans
with young children are unable to receive VA supports and services they
need without such a program. VA would also be authorized to provide
caregivers financial advice and legal counseling. Improvements would be
made in the DOD's Special Compensation for Assistance with Activities
of Daily Living (SCAADL) including aligning the eligibility with that
of the VA caregivers program, as well as making caregivers of
servicemembers receiving SCAADL eligible for a range of critical
supportive services provided by VA.
We support this bill based on DAV Resolution No. 131, which calls
for legislation that to provide comprehensive caregiver support
services, including but not limited to financial support, health and
homemaker services, respite, education and training, and other
necessary relief to caregivers of veterans from all eras of military
service.
VA's comprehensive caregiver program had been operating for over
three years when Congress held a hearing late last year on how best to
expand eligibility for the services and benefits of this program to
severely ill and injured veterans of all eras. During the hearing,
concerns were expressed about the program, and assertions were made
that improvements should be made to the existing program prior to its
further expansion.
We believe it is unconscionable to deny comprehensive caregiver
supports and services to family caregivers who clearly need help today
after decades of having cared for our Nation's severely ill and injured
veterans. Further, we believe that program improvements can be made
while expanding eligibility to the Program of Comprehensive Assistance
for Family Caregivers.
This is why DAV is bringing to bear our over 90 years of experience
assisting veterans, their caregiver, families and survivors as we are
working with the veteran community, VA, and Congress to address
concerns about the program's operation, communication, transparency and
fair treatment to ensure caregivers of severely disabled veterans today
and in the future will receive comprehensive supports and services they
need.
DAV recognizes the greatest obstacle to expanding this program is
the cost for enacting legislation that would provide comprehensive
caregiver support to all severely disabled veterans; nevertheless, we
must acknowledge the cost of deploying servicemembers to war.
Caregivers of veterans severely ill and injured before September 11,
2001, have borne that cost for years, with little recognition or
services for their sacrifices.
The years of sacrifices made by family caregivers has saved
taxpayer money by reducing reliance on and delaying admission to
nursing home facilities. The average cost per veteran per year in VA's
comprehensive program is $36,770 as compared to $332,756 VA pays per
veteran per year in a VA nursing home; $88,571 in a community nursing
home; and $45,085 in per diem payments in a State Veterans Home.
Research has also shown well-supported caregivers of aging
patients--such as World War II, Korea and Vietnam veterans--reduce
overall health care costs by minimizing medical complications, lowering
the number of hospital admissions and delaying admission into nursing
homes. The business case to expand the comprehensive caregiver program
has also been made in the report Hidden Heroes: America's Military
Caregivers, by the RAND Corporation. The loving assistance provided by
family caregivers saves taxpayers billions of dollars each year in
health care costs, and enables severely disabled veterans to live at
home rather than in institutions. DAV believes it is time for Congress
to act to improve the Program of Comprehensive Assistance for Family
Caregivers extend these supports and services to caregivers of severely
ill and injured veterans of all eras.
s. 609, the chiropractic care available to all veterans act of 2017
DAV supports S. 609, the Chiropractic Care Available to All
Veterans Act of 2017. This bill would require VA to offer chiropractic
care at 75 VA medical centers by the end of 2018 and at every VA
medical center by the end of 2020. DAV is pleased to support this
measure, which is in line with DAV Resolution No. 244, calling for
veterans' access to a ``full continuum of care, from preventive through
hospice services, including alternative and complementary care such as
yoga, massage, acupuncture, chiropractic and other nontraditional
therapies.''
Veterans with chronic pain and other conditions that do not respond
well to medical interventions are seeking alternative treatment options
that do not involve use of opioids or other traditional pharmaceutical
solutions. One study estimates that up to 40 percent of veterans from
Iraq and Afghanistan may use complementary or alternative care
practices. In the past decade, as access to chiropractic in VA has
grown, veterans' use of chiropractic services has grown dramatically.
VA currently offers chiropractic services as part of its medical
benefits package and VA indicates that about 65 VA medical centers have
chiropractors who are integrated into primary care, rehabilitation and
other specialized care teams.
We caution that while some VISN and local VAMC policies restrict
access to chiropractic services, VA must ensure such policies do not
subvert congressional intent. This measure would ensure incremental
expansion of chiropractic services at all VA facilities over the next
four years, so veterans who want access to this type of care can easily
access it in a VA health care setting.
s. 681, the deborah sampson act
Women veterans are a rapidly increasing component of today's
military, yet represent only a small part of the total force. The same
is true within the veterans' population, which poses a significant
challenge in delivering necessary health care, and providing supportive
services to them. S. 681, the Deborah Sampson Act, would seek to
address several issues women veterans face by resolving some of the
barriers to care and services. Many women report feeling isolated as
they transition from military service back into their roles within
their family and the community. Combat exposure leading to Post
Traumatic Stress Disorder (PTSD) and other mental health conditions may
further complicate reintegration.
DAV's report, Women Veterans: The Long Journey Home recommended the
establishment of peer support networks in VA, to ease transition,
isolation, and assist with readjustment problems. The enactment of a
three-year, peer-to-peer pilot program under Section 101 would help
many women readjust back into their communities by providing them
assistance from a peer who can relate to their military service and
understand the unique issues women face during deployment and
reintegration. In addition, a peer counselor would offer pragmatic
assistance in identifying and coordinating the many benefits and
services administered by VA and other government agencies available to
best meet their individual needs.
This program would place emphasis on women who have been exposed to
military sexual trauma, have PTSD or other mental health conditions or
who are at risk of homelessness. Peer counseling is an evidence-based
practice and VA is using peer specialists within many of its programs.
In addition, Section 103 of S. 681 would expand the types of services
and counseling available at peer retreats to include financial and
occupational counseling, and information on conflict resolution and
stress management to assist veterans with reintegration into family,
employment and the community. DAV supports these provisions and the
increased utilization of peer specialists.
DAV's report highlights the need for legal assistance and support
for disability law, family law, employment law and criminal law. VA
does not provide legal services and Section 201 would establish a
partnership between VA and at least one nonprofit organization to
address legal issues for which homeless women veterans have identified
a high need. DAV supports this provision as a means of providing
comprehensive support, not only to homeless women, but to all veterans
at risk of homelessness due to legal issues affecting stable income,
employment and housing.
DAV's report calls for enhanced housing support particularly for
women with dependent children. Section 202 would earmark funding for
grants to support homeless grant and per diem providers committed to
providing assistance to women veterans and their families. Although DAV
does not have a specific resolution addressing this issue we support
the intent of this provision which would authorize VA to provide
incentives to community grant and per diem providers to adapt and
modify facilities and programs to support women veterans and their
dependents. Women veterans frequently identify the need for child care
and housing as a barrier to accessing needed care and services. Reports
over the past few years indicate an increase in the number of homeless
women veterans. Many of these women are single parents, and the sole
providers for their dependent children. A recent DOD report noted that
more than 30,000 single mothers deployed to Iraq and Afghanistan. Women
of the most current deployments are more likely to become homeless than
their male peers or women in the general population. Final Salute, an
organization that provides women veterans with housing, indicated that
over 70 percent of the women they have helped were single mothers.
Homelessness creates a crisis, not just for the veteran, but for their
dependent family members as well.
While we are mindful that certain issues disproportionately affect
women veterans, the top 10 needs identified in the 2015 CHALENG survey
for all homeless veterans include the need for legal assistance in
areas such as housing, child support, restoration of driver's license
and outstanding warrants and fines. For these reasons, we recommend
these services be made available to both male and female veterans in
need of them.
Section 301 of the Act would authorize VA to extend its coverage of
newborn care from a maximum of 7 to 14 days. Section 302 would
authorize VA to cover transportation of a newborn of a woman veteran,
for the purpose of obtaining medically necessary care at another health
care facility. DAV supports both of these provisions as a means of
ensuring women veterans' access to medically necessary care. These
additions would create a more robust VHA maternity care benefit for
women veterans. A significant portion of the women returning from
recent deployments are still in their childbearing years--VHA indicates
42 percent of its women patients are between 18-44 years of age.
Improving the VA's maternity care benefit better assures their
continued access to comprehensive and coordinated care developed to
meet veterans' needs. Additionally, women of recent deployments--
especially those using VA health care--are likely to be service-
connected and many of their service-connected conditions, such as PTSD,
are known to put them at risk of adverse pregnancy outcomes. VA must
assure these women's care continues to be carefully managed during this
vulnerable time and eliminate the likelihood of women choosing another
source of care if this basic need is not met satisfactorily.
Title IV of the Deborah Sampson Act seeks to eliminate identified
barriers to care for women veterans. DAV supports the provisions within
this title. Between fiscal years 2003 and 2012, the number of women
veterans using VA services grew from 200,000 to more than 362,000--an
80 percent increase within less than a decade. By 2020, women will
comprise 11 percent of the veteran population and VA projects continued
growth in the portion of the veteran population comprised of women over
the next decades. Given this significant and rapid growth, VHA has been
challenged to adapt its programs to successfully meet women's needs--
particularly for gender-specific and sensitive care.
Section 401 would authorize $20 million to retrofit VA facilities
to address deficiencies in environment of care standards critical to
ensuring the safety, privacy and dignity of women veteran patients. VA
must modify its medical facilities to serve not only a higher volume of
women, but also manage their specific health care needs. Safety,
privacy, and additional needs for gender-specific capital equipment
should all be taken into consideration in modifying facilities and in
any new infrastructure designs or capital acquisitions.
In a December 2016 report, the Government Accountability Office
found that about 27 percent of VA medical centers and health care
systems lacked an onsite gynecologist and about 18 percent of VA
facilities providing primary care lacked a women's health primary care
provider. Section 402 would seek to ensure that women veterans have
access to competent women's health providers by requiring that VA have
a full or part-time women's health primary care provider at every VA
medical facility and specifies that this individual would be involved
in training others to meet women's needs. While not every VA medical
center has the critical mass to necessitate having an onsite
gynecologist, it is imperative that all facilities without a qualified
gynecologist, establish a plan or have contracts in place to
immediately address the needs of women presenting for this type of
care. In addition, Section 404 would appropriate funds to continue VA's
Mini Residency program for primary care, and emergency care physicians
to learn more about treating women veterans' primary care needs.
Section 403 would establish the role of a Women Veteran Program
Ombudsman at each VA medical center. Because women's health care needs
cannot always be met at every VA facility, the role of the Women's
Veteran Program Manager (WVPM) is essential to ensuring sources of
gender-specific and veteran-specific health care is available to female
veterans. WVPMs are responsible for establishing, coordinating, and
integrating health care services for women veterans within VA medical
facilities. Often, WVPMs are overburdened by their wide range of duties
and responsibilities which makes it difficult for them to advocate on
behalf of the women they serve. This bill provides an Ombudsman to aid
the WVPM in addressing women's access to needed care and services. An
ombudsman would also be able to assist with outreach and awareness
which are often important in creating critical mass to initiate or
maintain programs and services for women veterans. Because of the
disparity in access for women veterans to VA benefits and services, DAV
agrees that a Women Veteran Program Ombudsman would be beneficial. We
urge the Committee to work with VA to ensure that this position is
integrated within the Veterans Experience Office.
Title V of the bill describes data collection and various required
reports. Section 501 would require VA to submit and publish a report
that includes information on the sex and minority status of each
participant of each program operated by the Department. DAV supports
this provision, but believes that the focus of such a report should be
narrowed to incorporate those programs and services of most relevance
to the House and Senate Veterans' Affairs Committees. DAV believes
narrowing the scope of the report would yield higher quality data that
was more meaningful to the Committees. In addition, the Committees
could add programs required to report this data over time as necessary.
Data on women veterans would allow VA to readily identify programs that
underserve these gender and minority populations in relation to the
proportion of the veteran population they represent. This information
would be helpful in planning outreach or determining the ongoing need
and demand for the program.
Section 502 would require the Secretary to report upon the
availability of prosthetics made for women, including at each VA
medical center. DAV supports the intent of this measure and believes
that VA should expand the survey of all veterans using prosthetics,
oversampling women to ensure their adequate representation, to
determine their satisfaction with the prosthetic device(s) they obtain
from the VA and the process used to obtain them. Prosthetics are not
made available through uniform channels in VA--some are manufactured in
house and some are purchased from private manufacturers.
There are special considerations in adapting prosthetics to meet
women's needs such as using appropriately sized hands and feet and
having accommodations to address weight fluctuations to ensure fit and
comfort throughout the month and during pregnancy. Rehabilitation
facilities throughout VA are accredited by the Commission for
Accreditation of Rehabilitation Facilities and are required to use
measures of patient satisfaction to assure full accreditation. Yet it
is unclear if veterans have been asked about their satisfaction with
prosthetic limb devices purchased or manufactured by VA, or with any
training they might be given to properly use and care for the device.
This information might be valuable to VA in identifying whether
veterans prefer prosthetics made in VA or by private manufacturers, and
whether subgroups of veterans such as women or younger veterans are
more or less satisfied with their prosthetics than other veterans. DAV
urges the Committee to look beyond just availability and use patient
satisfaction with timeliness, comfort, durability, usability, and
appearance as a finer gauge to determine the overall success of the VA
prosthetics program.
Section 503 would require VA to create a centralized internet
database for all VA women's resources, including staff contact
information, available within the location in which the veteran is
seeking services.
Section 504 would provide a sense of the Congress encouraging VA to
adopt a more inclusive motto. DAV does not have a resolution on this
provision and takes no position on this section.
DAV is pleased to support this comprehensive legislation, as it is
consistent with many recommendations made in our report, Women
Veterans: The Long Journey Home, and also with DAV Resolutions Nos.
129, calling for the support of enhanced medical services and benefits
for women veterans, and 244, calling for support of the provision for
comprehensive health care services to all enrolled veterans.
s. 764, the veterans education priority enrollment act of 2017
This measure, introduced by Senator Sherrod Rep Brown (D-OH) and
cosponsored by Sen Thom Tillis (R-NC), would extend priority enrollment
for college courses to veterans, servicemembers, and eligible
dependents who are utilizing GI education benefits. Expanding priority
enrollment allows those individuals covered to plan purposefully so
that they can finish their degrees before their benefits expire.
Many public colleges and universities currently extend priority
registration to veterans when signing up for classes. This bill would
expand this practice nationwide and would also include private schools
with existing priority registration programs. The bill would not
require colleges or universities to change their existing priority
enrollment systems.
S. 764 would amend educational programs authorized under title 38,
United States Code. If enacted into law, the Secretary or a State
approving agency may not approve a program of education offered by such
institution unless the institution allows a covered individual to
enroll in courses at the earliest possible time pursuant to each
priority enrollment system, if the educational institutions have a
priority enrollment system for some students.
Covered individuals subject to S. 764 are those eligible for an
educational assistance program provided for in chapter 30, 31, 32, 33,
or 35 of title 38, United States Code, or chapter 1606 or 1607 of title
10, United States Code.
Our nation needs to support our veterans as they transition from
military to civilian life. Congress, as well as VA and its partner
agencies, have an obligation to ensure veterans not only enroll in
college, but that they succeed when they get there. Education benefits
provided to ill and injured veterans, their dependents, and survivors
are essential for a veteran's successful transition. This legislation
reveals a commitment to those who served by allowing covered
individuals priority enrollment in courses. While DAV does not have a
resolution from our membership on this particular issue, we would not
oppose passage of this bill.
s. 784, veterans' compensation cost-of-living adjustment act of 2017
This bill would provide a cost-of-living adjustment (COLA) in the
rates of disability compensation for veterans with service-connected
disabilities and in the rates of additional compensation for
dependents, clothing allowance, and in dependency and indemnity
compensation for survivors of certain service-connected disabled
veterans. DAV supports annual COLA adjustments to account for the
effects of inflation and other rising costs that veterans must bear,
and therefore supports S. 784. However, we remain concerned that the
current COLA formula is not always sufficient to account for such
increases.
Congress customarily determines COLAs in parity with Social
Security recipients, but it is important to note there have been years
in which there were no COLA increases, or such as in 2017 when the COLA
increase was quite small, only 0.3 percent. In many instances, veterans
and their families rely on disability compensation as their sole source
of income. In years when recipients receive no COLA increase, or when
the increase is minuscule, it simultaneously erodes the value of their
disability compensation benefits, and jeopardizes the ability of
injured and ill veterans to maintain an adequate standard of living.
DAV supports legislation that provides veterans with a COLA
increase in accordance with DAV Resolution No. 013, and recommends
discussion and consideration of other methodologies for determining
annual COLA adjustments that might provide a more realistic cost-of-
living allowance for our Nation's disabled veterans, their dependents
and survivors. Compensation rates must bring the standard of living in
line with that which they would have enjoyed had they not suffered
their service-connected disabilities.
s. 804, women veterans access to quality care act of 2017
This measure would seek to improve VA health care facilities to
better accommodate the needs of women veterans. Section 2 of the
measure would direct the VA Secretary to establish standards to ensure
that all medical facilities have the structural features necessary to
sufficiently meet the gender-specific health care needs of veterans,
including those for privacy, safety, and dignity. The bill would also
require the Secretary to revise VA's prioritization methodology for
funding construction projects to include these projects. Finally, it
would require the Secretary to report to the House and Senate Veterans'
Affairs Committees with a list of facilities that fail to meet such
standards and the cost for renovations or repairs necessary to meet
them.
DAV's report Women Veterans: The Long Journey Home points out that
because of VA's aging infrastructure, many facilities are lacking
inpatient and residential care for women veterans with separate,
secured sleeping accommodations. In addition, VA medical centers must
to provide women veterans primary care with gender-specific equipment
like mammography units and other diagnostic or treatment equipment that
is exclusive in the care of women at its medical facilities.
VHA policy dictates that women veterans will have exclusive space--
space that is a separate physical location for the delivery of
comprehensive primary care to women and is not shared by other clinics
providing care to male veterans (VHA Directive 1330.07). VHA has made
progress in developing such sites, but needs to assure all clinics have
basic features such as privacy curtains and examination tables faced
away from doors to assure the environment is conducive to patient
treatment for all veterans.
Section 3 would require the Secretary to establish policies for
environment of care (EOC) inspections, including the frequency of
inspections and the roles and responsibilities of staff in performing
inspections and complying with standards.
VHA's EOC requirements are set in place to protect the privacy,
safety, and dignity of women veterans when they receive care. In
December 2016, The Government Accounting Office (GAO) released a report
illustrating areas of concern in compliance with VHA's EOC
requirements. A range of oversight deficits has occurred, including in
the EOC rounds inspections process, weakness in policies and guidance,
and variability in methods of data collection by facility staff and
selection of information to report to VHA Central Office. In addition,
when noncompliance is noted, guidelines to address the issues are not
clearly delegated, nor is there follow up by VHA to verify the
information received from its facilities.
VA must ensure its environment of care inspections process is
aligned with its women's health handbook to ensure clarity, and
uniformity throughout its facilities. VHA must also clarify roles and
responsibility of medical staff responsible for identifying and
addressing noncompliance of the environment of care rounds, and also
follow up with its facilities to verify the accuracy of the information
received, and to see that the deficient areas have been corrected.
Section 4 would require the Secretary to evaluate the performance
of VA medical center directors by using health outcomes for women
veterans who use VA medical services. The VA would be required to
publish health outcomes for women veterans on a publicly available
website including comparisons of the data to male veterans' health
outcomes, and explanatory information for members of the public to
easily understand the differences.
While it is imperative for VA leadership to ensure all personnel
comply with laws, policy and directives, it is equally important to
ensure the measuring criteria are clearly understood, the goal is
obtainable, and that adequate resources are supplied. Administrators
have control over ensuring that policies are disseminated and followed
throughout their facilities, but they cannot necessarily control health
outcomes which are a byproduct of patient genetics, patient behavior
and physicians' care. To attach health outcomes as a performance
measure of the directors, then, does not appear to be appropriate.
A more suitable measure would be to hold the directors responsible
for compliance and non-compliance of VHA law, directives, and policies
within their facilities. Policy compliance can be verified through
inspections and audits and used to evaluate administrative performance.
Adherence to policy seems a better measure to ensure that
administrators are adequately performing within their span of control.
Section 5 would ensure that every VA medical center employs a full-
time obstetrician/gynecologist, and mandates a pilot program to
increase the number of residency program positions and graduate medical
education positions for obstetricians/gynecologists at VA medical
facilities, in at least three Veterans Integrated Service Networks.
Women veterans should be able to receive a basic level of treatment
and (or) care at any facility of the Department from a knowledgeable
women's health provider. It is noted that VHA primary care providers
specially trained in women's health care services, such as breast
exams--increased by 3 percent and 15 percent respectively, from fiscal
year 2014 through fiscal year 2015. However, according to GAO, 27
percent of VA medical centers lack an onsite gynecologist, and 18
percent of VA's facilities providing primary care lacked a women's
health primary care provider. All facilities may not have the patient
volume to merit an onsite gynecologist, but any facility without the
ability to provide this specialized care should have a seamless process
to refer women for necessary gender-specific care without delay. DAV
supports this section; however, we want to ensure that facilities have
the sufficient volume of women veteran patients to support a full-time
obstetrician/gynecologist and the residency pilot program.
Section 6 would require the development of procedures to
electronically share veterans' military service and separation data;
email address; telephone number; and mailing address with State
veterans' agencies in order to facilitate the assistance of benefits
veterans may need. Under the bill, veterans would retain the option of
not participating in this information exchange. Sharing of this
information would make it easier to verify veterans' status and enable
State agencies to respond more quickly to the needs of eligible
veterans.
Section 7 would instruct the Government Accountability Office to
examine whether VA medical centers are able to meet the health care
needs of women veterans across a number of specific dimensions of care,
including access, specialization, outcome differences, outreach and
other key elements. Such a report would be valuable in determining
which facilities require assistance to ensure consistency in making
high-quality care available to women veterans.
The intent of this bill is consistent with DAV's 2014 Report, Women
Veterans: The Long Journey Home; thus, the bill carries DAV's full
support. The bill is also consistent with DAV Resolution No. 129 to
support enhanced medical services and benefits for women veterans,
passed by the delegates to our most recent National Convention.
It is in line with DAV Resolution Nos. 129, calling for the support
of enhanced medical services and benefits for women veterans, and 244,
calling for support of the provision of comprehensive VA health care
services to enrolled veterans.
s. 1024, veterans appeals improvement and modernization act of 2017
As this Committee knows, over the past year a remarkable workgroup
comprised of the Veterans Benefits Administration (VBA), the Board of
Veterans Appeals (Board) and a group of stakeholders who represent
veterans, including DAV, spent significant time developing a new
framework to modernize and streamline the appeals system. Through
further consultation and collaboration with this Committee and others
in Congress, we now have bipartisan appeals reform legislation,
S. 1024, that DAV strongly supports. A similar bipartisan House bill,
H.R. 2288, was also recently introduced, and we look forward to swiftly
moving a final version of the appeals reform legislation through
Congress and onto the President's desk to sign into law.
It is important to begin with the understanding that the pending
and growing appeals inventory was primarily an unfortunate, yet
foreseeable consequence of a long-term lack of adequate resources for
both VBA and the Board. Over the past five years, there was a clear
shift of focus and resources inside VBA to bringing down the claims
backlog, thereby neglecting the appeals processing at VA Regional
Offices (VARO) and resulting in today's staggering appeals backlog.
Moving forward, adequate resources will be critical to the success of
appeals reforms, as well as continuing progress on the claims backlog.
The new appeals framework developed by the workgroup, and embodied
within this legislation, would protect the due process rights of
veterans while creating multiple options for them to receive their
decisions in a more judicious manner. The critical core of the new
framework would allow veterans to have multiple options to reconcile
unfavorable claims' decisions, introduce new evidence new evidence at
both the Board and VBA, and protect their earliest effective dates
without having to be locked into the current long and arduous formal
appeals process at the Board.
In general, the new framework offers three main options for
veterans who are unsatisfied with their claims decision. First, there
will be an option for a local, higher-level review of the original
claim decision based on the evidence of record at the time of the claim
decision. Second, there will be an option for readjudication and
supplemental claims when new and relevant evidence is presented or a
hearing requested. Third, there will be an option to pursue an appeal
to the Board--with or without new evidence or a hearing.
The central dynamic of this new system is that a veteran who
receives an unfavorable decision from one of these three main options
may then pursue one of the other two appeals options. As long as the
veteran continuously pursues a new appeals option within one year of
the last decision, they would be able to preserve their earliest
effective date, if the facts so warrant. Each of these options, or
``lanes'' as some call them, have different advantages that allow
veterans to elect what they and their representatives believe will
provide the quickest and most accurate decision.
For the higher-level review option, the veteran could choose to
have the review done at the same local VARO that made the claim
decision, or at another VARO, which would be facilitated by VBA's
electronic claims files and the National Work Queue's ability to
instantly distribute work to any VARO. The veteran would not have the
option to introduce any new evidence, nor have a hearing with the
higher-level reviewer, although VBA has indicated it may allow
veterans' representatives to have informal conferences with the
reviewer in order for them to point out errors of fact or law. The
review and decision would be ``de novo'' and a simple ``difference of
opinion'' by the higher-level reviewer would be enough to overturn the
decision in question. If the veteran was not satisfied with the new
decision, they could then elect one of two options.
In addition, for this higher-level review, VA's duty to assist
(DTA) would not apply since it is limited to the evidence of record
used to make the original claims decision. If a DTA error is discovered
that occurred prior to the original decision, unless the claim can be
granted in full, the claim would be sent back to the VARO to correct
any errors and readjudicate the claim. If the veteran was not satisfied
with that new decision, they would still elect the other appeal
options. It is critical that relevant information be captured relative
to decisions that have been overturned by a higher-level reviewer, the
number of decisions upheld, and the number of decisions sent back to
the VAROs to correct DTA violations. This information is needed to
correct any claims processing errors that may be taking place within
VAROs.
For the readjudication/supplemental claims option, veterans would
be able to request a hearing and present new evidence that would be
considered in the first instance at the VARO. VA's full DTA would apply
during readjudication, to include development of both public and
private evidence. The readjudication would be a de novo review of all
the evidence presented both prior to and subsequent to the claims
decisions until the readjudication decision was issued. As with a
higher-level review, if the veteran was not satisfied with the new
decision, they could then elect one of two options to continue redress
of any contested issues. These first two options take place inside
VAROs and cover much of the work that is currently done in the current
Decision Review Officer (DRO) process, although it would be divided
between two different lanes: one with and one without new evidence or
hearings.
For the third option, a notice of disagreement (NOD) would be filed
to initiate Board review, triggering the formal appeal process. The
Board would operate two separate dockets, one that does not allow
hearings and new evidence to be introduced; and a second that allows
both new evidence and hearings. The Board would have no DTA obligation
to develop any new evidence presented. For both of these dockets,
appeals would be routed directly to the Board and there would no longer
be Statements of the Case (SOCs), Supplemental Statements of the Case
(SSOCs) or any VA Form 8s or 9s to be completed by VBA or the veteran.
The workgroup had established a goal of having ``no hearing/no
evidence'' appeals resolved within one year, but there was no similar
goal discussed for the more traditional appeals docket. While
eliminating introduction of evidence and hearings would naturally make
the Board's review quicker, it is important that sufficient resources
be allocated to the traditional appeal lane at the Board to ensure a
sense of equity between both dockets.
For appeals that request hearings before the Board, veterans could
choose either a video conference hearing or an in-person hearing at the
Board's Washington, DC offices; there would no longer be travel hearing
options offered to veterans. New evidence would be allowed, but limited
to specific timeframes: if a hearing is elected, new evidence could be
presented at the hearing or for 90 days following the hearing; if no
hearing is elected, new evidence could be presented with the filing of
the NOD or for 90 days thereafter. If the veteran was not satisfied
with the Board's decision, they could elect one of the other two VBA
options, and if filed within one year of the Board's decision, they
would continue to preserve their earliest effective date. The new
framework would impose no limits on the number of times a veteran could
choose one of these three options, and as long as they properly elected
a new one within a year of the prior decision, they would continue to
protect their earliest effective date.
If the Board discovers that a DTA error was made prior to the
original claims decision, unless the claim can be granted in full, the
Board would remand the case back to VBA for them to correct the errors
and readjudicate the claim. Again, if the veteran was not satisfied
with the new claim decision, they could choose from one of the three
appeals options available to them, and as long as they properly made
that NOD election within one year of the decision, they would continue
to preserve their earliest effective date.
Improving Claims Decision Notification
While the workgroup was initially focused on ways to improve the
Board's ability and capacity to process appeals, from the outset we
realized that appeals reforms could not be fully successful unless we
simultaneously looked at improving the front end of the process,
beginning with strengthening claims' decisions. A clear and complete
explanation of why a claim was denied is the key to veterans making
sound choices about if and how to appeal an adverse decision.
Therefore, a fundamental feature of the new appeals process must
include ensuring that claims' decision notification letters are
adequate to properly inform the veteran.
Under the new framework, the contents of the notification letter
must be clear, easy to understand and easy to navigate. The notice must
convey not only VA's rationale for reaching its determination, but also
the options available to claimants after receipt of the decision. The
bill includes this provision to require that in addition to an
explanation for how the veteran can have a claim decision reviewed or
appealed, all decision notification letters must contain the following
information to help them in determining whether, when, where and how to
appeal an adverse decision:
(1) Identification of the issues adjudicated;
(2) A summary of the evidence considered by the Secretary;
(3) A summary of applicable laws and regulations;
(4) Identification of findings favorable to the claimant;
(5) In the case of a denial, identification of elements not
satisfied leading to the denial;
(6) An explanation of how to obtain or access evidence used in
making the decision; and
(7) If applicable, identification of the criteria that must be
satisfied to grant service connection or the next higher level of
compensation.
Overall, the new framework which is embodied in the legislation
would provide veterans with multiple options and paths to resolve their
disagreements more quickly, while preserving their earliest effective
dates to receive their full entitlement to benefits. The structure
would allow veterans quicker ``closed record'' reviews at both VBA and
the Board, but if they believe that additional evidence is needed to
satisfy their claim, they retain the right to introduce new evidence,
or request a hearing at either VBA or the Board. If implemented and
administered as envisioned by the workgroup, this new appeals system
could be more flexible and responsive to the unique circumstances of
each veteran's claim and appeal, leading to better outcomes for many
veterans.
Significant Improvements to the Appeals Framework in this Legislation
Although this bill embodies the appeals modernization framework
agreed to by the workgroup last year, it also includes some significant
improvements.
First, the legislation would enhance effective date protections for
claimants that choose to file appeals with the Court of Appeals for
Veterans Claims (Court). Claimants could preserve their effective dates
for continuously pursued claims, if they choose to file a supplemental
claim within one year following a decision from these courts. This is a
fair and equitable approach to provide claimants with the option to
exercise their full appellate rights, without having to potentially
jeopardize their effective date.
Second, under this proposal, claimants with legacy appeals would be
permitted to enter into the new system at certain junctures. In
instances when a SOC or SSOC is issued, claimants would have the
opportunity to opt into the new processing system. In addition, the
legislation would allow veterans who file a NOD within one year of the
new system becoming effective to have the option to enter into the new
system rather than being forced to undergo processing in the legacy
system. These changes were proposed by VBA and the Board, and DAV
supports them. Allowing claimants to make well informed decisions on
the type of processing that is in their best interest would not only
help to reduce the number of legacy claims, but provide these claimants
with options best suited for their individual circumstances.
Third, in order to provide greater assurance that VBA and the Board
are prepared to make this major transition to a new appeals system, the
legislation would require the Secretary to submit a detailed transition
and implementation plan, and then require the Secretary to certify that
all elements are in place to efficiently process legacy claims and run
the new modernized system. Furthermore, VSO collaboration is required
along with this certification, a provision that serves everyone's best
interests. DAV looks forward to continuing to work with VBA, the Board
and Congress to ensure the transition and implementation is as smooth
as possible.
Last, the legislation contains detailed reporting requirements,
along with oversight to be performed by the Government Accountability
Office (GAO). It is essential to have continuous real-time data
concerning elements of both the legacy system and modernized system. In
order to measure VA's progress, these metrics will assess where
modifications would be needed in order to improve processing within
either system. The oversight performed by GAO is another effective way
of ensuring these changes produce a positive outcome for claimants
within the legacy and modernized systems.
recommendations
Options Following decision by the Agency of Original Jurisdiction
Section 2(h)(1) of this bill sets forth the options available to a
claimant once a decision has been made, which include, but are not
limited to, filing a supplemental claim, requesting a higher level
review, or filing a notice of disagreement.
Within this provision, there is some uncertainty how the word
``claim'' would be interpreted. Today a single claim can contain one
issue, or multiple issues. The intention is to allow a claimant to
choose any of the three options noted above separately for each
``issue'' contained within a claim in order to avoid any unintended
consequences that would disadvantage a claimant. For example, a veteran
seeking an increased rating for hearing loss should be able to choose
to file a supplemental claim for that issue, while also filing their
notice of disagreement to the Board for the denial of service
connection for a left knee disability. Allowing each issue to flow
through the most appropriate ``lane'' will not only result in more
timely decisions for the veteran, it will also make more efficient use
of both VBA and Board resources.
DAV recommends:
The legislation clarifies that claimants can elect
different appeals options for individual issues decided within a claim.
Appeals to the Board
The manner in which evidence would be handled by the Board,
particularly, as it pertains to their DTA requirements would
fundamentally change under this proposal. The legislation would require
the Board to establish at least two separate dockets, while providing
them with the ability to create additional dockets.
For cases before the Board wherein no hearing is elected on the
NOD, and where there is no request to submit additional evidence, the
evidence considered by the Board would be limited to the evidence of
record at the time of the agency of original jurisdiction decision.
For cases with no hearing request, but a claimant elects to have
new evidence considered by the Board in the first instance, that
evidence must be submitted by the appellant, or his or her
representative, if any, with the NOD and within 90 days following
receipt of the NOD.
For cases wherein a hearing is requested, new evidence would be
limited to evidence submitted by the appellant, and his or her
representative, if any, at the Board hearing and within 90 days
following the Board hearing. In this instance, the legislation does not
make clear whether evidence presented with the NOD or 90 days
thereafter would be accepted, returned or ignored. Would the Board
really ignore evidence that arrived one day prior to a hearing?
DAV is pleased to see the inclusion of robust reporting
requirements in the bill, particularly as it pertains to appeals
processing metrics for each separate docket. Furthermore, we are
pleased to see the inclusion of a provision requiring the Board to send
written notice to claimants when new evidence they submit is not
considered in making the decision because the evidence was not received
within the established timeframes. The notice would also contain
information on a claimant's option to have the evidence considered by
VA following the decision through another one of the lanes.
DAV recommends:
That claimants electing a Board hearing, with the option
to supply evidence, should be permitted to introduce this evidence from
the filing of the NOD until 90 days after the hearing. Evidence
presented prior to a hearing should simply be made part of the record
and considered in conjunction with the appellate issues before the
Board. Since the Board no longer would have any DTA obligations, all
new evidence would be considered at the same time after the hearing.
The legislation would also provide the Board with the
authority to screen cases in order determine if further development is
required earlier in the process, rather than waiting longer to
accomplish the same thing. To assure this authority is properly
utilized, DAV recommends:
The Board be required to report on all screened cases,
delineated by:
- The number of issues found to require additional development;
- The types of issues that required additional development,
i.e., issues involving service connection, or issues involving
increased ratings;
- The number of claimants that chose to opt into the new system
following remand;
- The number of claimants that chose to remain in the legacy
system following remand;
- The number and types issues that were granted based on
screening;
- The number of cases containing multiple decisions, including
how many of the issues were remanded, denied, or allowed.
The legislation mandates the creation of at least two dockets
discussed above, and also provides authority for the Board to create
additional dockets, subject to notifying the Senate and House Veterans'
Affairs Committees with justification. The Board might consider
creating a third docket in order to separate appeals that will include
new evidence, but do not request a hearing. As it stands now, veterans
who submit new evidence, but do not request a hearing, could be forced
to wait months or even years behind veterans who request a hearing. A
third docket could avoid such unnecessary delays for veterans, allow
greater oversight and make more efficient use of Board resources.
``New and Relevant'' Evidence
The legislation would replace the standard for reopening claims,
changing ``new and material'' to ``new and relevant.'' In the current
system, the ``new and material'' standard has not effectively
functioned as intended to focus VBA and Board resources on adjudicating
the substance of claims and appeals.
In order to monitor whether the ``new and relevant'' standard will
be more effective in this regard, while continuing to protect veterans'
rights, DAV recommends:
VBA and the Board should regularly report on the number
and outcome of ``new and relevant'' decisions, including--
- The number of supplemental claims denied because no ``new and
relevant'' evidence had been received;
- The number of higher level reviews filed with respect the
issue of no ``new and relevant'' evidence, and the disposition
of these higher level reviews;
- The number of appeals filed with respect to the issue of no
``new and relevant'' evidence, which Board docket or options
were used, and the outcome of the Board's determination, i.e.,
decisions upheld, decisions overturned, cases remanded for DTA
violations.
Stakeholder Transition and Implementation Advisory Committee
Since March 2016, DAV, Congress, VA, the Board and other
stakeholders have worked very closely to develop and refine the appeals
modernization proposal. This partnership has been integral to making
sure a modernized system will benefit our Nation's injured and ill
veterans, without compromising their due process rights and keeping
VA's non-adversarial roll intact.
We are appreciative of the provision contained within this bill
requiring the Secretary to collaborate and consult with veterans'
service organizations and other stakeholders considered appropriate by
the Secretary, as part of the certification required to begin operating
the new appeals system, and expect that our continued partnership with
VA will benefit both veterans and the VA. However, the hard work of
implementing and operating this new system will continue for many
years, and VSOs and other stakeholders can and must continue to play an
integral role supporting this effort.
To ensure this partnership continues on throughout all phases of
the implementation process, DAV recommends:
The legislation include a provision to create a
``Stakeholder Transition and Implementation Advisory Committee'' to
engage with VBA and the Board during implementation, transition and
operation of the new system. This advisory committee should be composed
of at least the three largest VSOs in terms of the number of claimants
they represent before VBA and the Board, as well as other major
stakeholders who represent veterans at VBA or the Board, as determined
by the Secretary.
Planning, Oversight and Public Reporting
The bill includes a number of new planning, reporting and
certification requirements that are appropriate for legislation
embodying such a significant reform. This level of reporting is
critical to allow Congress and other stakeholders to help identify and
offer solutions to unintended consequences and problems that may arise.
To strengthen this oversight, DAV recommends:
The legislation requires that all VA plans, metrics and
reports provided to Congress also be made immediately available to the
public.
Temporary Staffing Increases
Finally, as mentioned above, the most critical factor in the rise
of the current backlog of pending appeals was the lack of sufficient
resources to adequately manage the workload. Similarly, unless VBA and
the Board request and are provided adequate resources to meet staffing,
infrastructure and IT requirements, no new appeals reform will be
successful in the long run. As VBA's productivity continues to
increase, the volume of processed claims will also continue to rise,
which has historically been steady at a rate of 10 to 11 percent of
claims decisions. In addition, the new claims and appeals framework
will likely increase the number of supplemental claims filed
significantly.
We are encouraged that VA has indicated a need for greater
resources for both VBA and the Board in order to make this new appeals
system successful; however, too often in the past funding for new
initiatives has waned over time. We would urge the Committee to ensure
that proper funding levels are determined and appropriated as this
legislation moves forward.
Over the past few years, DAV and our Independent Budget partners
have recommended that Congress consider providing VBA with the
temporary authority and resources to hire two-year temporary employees.
In the past, VBA used such an authority to hire several thousand
employees for a temporary two-year term. At the end of those two years,
many of the best that were hired on a temporary basis transitioned into
permanent positions that became open due to attrition. VBA not only had
additional surge resources to work on the claims backlog during the
first two-years, but VBA also benefited by creating a pool of trained,
qualified candidates to choose from as replacements for full-time
employees leaving VBA.
The bill recognizes the need to address personnel requirements
within the VBA and the Board as they implement and administer the
modernized appeals system, as well as address the legacy appeals. In
order to provide a surge capacity to address both appeals and claims,
DAV recommends:
VBA and the Board are provided additional authority and
resources to hire two-year temporary employees, with the goal of
eventually converting the best of the temporary employees into
permanent employees based on the future and continuing personnel
requirements of VBA and the Board.
This legislation represents a true collaboration between VA, VSOs,
other key stakeholders and Congress in order to reform and modernize
the appeals process. We are confident this bill, with the additional
improvements recommended by DAV and others, could provide veterans with
quicker favorable outcomes, while fully protecting their due process
rights.
s. 1094, department of veterans affairs accountability and
whistleblower protection act of 2017
This legislation seeks to enhance accountability for VA managers
and employees, strengthen protections for whistleblowers and enhance
VA's ability to hire certain senior health care director positions. The
bill would codify and strengthen the Office of Accountability and
Whistleblower Protection recently created by Executive Order, in order
to manage and investigate whistleblower disclosures, train staff about
protecting whistleblowers and to report upon methods that might be used
to retaliate against them. The bill would also lower the administrative
burden for firing, demoting or taking other adverse personnel actions
against VA senior executives and employees who are poor performers or
who have engaged in misconduct, including criminal activity.
As detailed in DAV Resolution 068, we support meaningful
accountability measures as long as they include appropriate due process
protections for VA employees. Legislation that changes existing
employment protections in VA must strike a balance between holding all
civil servants fully accountable for their professional conduct and job
performance, while enabling VA to become an employer of choice in order
to engage the best and brightest employees to care for our ill and
injured veterans.
The bill would provide the Secretary with new authorities to hold
senior managers and employees accountable by streamlining,
standardizing and shortening certain timelines and processes used to
implement personnel actions, including reprimands, suspensions,
demotions or firings. We agree that it is critical that the Secretary
be given adequate tools to quickly discipline or remove employees who
endanger veterans' health or welfare, commit a felony, engage in
misconduct, abuse their positions of trust or otherwise fail to
adequately perform their jobs. However we must also remain cognizant
that applying different accountability standards with fewer job
protections to just one Federal agency could have unintended
consequences on recruitment and retention, particularly in highly
competitive fields, such as health care and information technology,
which already have critical professional staff shortages. For some
potential VA employees, job stability and due process in employment
matters are attractive features of Federal employment that help
mitigate against others including lower pay, benefits or career
advancement possibilities.
The legislation also makes a significant change to the evidentiary
burden imposed on VA when exercising the new authority to reprimand,
suspend, reassign, demote, or remove employees. Currently, personnel
actions taken for any reason other than performance, such as for
misconduct, require that a ``preponderance of the evidence'' standard
be satisfied, which is generally interpreted to mean greater than 50
percent of the evidence. This legislation, however, would lower the
burden to ``substantial evidence,'' which the Supreme Court has
interpreted to mean ``more than a mere scintilla'' of evidence. This
significant reduction in evidentiary burden would certainly have the
effect of making personnel actions against employees, up to and
including firing, substantially easier for VA to implement, however it
is unclear how such a change would affect the important balance between
accountability and due process. For example, it could theoretically be
possible under this new standard that a ``preponderance of evidence''
supports an employee's defense, yet they could still be removed from
their job as long as there is ``more than a mere scintilla'' of
evidence produced by VA--that is, there may be some relevant evidence
as reasonable minds might accept as adequate to support VA's action to
remove an employee even if it is possible to draw a contrary conclusion
from the evidence. We have concerns about whether this new standard
might have unintended consequences in terms of making VA a less
desirable choice for potential employees, especially in comparison to
other Federal agencies that are bound by the higher evidentiary
standard.
In light of these concerns, we support Sections 210 and 211, which
would assess the effect of the enactment of the provisions on
accountability of senior executives, supervisors, and other employees.
We are hopeful these reports will provide valid and meaningful outcome
data to help determine whether Title II of this bill is achieving its
intended purpose.
Much more important in our view than the evidentiary standard is
the practical reality that no accountability measure can or will be
successful unless leaders properly train and hold managers accountable
for documenting the performance and conduct of employees, and ensure
administrative procedures required are fully and properly carried out
to initiate personnel actions. We note Section 209 requires VA to
provide periodic training to supervisors on, among other things, how to
effectively manage employees who are performing at unacceptable levels.
We believe this section is critically important and support its
inclusion. In our opinion, true accountability relies more on the
actions of VA leaders and managers than on any underlying laws or
evidentiary standards.
DAV supports enactment of the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017. We applaud the
bipartisan effort to ensure greater accountability and strengthened
whistleblower protections within VA and thank Senators Rubio, Tester
and Isakson for working with DAV to ensure VA is able to enforce
accountability standards to attract, hire and retain the brightest and
best employees our Nation has to offer to care for ill and injured
veterans.
draft bill--serving our rural veterans act of 2017
This bill directs the VA to establish an eight-year medical
residency training program in conjunction with the Indian Health
Service to train medical residents and interns at ``covered
facilities,'' which are defined as facilities operated by an Indian
tribe or the Indian Health Service (IHS).
Additionally, it amends section 7406 of title 38, United States
Code, by replacing the term ``department facility'' with ``covered
facility.'' In this instance, covered facility is defined as any
department facility or one of the four types of newly added covered
facilities; IHS facilities, Indian tribe facilities, federally
qualified health centers, and community health centers. VA would
reimburse covered facilities for their participation in the program and
require any participating medical resident to enter into an agreement
for a period of obligated service of one year for each year served in
the medical residency training program.
DAV Resolution No. 055 supports fulfilling the rights and benefits
earned by service-connected Native American and Alaska Native veterans
and urges Congress to ensure that the five mutual goals recognized by
the current memorandum of understanding between the VA and the IHS is
fully implemented so that these veterans can receive the benefits and
services they have earned and deserve. In light of our resolution, DAV
supports the intent of this bill and urges the Committee strengthen
certain provisions.
The reimbursement requirements laid out in the bill goes well
beyond salary and benefit reimbursement for the participating
residents. Given the defined and already limited resources of the VA,
Congress must appropriate additional funding for the VA Office of
Academic Affiliations to ensure existing residency programs are not
adversely impacted due to the substantial cost of developing, standing
up, and administering, as well as recruiting for the pilot program. We
recommend authority for this program be subject to specific
appropriated funds.
Furthermore, because it is uncommon for the service obligation to
exist in other medical programs generally available to most medical
students seeking a residency, we urge the Committee work with VA and
other appropriate entities to address the period of obligated service
required by the bill, which could act as a disincentive to recruiting
top candidates in the medical field.
DAV thanks Senator Sullivan and the Committee for its support of
Native American and Alaska Native veterans, and ask that you confer
with the VA Office of Academic Affiliations and the Association of
American Medical Colleges to ensure that the intentions of the bill
most fully meet the needs of this veteran community.
draft bill--veteran partners' efforts to enhance reintegration or
``veteran peer act''
Enactment of the Veteran PEER Act would require VA to establish a
program that includes peer specialists within patient aligned care
teams (PACT) in medical centers of the VA to promote better integration
of mental health services into the primary care setting. VA would have
to carry out this program in at least 10 VA medical centers within the
first 180 days of the Act passing and in no less than 25 locations
after two years of the enactment of the bill, including within VA's
five polytrauma center locations.
The bill also would require VA to consider the feasibility of
locating peer specialists in rural areas and other locations that are
underserved by the Department. VA would be required to ensure that the
unique needs of women veterans are considered and that female peer
specialists are included in the program. The measure includes
requirements for routine reporting to include findings and conclusions
with respect to the program and recommendations related to the
feasibility of expanding the program.
Veterans must have the ability to easily access to mental health
services especially during a crisis. However, even when in crisis, many
veterans are reluctant to reach out for help and seek the care they
need. Since 2012, VA has hired over 1,000 Peer Specialists, and some
mental health providers indicate that peer-to-peer interactions have
been extremely helpful to both patients and clinicians. The Center for
Medicare and Medicaid recognized Peer Support as an evidence-based
practice a decade ago. Studies have found use of peer specialists is
associated with better treatment satisfaction, more treatment
engagement, less inpatient care utilization and more engagement in
patients' communities. However, a recent study published in the Journal
of Behavioral Health Services and Research found that VA is still
struggling with identifying appropriate supervision and training for
these individuals and has been hesitant to fully include them as part
of the patient care team. The Veteran PEER Act would assist with
ensuring better utilization and inclusion of these professionals and
could help to improve efficiency of VA peer specialists and ultimately
health outcomes for veterans.
We are pleased the bill also includes provisions that would require
VA to address the needs of women veterans. Findings show that when
women return from deployment, the camaraderie and support from their
male peers is often short-lived, resulting in isolation for many.
Studies have shown that peer support is important to a successful
transition, but women often report they cannot find a network of women
who can relate to their military or wartime service. Including the
requirement of hiring female peer specialists in this measure helps
ensure that women veterans will have a peer they can relate to and
someone that understands their unique needs. Their ability to relate to
other veterans because of their shared military experiences and mental
health recovery is a key element of the program.
DAV is pleased to support the Veteran PEER Act, which is consistent
with the following DAV Resolutions: No. 250, which calls for program
improvements for VA mental health services to include increased
staffing levels, improved outreach to veterans with a focus on reducing
stigma when seeking post-deployment readjustment and other mental
health services; and No. 129, which calls for enhanced medical services
for women veterans as well as additional methods to address barriers to
care. Finally, the bill is consistent with recommendations in DAV's
2014 report, Women Veterans: The Long Journey Home that notes the use
of peer specialists can help reduce stigma and increase the
acceptability of mental health care for veterans who need it and
improve recovery.
draft bill--department of veterans affairs veteran transition
improvement act
The Wounded Warriors Federal Leave Act of 2015 (Public Law 114-75),
enacted in 2015, provides a separate new leave category, to be known as
``disabled veteran leave,'' of 104 hours to any new \1\ Federal
employee who is a veteran with a service-connected disability rated at
30 percent or more for purposes of undergoing medical treatment for
such disability for which sick leave could regularly be used.
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\1\ Federal employee newly hired on or after November 5, 2016, with
no previous Federal service, reappointed with at least a 90-day break
in service, or military reservists or members of the National Guard who
return to duty in their civilian positions after a period of military
service.
---------------------------------------------------------------------------
Subsequently, because disabled veterans who work for the Federal
Aviation Administration (FAA) and Transportation Security
Administration (TSA) did not have access to additional leave to treat
service-related injuries, legislative relief in the form of Senator
Hirono's bipartisan Federal Aviation Administration Veteran Transition
Improvement Act was enacted into law in October 2016. It ensures that
disabled veteran new hired employees at the FAA and TSA have access to
the sick leave benefit during their first year on the job just as their
counterparts in other agencies receive.
Notably, there are other categories of Federal employees not
covered by the both the Wounded Warrior Federal Leave Act and the FAA
Veterans Transition Improvement Act including: employees of the United
States Postal Service or the Postal Regulatory Commission, since they
are covered by regulations issued by the Postmaster General; employees
not covered under title 5, United States Code, section 2105 (such as
employees of DOD non-appropriated fund instrumentalities); and
employees not covered by a leave system (such as those with
intermittent work schedules or leave-exempt Presidential appointees).
It appears disabled veterans employed under title 38 have a
separate and distinct leave system than that under title 5 and
therefore are unable to access the benefits provided under the Wounded
Warriors Federal Leave Act of 2015.
We support the intent of this measure as contemplated under DAV
Resolution 260, urging Congress to extend protection under the Family
and Medical Leave Act (FMLA) to encompass the medical care needs of
veterans with service-connected disabilities. We recognize in addition
to FMLA, there are a variety of leave options and workplace
flexibilities available to take time off from work to receive medical
treatment for a veteran's disability, such as annual leave, sick leave,
advanced annual leave or advanced sick leave, donated leave under the
voluntary leave transfer program, alternative work schedules, credit
hours under flexible work schedules, compensatory time off and telework
and voluntary leave bank program.
This concludes my testimony, Mr. Chairman. DAV would be pleased to
respond for the record to any questions from you or the Committee
Members concerning our views on these bills.
Chairman Isakson. Thank you very much for your testimony.
Ms. Jaslow?
STATEMENT OF ALLISON JASLOW, EXECUTIVE DIRECTOR, IRAQ AND
AFGHANISTAN VETERANS OF AMERICA
Ms. Jaslow. Thank you, Mr. Chairman, Ranking Member Tester,
and Members of the Committee. On behalf of Iraq and Afghanistan
Veterans of America, and our more than 425,000 members, thank
for the opportunity to share our views on the bills under
consideration today.
Less than 60 days ago, I sat before the Members of this
Committee and your counterparts in the House of
Representatives, to outline IAVA's policy priorities for 2017,
chief among them being greater recognition and support for
woman veterans. I am here again today to update you on our She
Who Borne the Battle campaign and articulate the need for the
Deborah Sampson Act, S. 681, which would fill many gaps in care
and offer recognition faced by woman veterans today.
Nearly 350,000 women have deployed since our Nation was
attacked on September 11, 2001. I am one of those women, and so
are over 20 percent of our veteran women members. We are the
fastest growing population in the veteran community, in fact,
estimated at about 6 percent of the veteran population in 2001.
By 2020, that number is expected to grow to 11 percent.
Women's service has rapidly increased. We are officially
allowed in the combat roles. The mightiest among us are
graduating from elite courses like Ranger School. But in IAVA's
most recent member survey, only 43 percent of IAVA women
veterans feel that male servicemembers respect their service.
Even more shocking is just 27 percent feel the public does.
When it comes to the VA, only 30 percent of IAVA women vets
rated the agency's support for women as good or very good, and
less than half felt that VA's staff treated women veterans with
respect or had a culture welcoming to women.
I can relate. Not only have I had to prove my war service
to more than my fair share of older gentlemen and young
feminists alike, but I have also had the fortune of being
mistaken as a VA nurse rather than a patient. That is why I
stand shoulder to shoulder with our members who have made it
clear that there is a severe gap in respect for a critical
component of our military force, the recognition of women as
they transition to veteran status, and in the services provided
by the VA.
Thanks to the leadership of Senators Tester and Boozman on
the Deborah Sampson Act, we have an opportunity to take this
head-on, and the concerns of the post-9/11 women veterans.
Deborah Sampson disguised herself as a man to serve in the
Continental Army during the Revolutionary War, served
honorably, but sadly was not recognized for her service until
after her death. This bill is named for her because over 240
years later, women are squarely in the line of fire, nearly 200
have been killed in action in Iraq and Afghanistan, yet
adequate recognition for our sacrifices is still lacking.
Since the bill's introduction, IAVA members have worked to
highlight the need for the bill on Capitol Hill and gain
cosponsors. Eighteen of you and your colleagues now back the
Deborah Sampson Act, but several of you are dragging your feet,
or worse, have refused to get behind this initiative that all
of the 18 major veteran service organizations this Committee
works with and many support.
Just last night, the Republican Congresswoman Martha
McSally, and Democrat Tulsi Gabbard, the only women veterans in
the House, officially backed the Deborah Sampson Act. The
effort in this chamber is off to a strong--in that chamber is
off to a strong start, and as we approach Memorial Day, it is
our hope that Members of this Committee will remember the women
fallen by following their lead.
So, what does the Deborah Sampson Act do? Over the last 15
years, the VA has worked to improve services for women
veterans, but it is not enough. The Deborah Sampson Act aims to
fill critical gaps in VA care for women vets, in addition to
asking the VA to demonstrate its commitment to culture change
by updating its motto--to care for him who shall have borne the
battle, and for his widow, and his orphan.
I urge you to consider carefully the message that Congress
supporting a more inclusive motto sends to the women veterans
back in your home States, or, conversely, what your opposition
to this provision may indicate to every woman who feels
alienated by the very agency that is supposed to support them.
Every veteran walking through the doors of a VA medical center
should see the words on that door and know that he, or she, is
welcome.
Setting the right tone at the VA is critical to driving
better support and lasting change for women, like peer-to-peer
assistance--in recent IAVA research, women veterans showed
overwhelming interest in peer support to help them navigate the
VA--removing access barriers for women seeking care. IAVA women
veterans not only have suffered lack of privacy at VA
facilities but fear about the care they might receive also
creates a barrier.
We need to stop hearing stories like the one from a woman
with a pregnancy who had complications and sought care from the
VA at the emergency room, but was forced to seek care at an
alternate ER when the team did not diagnose or treat her
condition, accompanied by pain and bleeding, correctly. This
should not happen in any ER, and disappoints me, as an
American, that it happened at the VA.
The Deborah Sampson Act also seeks to improve legal
services and support, data tracking and reporting, and newborn
medical care.
Mr. Chairman and Members of the Committee, many of these
provisions are easy fixes, but some of you have raised your
arms complaining about costs. Caring for our veterans should be
considered a cost of war. Period. When my soldiers and I were
sent to combat in Iraq, the Army and U.S. taxpayers spared no
expense, and I find it quite bold as we are simply talking
about equity for women veterans that this is even brought up in
conversation.
Chairman Isakson, Ranking Member Tester, and Members of the
Committee, on behalf of our members, thank you again for
inviting me here today. I look forward to your support moving
the Deborah Sampson Act forward, and thank you for putting
these veterans--excuse me, us veterans--and servicemembers
first, as our comrades continue to deploy in defense of our
Nation.
[The prepared statement of Ms. Jaslow follows:]
Prepared Statement of Allison Jaslow, Executive Director,
Iraq And Afghanistan Veterans of America
Chairman Isakson, Ranking Member Tester, and Members of the
Committee: On behalf of Iraq and Afghanistan Veterans of America (IAVA)
and our more than 425,000 members thank you for the opportunity to
share our views on the legislation under consideration today.
For thirteen years, IAVA has been the preferred empowerment
organization for post-9/11 veterans. Since its beginning, IAVA has
successfully fought and advocated for policy action to meet the needs
of the over 2.8 million veterans who have served in our most recent
wars.
Less than sixty days ago, I sat before the Members of this
Committee and your counterparts in the House of Representatives to
outline IAVA's policy priorities for 2017--chief among them being
greater recognition and support for women veterans. I am here again
today to update you on our ``She Who Borne The Battle'' campaign and
articulate the need for the Deborah Sampson Act (S. 681) which would
fill many gaps in care and recognition faced by women veterans today.
Nearly 350,000 women have deployed since our Nation was attacked on
Sept. 11, 2001. I am one of those women and so are over 20 percent of
our veteran members. We are the fastest growing population in the
veteran community. In fact, estimated at about six percent of the
veteran population in 2001, by 2020, it's estimated women veterans will
represent 11 percent.
Women's service has rapidly increased. We are officially allowed
into combat roles, the mightiest among us are graduating from elite
courses like Ranger School. But in IAVA's most recent member survey
only 43 percent of IAVA women veterans feel that male servicemembers
respect their service. Even more shocking is that just 27 percent feel
the public does.
When it comes to the VA, only 30 percent of IAVA women vets rated
the agency's support for women as good or very good, and less than half
felt that VA staff treated women veterans with respect or had a culture
welcoming to women.
I can relate. Not only have I had to prove my war service to more
than my fair share of older gentlemen in Legion halls and liberal women
alike, but I've also had the pleasure of being mistaken as a VA nurse
rather than patient. That's why I stand shoulder to shoulder with our
members who've made it clear that there is a severe gap in respect for
a critical component of our military force, and in the services
provided by the VA.
Thanks to the leadership of Senators Tester and Boozman on the
Deborah Sampson Act, we have an opportunity to take head on the
concerns of post-9/11 women veterans.
Deborah Sampson disguised herself as a man to serve in the
Continental Army during the Revolutionary War, served honorably, but
sadly was not recognized for her service until after her death. This
bill is named for her, because over 240 years later women are now
squarely in the line of fire, and nearly 200 have been killed in Iraq
and Afghanistan, but adequate recognition for our sacrifices is still
lacking.
Since the bill's introduction, IAVA has worked to highlight the
need for the bill on Capitol Hill and gain cosponsors. Eighteen of you
and your colleagues now back the Deborah Sampson Act, and we thank you,
but we need more support from both sides of the aisle.
We have also worked tirelessly with the military and veterans
community and I am proud to say that 18 of the groups this Committee
works with the most are standing with us support of this legislation.
They include: Veterans of Foreign Wars (VFW), American Legion, Disabled
American Veterans (DAV), Paralyzed Veterans of America (PVA), Vietnam
Veterans of America (VVA), American Veterans (AMVETS), Jewish War
Veterans (JWV), Tragedy Assistance Program for Survivors (TAPS),
Service Women's Action Network (SWAN), National Military Families
Association (NMFA), Commissioned Officers Association of the U.S.
Public Health Service (COA), U.S. Army Warrant Officers Association
(USAWOA), Marine Corps Reserve Association (MCRA), Fleet Reserve
Association (FRA), Air Force Sergeants Association (AFSA), The Retired
Enlisted Association (TREA), Military Officers Association of America
(MOAA), and Wounded Warrior Project (WWP).
We also cannot do this without our members, who have been meeting
with their Congressional offices across the United States and here in
Washington during our recent ``Storm The Hill,'' and raising their
voices via social media.
Our media outreach has been aggressive. More than 5 million people
have viewed earned media coverage of our campaign, and nearly 4 million
have engaged with the campaign on Facebook and Twitter.
Over the last 15 years, the VA has worked to improve services for
women veterans, but it's not enough. The Deborah Sampson Act aims to
fills some critical gaps in VA care for women vets in addition to
asking the VA to demonstrate its commitment to culture changes by
updating its motto: ``To care for him who shall have borne the battle
and for his widow, and his orphan.'' I urge you to consider carefully
the message that Congress supporting a more inclusive motto sends to
the women veterans in your home states. Or conversely, what your
opposition to this provision may indicate to women who feel alienated
by the very agency that's supposed to support them. Every veteran
walking through the doors of a VA medical center should see the words
on that door and know that he or she is welcome.
Setting the right tone at the VA is critical to driving better
support for women, like Peer-to-Peer Assistance.
In recent IAVA surveys and focus groups, women veterans showed
overwhelming interest in peer support to help them navigate the VA. A
pilot program focused on women vets transitioning from the military is
included in the Deborah Sampson Act and makes permanent the
availability of reintegration counseling with family members in group
retreat settings that has proven successful already in pilot form.
The bill also expands the capabilities of the women veteran call
centers to include text messaging, and will be analyzed for performance
metrics, which will help us understand its impact.
Legal and Support Services are another key component of the bill.
The FY 2015 Community, Homelessness Assessment, Local Education and
Networking Groups (CHALENG) Program Report found that one of the top
needs for women veterans is access to legal services. The Deborah
Sampson Act establishes a VA partnership with at least one community
entity to provide legal services to women veterans as a direct result
of that finding.
The bill also ensures that at least $20 million in Supportive
Services for Veteran Families (SSVF) will be allocated for
organizations to support women vets. In FY 2015, 14 percent of veterans
served by this program were women. That number has steadily increased
since the program's inception. These dedicated funds will help support
the growing number of women and their families in need of this support.
In 2012, the VA solidified its policy to provide seven days of
Newborn Medical Care for children delivered by women veterans who are
receiving VA maternity care benefits. The Deborah Sampson Act would
expand that to 14 days to ensure newborn the VA has the flexibility to
provide that care during this fragile first stage of their life. This
bipartisan idea is a no-brainer that has stalled in Congress for too
long and needs to change now.
There continue to be a number of Access Barriers for women veterans
seeking care at the VA. IAVA women veterans have shared stories of lack
of privacy at VA facilities and IAVA members continue to share those
concerns. The Deborah Sampson Act looks to address this issue by
authorizing $20 million for enhanced privacy measures for women at VA
medical centers across the country like door locks and privacy
curtains, and requires VA to develop a plan to address Department-wide
deficiencies.
We also want to stop hearing stories like the one from a woman who
sought care at the VA's Emergency Room because of an ectopic pregnancy
accompanied by pain and bleeding. The veteran had to leave and go to
another VA ER because the ER team did not diagnose or treat her
condition appropriately. This shouldn't happen in any ER, and
disappoints me as an American to hear from a women veteran.
To improve how the VA health system supports women, the Deborah
Sampson Act: requires every VA facility to employ at least one women's
health primary care provider; requires each VA medical center be
staffed with at least one Women Veteran Program Manager to help women
navigate coordinated care; authorizes $1 million annually to expand the
Women Veterans Healthcare Mini-Residency Program, which trains VA
primary care and mental health physicians on gender-specific care with
demonstrated success, to include ER physicians; and an ombudsman to
focus on culture change at the VA and support women veterans seeking
care.
One in five women veterans responding to IAVA's women veterans
survey did not feel the VA provided them with access to adequate
gender-specific health care, so the solutions offered are engineered
not just to get women the health care support they need, but to do so
effectively. Fear of poor care should never be a barrier to any VA
patient.
The Deborah Sampson Act finally includes valuable Data Tracking and
Reporting provisions to assess needs and improve services down the
line.
Currently, the VA does not collect data on its programs by gender
and minority status, and as a result, it is impossible to truly
identify what programs are most effective in supporting women and
minority populations and which need improvement. The recently enacted
Female Veterans Suicide Prevention Act was a great first step to do
this for mental health and suicide prevention programs, but the
requirement needs to span all programs and this bill requires that.
Women also shouldn't be telling us stories of the VA being unable
to provide prosthetics appropriately fitted for women veterans. To
define this problem and help craft solutions to ensure women veteran
amputees have access to properly fitted prosthetics, the Deborah
Sampson Act requires VA to report on the availability of prosthetics
made for women.
The bill also importantly requires VA to centralize information and
resources on women's healthcare at VA on their website to streamline
the ability of women veterans to find and learn about the services
offered to them. Less than 60% of women responding to IAVA's women vets
survey said VA provided sufficient information and resources on women's
healthcare at VA. As demand continues to rise from women veterans as it
declines from men, this should be a commonsense fix that is not just
pro-women, but pro-veteran.
Among the remainder of the bills under consideration today, IAVA
strongly supports the Women Veterans Access to Quality Care Act
(S. 804), as we did in the 114th Congress. Provisions in the bill to
ensure standards to meet healthcare needs of women are prioritized in
construction of VA health facilities, establishment of performance
measures to analyze women's health outcomes, and requirements to
improve privacy for women are consistent with the goals of our ``She
Who Borne The Battle'' campaign and we would like to again invite all
Members of this Committee to cosponsor and work to pass S. 804 and the
Deborah Sampson Act.
IAVA thanks Chairman Isakson and the Committee for engaging and
seeking input from stakeholders in the effort toward VA appeals
modernization that establishes a new system that is easy to navigate
and veteran-centric. We are supportive of the general framework
outlined in Veterans Appeals Improvement and Modernization Act
(S. 1024) that establishes three separate paths for veterans to choose
from when appealing a decision on their claims, and strongly believe
that these new steps are critical to breaking the logjam in the current
process. Following passage, IAVA encourages the VA to ensure continual
monitoring and evaluation of the new processes to ensure improvement of
the system. Congress should also exercise strong oversight over the
law's implementation to ensure that it truly works for veterans.
IAVA applauds the leadership and diligence of Senators Rubio,
Chairman Isakson and Ranking Member Tester toward crafting the
Department of Veterans Affairs Accountability and Whistleblower
Protection Act (S. 1094) to enable the removal of bad-acting employees
at the VA. Nearly three years ago, the scandal in Phoenix alerted the
country to the outrageous state of the VA health care system. IAVA and
our members have fought since that time to give the VA Secretary the
tools needed to address workforce accountability and save veterans'
lives. We encourage Senate and House leaders to quickly work together
to pass the strongest VA accountability measure that can be signed into
law.
IAVA supports the Performance Accountability and Contractor
Transparency Act (S. 543), which holds VA contractors accountable for
services they provide and increases transparency into those contracts.
These provisions are in line with our members' top priority of bringing
strong accountability to the VA.
IAVA also strongly supports the Military and Veterans Caregivers
Services Improvement Act (S. 591), which makes veterans of all eras
eligible for the full range of caregiver support services, and would
allow those veterans to transfer Post-9/11 GI Bill benefits to their
dependents. All veterans must be afforded the same level of benefits,
regardless of the era in which they served. It is simply the right
thing to do.
We also support the Chiropractic Care Available to All Veterans Act
(S. 609), to require a program under which the VA will provide
chiropractic care and services to veterans, as it is consistent with
IAVA's Policy Agenda which calls for treatment options that include the
full range of traditional and experimental options that have proven to
be effective.
The Veterans Compensation Cost-of-Living Adjustment Act (S. 784)
would ensure that disabled veterans and surviving spouses receive
benefits that keep pace with the rising cost of living in our country.
IAVA supports this bill and we appreciate that all Members of the
Committee joined Chairman Isakson as original cosponsors.
The draft Serving our Rural Veterans Act would authorize the VA to
pay training and supervision of medical residents and interns at
certain non-VA facilities, to require the VA to carry out a pilot
project to establish or affiliate with residency programs at facilities
operated by tribes and the Indian Health Service. It has long been a
priority in IAVA's Policy Agenda to improve outreach to rural veterans,
hence we support this legislation.
IAVA supports the draft Veterans Partners' Efforts to Enhance
Reintegration Act which requires VA to carry out a program to establish
peer specialists in patient healthcare teams at VA medical centers.
IAVA strongly supports peer support programs, including as a way to
reach rural veterans who do not live in close proximity to military
medical facilities, and encourages them to represent the diversity of
the veteran population, to include women peer mentors.
Finally, the Department of Veterans Affairs Veteran Transition
Improvement Act (S. 899) would ensure that Title 38 Veterans Health
Administration employees such as doctors, nurses and other VA medical
personnel can access paid sick leave in their first year, that they
would otherwise have to accrue, to undergo medical treatment for their
service-connected disabilities, as their counterparts in other Federal
agencies are permitted. IAVA supports this legislation.
Mr. Chairman, many of these provisions are easy fixes, and some
will require hard work and additional funds. When my soldiers and I
were sent twice to face combat in Iraq, the Army and U.S. taxpayers
spared no expense, with the goal of providing us with an overwhelming
advantage in war. Veterans are proud to have served our country and we
need Congress to know that the care we receive as a result of our
service is a cost of war, and just as important as properly equipping
those deploying downrange as we speak. We have got to spare no expense
in caring for them after they return. Veterans are not a special
interest--they answered the call when more than ninety-nine percent of
American did not.
Chairman Isakson, Ranking Member Tester, and Members of the
Committee, thank you again for inviting me to be here today, and on
behalf of IAVA, I thank and remember our veterans who have served
before us and those who are deploying now, again, to fight around the
globe.
Chairman Isakson. Thank you, Ms. Jaslow.
Mr. Cox?
STATEMENT OF J. DAVID COX, SR., NATIONAL PRESIDENT, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Mr. Cox. Thank you for the opportunity to testify today. It
is astounding that while the Secretary says there is over
45,000 unfilled health care vacancies in the Department, we are
here today talking about firing rather than hiring. Does anyone
here believe that the firing that has been in the news during
the last week is an unusual occurrence? Does anyone here
believe that an executive firing a subordinate to cover up his
or her own misdeeds never happens in the Department of Veterans
Affairs? I tell you what--when it happens where workers have
due process rights, the innocent are protected.
At workplaces with a process for weighing evidence and
making decisions based solely on facts, no one gets fired
without just cause. If this bill passes, you can strike VA from
that list. The innocent will be fired without good cause, the
appeals will be a humiliating joke, and the executives will
continue to ruin the lives of workers and hurting veterans.
So, let us be honest. None of the personnel provisions of
this bill are really about veterans or accountability. It is
about politics. It is about ``you are fired'' as an easy way to
shift blame of wrongdoing from executives and political
appointees onto the rank and file.
We have a bill that reeks of the--wrecks the apolitical
civil service and is justified only by pretending that the most
extreme examples of misconduct are occurring all over the
place. In fact, instances of outrageous misconduct are rare.
AFGE has no use for people who abuse the public trust, who
engage in unlawful conduct, or are poor performers, or violate
government rules or our collective bargaining agreements, or
the EEO laws. We want them out of the agency. They make
everything more difficult for the vast majority who perform
very well. In addition, this bill would supersede existing
collective bargaining agreements and impose unworkable
timeframes on the firing processes.
We have asked the Committee to at least show some respect
for the integrity of the collective bargaining process by
agreeing that the provisions that affect the current contract
go into effect only after a new contract is negotiated, and I,
again, ask for that change to be made.
We understand that bashing Federal employees and taking
away their rights makes for good politics, and it does make for
bad government. And I promise you that under this bill, more
employees will be fired for bad reasons than for good reasons.
You want to make it easy for VA managers to fire people.
You have bought into complaints that firing is too hard for
them, when every single study shows that current laws provide
them all the authority they need to remove anybody who is
actually a poor performer or engages in misconduct.
Our objections to the specifics of the bill are as follows.
The first is lowering evidentiary standards for adverse actions
for misconduct allegations. Replacing the preponderance
standard with substantial evidence eviscerates due process.
With misconduct charges, there needs to be a finding of fact.
With proposed change, there will no longer be a finding of fact
with misconduct. As with Mr. Comey, it will be enough for the
boss to simply want someone gone.
The second and equally irresponsible provision of the bill
is to prohibit administrative judges at the MSPB from
mitigation of penalties. The VA will be able to fire with scant
evidence of wrongdoing and reviewing authority will have no
ability to correct the injustices by making the penalty match
the offense. The prohibition on mitigation throws four decades
of jurisprudence out the window. No more progressive discipline
or consideration of whether the penalty is appropriate. No
consideration of the nature of the seriousness of the offense,
the level of the job, the employee's record, or whether others
have committed the same offense and received a similar penalty.
No rehabilitation and no consideration of the circumstances.
This bill is a serious mistake. We will all miss the
apolitical professional civil service when it is gone, and this
bill will have made a major role in its demise.
[The prepared statement of Mr. Cox follows:]
Prepared Statement of J. David Cox, Sr., National President, American
Federation of Government Employees, AFL-CIO
introduction
Mr. Chairman, Ranking Member Tester, and Members of this Committee,
My name is J. David Cox, and I am the National President of the
American Federation of Government Employees, AFL-CIO (AFGE). On behalf
of the 700,000 Federal and District of Columbia employees represented
by our union, including over 250,000 at the Department of Veterans
Affairs (VA), I thank the Committee for the opportunity to present
AFGE's views on the subject of this hearing: the ``Department of
Veterans Affairs Accountability and Whistleblower Protection Act of
2017.'' In AFGE's view, this bill not only decreases accountability at
the VA, it eviscerates the agency it is supposed to improve, and
ensures that no employee ever gets a fair shake on any proposed adverse
action. Its name should be changed to the ``2017 Scapegoating VA Rank
and File Employees for Political Expediency Act.''
In my nearly five years as president of AFGE, I have never
testified at a more important hearing than this one. It is important,
not only for the VA and the veterans that the we serve, it is also
important for the men and women I am proud to represent. Finally, it is
important because passage of this horrible bill would undermine the
apolitical American civil service, perhaps the least appreciated and
most threatened pillar of our democracy.
At issue is whether the United States, the most advanced country in
the world and the leading democracy, will continue to have a merit-
based career civil service, selected, promoted and retained on the
basis of ability and competence, or whether we will descend back into
19th century corruption and all the maladministration of government
that brought us.
Before I was elected to national office in AFGE, I worked for 22
years at the Salisbury, North Carolina VA Medical Center as a
Registered Nurse. I love the VA and the veterans we serve, and the
future of the agency means the world to me. I also care deeply about
our democracy, and I am appalled at the political cynicism and short-
sightedness that this bill represents.
While today we are focusing on the VA, much more than just the VA
is at stake. The Veterans Health Administration is somewhat of a
microcosm of the many ideas and institutions whose future is being
hotly debated in politics today. I will discuss three: The first is
health care. The second is the role of the Federal Government in
providing essential services and on what terms these commitments will
be met. The final issue is the status of the career civil service, and
whether we will continue to administer government programs with
apolitical professionals hired by the government, or whether most of
what the VA does should be contracted out to favored private-sector
firms, or even abandoned altogether.
First, let's deal with the backdrop--the American health care
system. The VA operates the country's largest integrated healthcare
system. The military veterans it serves are the most deserving group
one can imagine. The commitment we have made to veterans is to care for
those who have borne the battle. The VA cares for aging Vietnam-era
veterans, veterans from the Korean War era and even some surviving WW
II veterans. In the past 15 years we have added many more veterans who
have served this country in Iraq and Afghanistan and other more recent
conflicts. Almost all of these veterans often have ongoing service-
connected illnesses and wounds, emotional and physical.
The VA has always been there to serve them. The economic cost of
caring for these veterans is high and budget politics have been an
ever-present threat to quality and accessibility. It is astounding that
while there are reportedly up to 45,000 unfilled positions in VA
healthcare, Congress has chosen to focus on attacking the rank and file
employees who are have made the choice to spend their careers caring
for this cherished group. Rather than addressing the critical need to
fill thousands of urgently needed positions at VA in order to better
serve veterans, this cynical, ideologically driven bill seeks to fire
more VA personnel. Talk about misplaced priorities.
Why punish the VA's rank and file? Why punish the employees of VHA?
There is no question that VA healthcare is of the highest quality. And
that high quality healthcare is provided by the same VA employees this
bill attacks. Every independent study has confirmed that the outcomes
of VA provided healthcare are at least as high, and frequently higher
than care provided by any other hospital system. Veterans know this and
numerous surveys show that they very much like their VA-provided health
care. They want more of it, not less.
Ever since the Phoenix waitlist scandal, the future of the VA
became fodder for 24 hour cable news, largely fed by the right-wing.
The focus of discussion for many politicians has been how to dismantle
the VA piece-by-piece and outsource it to the private sector. Well-
funded and therefore politically powerful groups have seized the
opportunity to cement a narrative that the VA is ``broken.'' Their
purpose is to discredit the VA by blaming its problems on its rank and
file employees and the fact that it is a government agency. Their real
objection is that few are able to make profits on VA care.
I challenge anyone on this Committee to find a major healthcare
provider, private or public, that doesn't face significant challenges.
Most don't make the news because they are not answerable to the public
the way the VA is, and most are able to fire or otherwise silence
whistleblowers with ease. But anyone who has gone to a private hospital
or even an emergency room can tell you about long waits, enormous
bureaucracy, and waste, fraud and abuse. They can tell you about how
getting an appointment with a specialist takes at least three months.
That is sadly part and parcel of our healthcare system, including
private sector providers. Just look at any hospital bill, or talk to
any physician or nurse, and they will tell you of the complexities and
contradictions of America's healthcare system.
Fortunately veterans have the VA, a system that does not charge
them and that covers them extremely well. It is so much more than just
a healthcare system. It is also a community that understands the unique
needs of those who have served this country. Whatever ails VA
healthcare delivery reflects America's overall healthcare system--and
in most cases, the faults are more severe among private hospitals and
healthcare facilities. The critics of the VA will never admit this, so
I will tell you. There is big money in VA healthcare and the
privatizers salivate at the opportunity to gain access to those
dollars. They try to hide their avarice with platitudes about ``serving
veterans,'' the ``broken'' VA and the miracles of the market, but the
reality is that they hate the idea that a large government agency so
successfully provides care to veterans, and they want a ``piece of the
action.''
The VA may not be perfect, but it is better than any other
healthcare system at serving veterans with special needs associated
with service-connected illness, injury, or disability. The VA makes no
money off veterans. Its facilities may not be glamorous. Yet every
important indicator of quality of care strongly confirms that the VA is
a success. The Committee should recall that the Phoenix scandal began
with a wait times issue. I will not defend the manipulation of wait
time data, but that was not an issue of quality of care. It was an
issue of resources, combined with a performance bonus system for
executives that incentivized lying and cheating. It is absolutely
unconscionable that from those facts has come the deplorable
legislation before you today that undermines the foundation of the
civil service.
So let's be honest. None of this is really about veterans or the VA
or accountability. It's about politics. I do believe that everyone
wants the best care for veterans. I wish we were having a debate on how
to provide that care and to ensure accountability for all those who are
charged within doing so. But that is definitely not what is happening
here.
We are here today because politicians understand that ``You're
FIRED!'' is popular as a way to address complex issues. ``You're
FIRED!'' is popular as a way to deflect responsibility from management
decisionmakers and place it on the rank and file. We have before us a
bill that wrecks the civil service and is justified only by reference
to the false claim that the most extreme examples of misconduct are
occurring all over the place. In fact, outrageous instances of
misconduct are exceedingly rare. It must also be noted that some
authors of this bill have a long track record of denigrating virtually
every known government program except those that personally benefit
them. No one who values the VA or respects veterans should support this
legislation.
I have been specifically asked by this Committee to address the
changes to the civil service due process provisions contained in the
scapegoat/firing bill, the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017.
Before I address the specifics of these proposals, let me state
that AFGE and its members have no use for people who abuse the public
trust, who engage in unlawful conduct, who violate government rules,
and who are demonstrably poor performers. We want those people out of
the VA every bit as much as anyone--maybe more so. Employees who engage
in misconduct or who are genuinely poor performers ruin the reputation
of the agency and add more work for those who perform well and play by
the rules. So you will not hear me or anyone in this union defend a
person who steals drugs or watches pornography while on duty. In fact,
AFGE counsels such employees to resign. We certainly will not defend
their matters in arbitration.
The bill before you is a regressive piece of legislation. It takes
us backward, not forward. Although marketed as a bill to make it easier
to fire bad employees, the proposals are designed to kill off and bury
the apolitical civil service. It makes it just as easy to fire a good
employee, an innocent employee, as it will be to fire a bad employee.
No one should pretend otherwise. The VA can and should terminate people
whose conduct or performance justifies termination. But it is
absolutely not necessary to destroy the foundation of the civil service
in order to allow them to do so.
The legislation takes time-tested procedures for civil service
removals and turns them on their head in order to accomplish a clearly
political agenda. Every single study or report of civil service removal
procedures has stated that the principle reasons poor performers are
not removed expeditiously are management ignorance and aversion to
conflict, i.e. incompetence. It has nothing to do with the underlying
laws.
Federal managers, including those at the VA, do not lack adequate
authority or tools to discipline those who engage in misconduct or who
are poor performers. The Government Accountability Office (GAO), the
Merit Systems Protection Board (MSPB) and the Office of Personnel
Management (OPM) have all issued reports and analyses that have come to
the same conclusion: When poor performers are not dealt with it is not
because the civil service laws or procedures are too difficult to
utilize. It is because managers do not want to put forward the effort
to properly document poor performance so that they can remove or demote
these people.
A recent GAO report, ``Improved Supervision and Better Use of
Probationary Periods Are Needed to Address Substandard Employee
Performance,'' (GAO-151-191), February 6, 2015, found four main reasons
why agencies do not use the already substantial tools they have
available to them to remove poor performers. All four reasons related
to management failures and/or unwillingness to properly identify and
document poor performance. Had this Committee taken GAO's well thought-
out recommendations into consideration, the bill before us would never
have been written.
Instead we have a cynical effort to ride the wave of public outrage
over some legitimate problems that union whistleblowers and the VA
Inspector General have brought forward and use it to destroy yet
another union and the civil service. We continue to hear whining from
management that civil service due process procedures are just too
difficult to follow. They sound just like the President whining that
his new job is too hard. S. 1094 accommodates these pitiful managers
completely. Firing is too hard for you? Don't worry, we'll make it
easy. We'll rig the system so no matter what you do, you'll be called a
huge success. We'll let you fire the employee right away, and deal with
due process in the future, if ever.
To call this a dangerous precedent is an understatement. To anyone
who cares about the apolitical and objectively qualified civil service
this bill is a disgrace.
The premise that the procedural hurdles for removing poorly
performing employees are too high is simply untrue. When an employee
invokes his/her rights to a formal adjudicatory hearing before the
Merit Systems Protection Board (MSPB), the agency almost always
prevails. For example, in 2013 only 3% of employees appealing their
dismissal to the MSPB prevailed on the merits. In contrast, agencies
were favored at a rate five times that of employees when formal appeals
were pursued. The notion that the MSPB makes it impossible to fire a
Federal employee is simply a myth.
GAO reviews and reports (e.g., GAO-15-191) have consistently found
that the underlying reasons for permitting poor performers to remain in
Federal service are managers' failure or unwillingness to document poor
performance in accordance with due process procedures available to them
under the Civil Service Reform Act. The bottom line of the GAO report
is that lack of performance management by supervisors is the underlying
reason why poor performers are not dealt with. Indeed, the
preponderance of the evidence points in only one direction: the
complaint that ``it's too hard to fire a Federal employee'' is not
supported.
Let me address some of the most egregious and shameful aspects of
the bill:
evidentiary standard for misconduct
S. 1094 replaces the current evidentiary standard for misconduct
removals (and other adverse actions) from a ``preponderance of the
evidence'' standard (meaning more than 50% of the evidence must support
the agency's recommendation) to a ``substantial evidence'' standard
(meaning the agency only needs, among other things, more than ``a mere
scintilla of the evidence'' to meet its burden of proof). The
substantial evidence standard, with strong advance notice safeguards,
is currently only used for performance-based firings, suspensions, and
demotions. Applying this standard to misconduct cases would mean that
even when the majority of the evidence supports the employee, he/she
will lose.
With the current preponderance of the evidence standard, agencies
win about 80% of all contested cases before the Merit Systems
Protection Board (MSPB). Lowering the standard of review would mean
that actual misconduct would barely need to be established before an
employee could be fired. This upends nearly 140 years of civil service
law, and makes VA employees very close to ``at will'' (which seems to
be the real objective of the drafters of this provision).
There is a good reason why Congress has required different
evidentiary standards for performance and conduct. When an employee
receives a notice of a proposed adverse action related to performance,
he or she has the opportunity to repair any performance failures
through a Performance Improvement Plan (PIP). In contrast, allegations
of misconduct must be validated with a higher standard of evidence
because the question is only whether the alleged misconduct occurred.
This lower evidentiary standard is virtually pro forma, not a
standard associated with the genuine administration of justice. It is
yet another example of the cynicism that underlies this legislation,
providing a false notion that due process is being upheld, when in
fact, it is being eviscerated.
mitigation of proposed penalty
S. 1094 would prohibit MSPB administrative judges (AJs) from
mitigating management's proposed penalty for misconduct. Under current
law, MSPB AJs can reduce a proposed penalty for misconduct if the facts
of the case warrant a lesser penalty. Removing the ability of MSPB AJs
to mitigate a proposed penalty is not only unjust, but will also result
in ``penalty overcharging,'' meaning that a proposed penalty need not
actually reflect the underlying charge. Combining a lower evidentiary
standard of review to sustain a misconduct charge along with no ability
to mitigate a proposed penalty means that employee appeal rights will
be effectively neutered.
The VA will be able to fire employees with scant evidence and no
ability for the reviewing entity to correct these injustices. This
provision is the antithesis of justice and undermines not only the
rights of the employee, but also the independence of the MSPB.
This provision also jettisons almost four decades of jurisprudence
that followed the MSPB's 1981 decision in Douglas vs. Veterans
Administration which gave rise to the use of progressive discipline in
Federal personnel management. The basic principle of justice, that the
punishment must fit the offense which was enshrined in the Douglas
decision, has served the government well, and if S. 1094 becomes law,
the Department of Veterans Affairs will have abandoned this management
``best practice'' altogether for an ``Apprentice'' TV-show type of
system (You're FIRED!).
I ask you to consider these ``Douglas Factors'' for a moment and
decide whether your intention is actually to throw away this eminently
reasonable set of considerations. The Douglas Factors allow mitigation
of proposed penalty after the following are considered:
1. The nature and seriousness of the offense, and its relation to
the employee's duties, position, and responsibilities, including
whether the offense was intentional or technical or inadvertent, or was
committed maliciously or for gain, or was frequently repeated;
2. The employee's job level and type of employment, including
supervisory or fiduciary role, contacts with the public, and prominence
of the position;
3. The employee's past disciplinary record;
4. The employee's past work record, including length of service,
performance on the job, ability to get along with fellow workers, and
dependability;
5. The effect of the offense upon the employee's ability to perform
at a satisfactory level and its effect upon supervisors' confidence in
the employee's work ability to perform assigned duties;
6. Consistency of the penalty with those imposed upon other
employees for the same or similar offenses;
7. Consistency of the penalty with any applicable agency table of
penalties;
8. The notoriety of the offense or its impact upon the reputation
of the agency;
9. The clarity with which the employee was on notice of any rules
that were violated in committing the offense, or had been warned about
the conduct in question;
10. The potential for the employee's rehabilitation;
11. Mitigating circumstances surrounding the offense such as
unusual job tensions, personality problems, mental impairment,
harassment, or bad faith, malice or provocation on the part of others
involved in the matter; and
12. The adequacy and effectiveness of alternative sanctions to
deter such conduct in the future by the employee or others.
These factors are designed to ensure that the penalty selected by
the agency fits the employee's alleged offense. Why are these
controversial? Perhaps it is because those who genuinely wish to see
this legislation enacted really don't care about the civil service or
due process, and are particularly enraged that a government program
such as VA healthcare actually works. Or perhaps, they just see
political expediency in not challenging well-funded ideology-based
advocacy courtesy of the Koch brothers and their allies.
pension forfeiture
The proposed legislation authorizes pension forfeitures for certain
felony convictions for every VA employee. This would include Wage Grade
2 housekeepers and cemetery workers, virtually all of whom are veterans
with service-connected disabilities. Private employer pension plans
under the Employee Retirement Security Act of 1974 (ERISA) do not
authorize pension forfeitures except for fraud against the pension
plan. AFGE recognizes that there is precedent for Federal employee
pension forfeiture, but these forfeitures have always involved involve
espionage and treason, not drunk driving convictions.
It is curious that people who usually promote following private
sector practices for Federal Government personnel have suddenly
abandoned this principle when it comes to taking away earned pensions.
supersedes collective bargaining agreements and imposes unworkable time
frames on the removal process
The proposed legislation supersedes the timeframes specified in
current active collective bargaining agreements (CBAs). It also imposes
unworkably short timeframes on grievance procedures and non-grievance
based adverse actions. That Congress would summarily upend collective
bargaining agreements in the middle of the term of the agreement is an
unprecedented attack on the integrity of the collective bargaining
process and union contracts.
The proposed legislation provides that from date of first notice to
the employee until actual removal that not more than 15 business days
elapse. Employees are given only 7 business days to respond to the
notice. Following removal, employee have only 10 business days to
appeal the VA's decision to the MSPB.
Contrast these timeframes with the rights given to VA contractors.
They have a minimum of 90 days to appeal a contracting officer's
adverse decision to the Board of Contract Appeals (BCA), and one year
to appeal to the U.S. Court of Federal Claims, if they decide to forego
a BCA appeal. It is absolutely stunning, and a very sad commentary on
the state of Federal agency priorities that employees are given such
short response and appeal times, while favored Federal contractors are
given months, and even up to a year to appeal VA decisions to the BCAs
and a Federal court.
A merit-based civil service system is a cornerstone of a democratic
society. It ensures that technical expertise is brought to bear on
performing government agency work, without the threat of overt partisan
agendas driving day-to-day operations. Agency career employees remain
accountable to politically-appointed officials, but those appointees,
and supervisors who serve under them, may not take actions against
career employees for misconduct or poor performance without at least
providing some level of due process to the employee, including third-
party review by neutral decisionmakers. Career employees are only
supposed to be fired for good cause, and ``good cause'' means reasons
supported by evidence.
The Civil Service Reform Act (CSRA) of 1978 provides the modern-day
basis for both selection of most career civil servants, and their
protection from unwarranted personnel actions, including firings
motivated by politics, bias, or other non-merit-based reasons. This
CSRA protects the public from having their tax dollars used for hiring
political partisans for non-political jobs, and helps ensure the
efficient and effective governance of Federal agencies.
The CSRA provides that employees may be removed for either
misconduct or poor performance. The employee merely needs to be
informed of his or her alleged deficiency and the reason that
management proposes to take an action against him or her, whether it be
firing, demotion, or suspension.
Forty years of case law shows unambiguously that the CSRA does not
give unfair advantages to Federal employees. Agencies prevail in 80%-
90% of all cases at the MSPB administrative judge (AJ) level, and only
about 18% of all AJ decisions are appealed to the full Board. AJs are
upheld by the full MSPB in about 90% of all appealed cases.
It is very important to note that following an agency's adverse
decision against an employee, the agency's decision is automatically
effected. For example, the employee is removed from the agency's rolls
the day of issuance of the decision or within several days following
the decision. An employee removed by an agency receives no pay during
the appeal process.
During the debate on VA firing I have heard several lawmakers and
others argue that it takes forever to get rid of a bad VA employee.
This is simply untrue. In almost all cases, an employee may be fired
within 30 days of the first notice. Even when an arbitration procedure
under a collective bargaining agreement is invoked the agency can fire
the employee after 30 days, and the employee receives no pay during the
entire appeal or arbitration process. They are off the agency's
payroll. Attempts to portray removed employees appealing their removals
as somehow lounging on the dole while their appeal is processed are
simply untrue, and frankly dishonest. It doesn't matter whether the
appeal route chosen is the MSPB or arbitration. The employee receives
no pay. Anyone who says otherwise is lying or ignorant or both.
The importance of maintaining a nonpartisan, apolitical civil
service in an increasingly partisan environment cannot be overstated.
First, most Federal jobs require technical skills that cannot simply be
obtained through non-merit based appointment. Second, career employees
must be free to perform their work in accordance with objective
professional standards. Those standards must remain the only basis for
evaluating employee performance or misconduct.
Bills like S. 1094 that decrease due process rights are ``dog
whistles'' for politicizing the civil service, subjecting the Federal
workforce to partisan or personal whims of supervisors and political
appointees. Whatever lack of public confidence in government exists
today will be magnified a hundredfold if all civil servants become de
facto political appointees, serving at the whim of supervisors. And
that is exactly what this horrible piece of legislation will do.
Federal managers are already empowered under existing civil service
laws to take appropriate action when employees are underperforming or
engaged in misconduct. There is no group who objects more to the
continuing presence in the workplace of those who are not performing
well or who engage in misconduct than fellow Federal employees. When
someone doesn't perform up to speed, it simply means more work for the
rest of the people who do perform well.
the real issue--agency reluctance to document employee performance in
accordance with due process procedures
In 1978, Congress enacted the CSRA, which is the modern-day statute
governing civil service protections. In considering the law, Congress
was specifically concerned about balancing employee rights and
maintaining a non-partisan civil service with the need for management
to deal with poor performers, or unacceptable conduct.
To help agency managers deal with poor performers, the CSRA
included a new section, Chapter 43, specifically addressing performance
issues. As previously mentioned, this chapter set a lower standard of
review of agency decisions with respect to performance issues among
employees, and restricts the MSPB from modifying agency determinations
regarding removal of poorly performing personnel.
The GAO report previously mentioned (GAO-15-191) suggests many
reasons why managers are sometimes reluctant to address performance
issues. It also explores the many myths surrounding removal of poor
performers. GAO's report echoed findings of the MSPB in its reported
entitled, ``Addressing Poor Performers and the Law'' (September 2009).
The fact is that the laws governing the firing of poor performers,
primarily Chapters 43 and 75 of title 5, are straightforward and not
unduly burdensome to agencies. However, the due process procedures
inherent in these laws require documentation between the supervisor and
the employee that addresses the performance or conduct issues. This can
be very difficult for some supervisors. Nevertheless, the law is clear,
agency supervisors have many tools available to them to address
performance issues, and to fire poor performers.
continued denigration of va employees
As Members of this Committee are undoubtedly aware, continuing
partisan attacks on the work of VA employees only fuels a self-
reinforcing feedback loop. Employees know they are punching bags.
Morale plummets as a continuous stream of anti-Federal worker
proclamations, almost all false or highly exaggerated, emanate from
elected or appointed leaders. Not long ago, the majority leader in the
House of Representatives wrote an op-ed in the Wall Street Journal
describing the ``Federal bureaucracy'' as the entity that ``poses the
greatest threat to America's people, economy and Constitution.'' Such
criticism is not only false, but misleads people into thinking that
career civil servants create statutes and regulations wholly apart from
supervision by elected leaders and political appointees. Anyone who has
worked in Federal service will tell you that employees follow
direction, whether that direction comes from Congress, the President or
other politically-appointed officials. In other words, career Federal
workers respond to and implement duly enacted laws and policies. They
do not create these policies.
In all my years as an elected official of AFGE, I have never seen
fit to denigrate my own staff. No leader should do that. There have
been situations where employees have been disciplined or dismissed. But
taking a battle axe to all employees and describing them in broad terms
as ``threats'' to the American people heralds a new low in
misinformation and outright dishonesty. As I told several news outlets
at the time, ``To call civil servants--one-third of whom are veterans--
a `threat to America's people, economy and Constitution' is an insult
to the men and women who dedicate their lives to the programs and
services that benefit all Americans.''
holding the va accountable
AFGE agrees that VA employees should be held accountable, and we
also believe that includes VA managers, supervisors and political
appointees. Statements implying that employees cannot be fired for
months or years, or that fired employees remain on the government
payroll for long periods while pursuing appeals following removal
demand accountability every bit as much as an employee who is
chronically late to work.
These are dishonest statements and VA leadership should be held to
account for this dishonesty. If they can't fire, demote or properly
discipline employees under current civil services rules, AFGE questions
their competence to manage and lead such a large and complex
organization. If they cannot hire for 45,000 health care vacancies, the
same is true. They lack the competence to manage and lead the agency.
Seeking the easy way out is not leadership. It is a politically-
motivated response to fecklessness and incompetence.
Regardless of the outcome of the debate on this legislation, AFGE
calls on this Committee to demand from the VA Secretary the following
data on the number of employees fired, suspended or demoted (``adverse
actions'') by the VA under applicable statutory or regulatory
authority; more specifically the following:
1. The number of employees proposed for and actually subject to
adverse actions;
2. The veterans status of employees subject to adverse actions;
3. Locations, demographics and grades, and reasons for adverse
actions; and
4. Periods of time to effect adverse actions from date of first
employee notice until final agency decision.
We have yet to see this data, and we believe it will better inform
the debate, not only as to whom the VA is disciplining, but also as to
the level of competence within the agency in managing its personnel
functions. We also believe that the Committee should focus more of its
attention on the failure of the agency's leadership to fill the
reported 45,000 healthcare vacancies. Firing should not be your only
concern. Hiring deserves at least as much attention.
a better way forward
History is replete with examples of public service corrupted by
unfettered, politically-based employment decisions. That's why we
continue to support a merit-based civil service system with appropriate
due process, and checks and balances to ensure that both hiring and
firing decisions be merit-based, and subject to meaningful review.
AFGE strongly supports improvements in agency performance
management systems, and we look forward to working with lawmakers and
other interested stakeholders to see this carried-out. AFGE also
supports better training of both VA supervisors and employees so that
clear expectations are established, performance is measurable, and
appropriate steps are taken to either remedy performance problems, or
to remove poor performers from the workplace.
AFGE vehemently opposes S. 1094, one of the worst pieces of
legislation of the modern era. This legislation is an affront to hard
working VA employees, more than a third of whom are veterans, directly
lowers objective standards of review of proposed adverse actions,
impinges on the union's ability to defend meritorious cases, and
unfairly penalizes employees for what could be trivial offenses.
S. 1094 will corrupt and ultimately destroy the professional civil
service and return the country to the days of the ``spoils system'' of
government employment.
conclusion
Attacks on government employees and the civil service in general
may make for good politics, but they make for bad government. AFGE is
aware that dealing with problem employees is essential to sound public
administration. But the vast majority of employees at the VA perform
well. Agency systems and the laws and regulations governing employee
performance are well-thought-out. The issue is not whether the laws or
regulations governing the civil service are adequate, but whether
agencies, including VA managers and supervisors have the tools,
training and will to effectively implement current rules. The current
mindset of the VA and supporters of this legislation in Congress seems
to be that fast and easy firing of employees will magically solve the
VA's problems. Think again. This will cause far more problems than it
will solve.
I urge the Committee to reconsider the very dangerous and
ultimately destructive personnel provisions of this firing bill.
Thank you for your time and consideration and I will be happy to
answer any questions you may have.
Chairman Isakson. Thank you, Mr. Cox. I will start and take
5 minutes, and then go to the Ranking Member for 5 minutes.
Let me first of all, Mr. Atizado, in your introduction of
yourself, or the introduction of your statement, you made the
reference to your organization being the largest claims
organization in the world. Is that correct?
Mr. Atizado. In the Nation. I do not know about the world.
Chairman Isakson. In the Nation.
Mr. Atizado. Yes, sir.
Chairman Isakson. The nation is big enough so we will take
that.
Mr. Atizado. Yes, sir.
Chairman Isakson. I think in your testimony, that caught my
ear because that is what this appeals process is all about,
making sure that people are treated right that are injured and
have an appeal for a benefit and have a right to a benefit. I
appreciated the time that you took to explain the effort you
all went through to examine the appeals bill, and I appreciated
the comments that you made. Would you thank your organization
for that?
Mr. Atizado. I am sorry. What was the question?
Chairman Isakson. Be sure to thank your organization for
that.
Mr. Atizado. Definitely, sir. I will be honest. We have a
lot more intelligent people than in our organization, that have
worked hand-in-hand with the VA for this bill, so the thanks
goes to the VA as well.
Chairman Isakson. DAV is a great organization and our
disabled veterans bear a scar for the rest of their lives, and
we owe them a tremendous obligation. One of those obligations
is to see to it that appeals of any claim that they have made
are handled expeditiously and quickly. Now with this bill
passing, hopefully in the next few weeks, they will be doing
exactly that, and that will be a great day forward.
Ms. Jaslow, thank you for mentioning Memorial Day. Unless I
missed it, of all of us on the Committee that asked questions
and made opening statements, and of all of you who made
statements, yours was the one that made reference to not
forgetting that next week is Memorial Day, or within a week or
so is Memorial Day, which is a very important day for our
country.
I would just encourage all the Members--I cannot ask
anybody or tell anybody to do anything, but I hope all the
Committee Members will take time during the Memorial Day break
to spend at least a little bit of time each day making sure our
young people and our supporters and our voters understand the
value that we have in the sacrifice that was made by the
veterans of America who died so that we could have the liberty
and the freedom that we are enjoying today.
I always tell the story, when I make Memorial Day speeches,
about Roy C. Irwin, a veteran from World War II, in 1944. When
I went to the Margraten Cemetery in the Netherlands and walked
down the rows of crosses, on row 24 I came to the last cross in
the row, and I go to each one and look at the dates and the
place and the name of the individual who is buried there. The
last grave in row 24, Roy C. Irwin of New Jersey, died December
28, 1944, was interred. I stopped in my tracks for a second,
took a deep breath, and realized that the day I was born was
December 28, 1944, I was standing on the grave of an American
soldier from New Jersey who died on the same day I was born, so
that I could enjoy the life that I have enjoyed over the last
72 years.
So, I think when all of us take a moment to talk about
Memorial Day, we can talk about that sacrifice those soldiers
made so that all of us who are here today, living and enjoying
the freedoms of the United States of America, realize that, in
large part and measure, that was paid for by singular American
efforts who volunteered on our behalf, sacrificed their lives,
and died for our freedom and our ability.
So, I just wanted to throw that in. I hope everybody will
take a second to tell their own stories during that time.
I want to thank the input that everybody has given to the
appeals process. We are excited about trying to get something
fixed that has been broken for a long time and I appreciate the
VA's attitude toward helping us to do that. I understand there
is some concern and input on the accountability portion, but I
think we have done a good job of hearing from everybody and
putting together a piece of legislation that works for the
Veterans Administration, the employees of the Veterans
Administration, and the taxpayers of the United States of
America, who pay for the Veterans Administration. I also
appreciate the Ranking Member's cooperation in working with all
of us on all these pieces of legislation, to make them happen.
Last, I will make a comment. Of all the legislation we have
talked about today, everybody left out the one piece of
legislation that a lot of people would have thought we would
have mentioned first, but I think it shows the integrity of
these organizations and the integrity of our vets and the
integrity of the VA. But nobody mentioned the cost-of-living
(COLA) increase that Senator Tester and I have put in, because
they are taking it--that maybe we were going to make sure that
happens. That shows we have got a good self-interest in part of
all our people testifying here today.
Ranking Member, would you like to ask a question?
Senator Tester. Yeah. Thank you, Johnny. I think we all
have our Veterans Day memories of what has transpired and what
that day is all about, and, quite frankly, what every day
should be about. Every day should be Memorial Day for the
people of this country.
I will just pass along a little story. When I was a
seventh-grader I got tabbed to be the VFW bugler, which was
kind of a big deal because everybody in the whole damn town
would show up for Memorial Day. They would do the roll call,
and at that moment in time--this is the late '60s so there were
still a few World War I guys around. It was always an amazing
experience.
I will never forget what one of them said to a 13-year-old
kid, which was that we never want to forget that war is a god-
awful thing, and you do not put people in harm's way without
knowing what you are doing. You know, those are old World War
II guys that knew what it was like. They knew getting your arm
blown off was not something that was a pretty sight. Watching a
guy die was not a pretty sight either. So, kind of interesting.
So, I thank you guys for your service and the folks you
represent. I do want to thank--a couple of thank yous--number
1, to all five of you for the people you represent. Thank you
for being here and representing them. For the VA staff sticking
around and hearing this panel, I want to thank you for that.
Oftentimes we have two panels and the first panel gets up and
leaves, and I know you have got work to do, but you stuck
around and I want to acknowledge that.
I know that Ms. Flanz is here. If there are any questions
on MSPB, which Mr. Celli, you brought up, and their ability to
make decisions, certainly utilize her.
I have got a couple of questions. Actually, I have got more
than a couple. I want to start with Allison, with the IAVA.
There was a GAO study that came out in December 2016, that
found that across the VA system there was a significant lack of
providers available for women veterans--I think you referenced
it in your statement--as well as significant privacy issues.
I am interested to know how seriously you think, or IAVA
thinks, that the Veterans Administration is taking these
findings seriously, and if you have seen any changes since that
report was issued.
Ms. Jaslow. Well, I certainly believe any person at the VA
who I have talked to, and I believe many that you all have
talked to, have very good intent. I think one of the reasons
why we appreciate not only your leadership, sir, but why we are
getting behind the Deborah Sampson Act is because, like many of
the things at the VA, it is not happening fast enough.
I believe there was somebody on the panel ahead of me who
said that she was able to quote how many VA facilities have
gynecologists, but that clearly means that not all of them do,
which means that you have VA health care centers that
adequately support men and ones that inadequately support
women.
We talk a lot about how the culture needs to be more
welcoming, but one of the other barriers is women just do not
think that they are going to get treated in the way that they
need to be treated when they go into the VA.
To answer your question, sir, we are still talking to
members. You know, I already told my story of running into
snags when I walk into the VA. More work needs to be done, and
what we really need to do is jump-start it. I think that, you
know, our approach is not only raising awareness of this issue.
I really do not think that you get the fuel in the tank that
you really need to get this done until people really feel like
it is an issue, so that is the first step. But the other step
we have outlined in the bill.
Senator Tester. OK. Very good.
Adrian, with DAV, you issued a fine report a few years ago
titled ``Women Veterans: A Long Journey Home.'' It had some
compelling facts and findings about the challenges unique to
women veterans. Have you or anybody within your organization
spoke to the VA about this report, and what kind of reception
have you received?
Mr. Atizado. Senator Tester, thank you for that question.
VA has been more than welcoming of that report. If there is one
thing I do find quite impressive about VA is that they are not
shy about asking themselves what they are doing wrong and
correcting those deficiencies. They are very much involved with
trying to address those issues in our report, within their
jurisdiction, because that report spans the entire Federal
Government. We are trying to update that report now to reflect
the abundant good work that VA has done.
I just want to tag on to what Allison had mentioned. You
know, this bill--these two bills are good for a start, I think.
It is important that we have these policies in place, these
artifacts that show that VA's culture is, in fact, inclusive
and respectful of women veterans and their service.
Senator Tester. In their testimony, VA said they did not
support compiling a report--and this is for any of the VSOs--a
report on how they are doing on providing prosthetics to women
veterans. We hear, quite frequently, the VA's ability to
provide gender-specific prosthetics is inconsistent, at best.
It does not have to be all of you, but it can. Can you
share some insights from your membership on women veterans
where it comes to prosthetics?
Mr. Atizado. So, if I can, for my colleagues, if you do not
mind, we have a very active member of our organization and she
had sought a prosthetic appliance from VA; at that time the
only thing available was a male prosthetic. We thought that was
falling a little short of what we expected of VA. They tried to
make it work but clearly it did not.
We think these reporting measures are critically important.
Our testimony says, though, that these reports should include a
little bit more personalized reporting: how women veterans
perceive these services and these programs, whether it speaks
to them and their needs, whether it is respectful of them, and
whether they are satisfied. I think adding those would make
this bill just a little bit stronger, sir.
Senator Tester. OK. Thank you. In closing, really quick, I
just want to say that I met with about a dozen veterans,
Vietnam veterans and veterans that have come back from the
Middle East, up in Kalispell, MT, this last week, and we talked
about many of these bills. I cannot tell you how committed they
are to making the VA the best it can be and not privatizing the
VA, which I think is important to be said here, because there
are people around--I do not know around this dais, but maybe
around this dais, certainly in the House, that want to
privatize the VA. If we are not continually working to make the
VA the best it can be, it will be privatized, and I do not want
to see that happen, personally.
So, we thank you for your advocacy, and we look forward to
working with everybody to try to make the VA the best it can
be. It is an important backstop for our veterans.
Thank you, Mr. Chairman.
Chairman Isakson. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. Thank you all
for being here and for all your tireless work for our veterans.
If you were here earlier you may have heard my questions about
the Veterans PEER Act, and I would like to reiterate them to
you, without going through all the provisions which I am sure
you know. I would like to know from you whether you think that
these kinds of support specialists are necessary, whether they
perform a function, and whether they ought to be an integral
part of our mental health care service and primary care team
for our veterans.
Mr. Celli. Well, I can tell you that The American Legion
has long been a supporter of peer support. We find that it is
the best way especially for veterans who are new to the VA
system to become comfortable with the system and to integrate
well. Incorporating them into the PACT model is really the
right thing to do. I just do not think that there is any--we
believe in it so much we actually passed a resolution
specifically supporting it.
Senator Blumenthal. Thank you. I would welcome other
comments.
Ms. Keleher. The VFW has long been very supportive of
expansion of peer support specialists, and as we said, we very,
very adamantly support it, not just for gender-specific care
but for mental health care and many other areas. It is
something that we look forward to continuing to work on.
Senator Blumenthal. Great.
Ms. Jaslow. I would be happy to chime in, sir. Specifically
related to women, you know, I think something that I would
encourage you to think about, as you are working within this
chamber, if people do not feel like they can navigate the VA
system, whether they are welcome at the VA, whether it is even
a place that does not overwhelm them, they are not going to
take advantage of no matter how great of care that you try to
provide for them.
So, simply having somebody, especially somebody who can
help somebody through foreign territory, which, if you are a
woman walking in there, not only is there for most of our
generation a generational divide, but a gender divide. So, we
are strongly supportive of it as well.
Senator Blumenthal. Great. Mr. Cox?
Mr. Cox. Senator Blumenthal, I think that peer support is
really important, and also I think the greatest peer support is
that at the VA, over one-third of the employees are veterans
themselves. They are the shining star. They work there. They
get their care there. They believe in it. They are committed to
it. I see that committed staff every day as they find veterans
that are struggling to maneuver the system, that, hey, they
reach out, they share, even if they are in VHA, about VBA, and
other benefits, and the coaching and mentoring. I think there
is no bond greater than what you find amongst veterans, and I
believe every one of the veteran service organizations would
join with me in saying, you know, peer support, let us support
it, but let us also fill those 45,000 vacancies at the VA so
that every veteran gets all the care they fully deserve.
Senator Blumenthal. Well said, and points well taken. We
tend to overlook the fact, all too often, that a vast number of
the VA employees are veterans themselves, and they care more
than anyone about keeping faith with our veterans. I think that
peer support is extremely important and we should recognize, as
all of you have said that veterans are often the best source of
care for other veterans, because they tend to understand their
brothers and sisters, and it is the reason why veterans want
the VA health care system to continue to exist. I think of all
the reasons that veterans support the VA health care system,
that may include the best equipment, medicine, care, but it is
also the fact that it is provided, often, by veterans, with
other veterans at their side.
I want to just say, finally, in the few seconds that I have
left, I have been working very, very hard on this Appeals
Improvement and Modernization Act of 2017. This backlog and
delay in addressing claims by veterans--many, many of them
justified and deserving--is a scandal for our Nation. The
present backlog and delay is unacceptable, and I hope that you
will join me in pursuing the bill, which is based on a
framework that the VSOs have helped to devise. I want to give
you credit for it because you have participated, along with
experts and the VA itself, in the appeal process. It would
consolidate the current appeals process into distinct lanes
that can be pursued more efficiently and effectively and fairly
for our veterans. So, thank you for your help on it and I hope
we can get it across the finish line.
Thanks so much. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Blumenthal. I want to
thank all our witnesses from the VSOs for your testimony today.
Thank all your membership for their support in continuing with
the Veterans Administration and this Committee's work. I thank
the VA employees who were here earlier. I think their comments
made about the value of those employees cannot be overstated.
They are a tremendous asset for our country. And as Mr. Cox
said, in the VA I think about one-third of employees are
veterans themselves, and it means a lot to them to make sure
they are providing that service as veterans, to the veterans
who have served this country.
I appreciate all your testimony and input. We will leave
the record open for 10 days, if there are additional
submissions any of you may have. If there are no further
questions, the Committee will stand adjourned. Thank you all
for your attendance.
[Whereupon, at 4:38 p.m., the Committee was adjourned.]
Response to Posthearing Questions Submitted by Hon. Bill Cassidy to
Jennifer S. Lee, M.D., Deputy Under Secretary For Health For Policy and
Services, Veterans Health Administration, U.S. Department of Veterans
Affairs
In your prepared remarks, you note that the Veterans Administration
would like to require the use of ISBT-128 for all biological implants.
However, I have several concerns with this position, as noted below.
Could you address these in turn?
Question 1. The VA defines biological implants to include
xenografts (animal-derived grafts) and not just those products of human
origin. ISBT-128 (International Standard for Blood and Transplantation)
is only suitable for products of human origin. How do you intend to
track xenografts that are biological implants? What system will you use
for those?
Response. The VA does not intend to use ISBT-128 for all biological
implants. Only those implants of human origin would be required to have
a distinct identifier such as provided by ISBT-128. Currently, ISBT-128
is the only available identifier for this purpose. VA would accept a
distinct identifier for HCT/P (Human Cell and Tissue Products) from any
Food and Drug Administration (FDA) approved source. VA's system will be
robust enough to track any biologic implant including both allografts
and xenografts. ISBT-128 will only be used for products of human
origin.
Non-human products will be able to use GS1 (Global Standard One),
HIBCC (Health Industry Business Communications Council) or other FDA
UDI (Universal Device Identifiers) as appropriate.
Question 2. My understanding is that there are only 20 tissue
processors within the U.S. that produce Human Cells, Tissues, and
Cellular and Tissue-Based Products (HCT/P's) regulated as devices.
According to a recent survey, of those 20, only 2 currently use ISBT-
128. Have you checked with your vendors to ensure that you could have
access to HCT/Ps if you move forward with your proposal to limit your
issuing agency only to ISBT-128?
Response. VA has checked with its human tissue contractors and has
been assured that they can provide ISBT-128 labeled tissue. Those who
currently do not use ISBT-128, have indicated that they will be able to
do so within a year if requested, at a minimal cost. As a result, VA
intends to allow for up to a year for a vendor to come into compliance
when it negotiates its contracts if they are not already using ISBT-
128. It should be emphasized that a distinct identifier like ISBT-128
is essential to prevent the entry of prohibited tissue sources into the
VA supply chain. It allows for the readily auditable trail necessary to
ensure that only properly sourced tissue is in use by VA; the
underlying intent expressed in the legislation.
While mechanical implants are regulated differently than human or
animal derived implants, they could use the same tracking system for
blood and biologics. A common system would also be useful with the
emergence of composite devices which combine both mechanical and
biologic components.
Question 3. Obviously, track and trace efforts should be improved
for all implants--not just biological ones. What efforts are you doing
to maintain traceability in those areas? My understanding is that the
vast majority of medical device companies within the U.S. are opting to
use GS1 (barcodes) for labeling their devices. Does the VA have a
process for utilizing GS1?
Response. VA does not have a process for utilizing GS1 at this
time. Prosthetic & Sensory Aid Services is currently serving as a
member of a VA cross-functional workgroup led by the Office of
Strategic Integration (OSI) Veterans Engineering Resource Center (VERC)
for implant tracking. This workgroup will identify and develop
processes and process requirements that will meet all requirements
established by FDA, The Joint Commission, and Congress for the tracking
of implantable devices by September 30, 2017.
______
Response to Posthearing Questions Submitted by Hon. Mazie K. Hirono to
Jennifer S. Lee, M.D., Deputy Under Secretary For Health For Policy and
Services, Veterans Health Administration, U.S. Department of Veterans
Affairs
s. 899 va veteran transition improvement act
Question 4. Deputy Under Secretary Lee, could you comment on the
VA's current policies related to paid medical leave for your disabled
veteran employees and how S. 899 would improve on that?
Response. Current disabled Veteran employees employed in the
Veterans Health Administration (VHA) may request and use leave for
medical purposes in accordance with established agency leave
procedures. The proposal would require VA to establish a leave transfer
program for the benefit of health care professionals appointed under 38
U.S.C. Sec. 7401(1) and authorize the establishment of a leave bank
program for the benefit of such health care providers. Inclusion of
this provision would ensure that disabled Veteran employees performing
health care services in Title 38 occupations have the same opportunity
to schedule medical appointments and receive medical care related to
their disability without being charged leave as employees in Title 5
and Hybrid Title 38 occupations.
According to January 2017 data from the VA, there are over 13,000
Title 38 critical medical vacancies in the positions not currently
subject to the Wounded Warrior Federal Leave Act (these are physicians,
physician assistants, registered nurses, chiropractors, podiatrists,
optometrists, dentists, and expanded--function dental auxiliaries).
Question 5. Does VA have a goal to hire veterans for these
positions and if so, could you comment on the impact of the additional
paid medical leave provided in S. 899 on efforts hire disabled
veterans?
Response. VHA continues to encourage the hiring of Veterans for
healthcare occupations, as well as other administrative, technical,
professional, and clerical occupations. When filling Title 38
positions, VHA also needs to ensure the best qualified individuals are
hired to meet the health care needs of our Veteran patients, as well as
support our health care mission. The proposed legislation may assist in
the hiring of Veterans for Title 38 occupations. Extending the current
provisions of 5 United States Code (U.S.C.) section 6329, Disabled
Veteran Leave, to Title 38 employees appointed under 38 U.S.C.
Sec. 7401(1) would provide an opportunity for our disabled Veteran
employees performing health care services in Title 38 occupations to
have the same opportunity to schedule medical appointments and receive
medical care related to their disability without being charged leave as
employees in Title 5 and Hybrid Title 38 occupations. This will provide
disabled Veteran employees an opportunity to undergo medical treatments
for their disabilities without having to consider their leave balances
or work-life issues to obtain such services outside of scheduled work
hours. Although the disabled Veteran employees would be eligible for
paid medical leave, the proposal is considered cost neutral as it will
not increase VHA full-time employee equivalent levels or salaries of
the employees.
s. 1094, department of veterans affairs accountability and
whistleblower protection act of 2017
We all agree that more can be done to increase accountability for
those at the VA who have betrayed the trust they have been given to
serve our Nation's veterans.
While there are some good provisions in S. 1094, I am deeply
concerned on the implications of the bill's provision lowering the
evidentiary standard for misconduct removals from a ``preponderance of
the evidence'' standard (meaning more than 50% of the evidence) to a
``substantial evidence'' standard (meaning the agency only needs, among
other things, more than a ``mere scintilla of the evidence'') as the
Supreme Court defined in its 1971 decision in Richardson v. Perales.
This new standard would mean that even when the majority of the
evidence supports the employee, he/she will lose.
Question 6. Deputy Under Secretary Lee, can you explain how the VA
can ensure due process for its employees under this bill when it says
if the majority of the evidence supports the employee, he/she will
lose?
Response. Employees at VA are entitled to constitutional due
process and will continue to be entitled to constitutional due process
even if S. 1094 is enacted into law. A change to the burden of proof
from preponderant evidence to substantial evidence does not change an
employee's right to constitutional due process.
At its simplest, constitutional due process requires that an
individual receive notice of an action affecting the individual's
interests and a reasonable opportunity to contest that action.
Sometimes the notice and opportunity to contest must precede the action
(pre-deprivation); sometimes it may come after (post-deprivation), in
the form of a post-decisional appeal, whether to a third-party forum
like the Merit Systems Protection Board (MSPB) or to the courts. Under
S. 1094, this constitutional due process will not be adversely
impacted. Under S. 1094, employees will continue to receive notice of a
proposed disciplinary action, the ability to respond befsore a decision
is made, and the ability to go to the MSPB or a court.
With regard to the burden of proof, a substantial evidence standard
does not mean that an employee will lose, even if the majority of the
evidence supports them. The MSPB defines ``substantial evidence,'' the
standard proposed under S. 1094, as the ``degree of relevant evidence
that a reasonable person, considering the record as a whole, might
accept as adequate to support a conclusion, even though other
reasonable persons might disagree.'' 5 CFR Sec. 1201.4(p). Substantial
evidence is ``a lower standard of proof than preponderance of the
evidence.'' Id.
The MSPB's definition of ``substantial evidence'' is echoed in
Richardson v. Perales, a case that pertains to a social security
disability claim rather than the Federal civil service. Richardson v.
Perales, 402 U.S. 389, 401 (1971) citing Consol. Edison Co. v. Nat'l
Labor Relations Bd., 305 U.S. 197, 229 (1938) (substantial evidence is
``more than a mere scintilla [of evidence and it] means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion''). But, the MSPB further explains that, in the Federal
civil service context, substantial evidence ``obliges the presiding
official to determine only whether, in light of the relevant and
credible evidence[,] a reasonable person could agree with the agency's
decision (even though other reasonable persons including the presiding
official might disagree with that decision). Parker v. Def. Logistics
Agency, 1 M.S.P.R. 505, 531 (M.S.P.B. 1980).
The MSPB currently uses the substantial evidence standard to
adjudicate agency actions taken based on performance. See 5 U.S.C.
Sec. 7701(c)(1); 5 CFR Sec. 1201.56(b)(1)(i). Even with this lower
burden of proof, there are numerous cases where the MSPB and its
reviewing court have determined that the agency failed to meet this
lower burden of proof. See, e.g., Parkinson v. Dep't of Justice, 815
F.3d 757, 766 (Fed. Cir. 2016); Thompson v. Dep't of the Army, 122
M.S.P.R. 372, 381-82 (M.S.P.B. 2015); Smith v. Dep't of Veterans
Affairs, 59 M.S.P.R. 340, 342-43 (M.S.P.B. 1993); Cranwill v. Dep't of
Veterans Affairs, 52 M.S.P.R. 610, 616 (M.S.P.B. 1992). Consequently,
it is doubtful that, even with a lower evidentiary burden, the MSPB
would always agree with an action taken by VA or that, even if the
majority of the evidence supports an employee, he or she will not
succeed in a disciplinary appeal before the MSPB.
______
Response to Posthearing Questions Submitted by Hon. Mazie K. Hirono to
J. David Cox, Sr., National President, American Federation of
Government Employees, AFL-CIO
s. 1094, department of veterans affairs accountability and
whistleblower protection act of 2017
Introduction: President Cox, in your testimony you reference the
unworkable timeframes for appeals using the Grievance and Arbitration
Procedures in the Collective Bargaining Agreement.
Question 1. Can you explain how the short timeframes would threaten
the reliability of the collective bargaining process?
Question 2. Can you share with the Committee any real-life examples
of how this would impact your rank and file employees and possibly even
reverse some removal decisions that were in favor of the employee due
to the lowering of the evidentiary standard?
[Responses were not received within the Committee's timeframe for
publication.]
A P P E N D I X
----------
Prepared Statement of Hon. Thom Tillis, U.S. Senator from North
Carolina
Please accept my apologies for not being here this afternoon--I was
running in the Capitol Challenge 5K this morning and unfortunately was
not able to finish the race, even though I was well on my way to easily
eclipsing my time from last year.
I just want to briefly comment on two bills on the agenda:
On the Veterans Education Priority Enrollment Act--I
appreciate VA's support and the valuable feedback we received from all
the stakeholders. I understand some of the compliance concerns that
were raised and I look forward to discussing with Senator Brown to
identify the best path forward that will allow flexibility for schools
that are already setting the gold standard while ensuring that all
veterans have the opportunity to use their GI bill to the fullest
extent.
On the State Veterans Home Adult Day Health Care
Improvement Act--I thank Senator Hatch for his leadership and I look
forward to engaging with VA to address their recommendations that would
improve the bill. Together, we can empower veterans to receive daily
care while living and spending more time at home with their families.
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of Lauren Augustine, Director, Government Relations,
Got Your 6
----------------------------------------------------------------------------------------------------------------
Bill
Num. Bill Name or Subject Sponsor IAVA Position
----------------------------------------------------------------------------------------------------------------
S.290 Increasing the Department of Veterans Affairs Sen. Moran Supports
Accountability to Veterans Act of 2015
----------------------------------------------------------------------------------------------------------------
S.23 Biological Implant Tracking and Veteran Safety Act Sen.CassiNo Position
----------------------------------------------------------------------------------------------------------------
S.112 Creating a Reliable Environment for Veterans' Dependents Sen.Heller (R-NV) Support
Act
----------------------------------------------------------------------------------------------------------------
S.324 State Veterans Home Adult Health Care Improvement Act Sen.Hatch (R-UT) No Position
----------------------------------------------------------------------------------------------------------------
S.543 Performance Accountability and Contractor Transparency Sen.Tester (D-MT) No Position
Act
----------------------------------------------------------------------------------------------------------------
S.591 Military and Veteran Caregivers Services Improvements Act Sen.Murray(D-WA) Support
----------------------------------------------------------------------------------------------------------------
S.609 Chiropractic Care Available to All Veterans Act Sen.Moran (R-KS) No Position
----------------------------------------------------------------------------------------------------------------
S.681 Deborah Sampson Act Sen.Tester (D-MT) Support
----------------------------------------------------------------------------------------------------------------
S.764 Veterans Education Priority Enrollment Act Sen.Brown (D-OH) No Position
----------------------------------------------------------------------------------------------------------------
S.784 Veterans' COLA Act Sen.Isakson (R-GA) No Position
----------------------------------------------------------------------------------------------------------------
S.804 Women Veterans Access to Quality Care Act Sen.Heller (R-NV) Support
----------------------------------------------------------------------------------------------------------------
S.899 Veteran Transition Improvement Act Sen.Hirono (D-HI) No Position
----------------------------------------------------------------------------------------------------------------
S.1024 Veterans Appeals Improvement and Modernization Act Sen.Isakson (R-GA) Support
----------------------------------------------------------------------------------------------------------------
S.1094 Accountability and Whistleblower Protection Act Sen.Rubio (R-FL) Support
----------------------------------------------------------------------------------------------------------------
Draft Serving our Rural Veterans Act Sen.Sullivan (R-AK) Support
----------------------------------------------------------------------------------------------------------------
Draft Veteran Partners' Efforts to Enhance Reintegration Act Sen.Blumenthal (D-CT) Support
----------------------------------------------------------------------------------------------------------------
Chairman Isakson, Ranking Member Tester and Distinguished Members
of the Committee, On behalf of Got Your 6, I would like to extend our
gratitude for the opportunity to share our views regarding several of
these pieces of legislation.
The mission of Got Your 6 is to empower veterans to lead a
resurgence of community across the country. Got Your 6 believes, and
our research confirms, veterans are leaders, team builders, and problem
solvers who have the unique potential to strengthen communities across
the country. As a coalition, Got Your 6 works to integrate these
perspectives into popular culture, engage veterans and civilians
together to foster understanding, drive veteran empowerment policy, and
empower veterans to lead in their communities.
This month, we celebrated the five-year anniversary of Got Your 6.
Formed out of Hollywood as a movement to more accurately portray
veterans in film and television, Got Your 6 has since gone on to lead
the veteran empowerment movement by spearheading and publishing
research, which proves veterans are civic assets, granting out more
than $6 million dollars to our best-in-class nonprofit partners, and
leading an effort to change the national narrative around veterans as
``broken heroes.'' Building on that success, Got Your 6 was proud to
launch a policy department early in 2017 aimed at bringing the existing
successes of the veteran empowerment movement and messaging to the
halls of Congress.
The Got Your 6 policy framework includes advocating for legislation
that:
1. Supports efforts to change the current narrative of veterans as
only ``broken heroes;''
2. identifies common sense reform that does not detract from
existing services but does increase efficiency or cost savings;
3. recognizes the entire veteran population, including the 13
million who do not use the Department of Veterans Affairs (VA) for
their health care needs; and,
4. supports a strong VA that adequately meets the needs of those
veterans who choose to use it.
s. 112, the creating a reliable environment for veterans' dependents
act
The Creating a Reliable Environment for Veterans' Dependents Act
would allow VA-funded homeless shelters to be reimbursed for services
provided to dependents of veterans.
Got Your 6 supports this bill, appropriately resourced by Congress,
as a means to empower veterans with dependents out of homelessness and
back into their communities. At Got Your 6, we view families and
dependents as part of the whole of a veteran. Excluding coverage for
veterans' dependents from the care and services at homeless shelters
has the potential to exacerbate the complications of homelessness for a
vulnerable population of veterans and could perpetuate homelessness.
Allowing the VA to reimburse homeless shelters for veterans'
dependents goes beyond providing families a place to sleep. The
ancillary services, such as employment training, available to veterans
utilizing VA's homeless services, provide the critical tools necessary
to ensure long-term successful integration into the civilian world.
Veterans with dependents could especially benefit from these services
and use them to empower themselves and their families into sustainable
housing and stronger community reintegration.
s. 591, the military and veteran caregivers services improvement act
The Military and Veteran Caregivers Services Improvement Act would
expand the current VA caregivers program to veterans of all eras,
expand eligibility parameters for the program, create a national
interagency working group, and add additional services to the program,
among other provisions.
Veteran and military caregivers provide daily care for our Nation's
most grievously wounded veterans, often leading to their own
employment, financial, and health challenges. The VA's current
caregiver program is intended to provide comprehensive support for
these individuals, connecting them with VA professionals who can aid
and empower them to best support their veteran while leading fulfilling
lives of their own. However, the current program is limited to
caregivers of post-9/11 veterans leaving the vast majority of
caregivers with limited support and resources.
Got Your 6 supports this legislation--services and support intended
to empower caregivers should not be tied to a specific generation of
service. Got Your 6 appreciates the VA's concerns with expanding its
current caregiver program and recognizes such an expansion would
require significant staff resources and appropriations but believes the
need for expansion is necessary.
s. 681, the deborah sampson act
The Deborah Sampson Act would support the VA's mission to
adequately meet the needs of women veterans by: increasing peer-to-peer
assistance, encouraging greater collaboration with community partners,
expanding maternity and newborn care, eliminating existing barriers to
care, and collecting and disseminating data specific to women veterans.
Since our Nation's founding, and especially over the last 16 years,
women have served in a variety of roles in our Armed Forces, but their
service is often overlooked and their needs misunderstood by the VA and
the American public. This March, Got Your 6 challenged the national
narrative around women veterans by launching the PSA #ShesBadass to
better illustrate the truly remarkable service of women.
According to VA data, women now total almost 11 percent of all
veterans, including 20 percent of veterans under the age of 50, yet
many people under appreciate their contributions and accomplishments.
For example, after exiting the military, women veterans are more likely
to attend and complete higher education degrees compared to their male
veteran or civilian counterparts; have higher average incomes than non-
veterans ($54,000 vs. $44,000); and are more likely to work in
management roles and professions compared to their non-veteran
counterparts. Women veterans are a force of impactful change for our
Nation as a whole and empowering them to continue to do so only
strengthens us all.
While our #ShesBadass campaign serves as a powerful tool in helping
to reshape the way America views women veterans, there are still real
challenges many women face when seeking care and benefits at the VA.
Got Your 6 supports S. 681 as it reduces barriers to care and benefits
and better equips the VA to address some of the challenges women
continue to face. The veteran community's support of this legislation
cannot be held in a vacuum; such transformational change will also
require adequate appropriations and a continued commitment from VA
leadership to make equity a priority.
However, better delivery of benefits and care by the VA should not
be viewed as the only means to empower women veterans, and it risks
excluding and further marginalizing those women who choose not to
utilize the VA. We encourage this Committee to challenge their own
views on women veterans, to seek out and highlight resources that
empower women in their communities outside the VA, and leverage the
amazing contributions women veterans are making to society across the
country.
s. 804, the women veterans access to quality care act
The Women Veterans Access to Quality Care Act would require
improvements to VA infrastructure, include women's health outcomes as a
performance measure for VA medical center executives, mandate improved
policies for environment of care inspections, and ensure greater access
to Obstetricians-Gynecologists, among other provisions.
As stated above, Got Your 6 has been a leader in highlighting the
strength of women veterans through our #ShesBadass campaign, but we
also recognize the VA continues to have challenges in adequately
meeting the needs of women veterans seeking care at VA facilities. We
support S. 804 and the improvements to VA policies and infrastructure
included in the bill that will address some of these deficiencies.
Again, we reiterate that these changes cannot be accomplished without
adequate resources and continued leadership on the issue across the VA
enterprise.
s. 1024, veterans appeals improvement and modernization act
The Veterans Appeals Improvement and Modernization Act would
address many of the challenges experienced under the current disability
claims appeals process by creating three routes for veterans to choose
from if they want to appeal the initial decision made on a claim for VA
benefits, allowing those veterans currently going through the appeals
system to opt in to the new system, requiring the VA to test the new
system before full implementation, and requiring the VA to submit a
plan on full implementation of the new system and how it will process
existing appeals.
Comprehensive appeals modernization is a long-standing priority of
the veteran community. The current, antiquated system is under the
burden of a significant backlog, which can often leave veterans waiting
years for a decision. Eligibility for many of the empowering services
and benefits offered by the VA are tied to these appeals decisions,
leaving some veterans in limbo. Additionally, the VA workforce can be
more efficient in its operations under this new system, opening up
resources and opportunities for greater efficiency in benefit delivery.
Because of this, Got Your 6 supports this legislation and encourages
Congress to finally address the VA's need for a modernized appeals
process.
s. 1094, department of veterans affairs accountability and
whistleblower protection act
This bill comprehensively addresses workforce management needs at
the VA by shortening the removal process, ensuring removed employees
are not kept on VA payroll while in the appeal process, and ensuring
due process protections for whistleblowers, among other provisions.
The need to provide the VA Secretary greater workforce management
flexibility has been frequently debated and discussed by many in the
veteran community over the last three years. But, progress on enacting
legislation to address this need has continuously stalled due to
partisan gridlock and legitimate legal concerns over Constitutional
workforce protections.
Got Your 6 is encouraged by the bipartisan nature of this bill and
we support this legislation as a means to provide VA's leadership more
efficient workforce management options. Our support being stated, we
also call on leaders within this Committee to work with their
counterparts in the House of Representatives to address any potential
differences in intent and specific language, which has stalled movement
on this issue for three years.
draft, serving our rural veterans act
This bill would create a pilot program to cover the costs
associated with medical residencies and internships in partnership with
tribal health care facilities.
A shortage of health care providers, and mental health care
providers in particular, is not a unique VA problem, it's an American
problem. This shortage is felt even more acutely in our rural
communities where recruitment and retention are especially difficult.
The pilot program established in this legislation would help address
some of these barriers by leveraging and expanding the existing
partnership with tribal health care facilities and allows the VA to
cover expenses of medical residencies at such facilities.
Got Your 6 supports this legislation as it encourages the VA to
continue seeking ways to increase its operational efficiencies and its
ability to successfully meet the needs of veterans regardless of their
location. Additionally, this bill could serve the national population
at-large by creating a lesson in best practices for ways the Federal
Government can help address the overall provider shortage. We also
encourage Congress to work with the VA to address any concerns related
to the implementation and intent of the bill to ensure maximum impact
and success of such a pilot program.
draft, the veteran partners' efforts to enhance reintegration act
This bill would expand the VA's peer support model, currently used
in mental health care, into the primary care setting.
Recognizing the importance of addressing common mental health care
concerns in the primary care setting, the VA has begun to co-locate
mental health care providers in the primary care setting. This supports
the VA's unique ability to integrate services and reduce the burden of
seeking multiple facets of care for veterans. However, peer support
specialists, who we believe are integral, have yet to be integrated in
a similar manner.
The VA's peer support program is directly aligned with the mission
of Got Your 6: it aims to empower veterans with the tools necessary to
successfully reintegrate fully into the community. Peer Specialists do
this partly through storytelling and sharing their own paths to
success. Got Your 6 believes storytelling is a powerful way to empower
veterans, reduce the civilian-military divide, and destigmatize seeking
help when needed and strongly supports this bill as a means to grow the
peer support program at the VA to meet those objectives.
In conclusion, Got Your 6--through our 34 direct-impact, non-profit
partners who collectively represent three million veterans and their
families, as well as through our efforts to empower and challenge
veterans when they return home--are a new voice which represents all
veterans, of all generations, of all backgrounds. We put veterans first
and challenge them not to think of themselves as broken, but as the
leaders our country is desperately searching for. The veteran
empowerment movement is young, but it is already the voice of millions
of veterans looking to challenge the status quo.
The veteran empowerment movement also addresses the majority of
veterans who do not use the VA. Got Your 6 encourages this Committee to
consider holding a topical hearing on community programs and veteran
organizations currently meeting the needs of and empowering veterans
outside the walls of VA facilities.
We would like to thank this Committee for its leadership on
veterans' issues and look forward to working together to empower all
veterans.
______
Prepared Statment of Military Officers Association of America
Chairman Isakson, Ranking Member Tester, and Members of the
Committee, The Military Officers Association of America (MOAA) is
pleased to present its views on pending legislation under consideration
by the Committee.
MOAA does not receive any grants or contracts from the Federal
Government.
executive summary
On behalf of the Military Officers Association of America, the
largest military service organization representing the seven uniformed
services, including active duty and Guard and Reserve members,
retirees, veterans, and survivors and their families, MOAA thanks the
Committee for holding this very important hearing and for your
continued support of our Nation's servicemembers and veterans and their
families.
This is a critical time for the Department of Veterans Affairs (VA)
as the agency continues its aggressive transformation efforts. MOAA
believes many of the bills being considered today will buildupon the
work of the Committee and the secretary of VA to further enhance the
agency's health and benefits systems. Our association looks forward to
working with the members and staff to strengthen and improve the
legislation enacted this year.
MOAA offers our position on the following select bills. MOAA takes
no position on the remaining bills before the Committee, as some are
outside our scope of expertise.
Health Care:
S. 112, Creating a Reliable Environment for Veterans'
Dependents Act
S. 591, Military and Veteran Caregiver Services
Improvement Act of 2017
S. 681, Deborah Sampson Act
S. 784, Veterans' Compensation Cost-of-Living Adjustment
Act of 2017
Draft Bill, Serving Rural Veterans Act of 2017
Benefits/Accountability:
S. 1024, Veterans Appeals Improvement and Modernization
Act of 2017
S. 1094, Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017
health care
S. 112, Creating a Reliable Environment for Veterans' Dependents
Act--The bill would authorize per diem payments for homeless veterans
receiving comprehensive support services in order to furnish care to
their dependents.
MOAA supports the bill. Veteran homelessness continues to be a high
priority for the VA and our Nation. Since the VA launched a massive
campaign to end veteran homelessness in 2009, rates have steadily
declined, down by nearly 50 percent. While rates are declining,
veterans with families have been increasing in recent years. As the VA
continues to serve more veterans than ever by providing health care,
education, job training, and many other wellness and welfare services,
there is still more to be done--and the needs are so much greater for
veterans with children. Per diem payments for homeless veterans will go
a long way toward giving veterans a hand up as they move down a path to
achieving family stability and long-term security.
S. 591, Military and Veteran Caregiver Services Improvement Act of
2017--This measure expands eligibility and comprehensive assistance and
benefits for family caregivers participating in the VA's Caregiver
Support Program.
Specifically, the bill expands eligibility for participation and
services to family caregivers of veterans of all eras, rather than the
current population of post-9/11 veterans, and includes `illness,'
rather than just `serious injury,' as a criterion for eligibility.
Additionally, the measure provides for a number of other program
expansions, including:
Child care services or monthly stipend for such services;
Financial planning and legal services;
Adjustment to calculating caregiver stipend for performing
personal care services;
Authority to transfer entitlement of unused post-9/11
education benefits to family members;
Flexible work arrangements for certain Federal employees;
Lifespan respite care; and
Establishment of an interagency working group on caregiver
policy.
MOAA generally supports the measure. Since passage of Public Law
111-163, the Caregivers and Veterans Omnibus Health Services Act of
2010, MOAA and our partners in The Military Coalition have supported
the expansion of eligibility for the Caregiver Support Program to
veterans with illnesses and to those who served before Sept. 11, 2001.
Given the current challenges and assessment of the program, MOAA
would not support the additional program expansions in the bill at this
time until the VA has completed a thorough review of the program and
offered recommendations to Congress on how to improve the program. The
association, however, does support the establishment of an interagency
working group as a valuable asset to the VA as it reforms and refines
the Caregiver Support Program going forward.
MOAA urges the Committee to adopt the provisions to expand
eligibility to veterans who served before Sept. 11, 2001, and veterans
with illnesses and to establish an interagency working group on
caregiver policy.
S. 681, Deborah Sampson Act--The bill would improve the benefits
and services provided by the VA to women veterans. Women are joining
the military at rates unlike any other time in history, and they are
accessing VA health care at higher rates than male veterans. While the
VA has worked hard to address the growing demand, the department
requires additional resources to implement system improvements and
services to meet current and future needs of women veterans.
MOAA supports S. 681. Offering peer-to-peer assistance and legal
and supportive services, extending newborn care, eliminating barriers
to access, and establishing data collection and reporting requirements
will help the VA better target the needs of women and minority
veterans. MOAA, however, takes no position on Sec. 504, Sense of
Congress on changing the motto of the VA to be more inclusive.
S. 784, Veterans' Compensation Cost-of-Living Adjustment Act of
2017--Each year legislation is introduced to provide a cost-of-living
increase in compensation rates for veterans with service-connected
disabilities and the rates of dependency and indemnity compensation for
survivors of veterans. This bill provides for such increase effective
Dec. 1, 2017.
MOAA supports S. 784.
Draft Bill, Serving Rural Veterans Act of 2017--The bill would
authorize the VA to pay for the costs of training and supervision of
medical residents and interns at certain non-department facilities.
Additionally, the bill would require the secretary to conduct a pilot
program to establish or affiliate with residency programs at facilities
operated by the Indian tribes, tribal organizations, and the Indian
Health Service.
American Indians and Alaska Natives have historically had the
highest rates of representation in the Armed Forces. The VA has
dedicated significant attention and resources to addressing the unique
needs of Native American veterans as well as veterans who live in very
rural areas where access to quality health care can be a challenge. The
department has worked hard in recent years to develop partnerships to
expand access to services and benefits for Native American veterans and
their families so they are able to access the benefits they have
earned.
MOAA supports the draft legislation. This legislation builds on the
existing work the VA has undertaken to improve access for Native
Americans and rural veterans. The bill would provide the VA with
additional tools to strengthen existing relationships and agreements
with the Indian Health Service and tribal health organizations, as well
as $20 million over an eight-year period to pilot critical educational
and training initiatives for residency, intern, and graduate medical
education pilot programs.
benefits/accountability
S. 1024, Veterans Appeals Improvement and Modernization Act of
2017--This bill makes fundamental changes to the VA claims adjudication
process. It would break up claims processing into three separate lanes,
each representing a different phase of the claims process.
MOAA supports the bill. It is indisputable that the VA claims
adjudication process is an unworkable solution, and for years the
veterans' community has urged Congress and the VA to update these
procedures. MOAA appreciates that the bill defines ``supplemental
claim,'' makes clear the duty to assist applies to supplemental claims,
and provides additional effective date protections. Improvements,
however, can be made in the legislation.
Board of Veterans' Appeals Dockets
This bill sets forth that the Board of Veterans' Appeals shall
maintain two dockets, one for claimants requesting a hearing before the
board and the other for claimants not requesting a hearing before the
board.
MOAA supports allowing claimants the opportunity to submit evidence
to the board directly. This allows claimants with legally complex
claims to have a veterans law judge consider that evidence in
conjunction with the questions of law instead of cycling through the
agency of original jurisdiction (AOJ), where the AOJ may lack the legal
acumen to adequately resolve the claim.
MOAA recommends the legislation be modified to provide that
claimants submitting evidence directly to the board be placed on the
``non-hearing docket.'' This is the closest docket fit to their
circumstances because the claimant is not requesting a hearing.
Further, regardless of whether a claimant's appeal includes additional
evidence or not, the veterans law judge will be required to review
evidence within the record. In other words, if a claimant merely
appeals without submitting additional evidence, the board must still
review all existing evidence in the record. Thus, the choice not to
submit additional evidence does not prevent the board from having to
review evidence.
We do not recommend the other option of placing these appeals on
the ``hearing docket,'' as this would disproportionately disadvantage
the claimant. During roundtable discussions leading up to appeals
reform legislative proposals, VA officials stated the hearing docket
would be much slower than the non-hearing docket. It is unjust to force
claimants not requesting hearings to wait behind those requesting
hearings for the board to address their appeals, where it does not
require any additional work of the veterans law judge to consider the
additional evidence.
The VA has expressed concerns that including claimants with
additional evidence amongst those without additional evidence on the
same docket would confuse the ``feedback loop,'' but we believe this is
manageable. The feedback loop permits the board to provide input to the
AOJ regarding errors the AOJ committed in the original adjudication of
the claim. There appears to be no reason, however, the Board could not
simply exclude the claims with additional evidence from the feedback
loop and still provide very useful feedback to the AOJ from the
remaining claims.
Collaboration with Veterans Service Organizations
MOAA greatly appreciates that the legislation mandates the VA
collaborate with and give weight to the inputs of veterans service
organizations. MOAA recommends, however, that references to ``the three
veterans service organizations with the most members'' be modified to
``the three veterans service organizations that file the most claims on
behalf of claimants.'' Veterans service organizations serve many
functions in the veteran community, not exclusively confined to filing
VA benefits claims. Merely because a veterans service organization has
a large number of members does not necessarily mean the organization is
the best advisor related to the VA claims process. A more reliable
gauge of a veterans service organization's value to the process is the
number of VA claims filed by the organization. The Veterans Benefits
Administration already tracks the number of claims filed by each
veterans service organization, making this information readily
available to VA.
Fully-Developed Appeals
MOAA supports granting the secretary the authority to carry out a
fully-developed appeals program because it would allow a claimant to
expedite a claim to the board with all evidence needed for the appeal.
This goal is consistent with the overall intent of VA appeals
modernization.
This process would also be almost identical to the process for a
claimant participating in the modernized appeals process who chooses to
submit additional evidence for the board's consideration. For that
reason, MOAA recommends appeals processed using this option be docketed
in the non-hearing option. This would prevent the need for the board to
maintain a third docket, as the legislation currently contemplates. A
third docket with varying processing rules would be very confusing to
claimants in understanding whether their claim is being handled
properly.
Although this legislation includes extensive changes to the VA
claims process, MOAA believes further efforts will be necessary by
Congress to improve the process, including, but not limited to,
addressing the precedential value of agency determinations and giving
equal consideration to both private and VA medical evidence.
S. 1094, Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017--This bill will provide the
secretary of VA with additional authorities to expedite the removal of
VA employees when warranted. MOAA's understanding is the bill would
allow VA employees to still utilize employee union representation,
merely within the timeline provided in the legislation.
MOAA supports this bill. The secretary should have all authorities
and resources necessary to effectively manage the VA workforce.
Although VA employees are predominantly very good at caring for
veterans and take this responsibility very seriously, it is clear from
recent events there are VA employees who do not and who have spent
years embroiling the agency in protracted litigation at taxpayer
expense, despite their clear disregard for the best interests of
veterans. MOAA believes the agency should be allowed to focus on
veterans' needs, and these expedited authorities will allow the
secretary to do so.
MOAA thanks the Committee for considering this important
legislation and for your continued support of our veterans and their
families.
______
Prepared Statement of CDR John B. Wells, USN (Ret.), Executive
Director, Military-Veterans Advocacy Inc.
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______
Prepared Statement of John Kriesel, Legislative Chairman, National
Association of County Veterans Service Officers
Good afternoon Chairman Isakson, Ranking Member Tester, and Members
of the Committee, It is truly my honor to present this written
testimony for this hearing. As Legislative Chairman of the National
Association of County Veterans Service Officers, I am submitting this
testimony, to give our organization's support for S. 1024, The Veterans
Appeals Improvement and Modernization Act of 2017.
The National Association of County Veterans Service Officers is an
organization made up of over 1,600 local government employees that
advocate for veterans daily across all facets of veterans' benefits. We
believe we can help the Department of Veterans Affairs reduce the
number of cases in the Board of Veterans Appeals (BVA) inventory,
currently standing at 469,000 appeals. As an organization, we feel this
legislation is a needed step in the right direction. It is imperative
that the VA and all Veteran Service Organizations work together to
relieve claimants of the extreme wait times for decisions from the BVA.
There are many reasons appeals are generated out of County offices
every day, it starts with VA Regional Offices failing to explain their
decision in a way that makes sense to the veteran, and VA's
unwillingness to work with veterans' advocates on addressing
inaccuracies in a rating decision. The reason for this is, simply,
because there is no incentive for the rating authority to work with
veterans or their advocates. Instead, they must meet quotas to prove
efficiency and very commonly County Veteran Service Officers are
instructed DRO's (Decision Review Officers) to appeal to the BVA in
lieu of them correcting the decision. This practice is one of the main
contributing factors for the 469,000 appeals backlog at BVA. The
sweeping changes in the appeals process included in S. 1024 are why
NACVSO supports this legislation. Claimants in the new process will
experience less waiting times, and VA Regional Office staff will
receive meaningful feedback from the BVA on cases that have been
remanded or overturned. For VA to work efficiently, guidance from the
BVA on legal discrepancies in initial claims, must be done and within a
timely fashion that offers solutions to misinterpreted regulations at
the VARO level.
While we support S. 1024, we feel that it is important that we
address our concern with a portion of the legislation. NACVSO believes
every step in the claims process is an opportunity to adjudicate the
claim in the claimants' behalf. As the claim continues to mature in the
process the arguments are solely based on law and legal precedence. To
allow a claim back into the Regional Office within one year of a Court
of Appeals for Veterans Claims (CAVC) decision would require the local
staff to rule against a board of judges. In practicality, the case
would not receive a fair hearing again until it returns to the BVA.
Allowing the claims cycle to continue on this journey promotes for-
profit attorneys to keep the case alive based on little to no merit.
Allowing this will keep the appeals backlog at an unnecessarily high
number. The process today, and in this proposal, needs to have
finality. If the CAVC decision maintains a denial on legal grounds the
attorneys representing that case need to have the wherewithal to
advance the case to next higher court or simply inform the veteran that
until evidence can be discovered that would weigh heavily in the
reversing the decision, the claim and effective date will expire.
As an organization, the National Association of County Veteran
Service Officers support the majority of changes included in S. 1024.
We are proud to stand next to the Department of Veterans Affairs,
fellow Veteran Service Organizations and Congress as we work toward a
solution that will deliver quality and timely benefits to our veterans
and their dependents.
______
Prepared Statement of Dr. Joseph Wescott, Legislative Director,
National Association of State Approving Agencies
Chairman Isakson, Ranking Member Tester, and Members of the
Committee, The National Association of State Approving Agencies (NASAA)
is pleased to provide its views on certain education benefits
legislation under consideration by the Committee today, May 17, 2017,
particularly S. 764.
NASAA does not receive any grants or contracts directly from the
Federal Government, though its member organizations are state agencies
operating in whole or in part under Federal contracts funded by
Congress and administered by the Department of Veterans Affairs (VA).
On behalf of fifty-two State approving agencies (SAAs), including
the territory of Puerto Rico and the District of Columbia, NASAA thanks
the Senate Committee on Veterans Affairs for its strong commitment to a
better future for all servicemembers, veterans and their families
through its continued support of the GI Bill educational program.
S. 764, a bill to amend title 38, United States Code, to improve the
enrollment of veterans in certain courses of education, and for other
purposes.
State approving agencies take seriously our role as ``the
gatekeepers of quality'' and the ``boots on the ground'' defending the
integrity of the GI Bill and making sure that only quality programs are
approved by applying Federal and state law and regulation. An
additional and equally important role is the continued oversight of
these programs after their initial approval. We do so in conjunction
with other stakeholders in veteran organizations and higher education,
including state licensing agencies, state higher education departments,
the Department of Veterans Affairs, the Department of Education and
national and regional accrediting agencies.
We also seek to encourage our approved institutions to provide
resources and policies which will help guarantee the success of our
veteran students once they enroll in an SAA approved program. Congress,
in establishing the laws and regulations governing the manner and
method by which education could be approved for veterans, has wisely
provided that the States, through their State approving agencies are
best situated and staffed to evaluate and oversee educational
programming being considered for approval and being continued for GI
Bill payment. Certainly, it is not inappropriate for Congress to
consider establishing, as a part of requirements for approval that
educational institutions will extend to veterans the same priority
registration rights that they provided to other groups or classes of
students within their institutions. However, we think that given the
consequences of failing to do so (i.e. none of the institutions
programs can be approved for reimbursement under the GI Bill), it is
important that Congress allow the institutions maximum control over how
the priority enrollment policy is implemented. For instance, the
following wording ``the Secretary or a State approving agency may not
approve a program of education offered by such institution unless such
institution allows a covered individual to enroll in courses at the
earliest possible time pursuant to such priority enrollment system,''
should be amended to allow institutions to implement this requirement
in such a way that veterans would not compete for classes with students
from other earlier class years. Likewise, since some schools will need
time to implement this on their campuses, we would suggest that
schools, which are already approved and have priority registration
systems in place, be given adequate time to respond to the new approval
requirements.
Finally, we would point out the recent legislation enacted by
Congress recognizes the primary role played by State approving agencies
in the area of program approval. As such we would request that Congress
change the wording of 3680B(a) to read, ``a State approving agency, or
the Secretary when acting in the absence of a State approving agency,
may not approve . . .''
Given the fact that many leading institutions of education,
particularly accredited public institutions of higher learning (IHLs),
are already offering student veterans priority enrollment, we don't
think that it is unreasonable to require that educational institutions
offering this privilege to other student groups on their campus provide
it to veterans as well.
For the reasons cited above, NASAA respectfully requests that the
language of this bill be changed so that the manner and method of
offering priority enrollment to veterans will not impede the
graduation/progress of those students in classes senior to them.
Likewise, we suggest the insertion of an effective date to allow
already approved institutions time to develop and implement this
requirement. Finally, the primary role of the States in the approval of
programs should be protected and reflected in the language of the bill.
With those amendments, NASAA supports this bill.
Today, SAAs throughout our Nation, composed of approximately 175
professional and support personnel, are supervising over 10,000 active
facilities with 100,000 programs. We pledge to you that we will not
fail in our critical mission and in our commitment to safeguard the
public trust, to protect the GI Bill and to defend the future of those
who have so nobly defended us. Mr. Chairman, NASAA thanks the Committee
for the opportunity to share our concerns and suggestions and we commit
to working together with you and your staff to enhance the pending
legislation.
______
Prepared Statement of Randy Reeves, President, National Association of
State Directors of Veterans Affairs
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______
Prepared Statement of Fred S. Sganga, Legislative Officer, National
Association of State Veterans Homes
Mr. Chairman and Members of the Committee, On behalf of the
National Association of State Veterans Homes (NASVH), I am pleased to
submit this testimony in strong support of S. 324, the State Veterans
Home Adult Day Health Care Improvement Act of 2017, legislation
introduced by Senators Orrin Hatch (R-UT) and Mazie Hirono (D-HI) to
provide severely disabled veterans with an enhanced option to receive
adult day health care services from State Veterans Homes. Similar
legislation was introduced late in the Senate during the 114th Congress
(S. 3198), however no further action was taken prior to adjournment
last year. A companion House bill (H.R. 2460) did pass the full House
last year without opposition and has been reintroduced (H.R. 1005) in
the 115th Congress. Both the Senate and House bills were reviewed by
the Congressional Budget Office (CBO) last year and neither received a
score that needed to be offset; similar CBO scoring is anticipated for
the reintroduced bills.
The State Veterans Home program was established by a Congressional
Act on August 27, 1888, and for more than 125 years State Homes have
been in a partnership with the Federal Government to provide long term
care services to honorably discharged veterans; in some states, widows
and spouses as well as Gold Star Parents are also eligible for
admission. There are currently 153 State Veterans Homes located in all
50 states and the Commonwealth of Puerto Rico. The National Association
of State Veterans Homes (NASVH) was conceived at a New England
organizational meeting in 1952 because of the mutual need of State
Homes to promote strong Federal policies and to share experience and
knowledge among State Home administrators to address common problems.
NASVH is committed to caring for our Nation's heroes with the dignity
and respect they deserve.
With over 30,000 beds, the State Veterans Home program is the
largest provider of long term care for our Nation's veterans. Current
services provided by State Homes include skilled nursing care,
domiciliary care and adult day health care. The Department of Veterans
Affairs (VA) provides State Homes with construction grants to build,
renovate and maintain the Homes, with States required to provide at
least 35 percent of the cost for such projects in matching funds. State
Veterans Homes also receive per diem payments for basic skilled nursing
home care, domiciliary care and ADHC from the Federal Government which
covers about one third of the daily cost of care.
Mr. Chairman, a decade ago NASVH led the effort on Capitol Hill to
assist our most disabled veterans by allowing them to receive skilled
nursing care in State Veterans Homes under a new program that would
provide the ``full cost of care'' to the State Home and thereby expand
the options available to these deserving veterans at no cost to them.
In 2006, Congress passed and the President signed Public Law 109-461
which guaranteed ``no cost'' skilled nursing care to any honorably
discharged veteran who has a 70% or higher service-connected disabled
rating, or requires nursing care due to a service-connected disability.
Unfortunately, the bill did not extend the same ``no cost'' program to
alternatives to traditional institutional care, such as the medical
supervision model Adult Day Health Care currently provided at three
State Veterans Homes in Stony Brook, New York, Minneapolis, Minnesota
and Hilo, Hawaii. S. 324 would fix that.
Adult Day Health Care is designed to promote wellness, health
maintenance, socialization, stimulation and maximize the participant's
independence while enhancing quality of life. A medical supervision
model Adult Day Health Care program provides comprehensive medical,
nursing and personal care services combined with engaging social
activities for physically or cognitively impaired adults. These
programs are staffed by a caring and compassionate team of multi-
disciplinary healthcare professionals who evaluate each participant and
customize an individualized plan of care specific to their health and
social needs.
As a licensed nursing home administrator, I would like to thank
Senators Hatch, Hirono and the many bipartisan Senate cosponsors for
recognizing the need to offer non-institutional alternatives to our
veterans. Giving our veterans and families choices in how they can
receive care is just the right thing to do. Making sure that there are
no financial barriers to care is important to our most medically
compromised veterans.
It would be especially important to veterans like Jim Saladino and
to his wife Noreen. Fifty years ago, Jim answered the call of his
country and served honorably in the United States Army during the
Vietnam War. Today, he suffers from the ravages of Agent Orange
exposure. Specifically, he suffers from chronic illnesses including
diabetes and Parkinson's disease and he also recently suffered a
stroke. Although the Saladino family could have decided to put Jim into
our State Veterans Home because he is a 100% service-connected veteran
and so it would have been fully paid for by VA, but that is not their
choice. They would like their loved one to continue enjoying the
comforts of his own home--for as long as he can. By providing him the
benefits of our medical supervision model Adult Day Health Care
program, Jim is able to keep living at home.
Jim's wife, Noreen, serves as his primary caregiver. She has
publicly stated that the medical model Adult Day Health Care Program
has been a true blessing for her. Jim comes to the ADHC program three
days a week and we work closely with his personal physician to provide
services that will maintain his wellness and keep him out of the
emergency room. During his six hour day with us, Jim receives a
nutritious breakfast and lunch. He receives comprehensive nursing care.
He also receives physical therapy, occupational therapy and speech
therapy. He can get his eyes checked by an optometrist, his teeth
cleaned and examined by our dentist, and his hearing checked by an
audiologist. If required, he can get a blood test or an x-ray, have his
vital signs monitored and receive bathing and grooming services while
on site.
For Jim's wife, having him come to our program allows her the peace
of mind knowing that he is in a safe and comfortable environment. She
can then get a break as caregiver and tend to those issues that allow
her to run her household. However, because of the way the law is
currently structured, despite Jim's eligibility for ``no cost'' skilled
nursing care, they are required to pay out-of-pocket for a portion of
his Adult Day Health Care, a cost they cannot afford.
S. 324 will correct this disparity that prevents some of the most
deserving and severely disabled veterans from taking advantage of this
valuable program to keep living in their own homes. This legislation
would authorize VA to enter into agreements with State Veterans Homes
to provide medical supervision model Adult Day Health Care for veterans
who are eligible for, but do not receive, skilled nursing home care
under section 1745(a) of Title 38, the ``full cost of care'' program.
Veterans who have a VA disability rating of 70 percent or greater or
who require ADHC services due to a service-connected disability would
be eligible for this program. The payment to a State Home under this
program would be at the rate of 65 percent of the amount that would be
payable for skilled nursing home care under the same ``full cost of
care'' program. This legislation would not only offer a lower cost
alternative (ADHC) for severely disabled veterans who might otherwise
require full time skilled nursing care, but it would also allow them to
continue living in their own homes.
Mr. Chairman, NASVH is aware of VA's argument that a veteran
participating in the ADHC program is physically inside a State Home
facility for only about one-third of each day they are in the program,
therefore the per diem should be only about one-third of the skilled
nursing care per diem. However, this significantly misrepresents the
level of care and services provided to veterans in medical model ADHC
programs. First, it completely ignores the cost of transportation,
which alone accounts for a significant cost for transporting elderly,
frail, disabled veterans to and from their homes to State Homes.
Second, the overwhelming majority of services--particularly medical,
therapeutic and rehabilitation--are provided during the day shift, not
overnight when veterans residing in State Homes are sleeping. In fact,
the 65% ratio is identical to the ratio that Medicaid pays for adult
day health care in New York as compared to what Medicaid pays for
skilled nursing care. Finally, it is critical to note that allowing
veterans to use ADHC services two to three times a week is enormously
less expensive then placing them full-time into a skilled nursing
facility.
Moreover, VA has been stressing the need to provide essential long-
term care services in non-institutional settings for our most frail,
elderly disabled veterans. Medical supervision model Adult Day Health
Care is a tremendous solution to this challenge faced by VA, one that
can keep veterans living in their homes while allowing them to receive
skilled nursing services and supports. There are a number of State
Homes across the country interested in providing medical model ADHC
services, however the current ADHC per diem is not nearly sufficient
for most State Homes to cover the costs of this program. Enactment of
S. 324 would provide a higher ADHC per diem rate for severely disabled
veterans in medical supervision model ADHC programs and thereby allow
additional State Homes across the country to offer this service to more
needy and deserving veterans.
For the Saladino family, receiving ``no cost'' Adult Day Health
Care for their loved one would relieve a huge financial burden that
they currently incur. Even though Jim's service ended 50 years ago, he
is still paying a price for his valor related to his service in
Vietnam. Passing S. 324 would send a strong message to all those who
have worn the uniform to protect our freedoms that they will never be
forgotten.
With 30 Senate cosponsors so far, S. 324 has strong bipartisan
support, as does the House companion bill, and both are supported by
major veterans service organizations, including The American Legion,
the Veterans of Foreign Wars and Disabled American Veterans.
On behalf of the National Association of State Veterans Homes, I
urge you to favorably consider and pass S. 324 for Jim and Noreen
Saladino, and for thousands of others across the country just like
them. Thank you for the opportunity to submit this testimony to the
Committee.
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______
Prepared Statement of Paralyzed Veterans of America
Chairman Isakson, Ranking Member Tester, and Members of the
Committee, Paralyzed Veterans of America (PVA) would like to thank you
for the opportunity to submit our views on legislation pending before
the Committee.
s. 23, the ``biological implant tracking and veteran safety act of
2017''
S. 23 intends to have the VA adopt and implement a standard
identification protocol for use in the tracking and procurement of
biological implants by the Department of Veterans Affairs, and for
other purposes. While we understand and generally support some of the
provisions of this legislation, PVA objects to the provisions of the
draft legislation that would exclude the purchase of biological
implants from the authority of title 38 U.S.C., Section 8123.
Section 8123 states, ``the Secretary may procure prosthetic
appliances (which includes surgical biological implants) and necessary
services required in the fitting, supplying, and training and use of
prosthetic appliances by purchase, manufacture, contract, or in such
other manner as the Secretary may determine to be proper, without
regard to any other provision of law.''
The Federal Acquisition Regulations (FAR) were issued pursuant to
the Office of Federal Procurement Policy Act of 1974. Statutory
authority to issue and maintain the FAR resides with the Secretary of
Defense, the Administrator of General Services, and the Administrator,
National Aeronautics and Space Administration--agencies that do not
bear the responsibility of providing lifelong care for disabled
veterans. However, the VA does bear the heavy weight of that
responsibility.
With this in mind, it is important to note the distinction between
VA's responsibility to meet specialized needs versus a Federal agency's
responsibility to respond to emergency needs. The FAR provides for
procuring prosthetics in cases where, for example, a natural disaster
damaged a veteran's equipment. However, the writers who formulated the
FAR in 1974 recognized there was a need for special provisions under
which VA could purchase prosthetics for disabled veterans with
specialized needs in a timelier manner than the FAR allowed,
irrespective of whether a bona fide emergency existed. The authors of
the FAR recognized this fact and the need for Section 8123 as evidenced
by the fact that it is referenced in the FAR. This was reconfirmed in
subsequent updates and amendments to the FAR.
Unfortunately, this S. 23 seems to imply that the Federal Supply
Schedule and the FAR is all that is needed to procure Prosthetic
appliances (biological implants) and services based on a
misunderstanding of the difference between ``specialized needs'' and
``emergency needs.'' Rather than erode a clinician's ability to acquire
these prosthetics in a timely manner or manipulate how these
prosthetics are defined in order to exclude them from the authority of
Section 8123, we believe that the legislation should focus on
accountability and oversight. It should not be making efforts to
overturn a system that has served veterans well for over half a
century. We encourage the removal of the provision of the legislation
that eliminates the authority of Section 8123.
s. 112, the ``creating a reliable environment for veterans' dependents
act''
PVA supports S. 112, the ``Creating a Reliable Environment for
Veterans' Dependents Act.''
Currently, the VA Grant and Per Diem program does not reimburse VA-
funded facilities for services provided to a homeless veteran's
dependent. This bill would allow VA to reimburse facilities who care
for the child of a veteran receiving care at a shelter funded through
VA.
Veteran homelessness remains a serious problem. Children of
homeless veteran parents can be turned away from receiving care at the
very facilities where their parents are expected to seek services to
get themselves and their families back on their feet. The supportive
housing and service centers also provide case management, education,
crisis intervention, and specialized services to homeless women
veterans.
Congress must ensure VA is able to provide consistent, reliable
services to veterans whose lives are in upheaval. Denying access for
dependents does nothing but add more uncertainty for veterans in need
stable circumstances for their families. While PVA supports this
legislation we urge Congress to see that VA is adequately resourced to
provide these reimbursements.
s. 324, the ``state veterans home adult day care improvement act of
2017''
PVA supports S. 324, a bill that would provide ``no cost'' medical
model adult day health care (ADHC) services to veterans who are 70
percent or more service-connected disabled. By authorizing the
Secretary to enter into agreements with state veterans homes the bill
would provide ADHC to those veterans who are eligible for, but do not
receive, skilled nursing home care under section 1745(a) of title 38,
U.S.C.. Currently, VA pays State Homes a per diem for ADHC. The per
diem rate covers around one-third the cost of the program. S. 324 is an
extension to the Veterans Benefits, Health Care, and Information
Technology Act of 2006 (Pub. L. 109-461), which provides ``no cost''
nursing home care at any State Veterans Home to veterans who are 70
percent or more service-connected disabled. This means that currently
there are some veterans making a choice between 100% free nursing home
care or expensive, out of pocket ADHC. The payment to a state home
under this legislation would be 65 percent the amount payable to the
state home if the veteran were an inpatient for skilled nursing care.
Adult day health care is a crucial service that allows veterans to
remain in their homes and communities by delaying entry into
traditional nursing care. While a veteran may need long-term services
and supports, it is not necessarily the case those must be received in
an institutional setting. Rather, a veteran can receive comprehensive
medical care and socializing without the disruption of leaving their
home. The program is staffed by a team of multi-disciplinary healthcare
professionals who evaluate each participant and customize an
individualized plan of care specific to their health and social needs.
ADHC is designed to promote social stimulation and maximize
independence while also receiving quality of life nursing and personal
care services.
Additionally, we know that the wellbeing of a caregiver directly
impacts the quality of care they provide to the veteran. ADHC allows
caregivers the means the ability to meet other professional and family
responsibilities. Especially for those caregivers whose veteran was
injured before 9/11 and is not eligible for the VA Comprehensive
Caregiver Program, ADHC offers critically needed support.
Delaying institutional settings for veterans with long term care
needs is the rare jewel in health care, it is the least costly care and
the best care for certain populations. ADHC saves the taxpayer, is the
most appropriate care for some sick and disabled veterans, and allows
spouses, children, parents, and communities more time together.
s. 543, the ``pact act''
PVA has no formal position on the ``Performance Accountability and
Contractor Transparency Act'' at this time.
s. 591, the ``military and veteran caregiver services improvement act
of 2017''
PVA strongly supports S. 591, the ``Military and Veteran Caregiver
Services Improvement Act of 2017.'' No group of veterans understands
the importance of caregivers more than PVA members and their families.
This legislation would expand VA's Comprehensive Family Caregiver
Program to veterans of all eras. Currently, a veteran is eligible if
they require the services of a caregiver due to an injury incurred in
service on or after September 11, 2001. This date of eligibility, and
the exclusion of service-connected illnesses, is unjust and
indefensible. As many as 70,000 veterans (with estimates as high as
88,000) would be eligible for the Comprehensive Family Caregiver
Program if the September 11, 2001 date was eliminated as a barrier.
Expansion would make available the resources that caregivers need to
provide quality care to veterans. These resources include a monthly
stipend based on the hours of care provided, healthcare through
CHAMPVA, respite care, additional training, and paid travel expenses to
and from veterans' medical appointments.
Caregivers play the most critical role in maintaining the wellbeing
of a catastrophically disabled veteran. From activities of daily
living, to psycho-social interaction, to maintaining health to prevent
institutional care- these caregivers have been sacrificing their own
financial and physical wellbeing to care for veterans, with little to
no support from VA. Congress has no justification for denying access to
veterans because of the date of injury or denying those of any era who
were made ill as a result of service. This legislation would rectify
this inequity.
Additionally, the Military and Veteran Caregiver Services
Improvement Act would make the program more inclusive of mental health
injuries; reauthorize the Lifespan Respite Care Act and expand
essential respite options for caregivers; give veterans the opportunity
to transfer GI Bill benefits to a dependent, to help unemployed or
underemployed spouses of injured veterans prepare to become the primary
income for the family; make caregivers who work in the Federal
Government eligible for flexible work schedules; provide assistance
with childcare, financial advice and legal counseling, which are all
top, and currently unmet, needs.
The majority of catastrophically injured, service-connected
veterans who rely on a caregiver for their daily living are ineligible
for the Comprehensive Caregiver Program. Moreover, the need for a
caregiver is not lessened simply because a veteran's service left him
or her with a catastrophic illness, rather than an injury. PVA is
pleased to see that S. 591 includes catastrophic illness as a program
qualifier. For PVA's members, a spinal cord disease is no less
devastating than a spinal cord injury. Veterans that have been
diagnosed with Amyotrophic Lateral Sclerosis (ALS) and Multiple
Sclerosis (MS) will eventually experience significant decline in their
ability to perform activities of daily living and unquestionably become
dependent on a caregiver.
Pre-9/11 caregivers have provided decades of uncompensated work to
our disabled veterans, often with no support services of any kind and
at the expense of their own health and livelihood. A study by the Rand
Corp. in 2014 estimated that veterans' caregivers save taxpayers $3
billion a year.
When Congress says the cost of expansion of the program is
prohibitive they suggest financial burden for caregivers is not
prohibitive, that the insecurity of their lives is a just consequence
of their family's sacrifice. They are paying for what Congress should,
and what Congress does when injured after 9/11. Ensuring that a veteran
is able to reside in their home, in their community, has been shown
time and again to reduce medical complications, hospital stays, and
costs. At the same time, the veteran and their family maintain a
psychosocial wellness that is impossible to achieve in an institution.
PVA understands the costs concerns with expanding the program but
believes doing right by veterans is more important, and hopes Congress
will believe so too. At the same time, we challenge the very premise of
the concerns about cost. While Congress generally ignores the
principles of ``dynamic scoring'' except when it is politically
expedient, consider the cost of providing caregiver services versus the
cost of institutional services. For catastrophically disabled veterans,
if their caregiver can no longer afford to continue, or has suffered
their own injury, their veteran has no option but to be placed in an
institutional setting. Consider the long term cost savings for the
taxpayer by providing caregivers the ability to delay their veteran's
admittance to a nursing home. In a VA nursing home the VA spends, on
average, $366,000 per veteran, per year. In a community nursing home
the cost averages $86,000 per veteran, per year. At a state veteran's
home, costs average $45,000 per veteran, per year. Meanwhile, the
average costs under the Comprehensive Family Caregiver Program is
$36,000 per veteran, per year. Expansion could save the Federal
Government between approximately $2.5 billion and $7.0 billion in a
given year. Moreover, the health outcomes and quality of life
experienced by veterans served at home by caregivers outperforms any
institutional measure.
The exclusion of ``serious illnesses and diseases,'' and the use of
the ``date of injury'' as eligibility requirements for such an
important program are indefensible. As a result, the veterans and their
families suffer. Congress continues to find excuses to deny access. It
has never been more urgent for those excuses to stop. As the largest
cohort of veterans (Vietnam-era) ages, the demand for long-term care
resources will continue to grow significantly. Catastrophically injured
veterans will require the most intensive and expensive institutional
care. By providing their caregivers the means to care for the veterans
at home with family, they will delay the costs of institutional care.
But most importantly, these veterans will have more time at home, in
their communities, and among those they love.
s. 609, the ``chiropractic care available to all veterans act of 2017''
PVA supports S. 609, the ``Chiropractic Care Available to All
Veterans Act of 2017.'' Chiropractic care is a widely accepted and
invaluable medical treatment. This bill would establish a program for
the provision of chiropractic care and services at all medical centers
by 2020. Likewise, it would see that ``chiropractic services'' be
included in title 38, United States Code, as a medical service, a
rehabilitative service, and a preventative health service.
The process of integrating chiropractic care into VA health care
has been slow. At least 65 VA medical centers have chiropractors on
site, integrated into the care teams. Approximately 52 percent of
veterans returning from Iraq and Afghanistan are seeking care because
of musculoskeletal ailments, specifically back and joint pain. The
common causes for these chronic pains are heavy gear, vehicle
accidents, and blast injuries. The overwhelming majority of affected
veterans still do not have readily available access to chiropractic
care.
With an ever present awareness of VA overreliance on
pharmacological solutions for chronic pain and the resulting trends of
opioid dependence and accidental overdose, PVA strongly encourages the
utilization of alternative treatments. At the same time we would
encourage a less prescriptive approach. It is possible that not every
VA medical center will have need of chiropractic services.
s. 681, the ``deborah sampson act of 2017''
PVA supports S. 681, the ``Deborah Sampson Act of 2017.'' This bill
would help to address some of the quality of care barriers that are
unique to women veterans. From transition services, to health care
access, to the availability of prosthetics, this bill is a critical and
timely step to enhancing the health and well-being of women veterans
and their families. As women veterans are the fastest growing
population of veterans, we urge Congress to enable VA to fully meet the
needs for specialized services for women.
This bill would initiate a pilot program for peer-to-peer
counseling for women veterans transitioning out of the military and
make permanent the availability of readjustment counseling services in
group retreat settings. Of the existing readjustment counseling
retreats provided through VA, participants consistently showed better
understanding of how to develop support systems and to access resources
at VA and in their communities. The OEF/OIF women veterans at the
existing retreats are most often coping with effects of severe Post-
Traumatic Stress and Military Sexual Trauma. They work with counselors
and peers, building on existing support. If needed there is financial
and occupational counseling. These programs are marked successes and
the feedback is overwhelmingly positive for women veterans, who show
consistent reductions in stress symptoms as a result of their
participation. Other long lasting improvements included increased
coping skills. It is essential for women veterans that Congress make
this program permanent. We believe the value and efficacy is
undeniable.
The legislation would also direct VA to partner with community
organizations to provide support services for women veterans needing
assistance, particularly prevention of eviction, child support issues,
and the restoration of driver's licenses.
The bill would authorize hospital stays of up to 14 days for
newborns under VA care. The current provision allows a maximum stay of
seven days. As the average stay for a healthy newborn is two days, any
newborn needing additional coverage is likely to be facing
complications immediate after birth or a severe infant illness. The
current seven day coverage is in a non-department facility for eligible
women veterans who are receiving VA maternity care. Beyond the seven
days, the cost of care is the responsibility of the veteran and not VA,
even if complications require continued care beyond the coverage
period. Post-natal health is critical to newborn health which directly
impacts the lives and wellbeing of veterans and their families. PVA is
particularly concerned about those veterans with catastrophic injuries
or mental illnesses that can cause high-risk pregnancies or pre-term
deliveries. A seven day limit arguably impacts veterans with
disabilities at a greater rate than other veterans. Extending newborn
coverage to 14 days is the right thing to do.
The legislation aims to eliminate barriers to care by ensuring
every facility has at least one full-time or part-time women's health
provider. An additional $20 million would be authorized to carry out
the retrofitting of existing facilities to improve privacy, safety and
environmental needs for women veterans. Finally, the bill would require
data collection and reporting by gender and minority status on VA
programs serving veterans. PVA is pleased to see the reporting
requirement of prosthetic availability for women veterans.
s. 764, the ``veterans education priority enrollment act of 2017''
PVA supports this measure. Education benefits as administered are
calculated to fund a veteran through the completion of a standard four-
year course of study resulting in a degree. In some cases, a student is
unable to register for a prerequisite, which in turn leaves them unable
to advance on schedule in that degree program. When this happens, the
student veteran now must continue his or her course of study beyond the
enrollment period covered by GI Bill benefits. Such a result dilutes
the overall value of the benefit when the veteran does not earn the
degree the assistance was intended to cover, and it simultaneously
wastes government money while the veteran, unable to secure a spot in a
relevant course, takes unnecessary classes to pass the time.
Not getting a seat in a class might be due to pure luck of the
draw, but often veterans have substantially different circumstances
than traditional students that complicate the course selection process.
If a servicemember in the National Guard or a Reserve Component gets
called away for duty, he or she should have priority enrollment to
ensure they have the ability to quickly get back on track. Many
veterans might also be coming to school at a later point in their lives
and have families. Veterans should not be penalized for trying to fit
courses in around other significant obligations such as caring for
children.
The evidence already exists that offering veterans priority
enrollment is feasible and important. Many private universities already
offer priority enrollment, and some states such as Pennsylvania,
California and Ohio require it to be offered in all publicly-funded
institutions.
s. 784, the ``veterans' compensation cost-of-living adjustment act of
2017''
PVA supports S. 784, the ``Veterans' Compensation Cost-of-Living
Act of 2017,'' which would increase, effective as of December 1, 2017,
the rates of compensation for veterans with service-connected
disabilities and the rates of dependency and indemnity compensation
(DIC) for the survivors of certain disabled veterans. This would
include increases in wartime disability compensation, additional
compensation for dependents, clothing allowance, and dependency and
indemnity compensation for children.
s. 804, the ``women veterans access to quality care act of 2017''
PVA supports S. 804, the ``Women Veterans Access to Quality Care
Act of 2017.'' This bill would establish structural standards in VA
health care facilities that are necessary to meet the health care needs
of women veterans. Implementation of this bill would generate a report
to the House and Senate Veterans' Affairs Committees listing the
facilities that fail to meet these standards and the projected cost to
do so. VA would be required to publish the health outcomes of women in
each facility, juxtaposed with the men that facility serves. VA would
be required to hire a full-time obstetrician or gynecologist at every
VA Medical Center, and pilot an OB-GYN graduate medical education
program to increase the quality of and access to care for women
veterans.
The women veteran population who use VA health care doubled between
2003 and 2012, from 200,631 to 362,014. By 2040, it will have doubled
again. Given this projection, VA must increase their capacity to meet
the needs of women veterans. This legislation is a crucial step in
assessing the quality of care women veterans receive and the steps
needed to improve it.
s. 899, the ``department of veterans affairs veteran
transition improvement act''
PVA supports S. 899, the ``Department of Veterans Affairs Veteran
Transition Improvement Act.'' Currently, new Title 5 employees with a
thirty percent or higher service-connected disability rating are
entitled during their first twelve-month period of employment to leave
for purposes of undergoing medical treatment related to such
disability. PVA supports this bill which would apply the same
entitlement to health care professionals under 38 U.S.C. Sec. 7401(1).
s. 1024, the ``veterans appeals improvement and modernization act of
2017''
PVA employs a highly-trained force of over 70 service officers who
develop veterans' claims for both member and non-member clients. These
frontline employees spend a minimum of two years in specialized
training. We maintain a national appeals office staffed by attorneys
and legal interns who represent clients at the Board of Veterans'
Appeals (Board). We also have attorneys who practice before the Board,
the Court of Appeals for Veterans Claims (CAVC), and the United States
Court of Appeals for the Federal Circuit. Of all the major Veteran
Service Organizations (VSO), only PVA offers such continuity of
representation throughout subsequent appellate review.
Our most important attribute, though, is that our service officers
and attorneys consistently advocate for catastrophically disabled
veterans. Complex claims are the norm, not the exception. As we attempt
to bring greater efficiency to the claims and appeals system, our
perspective is geared toward ensuring that the due process rights of
the most vulnerable among us--those most deserving of benefits--are not
watered down for the sake of expediency. To reinforce this position, we
would advise the Committee to include a sense of Congress or other
preamble with this legislation indicating that no part of the new
framework should be read to abrogate or displace the non-adversarial
nature of VA claims adjudication. An overhaul of this size and scope
invites subsequent litigation and new legal interpretations. Clarifying
this point with direct legislative history on the subject would be an
easy but important effort.
Background
The number of pending appeals is approaching 500,000. VA projects
that if we fail to address the process, within a decade the average
wait time for resolving an appeal will reach 8.5 years. We believe
reform is necessary, and we support this legislation moving forward.
There is no shortage of news articles and academic pieces that
attempt to illustrate for readers the level of complexity and
redundancy in the current appeals process. It is a unique system that
has added layer after layer of substantive and procedural rights for
veterans over the years. The most notable aspect differentiating it
from other U.S. court systems is the ability for a claimant to inject
new evidence at almost any phase. While this non-adversarial process
offers veterans the unique ability to continuously supplement their
claim with new evidence and seek a new decision, it prevents VA from
accurately identifying faulty links in the process, whether it be
individual raters or certain aspects of the process itself.
It is important that as we approach this major issue that we do not
lose sight of the fact that veterans have earned these benefits through
the highest service to their country and have every right to pursue
these earned benefits to the fullest. As we promote and seek public
support for change, it is easy to use statements such as, ``there are
veterans who are currently rated at 100% who are still pursuing
appeals,'' to illustrate the problems that pervade the system. PVA will
be the first to point out, though, that a veteran rated at 100% under
38 U.S.C. Sec. 1114(j) might also be incapacitated to the point that he
or she requires 24 hour caregiver assistance. A 100% service-connected
disability rating does not contemplate the cost of this care, and
veterans may seek special monthly compensation (SMC) to the tune of
thousands of dollars needed to address their individual needs. Few
people would disagree that pursuing these added disability benefits are
vital to a veteran's ability to survive and maintain some level of
quality of life. Without clarification, such statements lead people to
believe that veterans are the problem.
This is why PVA believes it is so important to ensure that VSO's
remain as involved in the follow-on development process and
implementation as they are now if this plan is to succeed. This is a
procedural overhaul, and VSO's are the bulwark that prevents procedural
change from diluting the substantive rights of veterans.
The Framework
As the working group came together and began considering ways to
address the appeals inventory, it became clear that a long-term fix
would require looking beyond appeals and taking a holistic view of the
entire claims process. The work product in front of us today proposes a
system with three distinct lanes that a claimant may enter following an
initial claims decision--the local higher-level review lane, the new
evidence lane, and the Board review lane. The work horse in this system
is the new evidence lane. The other two serve distinct purposes focused
on correcting errors. A decision to enter any of the lanes must be made
within one year of receiving the previous decision. Doing so preserves
the effective date relating back to the date of the original claim--a
key feature of this new framework.
When a claimant receives a decision and determines that an obvious
error or oversight has occurred, the local higher-level review lane,
also known as the difference of opinion lane, offers a fast-track
ability to have a more experienced rater review the alleged mistake.
Review within this lane is limited to the evidence in the record at the
time of the original decision. It is designed for speed and to allow
veterans with simple resolutions to avoid languishing on appeal.
If a claimant learns that a specific piece of evidence is
obtainable and would help him or her succeed on their claim, the new
evidence lane offers the option to resubmit the claim with new evidence
for consideration. VA indicates that its goal is a 125-day turn around
on decisions within this lane. Another important aspect is that the
statutory duty to assist applies only to activity within this lane.
This is where VA will concentrate its resources for developing
evidence.
The third lane offers an appeal to the Board. Within this lane
there are two tracks with separate dockets. One track permits the
addition of new evidence and option for a Board hearing. The other
track permits a faster resolution by the Board for those not seeking to
supplement the record. A claimant within this track will not be
permitted to submit new evidence, but they will have an opportunity to
provide a written argument to accompany the appeal.
If the claimant receives an unfavorable opinion at the Board, he or
she may either revert to the new evidence lane within one year or file
a notice of appeal with the CAVC within 120 days. Notably different
from earlier versions of this legislation, this draft bill would
preserve the claim's effective date even after an adverse decision at
the Court.
Concerns Specific to the Framework
Throughout the development of this new framework, PVA's biggest
concern has been the proposed dissolution of the Board's authority to
procure an independent medical examination or opinion (IME) under 38
U.S.C. Sec. 7109. An IME is a tool used by the Board on a case-by-case
basis when it ``is warranted by the medical complexity or controversy
involved in an appeal case.'' Sec. 7109(a). The veteran may petition
the Board to request an IME, but the decision to do so remains in the
discretion of the Board. The Board may also request an IME sua sponte.
Experienced Board personnel thoroughly consider the issues which
provoke the need for an outside opinion. Complicating the process
further, the CAVC has carefully set parameters for the proposed
questions to be answered by experts. A question presented to a medical
expert may be neither too vague, nor too specific and leading. A
question too vague renders the opinion faulty for failing to address
the specific issue, while a question too specific tends to lead the
fact finder to a predisposed result.
The standard for granting such a request is quite stringent. 38 CFR
3.328(c) states, ``approval shall be granted only upon a determination
. . . that the issue under consideration poses a medical problem of
such obscurity or complexity, or has generated such controversy in the
medical community at large, as to justify solicitation of an
independent medical opinion.'' The number granted each year usually
amounts to no more than one hundred, with approximately fifty percent
of those IME's being requested by the Board itself. The regional
offices have long held a companion authority under 38 U.S.C. Sec. 5109.
Incredibly, in a room full of practitioners convened in March 2016 as
part of this current reform process, not one among them could recall an
instance of a rating officer requesting an IME. And yet the original
proposal was to eliminate the Board's authority to procure an IME and
rely solely on a rating officer exercising his or her authority under
Sec. 5109.
VA's rationale for dissolving this authority is primarily based on
having all development of evidence take place at the Agency of Original
Jurisdiction (AOJ) level in the New or Supplemental Evidence Lane. This
unwavering desire to rid the Board of any development stems in part
from an attempt to exploit its experienced Veteran Law Judges (VLJ) to
the greatest possible extent. VLJ's who adjudicate appeals are a human
capital commodity and form a critical component of the system. Because
employees and outside attorneys cannot reach the experience and
qualifications of a VLJ overnight, VA is limited in its ability to
scale this particular resource simply by hiring new employees.
These concerns are valid to a degree, and we have worked with
officials to find a solution that allows the Board to realize the
benefit of making the best use of VLJ's while attempting to preserve
the beneficial aspects of IME's procured by the Board. Part of the
mitigating measures are reflected in this draft bill's proposed
amendments to 38 U.S.C. Sec. 5109, permitting the Board to remand
specifically for procurement of an IME and requiring the VLJ to
articulate the specific questions to be presented to the expert.
We applaud the Committee's change to the remand language. In
earlier versions of this legislation, the Board would only be permitted
to remand for an IME if it determined an error existed on the part of
the AOJ to satisfy its duty to assist under 38 U.S.C. Sec. 5103A. Since
the duty to assist is necessarily inconsistent with the discretionary
nature of an IME, this circumstance would never arise, and IME's would
come to a halt. Using an abuse of discretion standard instead fixes
this issue.
Dissolving Sec. 7109 would have the additional effect of abolishing
the centralized office of outside medical opinions. This small staff
has played a vital role in facilitating IME's and maintaining their
effectiveness by developing relationships with doctors who are experts
on particular subjects and willing to do this tedious task for almost
no money. This office not only expedites the receipt of opinions, but
it also ensures a high level of quality. VA has committed verbally to
PVA that it will preserve this resource by moving it from the Board and
placing it under VBA's management, in essence making it available to
the AOJ going forward.
The decreased efficiency with having the process conducted at the
AOJ level is also concerning. Instead of the VLJ requesting an IME and
receiving the opinion, now a second person must review the claim--the
rating officer who received the file on remand. If a veteran wishes to
appeal this re-adjudication, we have asked for and received VA's
commitment to reroute the appeal by default, with exceptions, back to
the same VLJ who remanded the case to avoid yet another person from
having to review a claim with enough medical complexity to warrant the
IME. Unless this Committee is willing to outright preserve Sec. 7109,
we would strongly recommend that the Committee conduct oversight on
these specific commitments by VA, perhaps as part of the increased
reporting requirements.
We also recommend an additional jurisdictional safeguard for the
Board. In 38 U.S.C. Sec. 7104, it would be helpful to include language
that addresses situations where the Board finds that an appeal presents
extraordinary circumstances. The Board, in its sole discretion, should
be able to retain jurisdiction over a remand of that appeal.
Some stakeholders have expressed concern over the replacement of
the ``new and material'' evidence standard with ``new and relevant.''
It is true that there are a number of appeals in the system currently
disputing a decision that evidence submitted was not deemed
``material.'' The stated concern is that changing ``material'' to
``relevant'' will simply exchange one appealable issue for another.
While it is a fair point, ``relevant'' is a significantly lower legal
threshold and as higher numbers of veterans meet this threshold, it
should correlate to fewer appeals. Those expressing concern propose
having VA simply accept all ``new'' evidence and make a decision. Under
this proposal, if the evidence is so weak that it is not even relevant,
then VA can easily deny the claim. For every denial, VA will be
required to do the work of providing the improved notice explaining its
decision. Conversely, a legal determination that new evidence is not
relevant would not be subject to this requirement, thus a reduced
workload for VA. PVA believes ``new and relevant'' is an acceptable
standard for veterans to meet. But at this point, it is unclear whether
dealing with continued appeals on relevance determinations or
processing improved notice for denials will lead to a greater aggregate
negative impact on the system.
Earlier objections were raised concerning the specificity with
which a veteran was required to identify issues of fact or law being
contested on appeal in a notice of disagreement. At first glance, the
prior language appeared to be quite ``legalese,'' requiring a
sophisticated level of pleadings. Placing such burden on veterans would
be at odds with the non-adversarial nature of the system. We are
pleased to see that the current draft bill has addressed this issue.
Judicial Review
We noted above that this draft bill would preserve a claim's
effective date following an adverse decision from CAVC. It would also
provide the same relief after an adverse decision from the Federal
Circuit and the Supreme Court of the United States. The concept of
imposing finality after a Court decision has provoked a significant
debate among the stakeholders. Unfortunately, the strongest objections
to imposing finality at the Court have not been met with much
discussion regarding why VA, or some of the other stakeholders, are
comfortable with finality at that stage. We would encourage the
Committee to draw out this discussion and fully examine the issue.
There are arguments and perspectives on both sides that warrant
attention.
Our initial impression is that while VA is trying to create new
efficiencies in its claims and appeals processing, we must remember
that the CAVC is not part of that system, and it does not exist for
VA's benefit or efficiency. Nor does it exist to create precedent.
Precedent is a byproduct of an individual availing him or herself of
the Court. The Court exists to hear veterans' individual claims and
gives veterans an independent avenue to challenge whether VA considered
a claim correctly. We in the veterans community fought long and hard
for judicial review, and it is precious. PVA is uniquely positioned in
this regard. Our organization has boxes full of claims that, but for
the Court, the veteran would never have had a full and fair review.
When we approach analyzing the impact on the Court, we should not focus
on the systematic efficiencies or precedent, because these are not the
Court's purpose. We should focus on what an individual veteran's right
to judicial review is and what it takes to avail him or herself of that
right.
There are reasonable assertions that failing to provide effective
date relief following a Court decision will have a chilling effect on
the Court. They should be addressed unless willing to be conceded. One
scenario presented is where a veteran, who having received a denial
under what she believes is an erroneous application of law to the case,
also has new evidence to attach to the claim. She is faced with
deciding whether to pursue Court review on the legal issue or circulate
back through the system with new evidence. If she chooses the Court and
loses, she can still continue to pursue the claim with new evidence,
but she will have lost her effective date. If she chooses to handle the
new evidence first, her claim will again be adjudicated under what she
considers to be an erroneous interpretation of law. This predicament,
so the argument goes, will likely force veterans to choose to avoid the
Court at the risk of missing an opportunity to strengthen the record.
Hence the chilling effect. It also inconveniences the veteran by having
them cycle through the system while being again scrutinized under a
misinterpretation of the law.
One might argue, though, that there is no chilling effect in this
scenario. The veteran is in fact inconvenienced. But ultimately, if the
veteran cycles through again with the new evidence, strengthening the
record, she arrives in the exact same position if denied, this time
without the predicament. The choice is obvious, and she heads to the
Court. The only person in this scenario who ultimately would not reach
the Court is one who received an earlier and favorable adjudication at
a lower level of review. This is precisely what we want for veterans.
Any reduction in claims reaching the Court would be attributed to more
efficient outcomes for the veterans. Making a decision about the
framework that accommodates veterans facing this scenario also requires
a belief that the veteran's legal interpretation is always correct and,
necessarily, that VA's is always wrong. This is not how sound policy is
formed. Further, it is hard to weigh at this point a single veteran's
inconvenience in this scenario against the potential gains for numerous
veterans who are benefiting from a more efficient system due to the
finality imposed after a Court decision.
There is, perhaps, also an undue assumption that a chilling effect
on the Court would in fact reduce precedent and oversight on VA.
Conceptually, one may concede that a reduction in volume of claims at
the Court raises the possibility that a ``perfect case'' for setting
precedent will not arrive. But it is possible that a reduction in the
Court's workload would offer greater opportunity to give more time and
attention to a precedent-setting claim, which otherwise might have
slipped through the cracks or not garnered a more thorough opinion.
There are other scenarios that argue in favor of granting effective
date relief following review by the CAVC. If the Board rules against a
veteran and finds that a medical exam being challenged was adequate for
purposes of his rating decision, he is faced with two choices. He could
appeal to the CAVC, or he could develop independent evidence that would
strengthen his argument that the exam provided by VA was inadequate.
The latter option costs money. If effective date relief followed a
decision at the CAVC, the veteran could wait and see if the Court
agreed with his position before he was forced to shell out money he
likely does not have to invest in proving his claim. Veterans with
means may not see this as an issue. For those without means, it would
be an unwarranted obstacle in a system that is designed to be non-
adversarial.
One aspect of this framework that has not been discussed at all is
the fact that you can technically take one issue from a multi-issue
claim up to the Court, and cycle back through the other lanes in the
framework on the remaining issues. Currently, the Court takes
jurisdiction over issues that are expressly identified by the veteran,
and issues not appealed after a Board decision are final. Nothing in
this draft bill changes the way an issue reaches the CAVC. But because
this new framework has provided liberal effective date relief, new
incentives for action have been introduced. There should be further
discussion among stakeholders and VA about how claims are dealt with
that end up being split up between the Court and the agency. There is
no precedent for this in the current system.
PVA was a supporter early on of judicial review, and we believe the
availability of that review has improved the appeals process for
veterans. Determining the best way to preserve that protection deserves
more conversation at this point in time.
Implementation
We applaud the heavy reporting requirements found within this bill.
One of the biggest reservations that the collective stakeholders have
voiced is the absence of information related to implementation. GAO's
recent report reinforced our claim that the success of this new
framework hinges on how VA makes the transition, and VA has yet to
fully demonstrate what it needs to accomplish this task. We also agree
that it is important that VA provide a full accounting of the bases for
certain assumptions that have been used to support the feasibility of
this new framework. For example, what is the basis for the assumption
that within the ``hearing lane'' at the Board, thirty-five percent of
veterans will choose to have a hearing? What is the impact on the
system if that estimate is drastically wrong?
Within the reporting requirements, we recommend including a mandate
to track legacy appeals that have transitioned into the new system. The
goal would be to ensure that Congress can easily identify how many
legacy appeals have been truly resolved as opposed to being
reclassified in the new system.
We support VA's proposed first step toward combatting the backlog
of legacy appeals. One of the hurdles to permitting veterans with
legacy appeals to join the new system was that veterans in the legacy
system may not have been provided sufficient notice to make an educated
decision. Allowing veterans to join after they have received a
statement of the case or supplemental statement of the case addresses
this concern and will help stem the flow of new claims into the old,
broken system. The quicker we can shut off that valve, the quicker the
backlog of legacy appeals will be handled.
We note in closing that this is not simply a VA problem. As stated
earlier, PVA has many service representatives and spends a great deal
of time, funds, and effort on ensuring they accomplish their duties at
a high level of effectiveness. However, it is important that veterans
and their representatives also share responsibility when appeals arrive
at the Board without merit. A disability claim that is denied by VBA
should not automatically become an appeal simply based on the
claimant's disagreement with the decision. When a claimant either files
an appeal on his own behalf, or compels an accredited representative to
do so with no legal basis for appealing, that appeal clogs the system
and draws resources away from legitimate appeals. Since 2012, PVA has
taken steps to reduce frivolous appeals by having claimants sign a
``Notice Concerning Limits on PVA Representation Before the Board of
Veterans' Appeals'' at the time they execute the Form 21-22 Power of
Attorney (POA) form. PVA clients are notified at the time we accept POA
that we do not guarantee we will appeal every adverse decision and
reserve the right to refuse to advance any frivolous appeal, in keeping
with VA regulations.
PVA believes that substantial reform can be achieved, and the time
is ripe to accomplish this task. Our organization represents clients
with some of the most complex issues, and we cannot stress enough that
moving forward should not be done at the expense of the most vulnerable
veterans. We must remain vigilant and appreciate the benefits of
bringing together the variety of stakeholders who are participating and
bringing different perspectives and viewpoints--it is a healthy
development process that ensures veterans remain the focus.
s. 2210, the ``veteran peer act''
The ``Veteran Partners' Efforts to Enhance Reintegration Act''
would require VA to develop and institute a program to integrate Peer
Specialists within patient aligned care teams. PVA recognizes the
importance of promoting the use of mental health care services in the
context of the primary care setting. The veteran-centric, holistic view
of the patient epitomizes one of the key distinctions we have long made
about care in a VA setting and care delivered in the community. We have
a concern, though, with this bill's strict requirements, as opposed to
the discretionary nature. To serve as a Peer Specialist, the person
must be a veteran with a mental health condition, be in recovery for at
least one year without hospitalization or legal issues related to that
condition, and willing to openly acknowledge and discuss their
condition. If there is an insufficient population willing to openly
discuss their own private mental health history and want to do this job
professionally, VA may not be able meet this requirement through no
fault of its own. While PVA supports the intent of this legislation, we
believe more thought should be put into how best to implement this
requirement before mandating VA take these steps.
draft legislation, the ``department of veterans affairs accountability
and whistleblower protection act of 2017''
PVA supports the draft legislation, the ``Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017.'' This
legislation would bring greater accountability and protect those
employees who have the courage to call out fraud, waste, and abuse in
VA. We firmly believe that the culture of a company, organization, or
Federal agency is shaped by the worst behaviors its leader is willing
to tolerate. The ``VA Accountability and Whistleblower Protection Act''
is the first major step toward reshaping behavior in VA by tolerating
bad behavior and poor performance no more. Our veterans deserve it; and
so do the hardworking public servants of VA who are tired of being
overshadowed by the performance of substandard managers and employees.
PVA has supported efforts to ensure proper accountability at all
levels of the VA in the past. In recent years there have been numerous
accounts of bad actors in VA senior and lower level management who have
failed to fulfill the responsibility of their positions and in some
cases arguably violated the law. The focus on accountability in this
proposal strikes a reasonable balance to ensure VA leadership has the
ability to manage personnel while affording due process protections to
employees. We recognize that the question of due process is an
important one, and those rights should not be eliminated. However, they
cannot be used as a roadblock to accountability either.
PVA appreciates the strong focus on accountability that the
Committee has emphasized and we are pleased to see that Secretary
Shulkin has made this a priority. There is no doubt that accountability
at all levels is an essential part of improving the VA.
draft bill, ``serving our rural veterans act''
PVA supports the draft bill to authorize payment by the Department
of Veterans Affairs for the costs associated with care by medical
residents and interns at Indian Health Service (IHS) and Tribal Health
Program (THP) facilities operated by federally recognized tribes and
carry out a pilot program to expand such residencies and internships at
tribal facilities. While recruiting and retaining capable providers
continues to be a struggle for VA, rural communities feel these
vacancies two fold. In Indian Country particularly, the minimal
availability of consistent, high quality health care has resulted in
some of the worst health outcomes in the United States.
The Federal Government has legal and moral obligations to provide
health care to two groups--federally recognized tribal nations and
eligible veterans. The overlapping, and at times inter-reliability of
these groups' respective health care systems is necessary, as American
Indians and Native Alaskans have always served in the Armed Forces at
the highest rate of any demographic. In Alaska, where this health care
system interoperability is most prevalent, the need for primary care
providers is critical.
Physician shortages in the United States, and rural communities
particularly, are expected to increase drastically in the coming
decade, leaving health care systems with a high volume need and little
capacity. This bill would provide some relief, by incentivizing medical
residents and interns to work at tribal facilities that have existing
reimbursement agreements with VA. The eight-year pilot program would
have VA reimburse the tribal facilities for the recruitment and
training of residents. These participants would then be eligible for
loan forgiveness through Indian Health Service or Department of
Veterans Affairs Loan Repayment Program.
In 2010, the Indian Health Care Improvement Act was made permanent.
As a result, IHS and VA signed a Memorandum of Understanding (MOU)
aiming to improve the health status of American Indian and Alaska
Native veterans. In 2012, VA began to establish agreements with tribal
governments to reimburse them for the direct care of native veterans
enrolled in VA.
Since then around 108 tribes have established agreements with VA.
At least 7,000 native veterans have been able receive care.
Additionally, VA and IHS have strengthened collaborative relationships
and resource sharing. For much of Indian Country, unreliability or
unavailability of transportation impacts a veteran's ability to receive
care from a VA facility. These agreements allow veterans to receive
their care close to home, in a culturally conscious environment they
may not find at VA.
The national authority for VA to make reimbursement agreements
between agencies is set to expire June 30, 2019. If, for some reason,
this authority is not renewed, it is unclear what would happen to the
proposed eight year pilot program that is dependent on the existence of
an agreement. PVA encourages Congress to ensure this authority is
renewed in 2019 in order to continue building on the successes already
achieved.
This bill offers a sound step forward to ensuring we meet the needs
of those who have served, no matter their zip code.
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Letter from Bill Valdez, President, Senior Executives Association
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Prepared Statement of Hon. Robert N. Davis, Chief Judge,
U.S. Court of Appeals for Veterans Claims
Mr. Chairman and Distinguished Members of the Committee: Thank you
for the invitation to submit a statement of the Court's views on
legislation pending before the Committee, in particular S. 1024, the
Veterans Appeals Improvement and Modernization Act of 2017. The Court's
comments will be brief.
Although changes to VA's appeals processing will eventually impact
the Court, the pending legislation does not amend the statutory
provisions governing the Court's function. For this reason, the Court
will not speculate as to potential consequences of changes that pertain
only to the agency, or comment on specific provisions that may
ultimately come before the Court in litigation. We do, however, offer
the following thoughts on the need to ensure that claimants are aware
of their right to appeal to a court of law, and the potential impact
this legislation will have on the Court's workload.
Continued Advisement of Appellate Rights: The proposed legislation
on appeals modernization provides veterans unlimited opportunities to
repeatedly pursue a claim within the agency and secure the earliest
effective date possible following any grant of benefits on a timely
supplemental claim. That revised appeals structure could potentially
result in a veteran never securing a Board of Veterans' Appeals (Board)
decision and accompanying notice of appellate rights, and thus never
being informed of the Court's existence. The Court states no opinion on
whether or not the proposed changes are ``good for'' individual
veterans or VA's overall system of claims processing. We do, however,
want to ensure that veterans remain aware of the full array of options
available to them in pursuing a claim, including appealing to the
Court, and that no option be painted as more or less favorable or
likely for success than another.
Unlike earlier draft bills on appeals modernization, S. 1024
includes language that extends the effective date protection, and in
essence permits continuous pursuit of a claim via the submission of a
timely supplemental claim following a decision of the Court. The
Secretary opposed a similar provision in recent testimony before the
U.S. House Committee on Veterans' Affairs, where Acting Chairman of the
Board David Spickler stated that affording that effective date
protection following a court decision ``is contrary to VA's policy
interest in encouraging dissatisfied claimants to stay within VA unless
it is truly necessary to go to a higher court.'' We oppose any effort
to discourage veterans from exercising their right to appeal to the
Court. In light of Mr. Spickler's strong statement, the Court feels it
worth highlighting that whether or not S. 1024 passes as drafted, the
notices VA includes with its decisions must present to veterans all of
their post-decision options fully and fairly, and leave the decision as
to when an appeal to the Court is necessary in the hands of the
veteran. At a minimum, any revisions to the post-Board-decision
standard notice of appellate rights must leave intact the notification
regarding appealing to the Court. Many people fought long and hard to
secure impartial review of adverse VA decisions by a Federal court that
by definition is independent of VA. Veterans and their survivors must
continue to know about and understand that right.
Implementation: Generally speaking, appeals filed at the Court come
from veterans who are dissatisfied with a decision of the Board.
Although not with mathematical precision, history has shown that as the
number of Board decisions increases, so too do the number of appeals
filed at the Court. It is impossible to predict to what extent, if any,
the changes proposed by this broad appeals reform legislation will
result in some veterans choosing to pursue their claims at the agency
following an adverse Board decision rather than appealing to the Court.
It is likewise impossible to predict the extent of the legal and
procedural questions that will be raised by sweeping legislative change
and that will ultimately come before the Court for decision. What does
seem clear is that the manner in which this pending legislation is
implemented and how that implementation effects the flow of decisions
made by the Board will have a profound and fairly immediate effect on
the Court.
The applicability section of S. 1024, Section (x), addresses how VA
would implement this legislative change, to include an early
applicability option and phased rollout. This provision leaves several
questions as to when the new system would ultimately be implemented,
when cases under that system would reach the Court, and how legacy
appeals would be treated. The certification requirement on VA to
confirm its preparedness to implement amplifies the uncertainty. Any
implementation plan for sweeping legislative change to the VA claims
processing system will certainly have its challenges, and we offer no
comment on what those may be. We are, however, attempting to anticipate
the impact on the Court and best estimate and prepare for the workload
that may result from these changes should they become law.
VA recently testified that more than 460,000 appeals are pending
before the agency today. The Board decided in the neighborhood of
52,000 decisions in fiscal year 2016, has pledged to further increase
its number of annual decisions, and has and continues to grow its
staffing at an extraordinary pace in order to meet those projections.
Faced with this data, the Court projects a steady, and likely
significant increase in the number of appeals over the next several
years. As we anticipate a growth in appeals, let me take this
opportunity to thank the Committee for the 2016 authorization to
temporarily maintain an expanded Court of nine active judges. Once
judicial nominees are announced, we ask for your prompt attention to
the confirmation process so that we may return to full strength and
ensure that we are prepared and able to conduct effective, efficient,
and expeditious judicial review of all matters that come before the
Court.
In closing, we appreciate the Committee's consideration of our
input, and for the past and continued support of the Court's endeavors,
including the establishment of a permanent Courthouse building. Thank
you.
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