Pending Veterans Affairs Legislation

Chairman Miller, Ranking Member Brown, and distinguished members of the committee, on behalf of National Commander Dale Barnett and The American Legion; the country’s largest patriotic wartime service organization for veterans, comprising over 2 million members and serving every man and woman who has worn the uniform for this country; we thank you for the opportunity to testify regarding The American Legion’s position on the pending and draft legislation.

H.R. 5083: VA Appeals Modernization Act of 2016

To amend title 38, United States Code, to improve the appeals process of the Department of Veterans Affairs.

More than 1.4 million claims for veterans’ disability were processed last year, and the Veterans Benefits Administration (VBA) is on track to surpass even that number this year.  At a ten to twelve percentage rate of appeal, the workload at the Board of Veterans Appeals (BVA) will likely never disappear.

With an appeals inventory at roughly half a million pending claims, the Department of Veterans Affairs (VA) asked stakeholders to gather in several high intensity day-long working meetings to help come up with a system that would recommend solutions to help VBA and the Court of Appeals for Veterans Claims (CAVC) better process and manage this existing workload.

The American Legion currently holds power of attorney on about three quarters of a million veteran claimants.  We spend more than two million dollars a year on veteran claims and appeals processing and assistance.  Our success rate at the BVA hovers at around 80 percent, either outright grants of benefits or remands to properly process a claim that VA had failed to properly process at the lower level of the Regional Office.

When VA invited stakeholders to the table to discuss appeals modernization, The American Legion knew that appeals modernization was not about appeals alone, that the recommendations required to streamline appeals needed to take place much earlier in the process, at the point of the initial adjudication.  With that, one of the first things the group looked at was the VBA decision notice.  Refining the initial decision notice is not as easy as it sounds and several of the Veterans Service Organizations (VSOs) worked with VA for months in 2014 to try and improve these letters, with frustrations over lack of clarity still remaining.  Getting VBA to agree to improve the quality of the letter was a landmark accomplishment that got the process off to a good start.

After the initial VA commitment to improve the decision letter, the stakeholders listened to what they perceived as barriers to improved appeals processing, which supported another of the primary American Legion concerns, the lack of a centralized training process.  The BVA has complained that the appeal case file that is finally presented to a veterans law judge looks nothing like the claim that was adjudicated at the Regional Office (RO) level in almost all cases, due to the allowance of additional evidence during the appeals process.  Therefore VBA claims they have no way to determine how, or if ROs are misinterpreting the law or making mistakes.

BVA further argued that if there were a process within the appeals system that allowed law 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  ROs, and additionally help identify regional offices where the decisions uniformly fail to address specific legal issues.

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 here today.

The guiding principle leading all of our discussion was ensuring that we preserved all of the veteran’s due process rights while ensuring that they did not lose any of the claim’s effective date, which we were able to do successfully.

When we started the design process, we had to suspend dealing with the current caseload of appeals while we designed the new model and treated the two sets of cases as independent of each other.  Now that we have designed a more streamlined and effective model for future claims, all stakeholders will still need to determine how to deal with the existing inventory of appealed claims.

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 board 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 function of what the Decision Review Officers (DROs) do now. 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 BVA.  Additionally, the administrative actions removes the need for a Notice of Disagreement (NOD), a process that currently takes 403.6 days, according to the April 25, 2016, Monday Morning Workload Report.

Beyond improvements in administrative functions, the proposed bill will enable claimants to select a process other than the standard multi-year backlog if they want to have an appeal addressed more expediently, and if they believe they have already provided all relevant and supporting evidence.  Similar to the Fully Developed Claims (FDC) 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 records, or submitted with VA Form 9 indicating the intent to have their claims immediately forwarded to BVA for review.

Veterans indicating that they may need additional evidence or time, could elect to have their claim reviewed in the current BVA format allowing additional evidence to be entered into the record.  For veterans requiring additional evidence, such as lay statements from friends and families or a private medical examination rebutting VA medical examinations, this is a viable alternative to allow the time and opportunity to provide further development necessary to substantiate the claim for benefits.

Throughout this entire process, veterans will be able to maintain their effective date of the original claim.  Recognizing that an increased burden is being placed upon veterans, VA will permit veterans to maintain their effective dates, even if BVA denies the claim.  If an appeal is denied by BVA, the veteran can submit new and minimally relevant evidence to reopen the claim at the RO while holding that effective date that may have been established long before the second filing for benefit.

Just as we did when we worked in partnership with VA to roll out the Fully Developed Claims process, The American Legion is willing to put in the necessary work to ensure this program is successful.  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 changes.

Reforming a process as complex as the disability claims system is not simple, and not every aspect of appeals reform is able to be legislated, some parts are more nuanced and require the attention of all stakeholders. The American Legion is committed to 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.

The American Legion supports this legislation. 

Discussion Draft:

To amend title 38, United States Code, to establish a permanent Veterans Choice Program, and for other purposes.

Background

The American Legion believes in a strong, robust veterans’ healthcare system that is designed to treat the unique needs of those men and women who have served their country. However, even in the best of circumstances there are situations where the system cannot keep up with the health care needs of the growing veteran population requiring VA services, and the veteran must seek care in the community. Rather than treating this situation as an afterthought, an add-on to the existing system, The American Legion has called for the VA to “develop a well-defined and consistent non-VA care coordination program, policy and procedure that includes a patient centered care strategy which takes veterans’ unique medical injuries and illnesses as well as their travel and distance into account.”^[1]

Over the years, VA has implemented a number of non-VA care programs to manage veterans’ health care when such care is not available at a VA facility, could not be provided in a timely manner, or is more cost effective through contracting vehicles.  Programs such as Fee-Basis, Project Access Received Closer to Home (ARCH), Patient-Centered Community Care (PC3), and the Veterans Choice Program (VCP) were enacted by Congress to ensure eligible veterans could be referred outside the VA for needed, and timely, health care services.

Congress created the VCP after learning in 2014 that VA facilities were falsifying appointment logs to disguise delays in patient care. However, it quickly became apparent that layering yet another program on top of the numerous existing non-VA care programs, each with their own unique set of requirements, resulted in a complex and confusing landscape for veterans and community providers, as well as the VA employees that serve and support them.

Therefore, Congress passed the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (VA Budget and Choice Improvement Act) in July 2015 after VA sought the opportunity to consolidate its multiple care in the community authorities and programs. This legislation required VA to develop a plan to consolidate existing community care programs.

On October 30, 2015, VA delivered to Congress the department’s Plan to Consolidate Community Care Programs, its vision for the future outlining improvements for how VA will deliver health care to veterans. The plan seeks to consolidate and streamline existing community care programs into an integrated care delivery system and enhance the way VA partners with other federal health care providers, academic affiliates and community providers. It promises to simplify community care and gives more veterans access to the best care anywhere through a high performing network that keeps veterans at the center of care.

Generally, The American Legion has supported the plan to consolidate VA’s multiple and disparate purchased care programs into one New Veterans Choice Program (New VCP).  However, recent developments have chastened our expectations.

Discussion Draft

The American Legion commends this committee for considering draft legislation to fix the Choice program.  This bill addresses deficiencies in current law, as well as provides a comprehensive framework and foundation for consolidating the purchase of care in the community in those circumstances where it is not readily available from VA through contracts or existing sharing agreements. 

The American Legion supported passage of the Veterans Access, Choice and Accountability Act of 2014 as a temporary fix to help veterans get the health care they need, regardless of distance from VA facilities or appointment scheduling pressure. A long-term solution requires consolidating all of VA’s authorities for outside care, including Choice, PC3, Project ARCH and others, under one authority to help veterans only when and where VA cannot meet demand. The American Legion supports a strong VA that ultimately relies less and less on outside care, rather than move toward vouchers and privatization.  An initial hope for the emergency Choice program was that whatever worked from that program, or previous programs such as ARCH and PC3 could be incorporated into a single program that learned best practices and lessons from the predecessors.

While many veterans initially clamored for “more Choice” as a solution to scheduling problems within the VA healthcare system, once this program was implemented, most have not found it to be a solution, indeed, they have found it to create as many problems as it solves.  The American Legion operates the System Worth Saving Task Force, which has annually traveled the country examining up close the delivery of healthcare to veterans for over a decade.  What we have found, interacting with veterans, is that many of the problems veterans encountered with scheduling appointments in VA are mirrored in the civilian community outside VA.  The solutions in many areas may not be out in the private sector, and opening unfettered access to that civilian healthcare system may create more problems than it solves.  Recent reporting, such as the National Public Radio story last week noted “thousands of veterans referred to the Choice program are returning to VA for care – sometimes because the program couldn’t find a doctor for them” or “because the private doctor they were told to see was too far away.”[2]

Additionally, we note that the $10 billion originally appropriated for the Choice Program is expected to be depleted by May 2017. Nevertheless, neither the House nor Senate versions of the 2017 Military Construction-VA appropriations bill contain new allocations for the Choice program. We are cognizant that two amendments to the Senate version would have extended the Choice Program. A McCain amendment would have extended the program for 3 more years and add another $7.5 billion in emergency funding. A McCain/Blumenthal amendment would have done the same while adding  additional language that would begin to address the consolidation of non-VA care programs. This was in lieu of doing it in the Senate Veterans Affairs Omnibus bill, which did not incorporate the Burr/Tester compromise originally contemplated to be included, but was dropped due to cost. However, these amendments were not adopted.

Therefore, The American Legion has serious concerns about future years funding shortfalls for the VA. We urge this committee and Congress to take additional steps now to ensure VA has the tools and resources it needs to address the needs of America’s veterans next year and for years to come. The American Legion expects a fully funded VA from Congress. Since the access to care crisis, it was apparent that VA needed to expand its ability to provide care through its own facilities and by providing access for eligible veterans to private-sector health care. In short, VA needs enhanced capacity and that takes funding.

As predicted by The American Legion, sending patients off VA campuses to community providers absent well-crafted contracts such as those used for  Project ARCH and PC3 has led to inadequate compliance by local physicians to return treatment records to VA following care provided by Choice.

When the Choice legislation was being developed, The American Legion insisted that any doctor treating a referred veteran have access to the veterans medical records so that doctors would have a complete history of the veteran’s medical history and be able to provide a diagnosis based on a holistic understanding of the patients medical profile.  This is important for a litany of reasons, not the least of which includes the risk of harmful drug interaction, possible overmedication, and a better understanding of the patients previous military history – all important factors in wellness.

Also, The American Legion was adamant that any treating physician contracted through Choice had a responsibility to return treatment records to be included in the patients VA medical file so that VA could maintain a complete and up-to-date medical record on their patients.  We believed that safeguarding of the veterans medical records was so important, that we helped craft a provision be included in the language that prevented VA from paying physicians until they turned over the treatment records to VA.  Sadly, a few months back, The American Legion was forced to acquiesce our position in favor of paying doctors whether they turned over the medical records or not, because doctors just weren’t sending the records – it just wasn’t that important to them, and when VA refused to pay, they pointed the finger at VA and blamed VA for not paying them, ultimately billing the veterans and refusing to see any more VA-referred patients until they got paid.  Since it was more important that veterans had access to sufficient medical care and not have their credit damaged, The American Legion supported repealing the current provision.

This, among other reasons including unsustainable cost, is why Choice is not the answer.  The equation is simple; a dramatic increase in cost is guaranteed to result in an increased financial burden to veterans using VA care which will include higher co-pays, premiums, deductions, and other out-of-pocket expenses currently suffered by non-VA healthcare programs. 

Conclusion

As always, The American Legion thanks this committee for the opportunity to explain the position of the over 2 million veteran members of this organization. For additional information regarding this testimony, please contact Mr. Warren J. Goldstein at The American Legion’s Legislative Division at (202) 861-2700 or wgoldstein@legion.org.