American Legion: VA IG concedes wait times may have contributed to patient deaths

From the American Legion
Legislative Division update through Sept. 19

On September 18, 1793, the cornerstone was laid for the United States Capitol.

Both the House and Senate were in session this week. The House and Senate completed their business on September 18 by passing H.J. Res. 124, Continuing Appropriations Resolution, Fiscal Year 2015, funding the federal government from October 1 through December 11 and sent it to the president for signature. The bill authorizes about $1 Trillion in funding and includes provisions for military operations regarding Syria. The House passed the bill on September 17 by a vote of 319-108 and the Senate passed it on September 18 by a vote of 79-22. The continuing resolution (CR), keeping the federal government open past September 30, was the only must-pass bill keeping Congress in town. Congress has now adjourned for the campaign season and will not return until November 12.

American Legion update Louis Celli, director Legislative Division

American Legion update
Louis Celli, director
Legislative Division

The Senate passed by unanimous consent a dozen other bills before adjourning. One of those bills passed and sent to the President was H.R. 5404, the Department of Veterans Affairs Expiring Authorities Act, extending through fiscal year 2015 some thirty Department of Veterans Affairs (VA) programs in the areas of health care, rehabilitation, housing, transportation, education, and other benefits (the bill does not cover veterans’ employment programs). Also before adjourning, the House passed H.R. 2, the American Energy Solutions Act; a comprehensive energy bill. The bill goes to the Senate for action.

Given that government funding expires on December 12, Congress will have to fund the government after that date for the remaining part of the fiscal year when it returns in November. This lame-duck session may become more contentious than usual if the Senate switches from Democrat to Republican control. We will have to wait and see what the American voters do. However, we look forward to working with Congress when it returns on November 12 and continuing to work on our legislative mandates.

New Member (for those elected November 4) Orientation and the Democratic leadership elections for the next Congress (the 114th) will be held November 12-14. The House Republicans have not announced their leadership elections as of this writing. Nor has either party in the Senate published their leadership election notices.

Of course, which party controls the Senate for the next Congress could very well still be undecided by November 12, particularly given the possibility of a run-off election in Louisiana. The Senate is closely divided, 53 Democrats and 2 Independents versus 45 Republicans. According to current polling data, Republicans are pretty sure of picking up three currently Democrat Senate seats — South Dakota, West Virginia, and Montana — in the November elections. If so, winning three more seats will give the Republicans majority control of the Senate in the 114th Congress.

As of now, polling data also suggests the Republicans will retain control of the House, and if they take control of the Senate in November, the odds will be against this 113th Congress agreeing, other than funding the federal government after December 11, in its remaining days to any significant national policy changes in the lame-duck session that follows the election—thus many issues will be deferred to January 2015 when the new Congress is seated. We do expect the National Defense Authorization Act will pass this Congress after Congress returns November 12.


Congress worked this week on legislation that benefits service-disabled veterans. S. 2258, the Veterans’ Compensation Cost-of-Living Adjustment Act, passed both the House and Senate (House this week and Senate last week), and now heads to President Obama for signature. The legislation increases the Cost of Living Adjustment (COLA) for veterans’ disability benefits starting December 1, 2014. The rate of the increase will be the same as the cost-of-living adjustment for Social Security recipients. That rate will not be determined until later this year. The annual COLA legislation also affects the disability payments and compensation for veterans’ surviving spouses and children.

On September 17, the House Oversight and Government Reform Committee approved legislation that would give disabled veterans hired as federal employees access to their full year’s sick leave immediately upon starting their jobs. [Full-time federal workers in their first year on the job have no sick leave when they start, and accrue four hours of sick leave per pay period. That amounts to a balance of 104 hours at the end of their first year.] But disabled veterans, who must attend regular medical appointments to take care of their health, and also to continue receiving their veterans’ benefits, quickly use up their sick leave. Many veterans also have to travel to reach the nearest VA facility to receive treatment, which can eat up leave time. The 2014 Wounded Warriors Federal Leave Act would apply to first-year federal employees with a service-connected disability rating of at least 30 percent. During their first year on the job, the veterans would still accumulate their normal sick leave. The employees would only be able to use their extra sick leave for treatments directly related to their service and would not be able to carry over the one-time “wounded warrior leave” after the first 12 months on the job. Representative Stephen Lynch (MA) sponsored the bill, with Representatives G.K. Butterfield (NC); Elijah Cummings (MD); Blake Farenthold (TX); Walter Jones (NC); and Delegate-at-Large Eleanor Holmes Norton (DC).

Also on September 17, the House passed four veterans-related bills:

H.R. 3593, as amended, a bill by Representative Mike Coffman (CO) would direct the inclusion of an outside entity – the Army Corps of Engineers – to assist in the management of VA’s major facility construction efforts.

H.R. 5404, as amended, a bill by Representative Jeff Denham (CA) would extend a number of expiring current authorities and critical programs at both the Department of Veterans Affairs and the Department of Labor. This bill was later passed by the Senate (see above).

H.R. 4276, as amended, a bill by Representative Bill Cassidy (LA) would require VA to provide reports to Congress on the pilot program for assisted living services for veterans with traumatic brain injury.

  1. 2258, a bill by Senator Mark Begich (AK) would authorize a cost-of-living adjustment for disabled veterans receiving service-connected disability compensation from the Department of Veterans Affairs and other compensation for survivors of veterans who have died as a result of their service to our country.

H.R. 3593 and H.R. 4276 now await consideration by the Senate, and H.R. 5404 and S. 2258 will be sent to the president to be signed into law.

Fiscal Year 2015 National Defense Authorization Act (NDAA) Update

The House and Senate Members and staffs of the Armed Services Committees continue to work to draft a compromise National Defense Authorization Act, Fiscal Year (FY) 2015 bill (however, the Senate now appears to be unable to pass its version of the NDAA specifying the budget and expenditures of the Department of Defense (DoD) during this September congressional session). The Senate Armed Services Committee has passed S. 2410 (its version of the NDAA) and sent it to the Senate floor where it is on the calendar and awaits debate. The bill provides $514 billion, including $496 billion for DoD’s base budget and $17.7 billion for other national security programs. The House passed H.R. 4435, the Howard P. “Buck” McKeon National Defense Authorization Act, in May and it is on the Senate calendar too. That legislation authorizes $521.3 billion for the base budget and $79.4 billion for Overseas Contingency Operations, primarily in Afghanistan.

Senate GOP block UN Treaty on Disability Rights

On September 17, Republican Senators blocked the request of Senator Tom Harkin (IA) to vote on the United Nations’ treaty for persons with disabilities. Harkin asked for unanimous consent to debate the treaty for two hours and then hold an up-or-down vote that would require two-thirds of the Senate’s support for adoption. Harkin pointed out the treaty has bipartisan support. Lee said the adoption of any treaty deserves more than two hours of debate and Senators should be able to offer amendments. Supporters of the treaty argued the Convention on the Rights of Persons With Disabilities would simply require the rest of the world to meet the standards that Americans already enjoy under the 1990 Americans With Disabilities Act and that more than 150 other countries have adopted the treaty. [note: The American Legion reiterated its support of the treaty by renewing a resolution at the 2014 National Convention in Charlotte, North Carolina, calling for Senate passage. The treaty could come to the Senate floor during the lame-duck session later this year.] In the end, Senator Mike Lee (UT) objected to the request for unanimous consent and that ended the discussion.


VA IG Finally Concedes Wait Times May Have Contributed to Patient Deaths

In a marathon hearing of the House Committee on Veterans’ Affairs (HVAC) on September 17, committee members doggedly pursued clear answers to the question surrounding the Department of Veterans Affairs (VA) healthcare scandal in Phoenix, Arizona. The six-and-a-half hour hearing, interrupted several times so the Members could vote on the Continuing Resolution (CR) to fund government activities, focused on the Final Report of the Office of the Inspector General (VAOIG or IG) investigating the wait times scandal that started in Phoenix and spread throughout the VA healthcare system this summer. Controversy swirled around the report for the past several weeks and centered on a key phrase in a sentence that noted the IG “could not conclusively link delays in care to patient deaths.” The sentence was noteworthy for two reasons, first, because it was seemingly out of context with the remainder of the report, which detailed how patient care suffered because of the delays in seeing patients; and second, because several reports in the Washington Examiner and Arizona Central (a Gannet news source local to Phoenix) indicated VA officials may have directed the IG’s office to alter their report to soften the impact on VA.

Acting Inspector General Richard J. Griffin denied outside influence from VA last week before the Senate Committee on Veterans’ Affairs (SVAC) and reiterated his opposition to the notion the IG’s report had been altered due to direction from VA. Dr. John Daigh, Assistant Inspector General for Healthcare, stood by the report and seemed unclear as to why the sentence was questioned; noting the rest of the report indicated there were clear problems caused. Several members of the Committee noted VA’s strong public relations push, noting only that the report “indicated no connections between wait times and patient death” to point out, whether intentionally or unintentionally, the IG was being used to exonerate VA in the Phoenix crisis. Ultimately, under questioning from Committee Member David Jolly (FL), Daigh admittedly that while he could not “conclusively assert” the delays led to patient deaths, they also could not conclusively assert no patients died because they could not get care. This was similar to the line of questioning pushed by Senator Dean Heller (NV) in last week’s SVAC hearing, in which the Senator pointed out that, by the VAOIG’s report, at least 177 mental health patients had been delayed in receiving care, and of that group, 77 had committed suicide, to be unable to link any of those suicides to the delays in mental health care seemed impossible. What became clear was that the VAOIG report was holding the linkages to a near 100% standard of proof. “It may have contributed to their deaths, but we can’t conclusively say it caused their deaths,” admitted Griffin.

VA Secretary Bob McDonald also appeared before the Committee to stress that VA had an aggressive action plan to deal with “all 24 concerns raised by the Phoenix report.” Chairman Jeff Miller (FL) credited McDonald for working to fix the problems and noted he “declined to ask a long list of questions bashing VA because both sides have to work together to fix this now” but Chairman Miller ultimately lamented this was the first time in the memory of the Committee that VA had actually moved to address concerns raised by IG reports. Other Members of the Committee praised McDonald for his initiation of efforts to reform VA and held off heavy criticism while he finds his feet as the new Secretary, but reiterated their concerns that the Phoenix problems were widespread and would not go away just because of a new law and a new Secretary.

New VA Secretary Addresses Senate

In his first appearance before Congress since being approved as the Secretary of Veterans Affairs, Robert McDonald insisted everyone call him “Bob” and pressed his point that everyone, from the lowest employee in VA to the Senators and Members of Congress, needed to talk directly to each other on first name terms to start solving the problems of VA.

The Senate Committee on Veterans’ Affairs (SVAC) held the hearing September 9, to get updates on the state of VA healthcare in Phoenix, Arizona, in the wake of the crisis this year that led to the previous Secretary’s resignation. The majority of Senators present patted themselves on the back for passing the Veterans Access to Care Act this year to start the reform process at VA, yet all cautioned there was still much work to be done. Ranking Member Richard Burr (NC) cautioned VA “still has a caustic and toxic culture from top to bottom that needs changing”; Senator Mazie Hirono (HI) raised concerns the coming tide of Global War on Terror veterans soon to be downsized to the private sector from active duty would find VA “underfunded, under resourced, and overloaded” while Senator Jerry Moran (KS) spoke of the importance in rural states of the continued use of Project ARCH (Access Received Closer to Home).

Richard Griffin, Acting Inspector General of the Department of Veterans Affairs, spoke on behalf of the Office of the Inspector General (OIG) and provided updates on the full report of the OIG on the Phoenix crisis. Griffin noted the new Secretary had concurred with all 24 recommendations from the report and presented acceptable action plans to correct the deficiencies

The remainder of the hearing focused largely on recent news reports which suggested VA may have had ‘undue influence’ in the final report from OIG. The news story in question focused on a particular sentence, added late in the editing process, which stated, “[the OIG] could not conclusively find that patient deaths were linked to delays in care.” Earlier drafts of the report, which overall was extremely critical of VA care in Phoenix and stated categorically that patients suffered and were made worse by VA lapses in care, did not contain language exonerating VA from blame in the patient deaths.

Griffin stood by the report, however, and denied any VA influence had changed report language, stating all language came from “senior IG officials.” The other doctors present representing the OIG stood firm behind the analysis that none of the deaths could be linked to delays in care, even when Senator Dean Heller (NV) challenged them by noting. “Your report states 177 mental health patients had delays in access to care and 77 of those committed suicide, yet you can’t link a single suicide to the delays in care?”

Senator Patty Murray (WA) grilled McDonald closely about delays in mental health care, asking why VA continues to struggle to provide care. McDonald acknowledged a nationwide shortage in mental health providers and noted that discussions with medical school programs had revealed lower insurance reimbursement for mental health care may be deterring some candidates from pursuing careers in mental health because of the financial difficulties involved. Still, McDonald was excited about the challenge. The Secretary noted, “I’m excited for VA because we get to be pathfinders. This is a national problem and we get to be the ones to trail blaze a solution.”

Other Activities

Dr. Linda Schwartz Confirmed as VA Assistant Secretary for Policy and Planning

On September 17, Secretary of Veterans Affairs Robert A. “Bob” McDonald welcomed the confirmation of Connecticut Veterans Commissioner Linda S. Schwartz as Assistant Secretary of Veterans Affairs for Policy and Planning. In this post, Dr. Schwartz will help develop and review VA departmental policy, analyze Veteran trends and statistics, and evaluate VA transformation initiatives. She will play a role in VA’s strategic planning and work to implement the Secretary’s vision to transform VA into a responsive organization.

Dr. Schwartz, a disabled veteran, is currently the Commissioner of the Connecticut Department of Veterans Affairs, a position she has held since 2003. She concurrently serves as an Associate Clinical Professor of Nursing at the Yale School of Nursing, where she has been since 1999, and was appointed Associate Research Scientist and Scholar. From 1980 to 1993, she taught at several university and college schools of nursing and held leadership roles in nursing organizations in Connecticut. From 1979 to 1980, she was a caseworker in the Office of the Field Director of the American Red Cross at Rhein-Main Air Base in Germany. Dr. Schwartz served in the United States Air Force (USAF) Nurse Corps from 1968 to 1986, both on active duty and as a Reservist. She retired as a Flight Nurse Instructor, with the rank of Major, after sustaining injuries in a USAF aircraft accident. She received her Bachelor’s of Science degree in nursing from the University of Maryland School of Nursing; a Master’s of Science degree from the Yale University School of Nursing; and a Doctor of Philosophy degree from the Yale University School of Medicine.


Staff Development

Legislative staff worked with Congressional personal and committee staffs on various legislative matters. The subjects of these meetings included upcoming hearing schedules for the House Veterans’ Affairs Committee as staff continues to work to develop legislation to continue to address solutions to problems within VA.

Legislative staff continues to engage congressional staffs to determine the status of the National Defense Authorization Act for Fiscal Year 2015; and the twelve appropriations bills for FY 2015, all of which must be passed (or in lieu of an appropriations bill a CR to fund the federal government must be passed) for the entire fiscal year.

Legislative staff continued working with both House and Senate staffs on H.R. 2841, a bill to provide mandatory separation physical examinations for reserve component servicemember and to the same standard as the active forces. We continue to ask you contact your representative and two senators and request support for this bill and quick passage before the end of the 113th Congress.

On September 19, legislative staff attended a meeting with other VSOs and the Acting Principal Deputy Undersecretary for Health and the Director, Enterprise Program Management Office at the Department of Veterans Affairs regarding the VA Construction Assistance Act.

Legislative staff continued reviewing the resolutions passed at the National Convention that have ‘Legislative Intent’.

Letters of Support

No Letters of Support were delivered this week.

Update on Flag Amendment Bills

On May 22, 2013, House Joint Resolution (H.J. Res.) 47 was introduced by Representative Spencer Bachus (AL). This legislation is a proposed constitutional amendment to protect the American flag from physical desecration. Its text states simply: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” The House measure currently has 29 cosponsors.

On June 13, 2013, Senator Orrin Hatch (UT) introduced Senate Joint Resolution (S.J. Res.) 17, a companion bill to H.J. Res. 47. This Senate measure has 23 cosponsors.

The task before us now is finding additional cosponsors for these two measures. Please contact your representative and senators, and ask them to become cosponsors of the flag amendment in their respective chambers. [Resolution 272-2012]

Louis J. Celli Jr. retired as a master sergeant after serving 22 years in the U.S. Army. He became legislative director for the American Legion, the nation’s largest veteran service organization, in 2012.

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