VA General Counsel Issues Opinion on Priority Group Four Co-Payments

The Department of Veterans’ Affairs (VA) General Counsel recently released an opinion addressing questions about the scope of P.L. 111-163, the “Caregivers and Veterans Omnibus Health Services Act.” Specifically, the General Counsel was asked to determine if the legislation exempted collections for prescription drug co-payments. In its opinion, the General Counsel determined that the legislation does prohibit the VA from collecting co-payments for prescription drugs for veterans enrolled in Priority Group Four. Additionally, the opinion emphasizes that the language of the bill essentially prevents the VA from collecting any co-payments or fees for any type of medical service from Priority Group Four veterans.

PVA staff is now working with staff at the VA to get this legislation implemented as soon as possible. We were recently informed that this statue should be able to be implemented without the need for new regulations, which should expedite this process. We anticipate that this new policy should come online within the next few months. Also, the VA has informed PVA that it will have a means to reimburse veterans who have paid for services retroactive to May 5, 2010.

This opinion marks an excellent outcome for PVA and its members. PVA has spent many years advocating for the elimination of co-payments of catastrophically disabled veterans enrolled in Priority Group Four.

No Action Taken So Far on Appropriations

With half of the second session of the 111th Congress done, the House of Representatives and the Senate have taken virtually no action on the FY 2011 Military Construction and Veterans’ Affairs appropriations act. In fact, neither chamber has even considered the Budget Resolution, which serves as the benchmark for spending projections for the coming fiscal year.

While the Department of Veterans Affairs (VA) did receive advance appropriations for FY 2011 for the health-care accounts (Medical Services, Medical Support and Compliance, and Medical Facilities) in the FY 2010 appropriations bill, funding work for the remaining VA accounts has not been addressed. This leaves the Veterans Benefits Administration, National Cemetery Administration, and other accounts that include Research and Construction in limbo.

Of greatest concern to PVA is the fact that Congress seems to have no interest in completing funding for the new fiscal year that will start on October 1, 2010 until after the mid-term elections this fall. It seems very likely that Congress will simply approve a Continuing Resolution prior to the start of the new fiscal year that will last until after the outcome of the mid-term elections has been determined. Additionally, these accounts face the possibility of a flat-line budget or even cuts as part of the Administration’s efforts to reduce federal spending.

It is unconscionable that Congress would consider leaving the Veterans Benefits Administration underfunded while emphasizing that fixing the claims process is one of its highest priorities. PVA will be working with Appropriations Committee staff members to complete work on the FY 2011 Military Construction and Veterans’ Affairs appropriations bill as quickly as possible.

House VA Subcommittee on Disability Assistance and Memorial Affairs Holds Hearing on Pending Legislation

On July 1, the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs held a hearing on pending legislation to include H.R. 3407, the “Severely Injured Veterans Benefits Improvement Act of 2009;” H.R. 3787, the “Honor American’s Guard-Reserve Act;” H.R. 4541, the “Veterans Protection Act of 2010;” H.R. 5064, the “Fair Access to Veterans Benefits Act of 2010;” and H.R. 5549, the “Rating and Processing Individuals’ Disability (RAPID) Claims Act.” Generally, the veterans’ service organizations that testified supported the majority of the legislation as written. PVA submitted a statement for the record for this hearing.

Of particular importance to PVA is H.R. 3407, the “Severely Injured Benefits Improvement Act of 2009.” We enthusiastically supported this legislation in our statement. In fact, over the last year, PVA staff has been actively advocating for this legislation to build support in the House. This comprehensive legislation would increase aid and attendance for severely injured veterans, expand aid and attendance to cover veterans with traumatic brain injury (TBI), increasing pension for housebound veterans, qualify severely burned veterans for adaptive automobile equipment grants, and increase the service pension for Congressional Medal of Honor recipients.

It is often overlooked that veterans with significant catastrophic disabilities are likely to be compensated from the impact on loss of quality of life. Special Monthly Compensation (SMC) represents payments for “quality of life” issues, such as the loss of an eye or limb, the inability to naturally control bowel and bladder function, the inability to achieve sexual satisfaction or the need to rely on others for the activities of daily life like bathing, or eating. Many severely injured veterans do not have the means to function in an independent setting and need intensive care on a daily basis. Many veterans spend more on daily attendant care than they are receiving in SMC benefits. The impact on quality of life of the extreme nature of disabilities incurred by most veterans in receipt of SMC cannot be totally compensated for; however, SMC does at least offset some of the loss of quality of life.

This proposal would increase the benefits for catastrophically injured veterans who require aid and attendance by 50 percent. Qualifying veterans would receive a monthly payment of $7552, and those in need of the highest level of care would receive $8642.
The bill would also authorize aid and attendance payments for certain veterans with severe Traumatic Brain Injury. This discrepancy was identified during a House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs hearing on ancillary benefits and veterans’ quality of life issues held during the first session of the 111th Congress.

Additionally, the proposal authorizes certain veterans with severe burns to receive specially adapted automobile grants. This legislation would ensure that severely injured veterans receive all the support they are owed without forcing them and their loved ones to endure financial strains or hardship. Particularly, the severe burns caused by bombs, grenades, and improvised explosive devices, leave these veterans with functional impairments. In some cases, burn injuries are severe enough to require special adaptation to attain independent living.

PVA also supports H.R. 3787, the “Honor America’s Guard-Reserve Retirees Act.” We believe everyone who raises their hand to support and defend the Constitution of the United States should be recognized for their service, to include the Guard and Reserve. The mission of many guard and reservists is to facilitate and support the deployments of their comrades, so the unit is fully prepared when called upon. Unfortunately, the law does not currently allow those who have served several years under non-federal status orders, and are entitled to retirement pay, TRICARE, and other benefits, to call themselves “veterans.” These men and women have taken the same oath as an active duty service member and have made sacrifices that have earned them the right to call themselves veteran.

PVA strongly supports H.R. 5064, the “Fair Access to Veterans Benefits Act of 2010.” The bill would provide for the equitable tolling of the timing of review for appeals of the Board of Veterans Appeals. We believe that this bill creates flexibility that could favor veterans within the claims appeal process that show examples of “good cause,” to include issues such as physical or mental impairments. The current 120-day deadline to file an appeal to the U.S. Court of Appeals for Veterans Claims does not leave room for veterans that may have unique circumstances due to mental, physical, or health problems.

PVA is pleased to see the Subcommittee address these critically important measures, particularly H.R. 3407, which could benefit many PVA members. However, this legislation faces an up-hill battle as congressional committees are under pressure to hold down spending by not passing expansive new benefits. We will continue to work with Hill staff to advance these measures and we would encourage you to contact your local representatives to ask them to support H.R. 3407. Meanwhile, if you have questions about this legislation, please contact the PVA National Legislative staff.

Health Subcommittee Conducts Hearing to Review Challenges of Rural Health Care

The House Committee on Veterans’ Affairs, Subcommittee on Health recently held a hearing on veterans’ health care in rural areas. The topic of providing health care to veterans in rural areas has attracted the interest of many members of Congress since the beginning of the conflicts in Iraq and Afghanistan. Approximately forty percent of the troops currently serving in Iraq and Afghanistan are members of the Guard and Reserve. Many of these service members reside in smaller communities and rural areas that are not near a traditional VA hospital. Currently, of the eight million veterans enrolled in the VA health care system, approximately three million veterans come from rural areas and that number continues to increase each year.

Congressman Michael Michaud (D-ME) chairs the Subcommittee with Representative Henry Brown (R-SC) serving as the Ranking Minority Member. Both Members represent states that have veterans who live in farming and small communities where access to VA health care is difficult because of geographic barriers. This hearing emphasized the need for the VA to continue in its role as a leader in meeting the needs of a rural population with its use of new technology and through the use of telemedicine.

The Veterans Health Administration explained that the VA is ahead of most private health-care systems with its use of innovative technology. One example would be the VA’s online personal health record, My HealtheVet. My HealtheVet currently serves over one million registered users, which represents 14.5 percent of VA patients receiving health-care services. The total number of visits to My HealtheVet since it was launched in November 2003 now exceeds 40 million. Veterans have refilled more than 15 million prescriptions, at a rate of approximately 600 per hour, through My HealtheVet since VA made available online interactive ordering of prescription refills in August 2005.

Additional witnesses represented companies that manufacture and provide high tech electronic monitoring systems for the medical profession. Although their interest is to someday provide their product to the VA, they also want to educate Congress on the latest technology that can help the VA in their goal of expanding health care outside of the hospital setting.

They explained that systems currently being used in many medical networks have great potential for the VA in the expansion of their health-care coverage, while increasing the health-care outcome for the veteran. The expansion of the use of wireless health technologies would include mobile health, which is the new frontier in health innovations. Mobile health makes it possible for health care professionals to receive real-time health data such as vital signs, glucose levels, and medication compliance because data from the patient’s mobile sensors are relayed over wireless connections. Mobile health also makes it possible for health-care professionals to download health data using PDAs and Smartphones. These innovations will not only empower rural veterans, but can improve health outcomes as veterans have the necessary tools to better manage chronic diseases and receive timely health care in the comfort of their homes.

While the VA plans to use telemedicine in some locations, there is still a need for the country to expand its nationwide access to broadband capability. The VA will have the ability to use cell phones and other wireless monitors to extensively monitor the cardiac activity of a patient, blood glucose levels, medication compliance, and vital signs monitoring. They will also use a tele-radiology program to provide radiographic interpretations for veterans at remote locations. While the remote medical care capabilities are advancing in several areas of health care, Congress still needs to continue with support and direction to the Federal Communication Commission to drive broadband enhancement into rural areas. Congress had asked the FCC to address how broadband can be used to deal with important national problems such as health care.

Both the House and the Senate Committees on Veterans’ Affairs will continue to address rural health care. As the VA expands its health-care capabilities into the rural areas, they will also need to create an awareness of the new programs available to veterans.

House Resolution Recognizing and Honoring the 20th Anniversary of the ADA
 

On July 1, the House of Representatives introduced a resolution honoring the 20th anniversary of the Americans with Disabilities Act. H. Res. 1504 was co-sponsored by Mr. Hoyer (for himself, Mr. Sensenbrenner, Mr. Langevin, Mr. Upton, Mr. Kennedy, Mrs. McMorris Rodgers, Mr. Conyers, Mr. Smith of Texas, Mr. Nadler of New York, Mr. George Miller of California, Mr. Waxman, Mr. Oberstar, Mr. Towns, and Mr. Coble.)
The resolution recognizes progress and problems with the ADA:

Whereas the Americans with Disabilities Act has played an historic role in allowing over 50,000,000 Americans with disabilities to participate more fully in national life by removing barriers to employment, transportation, public services, telecommunications, and public accommodations;
Whereas the Americans with Disabilities Act has served as a model for disability rights in other countries; ….
Whereas, 20 years after the enactment of the Americans with Disabilities Act, children and adults with disabilities continue to experience barriers that interfere with their full participation in mainstream American life;
Whereas, 20 years after the enactment of the Americans with Disabilities Act, people with disabilities are twice as likely to live in poverty as their fellow citizens and continue to experience high rates of unemployment and underemployment;
Whereas, 20 years after the enactment of the Americans with Disabilities Act and nearly 11 years after the Supreme Court's decision in Olmstead v. L.C., many people with disabilities still live in segregated institutional settings because of a lack of support services that would allow them to live in the community;
Whereas, 20 years after the enactment of the Americans with Disabilities Act, many public and private covered entities are still not accessible to people with disabilities; and
Whereas the United States has a responsibility to welcome back and create opportunities for the tens of thousands of working-age veterans of the Armed Forces who have been wounded in action or have received service-connected injuries while serving in Operation Iraqi Freedom and Operation Enduring Freedom…
The House “encourages all Americans to celebrate the advance of freedom and the opening of opportunity made possible by the enactment of the Americans with Disabilities Act; and…pledges to continue to work on a bipartisan basis to indentify and address the remaining barriers that undermine the Nation’s goals of equality of opportunity, independent living, economic self-sufficiency, and full participation for Americans with disabilities.”

 HELP Committee Hearing on ADA and Olmstead Anniversaries

On June 22, the Senate Committee on Health Education Labor and Pensions (HELP) chaired by Senator Tom Harkin (D-IA) held a hearing titled “The ADA and Olmstead Enforcement: Ensuring Community Opportunities for Individuals with Disabilities.” The hearing coincided with the 20th anniversary of the Americans with Disabilities Act and the 11th of the Supreme Court’s Olmstead decision (confirming that unnecessary institutionalization is a form of unlawful discrimination.)

In the first panel Tom Perez, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice (DOJ) spoke of what the Civil Right division of DOJ has being doing to enforce the Olmstead decision. DOJ filed an amicus brief in the Haddad case, discussed below. DOJ is involved in several other Olmstead cases in Illinois and New Jersey, as part of its mission to end discrimination against people with disabilities.
"This work is a priority for the Civil Rights Division, and we are committed to aggressive enforcement of Olmstead so that we can build upon progress made over the last 11 years," said Perez. "But our work is only one piece of a larger, administration wide effort to make the promise of Olmstead a reality for individuals with disabilities nationwide. Real reform requires a holistic approach.”

Olmstead Anniversary and Year of Community Living

In honor of today’s one year anniversary of the Obama Administration’s “Year of Community Living,” Health and Human Services Secretary Kathleen Sebelius announced new funds for states to build innovative systems to link persons with disabilities to affordable housing in their home communities.

This new $3.2 million, three-year contract is designed to support collaboration between human services agencies and housing authorities at all levels of government to help persons living in institutions find homes and live more independently. The effort, the Housing Capacity Building Initiative for Community Living, will be led by New Additions Consulting.

Secretary Sebelius is promoting partnerships within HHS and with other departments, including the Department of Housing and Urban Development to create a productive collaboration in ensuring that people with disabilities, seniors and individuals with chronic conditions have new opportunities to live as valued members of their communities.

PVA Testifies Before Commission on Fiscal Responsibility

On June 30, PVA spoke to the National Commission on Fiscal Responsibility and Reform during its forum to receive testimony from the public. A bipartisan body appointed by President Obama last February, the Commission has been meeting monthly to develop recommendations for Congress to reduce the federal budget deficit and bring down the national debt.
In its statement, PVA reminded the Commission of the importance of the VA health-care system not only to those who served and sacrificed for their country but also as a cost-effective and cost-efficient model of health care delivery for the nation. PVA also defended the VA compensation system, stating that "any recommendation to reduce compensation payments paid to veterans simply makes the statement that while we (the United States) have some obligation to compensate a veteran for his or her sacrifice in uniform, we will have to reduce that obligation. Such a consideration is simply unconscionable. We offer without equivocation that no one in this country would support such a notion.”

For more information about the National Commission on Fiscal Responsibility and Reform go to www.fiscalcommission.gov.

New DOT Rule Extends Disability Protections to Passenger Ships and Boats

On June 17, the Department of Transportation (DOT) announced the first federal rule to specifically provide Americans with Disabilities Act (ADA) protections to people with disabilities who travel on boats and ships. The action comes as the 20th anniversary of the ADA approaches on July 26.
The rule applies to vessels operated by public entities, such as public ferry systems, and vessels operated by private entities primarily engaged in the business of transporting people, such as cruise ships. This will not cover dinner cruises or fishing charters at this point. The rule will ensure that vessel operators’ policies do not discriminate against passengers with disabilities. Under the rule, vessel operators cannot charge extra for accessibility-related services to passengers, cannot require passengers to furnish their own attendants, and cannot deny access to passengers based on disability. Vessel operators must provide information to passengers about the accessibility of their facilities and services and appoint an individual to resolve accessibility concerns.

The Access Board is currently developing proposed accessibility guidelines for vessels that the DOT would have to adopt in a subsequent rulemaking.

Proposed Regulations

PVA submitted comments to research proposed by the National Institute on Disability and Rehabilitation Research (NIDRR). NIDRR proposes a research priority to establish a Rehabilitation Research Training Center on Effective Vocational Rehabilitation Service Delivery Practices. PVA supported this effort to place a priority on practices most likely to improve rehabilitation services and outcomes for individuals with disabilities.

The Access Board is proposing to revise the Americans with Disabilities Act Access Guide to address access to self-service machines used for ticketing, check-in or check-out, seat selection, boarding passes, or ordering food in restaurants and cafeterias. The proposed standards address reach range for operable parts, height and angle of operating screens and accessibility for people with vision impairments. PVA supported the Board’s proposals and suggested that the list of machines subject to coverage be exemplary only so new technology would be required to comply.

 
HHS Launches new Health Care Web Site

The Department of Health and Human Services in its efforts to implement the Patient Protection Affordable Care Act launched the new website www.healthcare.gov that will help all consumers, practitioners, businesses, and insurance agencies understand the requirements and the implementation time lines of the new health care reform law that President Obama signed this year. The site has a section for people with disabilities that provides information on current requirements and a timeline for changes to come. It is very user friendly, providing answers to questions about long term care, pre-existing conditions, losing insurance, etc. Links to state insurance programs, the VA, Medicare/ Medicaid offices are easily accessible.

Florida Must Provide Community Services to People at Risk of Institutionalization

This year is the 11th anniversary of the Olmstead decision in which the Supreme Court stated that failure to provide community-based Medicaid services where appropriate constitutes discrimination under the Americans with Disabilities Act (ADA). Following that ruling, a U.S. District Court in Jacksonville, Fla., ruled in Haddad v. Arnold that Florida must provide community services to a female quadriplegic who would otherwise have to enter a nursing home. Michelle Haddad had resided in the community for several years, but would have to enter a nursing home due to changes in her caregiver situation. She argued that she would suffer irreparable harm if forced to enter a nursing home. The state had advised her that community services would only be available if she was willing to enter a nursing home for 60 days.

The court ordered the state to provide services as required by the ADA integration mandate. The Department of Justice submitted an amicus brief that the individual would suffer irreparable harm if forced to enter a nursing home.

Money Follows the Person Extension

The Centers for Medicare & Medicaid Services (CMS) sent a letter to state Medicaid Directors clarifying that the Money Follows the Person Demonstration was extended as a result of the Patient Protection Affordable Care Act. This program has been a very successful partnership with states and has resulted in many individuals moving from institutional to community-based settings.

“The implementation of the Affordable Care Act helps advance the civil rights of individuals with disabilities and community living arrangements, building on the important cornerstone in the Olmstead decision,” said Henry Claypool, director of the Office on Disability. “Today’s announcement is yet another step in HHS’ 11-year effort
to achieve this goal.

To read more on HHS accomplishments during the Year of Community Living, please visit http://www.hhs.gov/od/topics/community/keyadvances.html. More information about the Money Follows the Person program can be found at http://www.cms.hhs.gov/CommunityServices/20_MFP.asp

PVA on Advance Class Board

Subsequent to passage of health-care reform, PVA was invited to be an incorporating director for a new non-profit organization, Advance CLASS. Lee Page, Associate Advocacy Director who worked on the health-care legislation, will represent PVA. Advance CLASS was initiated by the American Association for Homes and Services for the Aging, and involves a number of other disability groups. The organization will promote the CLASS Act and educate people with disabilities about its provision.
Bob Herman, Senior Advocacy Attorney, was nominated to the Workforce Advisory Committee for Advance CLASS.