VA/DoD Health Care Intersections and Legal Issues in VA/DoD Sharing

VA Vet Centers Established by Congress in 1979 out of the recognition that a significant number of Vietnam era vets were still experiencing readjustment problems. Community based and part of the U.S. Department of Veterans Affairs. Provide readjustment counseling – a wide range of psycho social services to make a successful transition from military to civilian life There are 232 community based Vet Centers located in all fifty states, District of Columbia, Guam, Puerto Rico and the US Virgin Islands.

ELIGIBILITY: War Zone Veteran - all eras, including... WORLD WAR II - Three eligible categories - European-African-Middle Eastern Campaign-Medal (7 Dec to 8 Nov. 1945), Asiatic - Pacific Campaign Medal (7 Dec to 2 Mar. 1946), or American Campaign Medal (7 Dec to 2 Mar. 1946) AMERICAN MERCHANT MARINES – In oceangoing service during the period of armed conflict, 7 Dec to 15 Aug KOREAN WAR - 27 June 1950 to - 27 July 1954 (eligible for the Korean Service Medal) VIETNAM WAR - 28 Feb to 7 May 1975 LEBANON - 25 Aug to 26 Feb GRENADA - 23 Oct to 21 Nov PANAMA - 20 Dec to 31 Jan PERSIAN GULF - 2 Aug to SOMALIA - 17 Sept to BOSNIA - 21 Nov to 01 Nov KOSOVO - 24 Mar to OPERATION ENDURING FREEDOM-7 Oct to OPERATION IRAQI FREEDOM - 19 Mar to 17 Feb OPERATION NEW DAWN - 17 Feb to OPERATION JOINT ENDEAVOR, OPERATION JOINT GUARD, & OPERATION JOINT FORGE - Veterans who participated in one or more of the three successive operations in the former Yugoslavia (Bosnia- Herzegovina and Croatia, aboard U.S. Naval vessels operating in the Adriatic Sea, or air spaces above those areas). Veterans who served or have served in Kosovo either in its waters or airspace after March 24, 1999, and before a terminal date yet to be established. GLOBAL WAR ON TERRORISM - Veterans who serve or have served in military expeditions to combat terrorism on or after September 11, 2001 and before a terminal date yet to be established. Includes OPERATION ENDURING FREEDOM, OPERATION IRAQI FREEDOM & OPERATION NEW DAWN.

Section 402 of PL Expanded Vet Center access to any member of the Armed Forces, including a member of the National Guard or reserve, who served active duty in the Armed Forces in Operation Enduring Freedom, Iraqi Freedom or New Dawn. Expanded Vet Center access to a family member of a veteran or service-member eligible for Vet Center Services

38 CFR Published as a final rule on September 17, 2013 as a joint VA/DoD Regulation. (78 FR 57067) Specifies who is eligible for vet center services Outlines how eligibility can be established (ie. DD214, receipt of medals, combat pay). Establishes confidentiality of Vet Center records. – “Benefits under this section are furnished solely by VA Vet Centers which maintain confidential records independent from any other VA or Department of Defense medical records and which will not disclose such records without either the veteran or service member’s voluntary, signed authorization or specific exception permitting release…”

NDAA FY13 (PL ) – Further expanded eligibility for Vet Center services: To those who served outside the combat theater but, provide direct emergency services emergency medical or mental health care, or mortuary services to the causalities of combat operations or hostilities To those who engaged in combat with an enemy of the United States or against an opposing military force in a theater of combat operations or an area at a time during which hostilities occurred in that area by remotely controlling an unmanned aerial vehicle, notwithstanding whether the physical location of such veteran or member during such combat was within such theater of combat operations or area.

Camp Lejeune – Sec 102 of PL – provides health care to certain Veterans and family members who served on active duty or resided at Camp Lejeune (CL) for at least 30 days between 1957 and 1987 for fifteen listed conditions. – Status The proposed rule for Veterans has been published and the public comment period ended October 11, VA is addressing the comments and preparing the final rule. Veterans were able to receive care under this law on the day it was enacted Family member – the rule is in concurrence phase Once regulations are implemented VA will begin providing care for family members

Camp Lejeune continued… The law authorizes care for 15 conditions even if there is insufficient medical evidence to conclude that such conditions are attributable to the military service or residence at CL VA may not provide care for a condition that if found, in accordance with guidelines issued by VA’s Under Secretary for Health to have resulted from a cause other than exposure at CL

Camp Lejeune: DoD’s Involvement VA developed a Camp Lejeune outreach strategy to identify and educate Veterans and their family members. In March 2013, the U.S. Marine Corps distributed a mailing to 185,000 Veterans. VA received an increase in inquiries in response to the mailing. The Marine Corps has provided a memo to clarify the support they and the Department of Defense (DoD) will provide to VA to determine administrative eligibility for Veterans and family members.

Home Improvements and Structural Alterations (HISA) Through the HISA benefits program, VA has provided monetary benefits to disabled veterans for necessary home improvements and alterations. 38 USC 1717 authorizes VA to furnish improvements and structural alterations to the homes of disabled veterans “as necessary to assure the continuation of treatment for the veteran's disability or to provide access to the home or to essential lavatory and sanitary facilities.” In 2008, Section 1717(d) extends these same benefits to certain servicemembers.

HISA continued… HISA grants provide for medically necessary improvements and/or structural changes to the veteran’s/servicemember’s residence for the following purposes: – Installation of dialysis equipment in the home. – Allowing entrance to, or exit from, the veteran’s/servicemember’s residence. – Use of essential lavatory and sanitary facilities. – Allowing accessibility to kitchen or bathroom sinks or counters. – Improving entrance paths or driveways in immediate area of the home to facilitate access to the home by the veteran. – Improving plumbing or electrical systems made necessary due to installation of dialysis equipment in the home The amount of the HISA benefit ranges from $1,200 to $6,800 depending on the nature of the disability and the date of the benefits application

VA Caregiver Programs Established by Title I of the Caregivers and Veterans Omnibus Health Services Act of 2010 (Public Law ) Legal authority: 38 U.S.C. § 1720G, 38 C.F.R. Part 71 Program of Comprehensive Assistance for Family Caregivers provides assistance to certain Family Caregivers of Eligible Veterans – Eligible Veteran is defined in § 1720G(a)(2) as an individual who: Is a Veteran or member of the Armed Forces undergoing medical discharge from the Armed Forces; Has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service on or after September 11, 2001; and Is in need of personal care services because of— – an inability to perform one or more activities of daily living; – a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or – such other matters as the Secretary considers appropriate. – Family Caregivers must be a member of the Eligible Veteran’s family or someone who lives with the Eligible Veteran.

Differences with SCAADL (Special Compensation for Assistance with Activities of Daily Living) SCAADL is authorized by 37 U.S.C. § 439. Among other eligibility criteria for SCAADL, a Servicemember must: – have a catastrophic injury or illness that was incurred or aggravated in the line of duty; – be certified by a licensed physician to be in need of assistance from another person to perform the personal functions required in everyday living; – in the absence of such assistance, would require hospitalization, nursing home care, or other residential institutional care. 37 U.S.C. § 439(b). “Catastrophic injury or illness” means “a permanent, severely disabling injury, disorder, or illness that the Secretary concerned determines compromises the ability of the afflicted person to carry out the activities of daily living to such a degree that the person requires--(1) personal or mechanical assistance to leave home or bed; or (2) constant supervision to avoid physical harm to self or others.” 37 U.S.C. § 439(g).

Differences with SCAADL Cont. DoD’s SCAADL* Payment is made to the Servicemember. Payment is considered taxable income. Caregiver is not required to be a family member. Training is available, but not required. VA’s Program of Comprehensive Assistance for Family Caregivers Stipend is paid directly to the Primary Family Caregiver. Stipend is exempt from taxation. Family caregivers must be family members or live with the Eligible Veteran. Family caregivers must complete required training and be approved. * Source: DoD’s Eleventh Quadrennial Review of Military Compensation

VA New Jersey Health Care System (VANJHCS) and Ft Dix Synopsis: 2002: Sharing agreement VANJHCS to provide staff for the clinic at Ft Dix. Jan 2012: Renewal discussions began. Disagreement between DoD and VA OGC on the reimbursement mechanism. 65 VA staff would be displaced on 10 day notice. Sep 12, Army extended the agreement for 90-days to continue discussions on a new sharing agreement. No new sharing agreement was negotiated after the extension expired.

VANJHCS and Ft Dix Legal aspects of the VA/DOD Sharing Agreement at Fort Dix Installation: The Economy Act Vs. 38 USC 8111, and 10 USC 1104 Sharing Authority. Billing requirements under sharing regulations CG stated that he was informed by OGC the current Sharing Agreement was not legally sound. Impact on VA employees and DOD Patients VA expressed concern regarding a warm handoff of current DoD patients. VA expressed concern that there was no warning provided to the VA regarding the legal concerns or future needs of VA at the facility. VA employees were reassigned, retired, or terminated.