The Law of Unintended Consequences: How the VA Violates Another of Its Own Laws
“…Unintended consequences … are outcomes that are not the ones foreseen and intended by a purposeful action. The term was popularized in the twentieth century by American sociologist Robert K. Merton. Unintended consequences can be grouped into three types: Perverse result: A perverse effect contrary to what was originally intended (when an intended solution makes a problem worse). This is sometimes referred to as ‘backfire’.”
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The Department of Veterans Affairs has a long and checkered history of breaking its own (and other) federal laws. That is not in dispute by even the staunchest of VA supporters. In many cases, it is generally professed to be that “a lack of training” is the root of the problem.
Yet when we see a widespread and growing pattern of actual contradiction of the law; one cannot conclude anything other than the violations being deliberate. Such is the case in the ever-growing, systemic mass revocations of the VA’s “Veteran Caregiver Program.” We believe it all began two years ago as a “testing of the waters” subversive policy change; has now come full circle to what is being propagated as “an official Policy Change.” However, there is one major FLAW in this “policy change”… that being; the VA does not have the legal authority to alter the architecture, intent or letter of the law.
Even the most cursory of internet searches provides an eye-opening and disturbing picture emerging; that within the last two years, roughly 8,000 veterans and their caregivers have been “revoked” from the program. Even more have had their “Tier” (level of need as prescribed by law) lowered down to the lowest level. To further research these reports, we began surveying those who were terminated or lowered by the program officials. In about four weeks, we have had nearly 250 responses from across the country – all of which support the reports we had found. The surveys can be found here and here.
In spite of the blatant lack of authority, the VA has moved ahead with the “Policy Change” to the extent that they are demanding under the threat of revocation, (their term for termination from the program), that every veteran and caregiver agrees to a set of terms and conditions the VA claims they have a right to enforce. The true irony in this is that the VA will continually spew that they “care for the best interests of the veteran”; when nothing could be further from the truth. This is evident by their actions. This “policy change” is stripping not just a financial stipend from the veteran and their caregiver; but health insurance, support resources, respite care and a host of other services that remaining in the program provides. The bigger, more sinister side of these actions is the “unintended consequences” of these terminations.
These changes began in earnest two years ago; but have picked up momentum over the last few months. Last fall, eighty-eight percent (88%) of the entire case load in the Prescott, AZ VCP office was terminated in just a matter of weeks. Yet, there are two Caregiver Coordinators handling a case load of thirty veterans. In the Puget Sound, WA VCP; the number of revocations was not as radical, yet in spite of reducing their case load, they doubled their CGC staff! So far, the metro Denver, CO region has seen the most drastic numbers for terminations.
In nearly every single revocation case Veteran Warriors has examined, we have found nearly identical language; “The veteran no longer requires support”, “Graduated”, “Recovery-based”, and “A Temporary Program Designed to See the Veteran Graduate”. Not one of the terms is in the “Caregivers and Veterans Omnibus Health Services Act of 2010” or its companion Final Rule (published January 9, 2015). Even more egregious is the now well-publicized dismissal of using the Activities of Daily Living (ADL’s) as part of the criteria for eligibility. Again, there have been no amendments to the law and no authorized policy changes which would have provided the VA with the authority to make these sweeping alterations to the program.
Alongside these unlawful terminations have been threats to caregivers and outright intimidation; even actual fabrication or alteration of veteran’s records to support the terminations and even threats and retaliation against caregivers who have challenged the Coordinators. There are “clinical evaluations” which appear to cursory reviews of exclusively VA medical records and those Coordinators who are doing this; in many cases, deliberately excluded recent, significant medical information in these evaluations. In many cases, the Coordinators are aware of the veteran’s deterioration(s) yet annotate the file that the veteran has “significantly improved” and “no longer requires a caregiver”.
We have discovered another violation of the law; when a Caregiver Coordinator admitted that she would “be the one to handle the appeal if (the Caregiver) went over her head”. In most cases, one could assume this was simply a threat or even hyperbole yet we have heard statements like this from other regions of the country as well. This has shown us is our theory about the membership of the mandated “Appeal Boards” may well be accurate; that there are no “Appeal Boards” held; that the Director’s and VISN Directors simply “concur” with the revocation because THAT is actually their protocol.
The structural damage to the program and the veterans’ goes far beyond just the stipend loss. There is a massive ripple effect which takes place when the stipend is taken away. Many of these veterans suffer from severe PTSD. In nearly every case, the caregiver has had to leave full-time employment to care for the veteran more than full time; far exceeding what would be normally considered “spousal duties.” These families are being left with no access to medical insurance for the caregiver, a loss of a significant income and facing the possibility of having to leave the veteran alone to return to work. This exacerbates the veteran’s symptoms AND any progress or leveling off of the veteran’s symptoms is completely lost as soon as this happens.
For those veterans with serious physical injuries, they are left without any assistance with such tasks as dressing, bathing and even feeding themselves. Each family is being set up for failure and deliberately being put at risk for; foreclosures, homelessness, suicide, domestic violence, bankruptcy, child endangerment and even murder. These are not hyperbole or theoretical.
The consequences of ripping away scaffolding that supports these injured veterans is actually happening. The effects are already being felt in the veteran community and it will only get worse if these unlawful changes are allowed to continue to fester. The law which governs this program was put in place because the civilian community is ill-equipped to provide “adult day care” to thousands of profoundly disabled veterans; nor should it be required to.
There is no greater embarrassment a nation can suffer than to ignore its war wounded or refuse them the care, benefits and services they earned.
Article by Lauren Price