Legal Meets Practical

With one flip statement, new VA Secretary Robert McDonald may have isolated millions of veterans and called into question his ability to repair the broken VA system.

During a January exchange with a homeless veteran, Secretary McDonald stated that he was in Special Forces. Secretary McDonald now says he misspoke in an attempt to find “common ground” with the veteran. In fact, Secretary McDonald has never served in the Special Forces – he completed Army Ranger training and then served in the 82 Airborne Division.

A CNN report that was published on February 24 compared Secretary McDonald’s statement to that of Connecticut Sen. Richard Blumenthal, a Democrat whose 2010 campaign was rocked after he claimed to have served in Vietnam. Blumenthal spent six years in the Marine Corps Reserves, but was never actually sent to Vietnam.

Since I am generally critical of the VA, I feel it is acceptable, under these circumstances, to say that we should give Secretary McDonald a break. If one reads the reports and news articles on this subject, it becomes apparent that the man made one awkward misstatement; and while unfortunate, it does not make him any less capable of improving the VA. And right now, we really need a Secretary we can believe in.

When Secretary McDonald took over from the inept Secretary Shinseki six months ago, he was effectively charged with repairing a potentially irreparable system, and there was no doubt he would be criticized regardless of what he did. Accordingly, making a cringe-worthy statement doesn’t help.

However, it is important that veterans know what Secretary McDonald has done since he took the reigns from Secretary Shinseki a few months ago. If you’re going to criticize him, criticize him because he isn’t delivering on making the VA system better for our veterans. The following are some of the steps and missteps he’s taken since assuming the Secretary position:

• VA Firings. In a report on NBC news on February 21 , Secretary McDonald relayed that 900 people have been fired since he became Secretary. Of those 900, however, 487 were “probationary” employees, meaning that they would have had nothing to do with the VA medical center wait times. Also, the NBC news report noted that during FY 2013, Secretary Shinseki fired over 2,000 VA employees, while the number of  employees fired under Secretary McDonald during his first year isn’t supposed to come anywhere near that.  Further, while Secretary McDonald relayed that 60 individuals who manipulated wait times were fired, some news reports relay this simply isn’t true.

• Availability.  Secretary McDonald is not just a figurehead. He has given out his personal cell phone number at the many veteran functions he has attended since becoming Secretary, and he insists that veterans call him “Bob.” If you watch any video with Secretary McDonald, he has a candidness and a genuineness that was lacking with Secretary Shinseki. He has also paid visits to over 85 VA hospitals, facilities and cemeteries since becoming Secretary.

• Increased Scrutiny on VA Medical Facilitiess. In light of allegations regarding veteran medical care, the new Secretary has launched new investigations of many medical facilities. (In general, the VA’s Office of Inspector General has launched investigations of over one hundred facilities since Secretary Shinseki resigned). One of these includes the Tomah, Wisconsin VA medical health care center, where a Marine recently died due to the over-prescribing of opiates.

Keep in mind that the new VA Secretary is dealing with everything VA-related. He’s also choked by red tape. Any progress he makes, it’s going to be slow; and he’ll never be able to make everyone happy.

The thing is, he should be thinking of that too. Secretary McDonald, you don’t need to be claiming you were in Special Forces just because the veteran you’re speaking to is, or that you’ve fired every single person accountable for the scandals at VA health centers. For the most part, people know that you’ve inherited a broken system, and they know you’re only one man. But this is why it is so much more important for you to be careful about what you say and the representations you make.

Everyone is watching.

Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran’s issues at: legalmeetspractical.com.

*Update! The CVE is now sending out emails to all businesses and representatives listed in the VetBiz registry, alerting them to the different types of webinars and when they are offered (email passed below in Comments section). This level of clarity will maximize the value offered by the webinars.

For veteran-owned businesses (VOSBs) pursuing set-aside work with the U.S. Department of Veterans’ Affairs, they know all about the Center for Verification and Evaluation (CVE). The CVE is tasked with examining a variety of documents and information to determine whether a business meets the eligibility criteria for VA set-asides, in a process called verification.

For a long time, going through the CVE has not been fun. I’m not going to go into details, but let’s just say the complaints have been long and loud since the verification process began several years ago. Some veteran advocates want the Small Business Administration to take over verification, and bills have been introduced in Congress to that end.

Recently, however, the CVE has taken a positive step towards making the process better. And when I say “positive,” I don’t mean a memo. (“We recommend everyone here at the VA do better. We will first draft a memo, to define the word ‘better.'”). The CVE is now conducting webinars for businesses going through the re-verification process. And these webinars are better than the PowerPoint presentations that were uploaded to VetBiz.gov in 2012 – they have some meat to them to actually help veterans get through the process. They’re also conducted by some of the higher-ups in the CVE, and since the webinar includes a forum open for questions, veteran business owners have the opportunity for real feedback. (Or to, you know, yell at the CVE directly).

As the CVE has gone through its growing pains and made its mistakes, it has gotten flak. Similarly, when it has made positive developments, it should be getting some praise too. It’s only fair.

This might not be happening as it relates to the webinar, however. I learned about it through a veteran business owner. This veteran business owner forwarded me the email the CVE had sent and noted: 1) the webinar was the same day he received the invite (and he could not attend on such short notice); and 2) it noted the wrong date that the business’s verification would expire. (If the date had been correct, the notice of the webinar would have been sent with less than a month to go).

Upon closer examination of the email, however, I saw that the veteran business owner had several dates to choose from in order to attend the webinar. (The slides were also sent after it was concluded, which was nice). And the re-verification date is surely easy to fix – since the CVE sends out reminders to re-verify 120 days ahead of time, can’t it send out the webinar email with it?

These are such small details, while the bigger work is preparing the slides and conducting the webinar. But by missing these small details, it gives room for complaint. The veteran business owner simply opens the email and thinks, “Thanks, guys.”

So CVE, we’re glad you’re taking the initiative of presenting a webinar on the actual substance of the re-verification process. But give folks a reason to take notice. Put it on your website (more prominently – I found it on the “You Asked, We Listened” VetBiz webpage, but it took some time). Slap an archive recording on YouTube. Make the slides easily available on VetBiz.gov. And make available the answers to the most common questions asked during the webinars. I am sure there are many that crop up often and are not facts-specific so indeed one answer does fit all. Not only would this benefit veteran business owners (and reduce calls to the Help Desk), but it would make it clear that you’re working to improve the verification process.

They say no good deed goes unpunished, but no good deed should go unrewarded, either.

Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog at: https://legalmeetspractical.com. Also, access Sarah’s comprehensive VetBiz Guidebook (addressing everything from revivification to cancellation to common eligibility issues) here, and her webinar tackling the verification process here.

On January 22, the House Committee on Veterans’ Affairs (VA) Subcommittee on Disability Assistance and Memorial Affairs held a hearing to address the litany of issues regarding disability compensation claims pending before the VA Regional Offices and the Board of Veterans’ Appeals.

The takeaway? Getting your claim bounced to the appeals queue is like being sentenced to purgatory.

One of the most vocal contributors during the hearing was the American Legion. It noted that decisions on about 288,000 veterans’ benefits claims have been appealed. “With appealed claims, you can no longer think in terms of how many days you’ve been waiting,” the Legion stated in its written testimony. “Appealed claims are measured in terms of how many years the veteran has been waiting.”

Veterans who have appealed their disability claims wait an average of 1,937 days for final decisions, according to numbers listed in the VA’s Monday Morning Workload Report of January 5. That time span is about 500 days longer than a standard four-year enlistment in the military. When these claims are granted, there is no penalty assessed to the VA for failures that caused the delay – not even interest. It is merely backdated to the originally-filed date. (There is, however, a penalty assigned to the veteran who misses a deadline or drops the ball in some way – if a form is not sent in on time, the veteran will lose out on the originally-filed date).

Zachary Hearn, on behalf of the Legion, told the Subcommittee that nearly 75 percent of claims presented at the BVA have either been improperly denied at a VA regional office, or inadequately developed and denied prematurely. Many claims were also appealed because claims adjudicators failed to follow their legally mandated duties to assist veterans.

“While the VA asserts it does not place a higher priority on the amount of claims adjudicated,” Hearn said, “its current work-credit structure does not address accuracy in its metric, which rewards speed over quality.”

Once a BVA judge remands a claim, instructions are forwarded to VA’s Appeals Management Center for further development. Hearn said these remands, or returned claims, come with clear and distinct instructions from the judges, yet the Legion consistently sees cases remanded multiple times, despite the instructions. The organization refers to it as  the “hamster wheel” of remands, where a veteran remains in adjudication purgatory, waiting for VA to conduct proper development and finally render a decision.

While VA has published accuracy rates above 90 percent for claims processing, the Government Accountability Office reported last November that the Veterans Benefits Administration “does not follow accepted statistical practices and thus generates imprecise accuracy data.”

While we are dealing with a broken, rusted process that has shown little signs of improvement (including as it relates to the VA’s fully-developed claims process), at least suggestions for positive change are in the public record. As the Legion noted, if the VA eliminated its work-credit structure (which emphasizes quantity of claims adjudication rather than quality), this would lower the error rate.

And, while this should be obvious, the VA simply needs more claims personnel, and more training. I often interface with the folks at Roanoke in my practice, and while I have had the pleasure to speak with many individuals who truly care about the mission at hand, the simple truth is they’re overworked and understaffed. That can’t be good for the morale.

Access the live webcast of the January 22 testimony here.

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On December 29, 2014, the Small Business Administration (SBA) released a proposed rule implementing the National Defense Authorization Act (NDAA) of 2013, which reforms numerous aspects of the SBA regulations, including the limitations on subcontracting rule, affiliation principles, and the eligibility of small business joint ventures. These changes will impact the regulations at 13 CFR Parts 121, 124, 125, 126, and 127 (small business size regulations, 8(a), government contracting programs, HUBZone, WOSB, respectively).

Any business competing for small business set-asides in the federal arena should take a look, but for easy reference, here’s a snapshot of the most important proposed changes:

Limitations on Subcontracting. While the prime contractor is still required to perform 50% or more of the work under both service and supply contracts, the method of calculating the 50% will change. The proposed rule shifts the formula from a “cost-based” analysis that looks at the percentage of total personnel or manufacturing costs spent on subcontractors, to a “percentage of the total award amount” that is spent on subcontractors. Under the new method, the small business prime may not spend more than 50% of the total award amount on subcontractors that are not similarly situated to the prime (i.e., others in the same socioeconomic category). This provision is intended to ensure that the majority of work under a small business set-aside contract is performed by a contractor with the applicable size and socioeconomic status, and not passed through to large businesses or ineligible small businesses beyond the applicable limits.

Affiliation Due to Identity of Interest. The proposed rule would establish rebuttable presumptions of affiliation based on family relationships and circumstances when a concern derives more than 70% of its revenue from another entity. The proposed rule also adds an affiliation exclusion for a joint venture where each party to the joint venture qualifies as small under the applicable size standard.

Joint Ventures.  The proposed rule would broaden the exclusion from affiliation for small business size status, to allow two or more small businesses to joint venture for any procurement without being affiliated with regards to the performance of that particular procurement. The SBA proposes this in part to encourage joint venturing, which furthers the government-wide goals for small business participation in federal government contracting.

Size Protests. The proposed rule would clarify the regulation that specifies who may initiate a size protests. The current language contains a confusing double negative (“Any offeror that has not been eliminated for reasons not related to size may file a size protest.”). The change will clarify the intent to provide standing to any offeror in line for the award, but not to an offeror that was found non-responsive, technically unacceptable, or outside the competitive range.

Other Changes. The SBA proposes to make changes to other provisions as well, including those concerning the non-manufacturer rule, and North American Industry Classification System Code (NAICS) appeals procedures, and the calculation of annual receipts.

If implemented, over the next few years, these changes will likely impact small businesses doing federal work in one way or another. It is important that these business owners review the changes in order to: 1) comment, if necessary; and 2) understand how legal obligations are affected by the rule changes.

To access the full text of the proposed changes (which includes the commentary and the link to submit your own input), click here. Comments are due on or before February 27, 2015.

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