Legal Meets Practical

This isn’t exactly a great ratings move, but President Barack Obama doesn’t have to worry about being re-elected.

On April 23, 2015, a bill entitled the Veterans Affairs Accountability Act was introduced in both the House of Representatives and the U.S. Senate (H.R. 1994, S. 1082). This bill was just (July 29th) passed by the House, and it is now before the Senate (remember that each has to pass an identical version for it to make its way to our President for signature). As such, it now looks like it might be presented to President Obama very soon.

Unfortunately, however, in a press statement released by President Obama this week, it looks like the bill might stop with him…literally.

The President called the bill “counterproductive” and said it would create “a disparity in the treatment of one group of career civil servants.” President Obama’s statement also said the bill would “have a significant impact on VA’s ability to retain and recruit qualified professionals and may result in a loss of qualified and capable staff to other government agencies or the private sector.”

“These provisions remove important rights, protections, and incentives which are available to the vast majority of federal employees in other agencies across the government and are essential to ensure that federal employees are afforded due process,” the statement said.

The bill, which is a follow-up to the Veterans Access, Choice, and Accountability Act, would expand the VA’s ability to fire incompetent or corrupt employees, going beyond executives to also encompass lower level employees.

Not only that, but the bill would provide that an individual may be demoted for performance or conduct reasons, and therefore subject to a lesser grade of pay. That individual also may not be placed on paid administrative leave while they appeal the demotion.

In addition, the bill would extend the probationary period of new employees to 540 days (currently one year). Only after 540 days does that individual become a “covered” employee, which means it is therefore much more difficult for that individual to get fired (i.e., by extending the probationary period, it gives the VA a longer period of time to weed out incompetent employees).

As one might expect, the bill is supported by many veteran organizations, but opposed by government unions. According to govtrack.us, it also only has a projected 25% chance of passing in the Senate. (However, the same source says it has only a 15% chance of wriggling through the House, but it did get through with a vote of 256-170). So perhaps President Obama won’t get the chance to stamp “veto” across it anyway.

What do you think? Is the bill an extreme measure that risks infringement of  VA employee due process rights? Or is it a necessary and permissible procedure to clean house? Please use the comments section below to weigh in.*

*For an extremely eye-opening weigh-in by a VA employee, see the comment I have posted below. I’ve had the pleasure of working with this individual professionally over the last several years, and I can say that she represents the exact type of caring, exemplary employee the VA should be fighting to keep within its ranks.

**Did you find this article informative? If so, sign up for Sarah Schauerte’s weekly legal blog on veteran legal issues at: legalmeetspractical.com. Remember to click the link to activate your subscription!

As everyone who follows this blog knows, it is a weekly blog. And for the last three weeks, it has been missing from your inboxes! This is because I have been in South Korea, attending the wedding of the little guy featured below. (Who, as you can see, is no longer a “little guy.”). This is my brother, Bryan, who for the last five years has been in Korea teaching English. And the USA gets him back permanently this month!

Because I have neglected my readers (and for that, I do apologize), below is a summary of the news I would have covered had I not been otherwise engaged. Dear readers, know this neglect was unintentional, unavoidable, and will not happen again!

Now for the news…

• VA Employee Indicted. A 50-count Department of Justice (DOJ) indictment, recently unsealed in federal court, has charged a U.S. Department of Veterans Affairs (VA) employee at the Charlie Norwood VA Medical Center in Augusta, Georgia with crimes related to his alleged falsification of medical records of numerous VA patients. The indictment alleges that Mr. Cathedral Henderson terminated unresolved consults – medical appointments that had not been scheduled or completed – by falsely stating in VA patients’ medical records that “services have been completed or patient refused services.” As a result of the indictment, the VA has terminated Mr. Henderson’s access to all of VA’s systems and placed him on administrative leave for the time being.

• Increase in Vet Wait Times Not VA’s Fault? One year after the VA Phoenix scandal sparked national outrage, the number of veterans on wait lists to receive medical care is 50 percent higher than at the same time last year, according to VA data. HOWEVER, these stats may not be wholly the VA’s fault – its leadership attributed the growing wait times to soaring demand from veterans for medical services, brought on by the opening of new centers and a combination of: aging Vietnam veterans seeking care, the return of younger veterans from Iraq and Afghanistan, and the exploding demand for new and costly treatments for Hepatitis C. The embattled VA says that its vast health-care system has handled 2.7 million more appointments than in any previous year, and has increased its capacity by more than 7 million patient visits per year, double what they anticipated, the New York Times reported this summer.

• McDonald’s Happy Meal May Come from Veterans Choice Program. VA Secretary Robert McDonald has consistently represented that the end of next week, he expects Congress will endorse transferring up to $3 billion from the Veterans Choice program to close the VA’s budget gap. He also testified this week before the House Veterans Affairs committee on the need for lawmakers to close a $2.5 billion shortfall, which has been driven over the past year by a big increase in demand among veterans for health care services. (The affected Veterans Choice program is a temporary benefit that allows eligible Veterans to receive health care in their communities rather than waiting for a VA appointment or traveling to a VA facility. You can learn more about the program here, as well as read complaints that it in effect is impossible to use here).

Hopefully next week I can report on more positive news from the VA. Thanks for reading!

First and foremost, happy Independence Day from Legal Meets Practical, LLC! I hope everyone has wonderful plans for the long weekend.

For those of you who follow my blog, you also likely know that I distribute a quarterly newsletter capturing major news items of interest to veterans. We’re now due for the summer edition, which you can access HERE.

There’s been a lot of juicy stories involving the VA lately – some of them scandalous, and some of them directly affecting those competing for federal government contracts. Below are just a few topics covered in this quarter’s edition:

• The Supreme Court’s grant of cert to Kingdomware, a case the veteran business community has followed closely because it involves the VA’s position that it need not set aside opportunities on the Federal Supply Schedule to veteran-owned businesses.
• A Norfolk pastor’s fraudulent submission of over 90 VA claims forms, and why his plan was doomed from the beginning.
• The Jan Frye memorandum leaked to the press, which details how the VA awards billions of contract dollars each year in violation of federal procurement practices.
• Impressions from the National Veteran Small Business Coalition’s annual conference.
• The resignation of Jeffrey Gault from the VA’s Center for Verification and Evaluation and the substantive changes he’s made to the VetBiz program.
• The VA’s $100 million bailout related to a project dubbed the “biggest construction failure” in the history of the VA (and where the VA plans on getting the money to finish it).

Hope you enjoy it. And thank you to all of those who have served our country to keep us free on this important holiday!

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

As a veterans advocate and attorney, I deal with Department of Veterans’ Affairs (VA) employees a lot. And here is something that might surprise a lot of people – some of those individuals are outstanding. There are individuals within the VA that truly and passionately care about their mission to help veterans, work long hours, and in general go above and beyond.

The problem is, you don’t hear about these individuals. The VA doesn’t have an “Employee of the Month,” or showcase the employees who make a difference. In fact, it’s hard to make a difference – as cliché as it sounds, the government is all about red tape and bureaucracy. You have a great idea? Write a memorandum about it and see where it goes.

One VA employee falls into the category of one of the VA’s outstanding folks, and has in fact effected substantive change. And guess what?

He’s gone now.

That individual is Jeffrey Gault, who just left his post as Acting Director of the Center for Verification and Evaluation (CVE) last week. (The CVE is the entity that approves veteran-owned businesses for set-aside opportunities with the VA).

A veteran of the U.S. Army who served two deployment in the Middle East, Mr. Gault has spent the last year and a half commuting between his home in Dallas and the CVE’s location in Washington, D.C. He will now focus full-time on running a Texas non-profit organization called The Army Scholarship Fund, which is a charitable, non-profit organization dedicated to providing college scholarships for undergraduate study to children of current and former members of the U.S. Army, and to spouses of currently serving soldiers.

As an attorney who dealt with the CVE a lot, I’ve seen how the process has evolved and improved since Mr. Gault took the helm. For example:

• In general, the process has become more streamlined, and the application examiners have been making less mistakes because of additional training. That’s thousands of hours saved by veterans applying for verification.
• Under Mr. Gault’s direction, the pre-decision and pre-determination processes have been refined and improved. These replaced the request for reconsideration process, which effectively meant that if you got denied verification, you had the pleasure of  a six-month wait.
• Mr. Gault has reached out to the veteran community for input into improving the CVE, and has implemented change where possible.
• The CVE was certified by the International Organization for Standardization (ISO) as fully compliant with ISO9001 standards for its operations, processes, metrics, and quality of work. There are very few organizations within the VA or the federal government which meet this strict set of criteria for operations and quality.

I’m not saying here that the criticisms aimed at the VA aren’t well-deserved. Quite frankly, I’ve had nothing positive to blog about for months – every post has been about the VA wasting billions in federal contract dollars, the VA Secretary’s resignation, the Phoenix OIG report, the elf on a shelf scandal. the Colorado construction contract catastrophe…I could go on. (And in fact, this article could be construed as negative, as Mr. Gault is leaving).

But point being, we should always acknowledge the individuals within the VA that do make a difference, given that its mission of helping veterans is of paramount importance to our country.

And especially that given the unique nature of the federal government, going above and beyond doesn’t always have its rewards.

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