[Senate Hearing 107-634]
[From the U.S. Government Publishing Office]
S. Hrg. 107-634
CONFIRMATION OF TIM S. McCLAIN AS GENERAL COUNSEL FOR DEPARTMENT OF
VETERANS AFFAIRS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
APRIL 4, 2001
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
ARLEN SPECTER, Pennsylvania, Chairman
STROM THURMOND, South Carolina JOHN D. ROCKEFELLER IV, West
FRANK H. MURKOWSKI, Alaska Virginia
JAMES M. JEFFORDS, Vermont BOB GRAHAM, Florida
BEN NIGHTHORSE CAMPBELL, Colorado DANIEL K. AKAKA, Hawaii
LARRY E. CRAIG, Idaho PAUL WELLSTONE, Minnesota
TIM HUTCHINSON, Arkansas PATTY MURRAY, Washington
ZELL MILLER, Georgia
E. BENJAMIN NELSON, Nebraska
William F. Tuerk, Chief Counsel and Staff Director
William E. Brew, Minority Chief Counsel
(ii)
C O N T E N T S
__________
April 4, 2001
Page
SENATORS
Craig, Hon. Larry E., prepared statement of...................... 15
WITNESSES
McClain, Tim S., designee for nomination as General Counsel,
Department of Veterans Affairs................................. 2
Prepared statement of........................................ 3
Questionnaire for Presidential nominees...................... 4
Response to written questions submitted by Hon. Larry E.
Craig...................................................... 6
Principi, Anthony J., Secretary, Department of Veterans Affairs.. 1
(iii)
CONFIRMATION OF TIM S. McCLAIN AS GENERAL COUNSEL FOR DEPARTMENT OF
VETERANS AFFAIRS
----------
WEDNESDAY, APRIL 4, 2001
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:35 a.m. in room
SR-418, Russell Senate Office Building, Hon. Arlen Specter
(chairman of the committee) presiding.
Present: Senators Specter and Craig.
Chairman Specter. The Veterans' Affairs Committee of the
U.S. Senate will now proceed with the confirmation hearing of
Mr. Tim S. McClain to be the Veterans Administration General
Counsel.
We are joined here by the distinguished Secretary of the
Veterans Affairs Department, the Honorable Anthony Principi. I
would like to introduce at the start Tim's mother and sister,
but first his wife, Lynn McClain. Lynn, would you stand. And
his mother, Mrs. Mary Jo McClain, and Tim's sister, Ms. Connie
McClain. It is sometimes difficult to determine order of
seniority. [Laughter.]
We have scheduled this hearing early to try to accommodate
the Secretary. It is a little out of sequence, but I am going
to try to get Mr. McClain confirmed before we adjourn because
there is a real need for people to be put into place in the
Administration. We really ought to be expediting the
confirmations everywhere we can because the executive branch
which is very, very short-handed. Of course, I do not know that
this appointment really requires rapid confirmation because
Tony Principi really does not need a lawyer. He would not do
anything wrong--even without a lawyer.
But we welcome you here, Mr. McClain. I know that the
Secretary has other commitments, so I will call on Secretary
Principi first.
STATEMENT OF HON. ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF
VETERANS AFFAIRS
Mr. Principi. Thank you, Mr. Chairman. Thank you so very,
very much for scheduling this hearing so quickly. I am deeply
indebted to you.
Chairman Specter. You told me to when I saw you in
Pittsburgh. [Laughter.]
Mr. Principi. I will continue to come back to Pittsburgh in
Pennsylvania, wherever you want me, sir, over the next several
months, and certainly to West Virginia as well.
Chairman Specter. Excuse me. Several years. [Laughter.]
Mr. Principi. Tim has strong Pennsylvania roots in
Johnstown, so he will be there as well. But I do appreciate
your doing this for us.
When I became Secretary of Veterans Affairs I knew that I
would need a strong management team to work with me if I wanted
to get anything accomplished. Mr. Chairman, today I am proud to
introduce to you a man who, if confirmed, will be a key part of
VA's team, and a man who will help me and help America to keep
our Nation's promises to those who have served.
Tim McClain is a veteran himself. Like me, he is a graduate
of the United States Naval Academy, and I know I will hear more
about that as time goes on. And like me, he served in combat in
Vietnam, and, like me, has spent much of his adult life in
service to his country and is dedicated to ensuring that
America's veterans are treated with the respect and honor that
they have earned through their service.
I have known Tim personally for many, many years. I am
very, very proud that the President allowed me to select him
and that he nominated Tim to be General Counsel. I knew him as
a fine officer when he was in the Navy, and as a fine lawyer in
the 10-years since his retirement from service. I know he will
tell me like it is.
Tim will be a strong addition to our Department. His
considerable leadership and legal skills will be of great
importance as we work to improve the service we provide. He
will be a valued counsellor to me, to our Department, to this
committee, and, above all, to our Nation's veterans.
I am extremely pleased that the President has nominated Tim
for this important position. I am grateful to the committee for
scheduling this hearing so promptly, and I hope you will see
fit to act on his nomination as quickly as possible.
Mr. Chairman, and members of the committee who are not
here, it is my pleasure and my privilege to introduce to you
President Bush's nominee for the position of General Counsel of
the Department of Veterans Affairs, my good friend, Mr. Tim
McClain. Thank you, Mr. Chairman. I am going to testify over in
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2002
_____________________________________________________________________________
the House this morning on information technology. So if you
will excuse me, sir, I will go there.
Chairman Specter. Mr. Secretary, you may consider yourself
not under subpoena. [Laughter.]
Mr. Principi. Thank you, sir.
Chairman Specter. Thank you for coming.
Welcome, Mr. McClain. Do you care to make an opening
statement?
Mr. McClain. Yes, Mr. Chairman, I would.
STATEMENT OF TIM S. McCLAIN, DESIGNEE FOR NOMINATION AS GENERAL
COUNSEL, DEPARTMENT OF VETERANS AFFAIRS
Mr. McClain. Mr. Chairman and other members of the
committee, thank you for the invitation to appear before you
today. I am humbled and honored by this nomination and the
opportunity to testify at this hearing.
I believe that I possess a degree of experience that can,
and will, be valuable to veterans if I am blessed with
confirmation. Following graduation from high school, I entered
the Naval Academy as a plebe in the Class of 1970. A little
over 24 years later, I retired from active duty and became one
of the millions of veterans who have proudly served this
country. During my time on active duty I saw action in Vietnam
as a Surface Warfare Office, attended law school, and joined
the Navy JAG Corps, defended military members at courts-
martial, adjudicated claims, advised senior officers on a
myriad of legal issues, taught at the Naval Justice School, the
Navy's Law School, and for 4 years presided as a Military Judge
at courts-martial.
Upon retirement from active duty, I entered the private
practice of law, specializing in defending medical
professionals in malpractice cases. Several years ago I was
employed as a management consultant, directing and supervising
consulting projects in major U.S. companies at offices here and
abroad.
Most recently, I have been a partner in a small private law
firm specializing in health care, administrative, and military
law.
I believe this breadth of experience allows me to bring
certain skills to the General Counsel's Office. However, I
realize that I have much to learn about the Department, its
responsibilities, and the issues that concern the veterans we
serve. I can assure you that I am fully committed to addressing
those issues promptly and responsibly.
As General Counsel, my focus will be to act as counsellor
and advisor-at-law to Secretary Principi and his new team, as
he implements his vision for the future of the Department. I
believe I already have a good working relationship with the
Secretary. From our discussions, I know that many challenges
lay ahead in the areas of veterans health care and adjudication
of claims for veterans benefits. If I am confirmed, I intend to
become fully conversant on these pressing issues and I will
take a proactive, pro-veteran role in advising the Secretary,
Deputy Secretary, and the Under Secretaries on the current law
as it applies to these challenges.
If confirmed, I look forward to working closely with the
members and staff of this committee in addressing the various
issues so important to veterans. I also look forward to working
with the various veteran service organizations. Their comments
and concerns have spurred useful debate on many of the most
difficult issues. I am certain that through a spirit of
cooperation, we can discuss the issues and the proposed
solutions in a manner that will ultimately benefit all
veterans.
Mr. Chairman, this concludes my statement. I would be
pleased to answer any questions that you might have.
[The prepared statement and biographical information of Mr.
McClain follow:]
Prepared Statement of Tim S. McClain, Designee for Nomination as
General Counsel, Department of Veterans Affairs
Mr. Chairman, Senator Rockefeller and Members of the Committee:
Thank you for the invitation to appear before you today. I am
humbled and honored by this nomination and the opportunity to testify
at this hearing.
I believe that I possess a degree of experience that can, and will,
be valuable to veterans if I am blessed with confirmation. Following
graduation from high school, I entered the Naval Academy as a plebe
with the Class of 1970. A little over twenty-four years later, I
retired from active duty and became one of the millions of veterans who
have proudly served this country. During my time on active duty I saw
action in Vietnam as a Surface Warfare Officer, attended law school and
joined the Navy JAG Corps, defended military members at courts-martial,
adjudicated claims, advised senior officers on a myriad of legal
issues, taught at the Naval Justice School (the Navy's Law School), and
for four years presided as a Military Judge at courts-martial.
Upon retirement from active duty I entered the private practice of
law, specializing in defending medical professionals in malpractice
cases. Several years ago I was employed as a management consultant,
directing and supervising consulting projects in major U.S. companies
at offices here and abroad.
Most recently I have been a partner in a small private law firm
specializing in health care, administrative and military law.
I believe this breadth of experience allows me to bring certain
skills to the General Counsel's Office. However, I realize that I have
much to learn about the Department, its responsibilities and the issues
that concern the veterans we serve. I can assure you that I am fully
committed to addressing those issues promptly and responsibly.
As General Counsel my focus will be to act as counselor and
advisor-at-law to Secretary Principi, and his new team, as he
implements his vision for the future of the Department. I believe I
already have a good working relationship with the Secretary. From our
discussions I know that many challenges lay ahead in the areas of
veterans health care and adjudication of claims for veterans benefits.
If I am confirmed, I intend to become fully conversant on these
pressing issues and I will take a proactive/pro-veteran role in
advising the Secretary, Deputy Secretary and Under Secretaries on the
current law as it applies to these challenges.
If confirmed, I look forward to working closely with the members
and staff of this Committee in addressing the various issues so
important to veterans. I also look forward to working with the Veterans
Service Organizations. Their comments and concerns have spurred useful
debate on many of the most difficult issues. I am certain that through
a spirit of cooperation, we can discuss the issues and the proposed
solutions in a manner that will ultimately benefit all veterans.
Mr. Chairman, this concludes my opening statement. I would be
pleased to answer any questions from the Committee.
______
Questionnaire for Presidential Nominees
part i: all the information in this part will be made public
1. Name: Tim S. McClain.
2. Address: 11745 Lake Grove Ct., San Diego, California 92131.
3. Position: General Counsel, Department of Veterans Affairs.
4. Date of Nomination: March 22, 2001.
5. Birth date: June 10, 1948.
6. Birth place: Johnstown, PA.
7. Marital status: Married.
8. Children, age: Scott E. McClain, 27; Brendan C. McClain, 24.
9. Education: Institution (city, state), dates attended, degrees
received, dates of degrees.
California Western School of Law, San Diego, California; 8/75-5/78;
Juris Doctor; May 1978.
U. S. Naval Academy, Annapolis, Maryland; 6/66-6/70; BS; June 1970.
10. Honors: List all scholarships, fellowships, honorary degrees,
military medals, honorary society memberships, and any other special
recognitions for outstanding service or achievement.
U.S. Navy: Meritorious Service Medal (2 awards); Navy Commendation
Medal (2 awards; 1st award with Combat ``V''); Combat Action Ribbon;
Navy Unit Commendation; Meritorious Unit Commendation; National Defense
Medal; Vietnam Honor Medal (First Class); Vietnam Campaign Medal;
Vietnam Service Medal.
11. Memberships: List all memberships and offices held in
professional, fraternal, business, scholarly, civic, charitable, and
other organizations for the last 5 years and other prior memberships or
offices you consider relevant.
California State Bar--Active Member 1978-Present
San Diego County Bar Association--Member, 1999-Present
Scripps Ranch Old Pros--Member--Community Athletic Organization,
1986-2000
12. Employment Record: List all employment (except military
service) since your twenty-first birthday, including the title or
description of job, name of employer, location of work and inclusive
dates of employment.
7/90-8/96 Attorney Neil, Dymott, Perkins, Brown & Frank San Diego,
CA
8/96-3/99 Management Consultant IMC, LTD Great Falls, VA
7/99-Present Partner PRINCIPI & McCLAIN, LLP La Jolla, CA
United States Senate Page
13. Military Service: List all military service (including reserve
components and National Guard or Air National Guard), with inclusive
dates of service, rank, permanent duty stations and units of
assignment, titles, descriptions of assignments, and type of discharge.
3 June 1970--Commissioned Ensign, U.S. Navy
Aug-Dec 1970--Student, Communications Officer School, Newport RI
Dec 70-Jan 72--Communications Officer, USS Bausell (DD-845),
Yokosuka, Japan
Jan 72-Apr 74--Communications Officer, Destroyer Squadron 15,
Yokosuka, Japan
Apr 74-Aug 75--Instructor, Surface Warfare Officer School,
Coronado, CA
Aug 75-July 78--Law Education Program (California Western School of
Law), San Diego, CA
Aug 78-Nov 78--Student, Naval Justice School, Newport, RI
Dec 78-July 81--Attorney, Naval Legal Service Office, San Diego, CA
July 81-July 83--Staff Judge Advocate, NAS Miramar, San Diego, CA
July 83-July 86--Instructor, Naval Justice School, Newport, RI
Aug 86-July 90--Military Judge, Navy Marine Corps Trial Judiciary,
San Diego, CA
Honorable Discharge on July 31, 1990. Retired with rank of
Commander, JAG Corps, U.S. Navy
14. Government experience: List any advisory, consultative,
honorary, or other part-time service or positions with Federal, State,
or local governments other than listed above: None.
15. Published writings: List titles, publishers, and dates of
books, articles, reports or other published materials you have written.
None.
16. Political affiliations and activities: (a) List all memberships
and offices held in and financial contributions and services rendered
to any political party or election committee during the last 10 years:
State Vice Chairman, California Veterans for Bush-Cheney 2000
$100 donation to Bush/Cheney Presidential Transition Foundation
$100 donation to Bush/Cheney Recount Fund II
(b) List all elective public offices for which you have been a
candidate and the month and year of each election involved: None.
17. Future employment relationships: (a) State whether you will
sever all connections with your present employer, business firm,
association, or organization if you are confirmed by the Senate:
I intend to sever all connections with PRINCIPI & McCLAIN LLP if I
am confirmed by the Senate. That law partnership will be dissolved if I
am confirmed for the position.
(b) State whether you have any plans after completing Government
service to resume employment, affiliation, or practice with your
previous employer, business firm, association or organization:
Following completion of Government service, I have no plans to
resume employment with PRINCIPI & McCLAIN, LLP.
(c) What commitments, if any, have been made to you for employment
after you leave Federal service? None.
(d) (If appointed for a term of specified duration) Do you intend
to serve the full term for which you have been appointed? Not
applicable.
(e) (If appointed for indefinite period) Do you intend to serve
until the next Presidential election? Yes.
18. Potential Conflicts of Interest: (a) Describe any financial
arrangements, deferred compensation agreements, or other continuing
financial, business, or professional dealings which you have with
business associates, clients, or customers who will be affected by
policies which you will influence in the position to which you have
been nominated: None.
(b) List any investments, obligations, liabilities, or other
financial relationships which constitute potential conflicts of
interest with the position to which you have been nominated: None.
(c) Describe any business relationship, dealing, or financial
transaction which you have had during the last 5 years, whether for
yourself, on behalf of a client, or acting as an agent, that
constitutes a potential conflict of interest with the position to which
you have been nominated: None.
(d) Describe any lobbying activity during the past 10 years in
which you have engaged for the purpose of directly or indirectly
influencing the passage, defeat, or modification of any Federal
legislation or for the purpose of affecting the administration and
execution of Federal law or policy. None.
(e) Explain how you will resolve any potential conflicts of
interest that may be disclosed by your responses to the above items.
(Please provide a copy of any trust or other agreements involved.) No
applicable.
19. Testifying before the Congress: (a) Do you agree to appear and
testify before any duly constituted committee of the Congress upon the
request of such committee? Yes.
(b) Do you agree to provide such information as is requested by
such a committee? Yes.
______
Response to Written Questions Submitted by Hon. Larry E. Craig to Tim
S. McClain
Question 1. How are you planning on developing the Memorandum of
Understanding between the Veterans Administration and the Department of
Defense in order to provide medical services to TRICARE-dependent
military retirees in the Veterans Medical Centers?
Answer. I am familiar with the Veterans Millennium Health Care and
Benefits Act, at section 113, which requires the Secretary of Defense
(DOD) and Secretary of Veterans Affairs (VA) to enter into such a
Memorandum of Understanding. I understand that officials from VA and
DOD have met several times regarding this requirement, but have been
unable to reach an agreement to date. My office will continue to
provide legal advice to those VA officials working directly with DOD to
resolve these differences.
Question 2. How are you planning to reach out and ensure that all
disabled veterans are adequately compensated for related service-
connected disabilities, and receive high quality medical care?
Answer. I consider the role of the Office of General Counsel (OGC)
to be that of an enabler of the Veterans Health Administration and
Veterans Benefits Administration, the program elements that are
directly responsible for the provision of health care and other
benefits. The OGC can greatly facilitate the timely and accurate
delivery of veterans benefits and services in a number of ways.
For example, as new benefit laws are enacted, it is OGC who must
interpret them in order to ensure they are implemented as Congress
intended. Implementation may also entail the development of new
regulations, a process in which OGC is intimately involved. Need for
further legal interpretation frequently arises during the course of
program administration, as unique, and perhaps unforeseen, fact-
patterns are encountered by claims reviewers. Some of these legal
opinions are designated as precedents to be followed throughout the
Department, contributing to the uniform application of the law by the
fifty-eight VA Regional Offices and sixty-four members of the Board of
Veterans Appeals.
Moreover, the advocacy of OGC attorneys before the Court of Appeals
for Veterans Claims can greatly influence the developing case law that
increasingly drives the claims process. This case law often requires
OGC interpretation for the benefit of program officials. In addition,
my office also plays a leading role in advocating the Secretary's
legislative agenda for improving veterans' benefit programs.
All of the above are very important responsibilities that I intend
to closely oversee throughout my tenure as General Counsel.
Question 3. How are you planning on implementing the Millennium
Health Care Act?
Answer. The Office of General Counsel (OGC) has been involved in
the Act's implementation in a number of ways, but none more important
than in the development of new and amended VA regulations.
For example, the Act provides new authority for VA to reimburse for
the costs of emergency medical care provided to veterans in non-VA
facilities. My office has played a major role in devising proposed
rules for implementing this authority. The regulations are currently
undergoing OMB review as provided by Executive Order 12866.
The Act also:
authorized the provision of expanded non-institutional and
extended-care health services,
authorized VA to amend the schedules of co-payments
charged certain veterans for pharmaceuticals, long-term care and
outpatient treatment: and,
required VA to develop a new methodology for ranking
applications for VA grants for state nursing-home construction.
The necessary rules and regulations for implementing the Act are in
various stages of development or concurrence. My office will continue
to monitor the progress of the implementation of these rules.
Chairman Specter. Before we proceed to questions and
answers, I would like to administer the oath to you. If you
would please rise and raise your hand. Do you solemnly swear
that the responses to questions and your further testimony and
the testimony already given is, and will be, the truth, the
whole truth, and nothing but the truth, so help you God.
Mr. McClain. I do.
Chairman Specter. Thank you. Mr. McClain, you have a very
close personal relationship with Mr. Principi, and that is, for
the most part, good. But there is the potential that sometimes
a relationship may be a little too close. What assurances can
you give the committee that your advice will be objective and,
notwithstanding your close personal relationship and
friendship, if you have to give him bad news or if you have to
give him advice that he does not like, that you will be tough
about it?
Mr. McClain. Senator, thank you for that question. I know
that it may look like a concern, but it should not be a concern
to the committee.
Chairman Specter. You are not a good friend of his?
[Laughter.]
Mr. McClain. Sir, I am a very good friend of Mr. Principi.
But my position as counsellor will dictate exactly how I will
act and advise the Secretary. As General Counsel of the
Veterans Affairs Department, my responsibility is to lay out
the good and the bad for the Secretary, to give him all of the
options and to give my best advice on the interpretation of the
law as it applies.
Chairman Specter. And your duties run to the Government and
the Veterans Administration and not personally to the
Secretary?
Mr. McClain. Well, certainly they run to the
Administration, to the veterans, to the Government, and to the
Secretary.
Chairman Specter. You are not his personal counsel?
Mr. McClain. No, I do not believe I am.
Chairman Specter. The adjudication backlog is of enormous
proportion. Secretary Principi has made the reduction of that a
top priority. Would you submit in writing to this committee--I
do not want an off-the-cuff answer; we want a plan, something
in writing--your plan for tackling that issue, because it is a
mammoth issue. Is 30 days too long a period to give you to
answer that?
Mr. McClain. No, Mr. Chairman, it is not.
Chairman Specter. Is 2 weeks too short a period to give you
to answer that?
Mr. McClain. I could have an answer to you in 2 weeks, Mr.
Chairman.
Chairman Specter. OK. We will take it in 2 weeks, then.
[The information referred to follows:]
In my short tenure at this department, I have discovered
that this is a multi-faceted problem that will take an
integrated solution. No one division or department within VA
can tackle this problem alone.
I have met briefly with VBA Under Secretary Joseph Thompson
and BVA Chairman E. Dane Clark to discuss the claims backlog
problem in general. All departments are working deligently to
find a solution. A very significant initiative is Secretary
Principi's charter for a VA Claims Processing Advisory Task
Force. The Task Force formed a Claims Processing Advisory
Committee, which had its first meeting on April 16-17, 2001,
with direction to submit its initial findings within 120 days.
Lawyers from the Office of General Counsel are providing legal
advice to members of the Committee. My office anticipates that
the Committee will make certain recommendations that, if
approved and implemented by the Department, will require new
and/or revised claims processing regulations. All parties will
want the regulations to be drafted and implemented within a
very short time frame. Therefore, I am studying the best way to
restructure and the progress we are making in regulations
division to meet this demand.
Chairman Specter. The Veterans Administration has over 400
attorneys on staff, and approximately one-half of these
attorneys are situated at VA regional offices. How do you
propose to administer this enormous legal staff since you do
not have 400 attorneys to oversee in your current law firm? How
many less than 400 do you have in your current law firm?
Mr. McClain. 399. [Laughter.]
There are two of us in the law firm.
Chairman Specter. So how are you going to do that, Mr.
McClain?
Mr. McClain. Fortunately, Mr. Chairman, there is a very
good and effective organization of career attorneys with the VA
that is currently in place that they have a very good
management structure at this point.
Chairman Specter. They do not need you to manage them?
Mr. McClain. No, they do. They need leadership at the top.
Chairman Specter. So how are you going to handle it?
Mr. McClain. Through close personal relations with--I plan
to meet every one of the attorneys within a fairly short period
of time.
Chairman Specter. How short a period of time?
Mr. McClain. As a matter of fact, we have got a training, a
regional counsel training currently set up for August.
Chairman Specter. Is it possible to reduce the number of
attorneys through attrition? You will head one of the biggest
law firms in the country, Mr. McClain.
Mr. McClain. And I think that the size of the law firm is
driven by the work that we are asked to do. One of the things
that I will----
Chairman Specter. You cannot at this point have a handle on
the work; it is too soon.
Mr. McClain. I do not.
Chairman Specter. Would you make an analysis for the
committee as to management savings? I am not suggesting that
you go in and fire people or wreck the crew. But when I became
District Attorney of Philadelphia I found a lot of ways to
economize and to better utilize my personnel. We have a very
tight budget and, to the extent that we can allocate VA funds
for health care, that is what this committee would like to do.
So after you finish your report on the backlog, will you take
another 2 weeks to 4 weeks to give me a report on this topic?
Let me ask you, what do you think is a reasonable timeframe on
the 400 attorneys issue?
Mr. McClain. Through my experience having done some of this
in management consulting, this sort of analysis would take an
intensive 3 months.
Chairman Specter. OK. You have got it.
Mr. McClain. Thank you very much.
Chairman Specter. So in 90 days we would like to know your
evaluation on whether you can effect economies or reorganize
your legal staff.
[The information referred to follows:]
July 2001
White Paper
efficiencies achieved by the office of general counsel (ogc), in the
area of personnel management, department of veterans affairs (va)
In 1995, OGC implemented VA's mandate to streamline its management
and reduce the number of full time employees (FTE) by reducing the
number of supervisors from 128 to 75, and by reducing the number of
total employees from 730 to 663, over a 5-year period. OGC accomplished
these goals by reducing the layers of management in its field locations
throughout the country, reducing the number of managers in
headquarters, and trimming the number of employees through attrition,
buy-outs and early retirement.
OGC reduced the number of managers primarily through the
restructuring of its field component. Prior to 1995, there was at least
one District Counsel office in each of the 50 states and Puerto Rico.
The new organization merged the District Counsel offices into 23
regions. The new Regional Counsels supervised more employees spread
over a much greater geographic area than their predecessor District
Counsels, resulting in the phased departure of 46 managers. This,
combined with aggressive attrition efforts ultimately reduced the
number of OGC's employees to 638 at the end of Fiscal Year (FY) 2000.
Primarily due to the increased numbers of appeals to the Court of
Appeals for Veterans Claims, personnel law cases, loan guaranty and
medical care cost recovery actions, OGC was left with no choice but to
hire more staff during FY 2000, such that OGC's current staffing level
is 687. That number includes 78 managers, 74 of whom are attorneys; 323
non-supervisory attorneys, 36 paralegals; 120 legal assistants; and 130
administrative personnel.
OGC represents the Secretary of Veterans Affairs in every appeal
filed with the Court of Appeals for Veterans Claims (CAVC) Since 1988,
when the Veterans Judicial Review Act established this Court, the
number of appeals filed with the court rose from a low of 1303 in 1992,
to a high of 3260 in FY 1999. OGC projects that veterans will file 3750
appeals in the current fiscal year, In 1992, Congress extended the
Equal Access to Justice Act (EAJA) to CAVC appeals, thereby increasing
the scope of OGC's litigation responsibilities. Every appeal filed by a
represented veteran after November 1992 included the potential for EAJA
litigation as well. Accordingly, this 35 percent increase in appeals
required additional staff to provide representation for the Secretary.
The appellate staff rose from 51 in 1992 to its current level of 92.
Each of the 42 staff attorneys is currently responsible for
approximately 38 appeals.
OGC attorneys in headquarters and in the field represent VA in an
ever-increasing number of personnel law matters, including equal
employment opportunity complaints, appeals to the Merit Systems
Protection Board, unfair labor practice claims, arbitrations, and in
grievance actions. Although OGC attorneys represent the Secretary
primarily in administrative litigation, the nature of this litigation
is now so complex and demanding that the preparation of these cases is
comparable to judicial litigation. In FY 2000, OGC attorneys defended
4,627 cases, primarily in VA's field locations.
Despite the stable economy during the past several years, the
number of foreclosures of VA-guaranteed loans has increased, resulting
in approximately 15,000 such actions in FY 2000. VA attorneys and
paralegals participate in the foreclosure processes, assist in the sale
of foreclosed properties in VA's inventory, address a myriad of title
issues that arise on these properties, evict reluctant tenants and
craft mortgage releases and related documents. These actions are labor-
intensive and, while OGC managers assign much of this work to
paralegals, attorneys must provide active representation in local
courts. The increased activity has required OGC to hire additional
attorneys and paralegals.
OGC attorneys, paralegals and legal assistants have contributed
significantly to the recovery of funds from insurers, worker's
compensation funds and tortfeasors responsible for the cost of
veterans' care through contract or injury. In FY 2000, OGC personnel
collected almost $16 million in over 425,000 separate actions; during
the first 7 months of FY 2001, OGC's efforts have resulted in
collections of $9 million. These funds are provided to the Veterans
Health Administration to provide for medical care for veterans.
OGC attorneys represent the Secretary in numerous other areas as
well. With the expansion of enhanced use programs and sharing
agreements, OGC attorneys routinely review contracts and provide advice
to VA officials concerning the structuring of novel business
arrangements that allow for more robust use of VA facilities and
provide additional dollars for veterans benefits and health care. The
687 OGC employees represented over 800 VA facilities in over 510,000
actions during FY 2001. These actions have the cumulative effect of
increasing the number of dollars available to care for veterans,
decreasing the Secretary's exposure to personnel and tort claim
judgments, and otherwise facilitating the operation of the Department.
The dedication and hard work of OGC's employees allow for this
efficiency.
Chairman Specter. There is a question here on statutory
interpretation. If I ask you the question, will you tell me
that you are going to follow the intent of Congress and not
make new law?
Mr. McClain. Absolutely.
Chairman Specter. I thought you would, so I thought I would
abbreviate. [Laughter.]
I understand that you are experienced as a malpractice
defense counsel. Has your experience as a malpractice defense
counsel given you occasion to advise medical clients on the
avoidance of malpractice claims?
Mr. McClain. Yes, Mr. Chairman, they have.
Chairman Specter. That is a unique talent, Mr. McClain.
What I would like you to do is to give some thought to how you
might counsel the doctors to avoid malpractice claims, because,
in doing that, you will really be giving them advice on how to
give better medical service.
Mr. McClain. The law firm that I was connected with was
connected with the insurance companies that insure the medical
professionals and we participated in their risk-management
programs, including advising the doctors and giving them
seminars on how best to avoid incidents of malpractice and how
to chart the particular procedures.
Chairman Specter. Mr. McClain, down the road, say in 4
months, give us a written response as to what you found there.
Mr. McClain. I will.
[The information referred to follows:]
White Paper
plan to assist department of veterans affairs (va) health care
providers in avoiding malpractice claims by improving the quality of
health care
The Office of General Counsel (OGC) works in close cooperation with
the Veterans Health Administration (VHA) in various ways to assist in
the quest for improving the quality of health care in VA medical
facilities and thereby reduce and avoid patient injuries that may lead
to medical malpractice claims.
Currently, OGC shares access to its computerized Tort Claim
Information System (TCIS) with VHA for patient safety and quality
assurance purposes. We also share with VHA our annual report setting
out the number of claims filed, settled, and denied, and amounts paid.
When a medical malpractice claim is paid under the Federal Tort
Claims Act, 28 U.S.C. Sec. Sec. 1346(b), 2671-2680, whether as an
administrative claim, settlement by the United States Attorney, or
court judgment, information is presented to the VHA Director of Medical
Legal Affairs for consideration by an outside panel of medical
reviewers to determine whether the health care providers involved
should be reported to the National Practitioner Data Bank. VHA is
updating its procedures for data bank reports, and recently published
proposed regulations for that purpose.
OGC also participates in other ways with VHA to address the legal
problems associated with providing health care to veterans. OGC
personnel in Regional Counsels' offices work closely with VA medical
center officials in advising patients when errors that result in injury
or harm to a patient are discovered. Patients are informed of the error
and of their legal and administrative remedies.
Additionally, OGC collaborates with VHA by providing
representatives to present topics for training programs such as the
recent National Conference for Patient Safety and by participating in
the American Association of Anesthesiologists closed claims study,
sharing information on VA claims and litigation involving anesthesia.
Payment of every medical malpractice claim results in scrutiny of
the appropriateness of medical care and treatment by one or more health
care providers, through peer review at the local facility and through
the outside panel of medical reviewers. These retrospective reviews
provide useful information, but have a significant lag time from the
date of the incident until resolution of the claim or litigation. OGC
has worked very closely with Dr. Jim Bagian in the creation of the
National Center for Patient Safety; an innovative program designed to
improve the quality of care in VA. The Center is responsible for
implementing a nationwide internal and external reporting system to
supplement the existing accountability systems. The new system's sole
purpose is to foster organizational learning to improve patient safety.
It is designed to encourage reporting of medical errors--even close
calls and potential problems--without assigning blame to the health
care providers. The Center looks at problems and potential problems
immediately after their occurrence. They examine the data received to
discern common systemic problems, and methods to correct them, as well
as to reduce the opportunity for human error. VA believes the Center
will play a major role in improving patient safety and, in turn,
reducing malpractice claims.
In addition to continuing these and similar activities, for
reducing VA medical malpractice claims includes developing a
presentation that will be available to health care providers to inform
them of lessons learned from review of the medical malpractice claims
over the last decade. Our presentation will include topics on creation
and completeness of appropriate entries in the patient's medical
records, necessity of ensuring that tests ordered are reviewed in a
timely manner, requirement for correct and legible orders and
prescriptions, appropriate supervision of residents and other trainees,
and how to obtain and document informed consent. In short, the
program's focus will be on reducing malpractice claims by improving the
quality of VA health care. This program will be provided live, or over
VA's satellite broadcast network. Details will be worked out in the
next several months.
In summary, OGC has worked with VHA in its desire to improve
patient safety and quality of care. We will provide additional programs
to not only continue to improve care but to avoid malpractice claims in
the future.
Chairman Specter. One of our jobs is oversight and the
reality is we do not have the time--with all of our busy
schedules--to do oversight as well as we should. But on these
particular items, I think it would be very useful for the
committee to have your insight. And then I would like you--on
the three subjects which we have talked about today--to give us
updates every 6 months as to how you are proceeding on the
backlog, on the management of your attorneys, and on proactive
work your attorneys can do to assist doctors in avoiding
malpractice claims.
Mr. McClain, do you swear that all the answers you have
given in the written questions are accurate?
Mr. McClain. Yes, I do.
Chairman Specter. Do you have any conflicts of interest
which were not fully disclosed to the committee?
Mr. McClain. No, there are none.
Chairman Specter. Do you know of any other matter which if
known to the committee might affect the committee's
recommendation to the Senate with respect to your nomination?
Mr. McClain. No, sir, I do not.
Chairman Specter. Have you fully and accurately provided
financial and other information requested by the committee?
Mr. McClain. Yes, I have.
Chairman Specter. And do you now affirm that information is
complete, accurate, and provided in a form not designed to
evade?
Mr. McClain. Yes.
Chairman Specter. Do you think that last question, prepared
by Mr. Tuerk, the committee's counsel, was a good question?
[Laughter.]
Could you improve upon it? I do not hear an answer to that.
[Laughter.]
Now that you are caught, Mr. McClain, we will see whether
your skills are sufficient to give an affirmative answer that
you can improve on it, or whether you do not want to say
something which would offend Mr. Tuerk?
Mr. McClain. That is probably it.
Chairman Specter. Or you don't want to say something which
would offend the chairman. [Laughter.]
You do not have to comment further.
Do you agree to supply the committee such nonprivileged
information, materials, and documents as may be requested by
the committee in its oversight and legislative capacities for
so long as you serve as General Counsel?
Mr. McClain. Yes, sir, I do.
Chairman Specter. Do you agree to appear before the
committee at such times and on such matters as the committee
shall request for as long as you serve as General Counsel?
Mr. McClain. Yes, sir.
Chairman Specter. Mr. McClain, I think you have got a very
good background. I like your relationship with the Secretary. I
like your background. I like the fact that you are from
Johnstown. I like your wife, your mother, your sister. Your
sister just gave you a thumbs up. Are you serious about that,
Connie? Mr. McClain, do you think I should swear Connie before
adjourning? [Laughter.]
I wanted to get this done fast. We could take a lot more
time but I am due at a Judiciary Committee hearing at 10
o'clock. Our schedules are jammed. But I want to get you
confirmed if I can and I am going to instruct the committee's
counsel to see if we can convene the full committee in the
President's Room after a vote today so we can act and try to
get you confirmed before we adjourn on Friday.
Mr. McClain. Thank you, Mr. Chairman.
Chairman Specter. I would like you to stay because Senator
Craig is on his way and he will be acting chairman to ask you
additional questions.
Mr. McClain. Certainly.
Chairman Specter. Thank you very much, Mr. McClain. I think
you will be confirmed and I wish you the very best in your
service as General Counsel. And I will not ask you for a
commitment that when your tour ends you will return to
Johnstown as opposed to San Diego. [Laughter.]
Mr. McClain. Thank you.
Chairman Specter. Thank you all.
Senator Craig [presiding]. Tim, as this may be a first for
you, it is also a first for me. This gentleman just referred to
me as ``Mr. Chairman.'' [Laughter.]
So to chair the Veterans' Affairs Committee is a brief but
most important honor of mine. I have served on the committee a
good number of years now. So, thank you.
Mr. McClain. It is my pleasure, sir.
Senator Craig. All right. I met the chairman in the hall
and he said he had held the committee open so that I could
visit with you for a few moments. I have looked at your resume,
obviously. And what is most important is that the Secretary is
the person who recommends you and feels comfortable that he can
work with you to manage the Department and to deal with many of
the problems it will face over the course of time that are part
of the natural course of doing business. But, at the same time,
you know and I know there are some very real challenges out
there. So for the next few moments, why don't you give me an
idea of what your thoughts are and your plans are coming into
this capacity as General Counsel.
Mr. McClain. Senator, I would be glad to. I have been
fortunate to be at the VA for the past 2 weeks getting briefs,
and so I just have an orientation sort of knowledge on many of
the issues. But I do understand that those major issues are
adequate delivery of health care and another pressing issue is
the claims backlog.
From the health care aspect, I know that Dr. Garthwaite is
working very hard on it and we will give him whatever support
from the General Counsel's Office he needs.
Probably the thing that the General Counsel can impact more
than the current health care delivery is the claims
adjudication status. There is a tremendous backlog from recent
court decisions. The Secretary has announced that there will be
a task force of industry leaders and CEO's from the insurance
industry and other industries to review our process and then,
hopefully, make a recommendation which would be a structure for
us to begin implementing change in our process to bring
efficiencies to the process.
Where the General Counsel can get involved is, No. 1, I
think by advising that task force to the greatest extent
possible on what the laws currently are so that we need to work
within the framework that we have. But also then, after the
Veterans Benefits Administration decides exactly how we are
going to implement those recommendations, I am sure there will
be regulations that need to be written, and the General
Counsel's Office can assist directly in getting them written
and getting them through in an expeditious manner. We would not
be the bottleneck in this. We would be somewhat of an expediter
to assist in getting these regulations through and getting the
process fixed so that we can get the backlog down.
Senator Craig. How are you planning on developing the
Memorandum of Understanding between the Veterans Administration
and the Department of Defense in order to provide medical
services to TRICARE-dependent military retirees in the Veterans
Medical Centers?
Mr. McClain. Senator, I have not been fully briefed on that
particular issue. I will take it upon myself to become
knowledgeable and be fully briefed on it. I would be glad to
get back to you with an answer to that either on the record or
personally.
Senator Craig. That is important out in my State. TRICARE,
in some States where there has been a resistance to an HMO
style health care delivery system, has left some of our
military people and our military retirees wanting. So we are
trying to resolve that. We have, obviously, a very capable and
well-respected Veterans health care delivery system in Boise
with the hospital there. It seems to be a right approach toward
resolving that.
How are you planning to reach out and ensure that all
disabled veterans are adequately compensated for related
service-connected disabilities and receive the high quality
medical care that they deserve and expect?
Mr. McClain. From the perspective of the General Counsel
once again, we work closely with the Veterans Benefits
Administration and we will continue to do so. We will assist
them in interpreting the law, assist them in getting the
regulations written, and assist them in evaluating from a legal
aspect any of the particular issues that come up in this
challenge of getting the benefit backlog taken care of.
But also there is another component to that of the people
who currently would be applying for benefits; in other words,
new claims. We want to ensure that the new claimants are not in
the same situation as some of the old claimants, that they had
to wait so long to find out if they were entitled to benefits.
And one of our most pressing issues is going to be to bring the
time for adjudication down to something reasonable and more in
line with an industry standard.
Senator Craig. One of the concerns I have had in Idaho, and
we are starting to resolve that by clinics and outreach
approaches, in the ruralness of our State and the need to cover
veterans, sometimes the drive from Salmon, ID, to Salt Lake
City of 350 miles one way is not an easy route to go in the
middle of the winter to get health care. We have a clinic now
in Pocatello, about midway, and we now have a clinic in Twin
Falls.
I guess what I am suggesting is that any time we can
provide a more localized care opposed to a regional approach of
service that we can reduce overall costs and we can provide
more immediate service. I have talked with the Secretary about
that. We are going to continue to work on that. We are making
headway in those areas, Tim, and I think that is an important
part of what we do. I now chair the Aging Committee here in the
Senate and we are looking very closely at rural health care
delivery and oftentimes the decline of rural infrastructures as
the character and the economy of those regions change, and
veterans are a part of that and we need to be sensitive to it.
How are you planning on implementing, or have you been
briefed and do you understand the issue of the Millennium
Health Care Act?
Mr. McClain. I have had an orientation on the Millennium
Health Care Act, Senator. I certainly do not profess to have
in-depth knowledge about it but I understand its main points.
Senator Craig. Well, that is one thing that we will be
working very closely with you and the Administration on as we
move into the implementation of that Act.
[The prepared statement of Senator Craig follows:]
Prepared Statement of Hon. Larry E. Craig, U.S. Senator From Idaho
Mr. Chairman, it is indeed a pleasure to be here at the
confirmation hearing of Tim S. McClain for General Counsel,
Department of Veterans Affairs (VA). The VA represents millions
of men and women who have served our great nation, often at
extreme sacrifice. Therefore, in gratitude it is important that
we select a General Counsel who will ensure the just and
faithful execution of the laws, regulations, and policies of
the VA, and by so doing enable the Department to accomplish its
mission of service to our Nation's veterans.
I am very impressed with Mr. McClain's qualifications for
the post of General Counsel of the VA. A decorated Vietnam
veteran, he has extensive experience working both as a military
Staff Judge Advocate and in the private sector on adjudications
and appeals. It is also important to me that he has worked with
VA Secretary Principi before and has his trust. I am confident
that Mr McClain will provide Secretary Principi with honest
counsel on matters he is responsible for administering. I look
forward to working with Mr. McClain on future benefit matters
and assisting veterans' benefit claimants to a quick and fair
determination. The claims benefit process is in dire need of
reform and must be our top priority. In addition, we must
continue to improve access to services which recent legislation
has provided. As a fiscal conservative, I understand how
difficult it is to insure optimum commitment to our nations's
heroes while balancing the budget. I believe that Mr. McClain's
breadth of knowledge will enable him to ensure our government
honors its commitments to our veterans and implements the most
beneficial and cost effective programs.
I look forward to working with Mr. McClain when addressing,
expanding, and improving the delivery of services and benefits
so that all veterans have equal access to, and quality of,
medical care. In many areas of the country as in Idaho, the
waiting lists are long and only getting longer. I would
encourage the VA to continue exploring under serviced areas.
Any time we can provide local--as opposed to regional--service,
the veterans will be grateful and overall cost reduced. Of
course, one of my major concerns is ensuring the necessary
funding for primary care, but we must not forget to provide all
the services and specialty care that many of our veterans
require. The Millennium Health Care Act has had some major
impacts; however, the VA has not yet developed the policies
necessary to deal with issues such as emergency care, Hepatitis
``C'', and Diabetes. Mr. McClain's opinions in these matters
will be critical to insuring we meet the needs of our Nation's
veterans and their families today and tomorrow.
Veterans who are also military retirees are suffering
greatly in Idaho as well as other rural areas. TRICARE, which
was set up to provide medical services to active duty and
retirees, is bad and getting worse in Idaho. I implore Mr.
McClain to work with the Department of Defense (DOD) in
developing procedures for providing medical services to
TRICARE-dependent military retirees in VA facilities.
I believe that Mr. McClain is an excellent choice to help
define our commitment to our nation's veterans, while
recognizing the tough fiscal decisions that must be made. Let
us never forget the important role that our veterans have made
insuring our national security--the United States is a super
power and enjoys such success because of the service and
sacrifice of our veterans for whom we should be forever
grateful.
Senator Craig. Well thank you very much for your time and
your patience. Good luck. We know you will be successful
through the process. We all have a sense of urgency here to
supply the new Administration with the people they need to get
on with the business of governing our country. So I am glad
that the chairman could move this hearing along. I am quite
sure that we will move you along as quickly as we can.
Mr. McClain. Thank you very much.
Senator Craig. Thank you.
The committee will stand adjourned.
[Whereupon, at 10:08 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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