[Senate Report 109-297]
[From the U.S. Government Publishing Office]
Calendar No. 540
109th Congress Report
SENATE
2d Session 109-297
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VETERANS' CHOICE OF REPRESENTATION AND BENEFITS ENHANCEMENT ACT OF 2006
_______
July 27 (legislative day July 26), 2006.--Ordered to be printed
_______
Mr. Craig, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany S. 2694]
The Committee on Veterans' Affairs (hereinafter,
``Committee''), to which was referred the bill (S. 2694), to
amend title 38, United States Code, to remove certain
limitations on attorney representation of claimants for
veterans benefits in administrative proceedings before the
Department of Veterans Affairs, and for other purposes, having
considered the same, reports favorably thereon with an
amendment in the nature of a substitute, and recommends that
the bill, as amended, do pass.
Introduction
On May 2, 2006, Committee Chairman Larry E. Craig
introduced S. 2694, a bill to remove certain limitations on
attorney representation of claimants for veterans benefits in
administrative proceedings before the Department of Veterans
Affairs (hereinafter, ``VA'') and for other purposes. Committee
Member Lindsey O. Graham is an original cosponsor of S. 2694.
Committee Members Kay Bailey Hutchison and James M. Jeffords,
and Senators Saxby Chambliss and Lisa Murkowski were later
added as cosponsors. The bill was referred to the Committee.
On April 26, 2005, Senator Christopher J. Dodd introduced
S. 909, a bill to expand eligibility for government markers for
marked graves of veterans at private cemeteries. Senator
Blanche L. Lincoln was later added as a cosponsor.
On June 15, 2005, Committee Ranking Minority Member Daniel
K. Akaka introduced S. 1252, a bill to increase the amount of
supplemental insurance available for totally disabled veterans.
Committee Member Ken Salazar is an original cosponsor.
On July 28, 2005, Committee Ranking Member Akaka introduced
S. 1537, a bill to provide for the establishment of Parkinson's
Disease Research Education and Clinical Centers in the Veterans
Health Administration of the Department of Veterans Affairs and
Multiple Sclerosis Centers of Excellence. Committee Members
Patty Murray and Barack Obama, and Senators Jeff Bingaman,
Gordon H. Smith, Debbie Stabenow, Mark L. Pryor, and Tim
Johnson were later added as cosponsors.
On September 22, 2005, Chairman Craig introduced S. 1759, a
bill to require the Secretary of the Army to remove the remains
of Russell Wayne Wagner from Arlington National Cemetery.
Senator Barbara A. Mikulski was later added as a cosponsor.
On December 16, 2005, Senator Charles E. Schumer introduced
S. 2121, a bill to provide housing loan benefits for the
purchase of residential cooperative apartment units. Senators
Mark Dayton and Paul S. Sarbanes are original cosponsors of S.
2121. Committee Member James M. Jeffords was later added as a
cosponsor.
On March 15, 2006, Senator Conrad R. Burns introduced S.
2416, a bill to expand the scope of programs of education for
which accelerated payments of educational assistance under the
Montgomery GI Bill may be used, and for other purposes. Senator
Mark L. Pryor is an original cosponsor. Committee Member
Lindsey O. Graham and Senators Lisa Murkowski, Barbara A.
Mikulski, Elizabeth Dole, Saxby Chambliss and E. Benjamin
Nelson were later added as cosponsors.
On March 16, 2006, Committee Member Ken Salazar introduced
S. 2433, a bill to establish an Assistant Secretary for Rural
Veterans within VA, to improve the care provided to veterans
living in rural areas, and for other purposes. Committee
Ranking Member Akaka, Committee Members Patty Murray, Richard
Burr, and John Thune and Senators Conrad R. Burns, Kent Conrad,
Blanche L. Lincoln, Craig Thomas, Max Baucus, Byron L. Dorgan,
Tim Johnson, Lisa Murkowski, and Mark L. Pryor are original
cosponsors. Senator Michael B. Enzi was later added as a
cosponsor.
On April 24, 2006, Chairman Craig introduced S. 2634, a
bill to strike the term of the positions of Under Secretary for
Health and Under Secretary for Benefits and simplify
appointments to such positions.
On April 26, 2006, Committee Ranking Member Akaka
introduced S. 2659, a bill to provide for the eligibility of
Indian tribal organizations for grants for the establishment of
veterans' cemeteries on trust lands. Senator Daniel K. Inouye
is an original cosponsor of S. 2659. Committee Member Patty
Murray was later added as a cosponsor.
On May 8, 2006, Committee Ranking Member Akaka introduced
S. 2762, a bill to ensure appropriate payment for the cost of
long-term care provided to veterans in State homes, and for
other purposes. Senators Olympia J. Snowe, Susan M. Collins,
Charles E. Schumer, and Hillary Rodham Clinton were later added
as cosponsors.
On May 25, 2006, Senator Christopher J. Dodd introduced S.
3069, a bill to modify the furnishing of government markers for
graves of veterans at private cemeteries, and for other
purposes. Senators Robert C. Byrd, Mike DeWine, Tim Johnson,
Patrick J. Leahy, Kent Conrad, Byron L. Dorgan, and Edward M.
Kennedy are original cosponsors of S. 3069. Senators John F.
Kerry, Blanche L. Lincoln, Jeff Sessions, Herb Kohl, Joseph I.
Lieberman, Rick Santorum and George V. Voinovich were later
added as cosponsors.
On June 5, 2006, Senator Mike DeWine introduced S. 3363, a
bill to provide for accelerated payment of survivors' and
dependents' educational assistance for certain programs, and
for other purposes.
On June 20, 2006, Chairman Craig introduced S. 3545, a bill
to improve services for homeless veterans, and for other
purposes. Committee Ranking Member Akaka, and Committee Members
Richard Burr and Barack Obama are original cosponsors of S.
3545. Committee Member Johnny Isakson was later added as a
cosponsor.
Committee Hearings
On June 23, 2005, the Committee held a hearing on, among
other bills, S. 1252 and S. 909. Testimony was heard from:
Senators Wayne Allard and Mark L. Pryor; the Honorable Daniel
L. Cooper, Under Secretary for Benefits, U.S. Department of
Veterans Affairs; Mr. Steve Smithson, Assistant Director,
Veterans Affairs and Rehabilitation, The American Legion; Mr.
Quentin Kinderman, Deputy Director, National Legislative
Service, Veterans of Foreign Wars of the United States; Mr.
Rick Surratt, Deputy National Legislative Director, Disabled
American Veterans; Mr. Carl Blake, Associate National
Legislative Director, Paralyzed Veterans of America; and Mr.
Richard Jones, National Legislative Director, AMVETS.
On May 11, 2006, the Committee held a hearing on, among
other bills, S. 1537, S. 2433, S. 2634, and S. 2762. Testimony
was heard from: Dr. Michael Kussman, Deputy Under Secretary for
Health, Veterans Health Administration, U.S. Department of
Veterans Affairs; Mr. Robert Shaw, Legislative Chairman,
National Association of State Veterans Homes; Mr. John Melia,
Executive Director, Wounded Warrior Project; Mr. Carl Blake,
Associate Legislative Director, Paralyzed Veterans of America;
Mr. Juan Lara, Assistant Director, National Legislative
Commission, The American Legion; and Mr. Adrian Atizado,
Assistant Legislative Director, Disabled American Veterans.
On June 8, 2006, the Committee held a hearing on, among
other bills, S. 2121, S. 2416, S. 2659, S. 2694, and S. 3363.
Testimony was heard from: Senators Conrad R. Burns and Mark L.
Pryor; Mr. Ronald Aument, Deputy Under Secretary for Benefits,
Veterans Benefits Administration, U.S. Department of Veterans
Affairs; the Honorable Donald L. Ivers, former Chief Judge of
the United States Court of Appeals for Veterans Claims; Mr.
Quentin Kinderman, Deputy Director, National Legislative
Service, Veterans of Foreign Wars of the United States; Mr.
Richard F. Weidman, Director of Government Relations, Vietnam
Veterans of America; and Mr. Barton F. Stichman, Co-Director,
National Veterans Legal Services Program.
Committee Meeting
After carefully reviewing the testimony from the foregoing
hearings, the Committee met in open session on June 22, 2006,
and voted by unanimous voice vote to report favorably S. 2694,
as amended, to include provisions derived from S. 909, S. 1252,
S. 1537, S. 1759, S. 2121, S. 2416, S. 2433, S. 2634, S. 2659,
S. 2694, as introduced, S. 2753, S. 2762, S. 3069, S. 3363, S.
3545, and several original provisions.
Summary of the Committee Bill as Reported
S. 2694, as reported (hereinafter, ``the Committee bill''),
contains various amendments to title 38, United States Code,
and freestanding provisions, that would:
(a) Authorize claimants to have paid attorney
representation in benefits cases before VA;
(b) Establish the eligibility of Indian tribal
organizations for grants for the establishment of
veterans' cemeteries on trust lands;
(c) Require the Secretary of the Army to remove the
remains of Russell Wayne Wagner from Arlington National
Cemetery;
(d) Extend the provision of government grave markers
and headstones for the marked graves of veterans in
private cemeteries;
(e) Authorize accelerated payment of educational
assistance under the Montgomery GI Bill for courses
leading to employment in the transportation,
construction, hospitality, or energy sectors of the
economy;
(f) Authorize accelerated payment of survivors' and
dependents' educational assistance for courses leading
to employment in the transportation, construction,
hospitality, or energy sectors of the economy, or that
lead to employment in a high technology occupation in a
high technology industry;
(g) Authorize funding for State Approving Agencies at
$19 million per year using funds paid from the
readjustment benefit account and funds made available
through discretionary appropriations;
(h) Extend the biennial reporting requirement of VA
and the Department of Defense on the operation of the
Montgomery GI Bill program;
(i) Mandate the establishment of at least six
Parkinson's disease, research, education, and clinical
centers and at least two Multiple Sclerosis Centers of
Excellence;
(j) Eliminate the term limits for the positions of
Under Secretary for Health and Under Secretary for
Benefits;
(k) Require VA to pay full costs for certain service-
connected veterans residing in State homes, provide
medications for certain service-connected conditions to
veterans residing in State homes, and create a limited
authority for the Secretary of Veterans Affairs
(hereinafter, ``the Secretary'') to designate certain
beds in non-State facilities as State homes for
purposes of per diem payments;
(l) Create an Office of Rural Health within the
Office of the Under Secretary for Health at VA;
(m) Authorize a pilot program to provide caregiver
assistance and non-institutional care services;
(n) Reaffirm the national goal to end homelessness
among veterans;
(o) Express the Sense of the Congress on the
appropriate response of the Federal Government to the
needs of homeless veterans;
(p) Extend the authority of VA to provide grant
assistance for comprehensive service programs for
homeless veterans;
(q) Extend the authority of VA to provide treatment
and rehabilitation services to seriously mentally ill
and homeless veterans;
(r) Extend the authority of VA to transfer properties
it acquires through foreclosure proceedings on homes
backed by VA-guaranteed loans for the purpose of
housing homeless veterans;
(s) Extend the authorization of, and increase the
authorization amount for, grant funding for homeless
veterans with special needs;
(t) Extend the authorization of, and increase the
authorization amount for, technical assistance programs
provided to homeless veterans service providers;
(u) Include additional required elements in an annual
report on assistance provided to homeless veterans;
(v) Add additional ex-officio members to the Advisory
Committee on Homeless Veterans;
(w) Provide additional rental assistance vouchers for
VA-supported housing programs for homeless veterans;
(x) Provide financial assistance for supportive
services for low-income veteran families;
(y) Authorize VA to guaranty loans for the purchase
of stock in residential cooperative housing
corporations;
(z) Increase from $20,000 to $30,000 the amount of
supplemental insurance coverage available to totally
disabled veterans under the Service-Disabled Veterans'
Insurance program;
(aa) Extend from September 30, 2008, to September 30,
2011, the authorization for VA to match certain
beneficiary income information with data from other
agencies;
(bb) Clarify the scope of covered correctional
facilities for purposes of determining entitlement to
certain benefits for those residing in correctional
facilities.
Discussion
Section 101: Attorney representation in veterans' benefits cases before
the Department of Veterans Affairs
Background: Veterans' representation
A. Introduction
VA has a non-adversarial process for developing and
adjudicating claims for veterans' benefits. As part of that
process, VA generally is obligated to notify a claimant of the
evidence needed to substantiate a claim, to assist the claimant
in obtaining that evidence, and to provide the claimant with
the benefit-of-the-doubt in rendering a decision. See 38 U.S.C.
Sec. Sec. 5103A, 5103(a), 5107(b). If a claimant disagrees with
VA's initial decision, the claimant may seek a more favorable
outcome through the non-adversarial appeal process within VA,
which may include multiple reviews of the claim by adjudicators
at a VA regional office, and a review by the Board of Veterans'
Appeals (hereinafter, ``BVA'' or ``Board''). See 38 U.S.C.
Sec. Sec. 7105, 7107.
During the VA administrative process, a claimant may seek
assistance--without charge to the claimant--from a recognized
representative of a veterans' service organization
(hereinafter, ``VSO'') or from other recognized individuals.
See 38 U.S.C. Sec. 5902, 5903. However, until that VA
administrative process has been completed, a claimant is
statutorily prohibited from paying an attorney or agent to
provide services with regard to a claim for veterans' benefits.
See 38 U.S.C. Sec. 5904(c). As explained below, that policy
dates back to the Civil War and, today, is considered to be
unfair and outdated by a broad spectrum of individuals and
organizations, including judges, veterans' organizations,
veterans' advocates, law professors, and bar associations.
B. History of attorney fee limitation
In 1862, in response to concerns that unscrupulous lawyers
were bilking Civil War veterans out of their pensions, Congress
imposed a $5 limit on the amount of fees that agents or lawyers
could charge individuals seeking veterans' benefits. 12 Stat.
566, 568 (1862). Two years later, the $5 limit was raised to
$10. 13 Stat. 387, 389 (1864). When those limits were imposed,
``there was no regulation of law practice by government or
licensing of attorneys by bar associations'' and, therefore,
``[a]nyone could hold himself out as an attorney or claims
agent and, for a fee, assist a veteran claim a pension.''
Hearing on Benefits Legislative Initiatives, Senate Committee
on Veterans' Affairs, June 8, 2006, 109th Cong., 2d Sess.
(hereinafter, ``SVAC June 8, 2006, Hearing'') (testimony of Mr.
Richard Weidman).
The Civil War era restriction on attorney fees remained in
place for over 120 years, despite the subsequent development of
``very powerful and active disciplinary entities'' to police
the legal profession. SVAC June 8, 2006, Hearing (testimony of
the Honorable Frank Q. Nebeker). As a practical matter, the
restriction on attorney fees resulted in very few veterans
having attorney representation during administrative
proceedings before VA.
In 1988, Congress created the U.S. Court of Veterans
Appeals to provide judicial review of decisions rendered by the
BVA. See Veterans' Judicial Review Act, Pub. L. 100-687, 102
Stat. 4105 (1988) (hereinafter, ``VJRA''); see also Pub. L.
105-368, 112 Stat. 3315 (1998) (renaming the U.S. Court of
Veterans Appeals as the U.S. Court of Appeals for Veterans
Claims (hereinafter, ``CAVC'')). At that time, the Committee
acknowledged that ``the new right to judicial review * * *
would be a hollow right indeed without some easing of the
limitation on attorneys' fees.'' S. Rep. 100-418, at 63 (1988).
The Committee further stated:
The basis for Congressional action, first after the Civil
War * * *, limiting the amount an attorney could receive for
representing a claimant before the VA was grounded in a belief
that the lawyers of that day were unscrupulous and were taking
unfair advantage of veterans by retaining an unwarranted
portion of the veterans' statutory entitlement in return for
very limited legal assistance. Whatever the merits of such a
view at that time that the limitation was imposed * * * it is
the Committee's position that such a view of today's organized
bar, particularly in light of the widespread network of local
bar associations that now generally police attorney behavior,
is no longer tenable.
The Committee is also of the view that the current
statutory limitation is an undue hindrance on the rights of
veterans and other claimants to select representatives of their
own choosing to represent them in VA matters.
S. Rep. 100-418, at 64. In discussing the reasons for not
advancing legislation to allow attorney representation at the
initial stages of the VA process, the Committee explained that
``the existing limit on attorneys' fees is generally
appropriate with respect to the initial claims stage in the
sense that applying for VA benefits is a relatively
uncomplicated procedure.'' S. Rep. 100-418, at 63.
The Committee therefore advanced a bill (S. 11) that would
have retained the $10 fee limit during the VA administrative
process but would have lifted the fee limit after the BVA
rendered an adverse decision. S. Rep. 100-418, at 65.
Similarly, the House Committee on Veterans' Affairs favorably
reported a bill (H.R. 5288) that would have allowed paid
attorney representation after VA had ``affirm[ed] its decision
to deny a claim.'' H. Rep. 100-963, at 28.
As enacted, the VJRA removed the $10 fee limit and
permitted claimants to hire attorneys only after ``the date on
which the [BVA] first makes a final decision in the case.'' 38
U.S.C. Sec. 5904(c). This allowed claimants to have the benefit
of legal counsel when pursuing their cases before the CAVC, but
did not permit claimants to hire attorneys until after VA had
completed its administrative proceedings.
C. Complexity of the VA system
Since the enactment of the VJRA, there has been a growing
recognition that the claims process is no longer a ``relatively
uncomplicated procedure'' (S. Rep. 100-418, at 63). Among those
recognizing this complexity have been the judges on the CAVC
and those on the U.S. Court of Appeals for the Federal Circuit
(hereinafter, ``Federal Circuit''), which hears appeals from
the CAVC. In fact, the CAVC has described the statutory and
regulatory framework governing veterans' benefits as a
``confusing tapestry'' (Hatlestad v. Derwinski, 1 Vet. App.
164, 167 (1991)) and the Federal Circuit has described the VA
benefits system as involving ``arcane intricacies * * * that
require[ ] voluminous statutes, regulations, manuals, and
circulars to administer'' (Cook v. Principi, 318 F.3d 1334,
1357 (Fed. Cir. 2002) (Gajarsa, J., dissenting)).
The increasing complexity has been recognized by VA, as
well. In fact, VA's then-Under Secretary for Benefits testified
in 2000 that ``[t]he Veterans Disability Compensation Program
is the most complex disability claims system in the Federal
government'' and ``[t]he process veterans must follow is
complicated.'' Hearing on the Department of Veterans Affairs
Claims Adjudication and Pending Legislation Before the
Committee, Senate Committee on Veterans' Affairs, July 20,
2000, 106th Cong., 2d sess. (testimony of the Honorable Joseph
Thompson). Similarly, in 2005, VA's current Under Secretary for
Benefits, the Honorable Daniel Cooper, testified that the VA
disability compensation system was becoming ``increasingly
complicated.'' Hearing on Battling the Backlog: Challenges
Facing the VA Claims Adjudication and Appeal Process, Senate
Committee on Veterans' Affairs, 109th Cong., 1st sess., May 26,
2005 (hereinafter, ``SVAC May 26, 2005, Hearing'').
VSOs also have recognized the increasing complexity of the
system. For instance, in 2005, the Veterans of Foreign Wars of
the United States (hereinafter, ``VFW'') provided this
description of the VA claims adjudication system: ``Compared to
the compensation program of a decade ago, the work is much more
complicated. It is now a complex thicket of court decisions,
and statutory requirements.'' SVAC May 26, 2005, Hearing
(testimony of Mr. Quentin Kinderman). Similarly, VFW testified
in 2006 that, ``[f]or a veteran without a service officer,
navigating the highly complex bureaucracy that the VA claims
process has become is a nightmare.'' Hearing on the Legislative
Presentation of the Veterans of Foreign Wars of the United
States, Senate Committee on Veterans' Affairs, March 7, 2006,
109th Cong., 2d sess. (testimony of Commander-in-Chief James
Mueller).
D. Support for repealing attorney fee limitation
In view of that complexity, the growing recognition that
section 5904(c) of title 38 curtails veterans' rights, and
other important considerations, a wide array of individuals and
organizations have expressed support for allowing veterans and
other VA claimants to have the option of hiring lawyers at any
time during the VA administrative process. See generally
Matthew J. Dowd, Note, No Claim Adjudication Without
Representation: A Criticism of 38 U.S.C. Sec. 5904(c), 16 Fed.
Cir. B.J. (forthcoming Aug. 2006) (discussing increased public
support for amending or revoking section 5904(c) of title 38).
Perhaps most significantly, ``[t]he desirability of
permitting veterans to employ lawyers during the early
proceedings before the VA has been recognized by those in best
position to perceive the prejudicial effect of the current
system-the Judges presiding over the CAVC.'' SVAC June 8, 2006,
Hearing (statement for the record of Mr. James C. McKay).
Indeed, after 10 years of experience as the first Chief Judge
of the CAVC, the Honorable Frank Q. Nebeker criticized the
prohibition on hiring attorneys in a 1999 opinion:
Another troubling aspect of representation has to do with
the limited role lawyers are permitted (or may be paid) to play
in the adjudication of claims for veterans benefits. When
judicial review was established ten years ago, there was
apparently concern on the part of Congress that opening the
door to lawyer representation, even in a limited way, was so
fraught with potential peril that at least some oversight of
the attorney-client relationship was necessary. As a result,
filing and review of fee agreements were, respectively,
required and permitted. Arguably, there are two reasons why the
law in the past ten years has reluctantly allowed fee-for-
service legal representation. The creation of the [CAVC] and
its review authority introduced, for the first time, an
adversarial process as an aspect of veterans claims
adjudication. Secondly, the Congress might have anticipated
that the pro bono services available at the regional office and
[BVA] levels of [VA] would not usually be made available to
disappointed claimants seeking to appeal to the [CAVC].
So the antiquated ten dollar limit on fees was scrapped for
the no-fee-until-after-a-final-BVA-decision rule.
Why the perceived need effectively to restrict lawyer
representation by proscribing the charging of fees prior to a
BVA decision and the oversight of fee agreements by the [CAVC]?
In the absence of any empirical or statistical data, one can
only wonder whether Congress presumed that the bar would act
unprofessionally or would replace the services offered gratis
by veterans service groups? If the former, it is an unfounded
indictment based on mistrust. If the latter, it is evidence of
a desire to prevent the bar from trespassing upon protected
turf. In either case, now that we have had nearly ten years of
experience, a questioning of the basic premises is in order.
A third reason, and perhaps the most important one, may be
gleaned from our over nine years of experience in reviewing BVA
denials of benefits. The [CAVC] continues to see many appeals
where, if counsel were realistically permitted to represent a
claimant during the adjudication process before a final BVA
decision, an appeal would be unnecessary or even seen as futile
by the applicant. However, with the present restrictions on
lawyer representation, an error at the VA level may not be
discovered until years later, where with counsel it might well
have been prevented at the outset. Thus, restricting realistic
access to counsel until after a final BVA decision can cause
years of delay both in adjudication before VA and in
discovering the error through appellate litigation, only to
have the matter returned to VA for readjudication. This happens
in many appeals.
Effectively limiting lawyer representation until after a
BVA final decision and after oversight of fee agreements is,
quite arguably, unnecessarily paternalistic.
In the Matter of the Fee Agreement of Kenneth B. Mason Jr., 12
Vet. App. 135, 137 (1999) (Nebeker, J., concurring).
Subsequently, other CAVC judges spoke out against the
restrictions on hiring lawyers. For instance, Judge Ronald
Holdaway made the following statement in 2004:
I think that there should be a right to counsel at the
administrative level. * * *
There's a paternalism involved that seems to me to be
excessive. * * *
* * * If you get lawyers involved at the beginning, you can
focus in on what is this case about. I think you would get
better records, you would narrow the issue, there would be
screening * * * but the fundamental reason, why should veterans
be treated differently from anyone else?
* * * I think if we had lawyers involved at the beginning
of these cases, it would be the single most fundamental change
for the better that this system could have.
Should 38 U.S.C. Section 5904 Be Amended?, Eighth Annual
Judicial Conference, U.S. Court of Appeals for Veterans Claims,
19 Vet. App. 27 Advance Slip (April 22-23, 2004). Similarly,
Judge Donald L. Ivers of the CAVC stated in 2004 that ``[t]he
Court has historically taken a position recognizing that
involvement of lawyers before the VA could be very helpful, and
I concur.'' A Conversation with Chief Judge Donald L. Ivers,
Tommy: A Lawyer's Guide to Veterans Affairs, Fed. Bar Ass'n
Veterans L. Sec., Washington, D.C. (Dec. 2004).
Numerous professors of law also have reached the conclusion
that the prohibition against hiring attorneys should be
revisited. Principally among them, Professor William F. Fox,
Jr., of Catholic University of America Columbus School of Law,
offered the following opinion in his treatise on veterans' law:
Many of the problems at the Board that lead to defective
Board decisions and that ultimately lead to the large numbers
of remands for a proper statement of reasons or bases are
attributable to the lack of a proper record-building process at
the regional office level.
Proper record building at the regional office level
requires the participation of attorneys at the claims
initiation stage of the process. The Social Security
Administration, a benefits program in which attorneys are
permitted to participate at the outset of the claims process,
has very few of the record-building problems that continue to
plague [VA]. Concededly, this requires legislation; but it is
legislation of the highest import.
William F. Fox, Jr., The Law of Veterans' Benefits:
Judicial Interpretation, at 254 (3d ed., Paralyzed Veterans of
America, 2002). Professor Fox later opined that, if he were to
design the ``ideal process'' for the veterans'' benefits
system, he would ``[f]irst and foremost * * * eliminate the
remaining and totally artificial restrictions on the use of
attorneys in the system to permit attorneys to represent
claimants at every stage of the proceeding, including the
initial claims process.'' William F. Fox, Jr., Deconstructing
and Reconstructing the Veterans Benefits System, 13 Kan. J.L. &
Pub. Pol'y 339, 344 (2004).
Similarly, Professor Richard E. Levy, from the University
of Kansas School of Law, offered this opinion in 2004:
In light of the increasingly complex and legalistic
character of the process, a critical question is whether non-
attorney representation is sufficient. For example, the CAVC
has adopted an exhaustion requirement under which it will not
consider matters that were not raised before the BVA. Without
representation by attorneys, claimants often may find that they
have failed to properly raise critical matters before the
agency and, as a result, their claims are foreclosed.
* * * * *
* * * At the very least, veterans are left without an
important source of protection considered essential in other
legal contexts.
* * * * *
* * * [E]limination of limits on attorney compensation,
perhaps the most entrenched feature of the [VA] system,
warrants careful consideration. The administrative process is
not always veteran friendly and may have become more
adversarial as a result of judicial review. At any rate, the
preservation of issues for review, which was not a factor
before the VJRA, has become an important consideration and
attorneys are likely to be especially helpful there. Moreover,
while attorney representation is often seen as a negative from
an agency perspective, attorney representation of veterans may
well help the VA by reducing its burden of developing facts and
compiling the record.
Richard E. Levy, Of Two Minds: Charitable and Social Insurance
Models in the Veterans Benefits System, 13-SPG Kan. J.L. & Pub.
Pol'y 303, 318-24 (2004).
Additionally, Professor Eugene R. Fidell, from American
University Washington College of Law, recently stated that the
prohibition against hiring attorneys ``has been widely
understood to be unfair for many, many years'' and is ``a
museum piece that should have been gotten rid of a long time
ago.'' Jim Abrams, The Associated Press, Congress Seeks to
Change Civil War Law (May 8, 2006), found at http://
www.wtopnews.com/?nid=116&sid=784420 (last visited July 19,
2006).
Numerous bar associations also have supported a repeal of
section 5904(c) of title 38, including the American Bar
Association, the Court of Appeals for Veterans Claims Bar
Association, the Pennsylvania Bar Association, the Maryland
State Bar Association, the Rhode Island Bar Association, the
Oklahoma Bar Association, the West Virginia Bar Association,
the Arizona Bar Association, the Bar Association of the
District of Columbia, and the Washington Bar Association. See
generally Matthew J. Dowd, Note, No Claim Adjudication Without
Representation: A Criticism of 38 U.S.C. Sec. 5904(c), 16 Fed.
Cir. B.J. (forthcoming Aug. 2006); Message from the President
of the CAVC Bar Association, Jennifer A. Dowd, Esq., found at
http://www.cavcbar.net (last visited July 14, 2006).
In addition, lawyers and other advocates practicing
veterans' law before both VA and the CAVC have criticized the
current restrictions against hiring attorneys. For instance, at
the CAVC Judicial Conference in 2004, a long-time veterans' law
practitioner provided these observations regarding the current
statutory prohibition:
[T]his is an issue of choice. * * * That is certainly the
way my clients have presented it to me when I tell them that
I'm not able to represent them before there's a final Board
decision. And I note that [the materials distributed at the
conference] talk at length about putting veterans in a special
category. And I note that they are in a special category
because they are one of only two groups in this country who are
prohibited--legally prohibited from choosing to hire an
attorney, and the other group is enemy combatants.
So I would like to understand * * * why it makes sense that
veterans along with enemy combatants are prohibited from
choosing. We are not talking about forcing them to hire an
attorney, we're not talking about what's the best way to fix
the system in terms of the VA system, we are talking about
giving veterans and their families a choice about how they
proceed on their own behalf.
Should 38 U.S.C. Section 5904 Be Amended?, Statement of Ms.
Barbara Cook, Eighth Annual Judicial Conference, U.S. Court of
Appeals for Veterans Claims, 19 Vet. App. 40 Advance Slip
(April 22-23, 2004). (Since that time, the U.S. Supreme Court
has loosened the restrictions against enemy combatants engaging
attorneys. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004).)
At the same conference, the president of the National
Organization of Veterans Advocates (hereinafter, ``NOVA'')
opined that section 5904 ``should be amended,'' but cautioned
that ``any amendment to section 5904 should have a mandatory
[continuing legal education] component to it'' because ``this
is a complicated field of law.'' Should 38 U.S.C. Section 5904
Be Amended?, Statement of Mr. Robert Chisholm, Eighth Annual
Judicial Conference, U.S. Court of Appeals for Veterans Claims,
19 Vet. App. 26 Advance Slip (April 22-23, 2004).
E. Committee hearings
During the 109th Congress, the issue of attorney
representation for veterans was discussed at several Committee
hearings. Initially, in May 2005, NOVA testified before the
Committee that allowing claimants to hire attorneys after the
Board has issued a final decision ``is too late in the process
for counsel to be truly effective because by the time the Board
makes a decision on the claim, the record is effectively
closed.'' SVAC May 26, 2005, Hearing (testimony of Mr. Robert
Chisholm); see 38 U.S.C. Sec. 7252(b) (``Review in the Court
shall be on the record of proceedings before the Secretary and
the Board.''). In addition, NOVA testified at that hearing
that, if retained at earlier stages of the proceedings,
``[a]ttorneys would be helpful in obtaining, organizing and
presenting records on behalf of the veteran and making sure
that the VA processes the claim in a timely and accurate
manner.''
In March 2006, The Retired Enlisted Association
(hereinafter, ``TREA'') testified that there is no logic to the
prohibition against hiring attorneys ``except history.''
Hearing on the Legislative Presentations of the Fleet Reserve
Association, the Air Force Sergeant's Association, the Retired
Enlisted Association, the Gold Star Wives of America, and the
Military Officers Association of America, Senate Committee on
Veterans' Affairs, March 2, 2006, 109th Cong., 2d sess.
(testimony of Ms. Deirdre Parke Holleman). In addition, TREA
testified that allowing attorney representation during VA's
administrative proceedings ``would help a great deal with the
repetitive nature of the filings.''
Then, at the Committee's June 8, 2006, hearing, retired
CAVC Judge Donald Ivers testified that ``[f]reedom to seek
counsel of one's choice has long been a hallmark of this
nation's system of justice'' and that it is ``highly
contradictory'' that veterans ``who have given much in defense
of that system are denied that freedom in pursuing claims
arising out of their service.'' In addition, retired CAVC Chief
Judge Frank Q. Nebeker stated in written testimony for the
record that ``the paternal approach of effectively preventing
lawyer representation in the benefits process [is] severely
outmoded'' and stressed that ``veterans, like everyone else,
should be at liberty to seek counsel in the free market.''
Similar opinions were expressed in testimony provided at,
or submitted for, the SVAC June 8, 2006, hearing by several
organizations, including VVA, Paralyzed Veterans of America
(hereinafter, ``PVA''), NOVA, and the National Veterans Legal
Services Program (hereinafter, ``NVLSP''). In part, Mr. Richard
Weidman of VVA testified that ``[l]egal counsel is the right of
all Americans, except veterans'' and that ``[t]his is an
injustice that must be redressed.'' In addition, he stated:
This limitation, and the patronizing reasoning behind
it, sets veterans off from every other discrete group
of the American population. No other group--including
illegal aliens and felons in penal institutions--is
barred from making a free choice about who will be
their legal representative in matters personal to them
that may be pending before the government.
Along the same lines, NVLSP testified that ``[i]t makes no
rational sense to deny [veterans] this right when the right to
choose to hire an attorney is enjoyed by criminal defendants,
claimants for other federal government benefits including
social security, and non-citizens opposing federal government
efforts to deport them.'' SVAC June 8, 2006, Hearing (statement
of Mr. Barton Stichman). In addition, NVLSP testified that
``the current network of veterans' advocates available to our
nation's veterans is greatly overburdened'' and that
``[a]llowing disabled veterans to hire attorneys will help
alleviate this burden and promote justice.''
PVA submitted testimony for the June 8, 2006, hearing,
noting that ``[t]he reason for the statutory fee limitation,
now a prohibition, does not exist currently and has not existed
for a long time.'' PVA recommended ``that the Committee
consider language similar to that contained in Title 42 that
governs recognition of representatives before the Social
Security Administration and the fees that those representatives
may collect.'' See 42 U.S.C. Sec. 406(a).
On the other hand, VA, VFW, Disabled American Veterans
(hereinafter, ``DAV''), and AMVETS provided testimony in June
2006 expressing their opposition to allowing veterans the
option of hiring lawyers. Their principal bases for opposition
included concerns that attorneys would charge veterans
excessive fees, that attorneys would make the VA process more
complicated or more adversarial, and that attorneys would not
have sufficient training in this area of law to be effective.
SVAC June 8, 2006, Hearing (testimony of Mr. Ronald Aument, VA
Deputy Under Secretary for Benefits; Mr. Quentin Kinderman,
VFW; Mr. Joseph Violante, DAV; and Mr. David G. Greineder,
AMVETS). In addition, DAV stated that ``[v]eterans should be
able to file claims for disability benefits and receive fair
decisions from [VA] without the necessity to hire and pay a
large portion of their benefits to lawyers'' and that allowing
veterans to hire attorneys ``will have far reaching detrimental
effects that will far outweigh the emotional gratification of
having the right to choose representation by a lawyer.'' SVAC
June 8, 2006, Hearing (testimony of DAV citing Walters v.
National Ass'n of Radiation Survivors, 473 U.S. 305 (1985)).
Those concerns were addressed by other witnesses at the
June 8, 2006, hearing, including Mr. Richard Weidman of VVA,
who provided the following testimony:
Primarily, the rationale articulated by the major VSOs and
the VA for their vehement support for perpetuating the bar to
veterans choosing attorney representation is paternalistic,
i.e., they argue that the veterans benefits system is non-
adversarial and pro-claimant, and as such veterans and their
benefits must be ``protected'' from unscrupulous attorneys.
Putting aside the merits of the argument that the VA benefits
system is non-adversarial, the view that veterans need to be
``protected'' from attorneys simply has no basis in fact, and
discriminates against veterans in comparison to the unfettered
right of all other socioeconomic groups in our nation to hire
an attorney. There is no evidence that veterans have been
abused by their attorneys (by charging exorbitant fees, for
example) upon their being provided representation services
before the [CAVC] and then on remand from the [CAVC] to the
BVA.
Also cited by the VA and some others as to why attorney
representation of veterans is harmful and should not be allowed
is that, by introducing attorneys into the mix during the
initial claims process, VA adjudicators will be forced to take
a more adversarial position when adjudicating claims. However,
many veterans' advocates would argue that the VA adjudication
process is already adversarial. Virtually any veteran who has
been through this process will tell you that.
* * * With the assistance of an attorney at the start of a
claim, the adjudicator's task can be streamlined to reviewing
the evidence, developing the evidence as specified by the
attorney, considering the attorney's legal and factual
arguments and analysis, and rendering a decision. If the
attorney fully develops the evidence as much as possible and
writes a coherent argument, a favorable claims decision is
essentially written for the adjudicator. * * *
Another discredited ``doomsday'' argument is that allowing
attorneys to represent veterans at the [VA regional office]
level will result in undue competition with service
representatives, perhaps even causing smaller VSOs to be driven
out of the business of representing veterans. Such an outcome
is highly unlikely. Allowing veterans the right to choose
attorney representation will not diminish the critically
important role of VA accredited VSO service representatives. As
demonstrated by VVA's historical support for judicial review
and the right to attorney representation, as well as its use of
its own attorneys to represent veterans before the BVA and the
[CAVC], VVA has always viewed the roles of accredited service
representatives and attorneys as complementary. Both groups
train and learn from each other, and cooperate in the
representation of VVA's veteran clients. The strength of
accredited service representatives is in their front-line work
in the field, developing claims and succeeding at the regional
office level in most routine cases. The further up the appeal
process a case must go, the more likely it presents complicated
legal or factual issues, and is not routine. In such cases,
especially at the appellate levels, the role of attorneys can
be critical to providing veterans with quality representation.
Moreover, there will never be enough attorneys representing
veterans to assist them all. Nor would attorneys have any
incentive to take all veterans as clients. Because attorneys
will be paid, economic considerations will determine the number
of veterans who will choose legal representation. For the same
reason, no small VSOs will be put out of the business of
representing veterans because of attorneys. Only a small
percentage of veterans' benefits claims involve amounts of
past-due compensation sufficient to create incentives for
attorney representation. Because the vast majority of cases do
not involve large awards of past-due benefits, the vast
majority of veterans will continue to have their cases
represented by accredited VSO service representatives.
Yet another argument used in the past to resist attorney
representation is that many attorneys have little or no
training in VA laws, regulations and adjudication policies,
which would result in inadequate representation or even legal
malpractice. This is a ``red herring'' because, since the VJRA
was enacted in 1988, there already have been a number of
attorneys throughout the country practicing in this area of the
law. It is true that more attorneys new to this practice will
become involved if the current bar to attorney representation
is repealed. However, ethical and other professional
responsibility rules require attorneys to be competent to
adequately represent their clients. Attorneys without direct
experience with VA benefits laws and procedures should be at
least familiar with how to obtain the information and learn
what is necessary to provide adequate representation to
veterans. This is not a new concept for attorneys. It is the
method attorneys use with respect to every area of law in which
they might practice.
Lastly, opponents of allowing veterans' freedom of choice
also argue that only those veterans with financial means will
be able to afford attorney representation. In other words, they
argue that poorer veterans will be unable to afford attorneys
and thus will be disadvantaged in terms of the quality of their
representation, causing disparate classes of benefits
claimants. It is highly unlikely, however, that some veterans
will be denied the benefit of attorney representation based
solely on their inability to pay the attorney's fee. Virtually
no veteran will be required to pay an attorney in advance for
representation. The vast majority of veterans' cases handled by
attorneys will be done on a contingent basis (no fee unless an
award of past-due compensation is won), which is the case with
the limited attorney represented cases that occur today. This
means that the merits of the veteran's case will most likely
determine his or her access to an attorney, not the veteran's
financial standing.
The overriding concern for VVA, as well as any other
individual or group that cares about the rights of veterans, is
that veterans get the most effective representation possible.
If a veteran wants to hire an attorney as his or her
representative at the [VA regional office], is there a
legitimate basis to deny them the right to do so? The position
of VVA since its founding has been that no such basis exists.
There should be no wavering from this same answer today.
Additionally, in response to DAV's testimony, Mr. James C.
McKay provided this written statement:
The DAV asserts in [its June 8, 2006, testimony] that
``veterans should be able to file claims for disability
benefits and receive fair decisions from the [VA] without the
necessity to hire and pay a large portion of their benefits to
lawyers.'' There is no foundation for the premise of that
statement. Under the provisions of S. 2694, there would be no
``necessity'' that veterans hire lawyers. Rather, each veteran
would have the choice of hiring a lawyer or not hiring a
lawyer. Likewise, there is no basis for the demeaning
conclusion that veterans would choose to hire a lawyer to
satisfy an ``emotional gratification of having the right to
choose representation by a lawyers.''
* * * * *
The main thrust of the DAV's argument relies completely on
an outdated statement in S. Rep. No. 100-418, at 63-64 (1988),
which, in turn, relied completely on the plurality opinion of
four justices of the Supreme Court in Walters, issued twenty-
one years ago. * * *
The DAV statement does not mention that the plurality
decision in Walters was based largely on the amazing conclusion
that lawyers are not needed because service organizations
representatives (who charge no fee) are fully capable of
representing veterans for the reason that ``complex'' cases
constituted a ``tiny fraction'' of the total cases pending
before the VA. (473 U.S. at 329-330). The plurality of justices
proclaimed that the medical questions relating to the degree of
disabilities of veteran claimants were overwhelmingly simple,
and that complex medical issues seldom arose in VA
administrative proceedings. (Ibid.)
The plurality justices' view of the simplicity of veterans
claims was at odds with the Supreme Court's view stated eleven
years earlier in Johnson v. Robinson, 415 U.S. 361, 370 (1974),
where the Court's decision relied on a statement of the
Administrator of the Veterans Administration in support of the
1979 amendment to 38 U.S.C. sec. 361 (1974), that, ``in the
adjudication of compensation and pension claims, a wide variety
of medical, legal, and other technical questions constantly
arise which require expert examiners of considerable training
and experience and which are not readily susceptible of
judicial standardization.''
SVAC June 8, 2006, Hearing (statement of Mr. James C. McKay).
Although, The American Legion also expressed concerns about
allowing veterans to hire attorneys, that veterans'
organization did not oppose the enactment of statutory
provisions to address those concerns:
The American Legion does not oppose the concept of
attorney representation in the VA system or the lifting
of current restrictions on attorney representation. We
are concerned that such legislation should contain
adequate safeguards to ensure each attorney's
competency, training and reasonable fee limits. We are
pleased that this bill [S. 2694] includes provisions
addressing these areas of concern. We recommend a fee
cap or reasonable hourly rate be included to help
ensure a speedy resolution of the claim. As it
currently stands with a 20 percent fee agreement, the
longer it takes to satisfactorily resolve a claim, the
larger an attorney's fee. A fee cap or reasonable
hourly rate would help to avoid this problem and create
an incentive for a timely resolution of the claim.
SVAC June 8, 2006, Hearing (testimony of Mr. Peter Gaytan).
Background: Additional basis for suspension of claimant representatives
For many years, the VA claims processing system has
experienced ``problems processing veterans'' disability
compensation and pension claims,'' including ``large numbers of
pending claims and lengthy processing times.'' SVAC May 26,
2005, Hearing (testimony of Ms. Cynthia Bascetta, U.S.
Government Accountability Office). Some experts and
stakeholders have suggested that ``frivolous'' claims
contribute to those problems and that the system could be
improved if those individuals representing claimants before VA
help to deter the filing of frivolous claims.
For example, the 1996 report of the Veterans' Claims
Adjudication Commission, found that some veterans'
representatives ``encourage a veteran to file a claim that the
agent knows will be denied, but prefer the VA to make the
denial,'' which ``clogs the system with frivolous claims.''
Veterans' Claims Adjudication Commission, Report to Congress,
at 137 (Dec. 1996); see Pub. L. 103-446 (1994) (creating the
Veterans' Claims Adjudication Commission).
Then, in a 2001 report to the Secretary of VA, the VA
Claims Processing Task Force concluded that ``service
organizations can help improve service to beneficiaries and
increase veteran satisfaction by * * * helping deter frivolous
claims.'' VA Claims Processing Task Force, Report to the
Secretary of Veterans Affairs, at 59 (Oct. 2001). In addition,
that Task Force concluded that ``[the Veterans Benefits
Administration] and the service organizations must ensure that
* * * frivolous claims are removed so that valid claims are not
needlessly delayed.'' Id. at 60.
More recently, the National Association of State Directors
of Veterans Affairs stressed that VSOs should have a ``greater
role * * * in the overall effort to manage and administer
claims processing'' and repeated the VA Claims Processing Task
Force recommendation that VSOs should ``help [ ] deter
frivolous claims.'' Hearing on the Legislative Presentations of
the National Association of State Directors of Veterans
Affairs, AMVETS, the American Ex-Prisoners of War and the
Vietnam Veterans of America, Senate Committee on Veterans'
Affairs, March 30, 2006, 109th Cong., 2d sess. (testimony of
Mr. George Basher (quoting VA Claims Processing Task Force,
Report to the Secretary of Veterans Affairs, at 59 (Oct.
2001))).
Despite those recommendations, there currently is no
uniform policy applicable to all representatives regarding the
filing of frivolous claims with VA. For instance, although
attorneys have an ethical obligation ``to examine a claim for
its merit and to counsel the client against filing a claim if
it is frivolous and without merit'' (SVAC May 26, 2005, Hearing
(testimony of Mr. Robert Chisholm, NOVA)), VA does not have
explicit authority to suspend or exclude attorneys from
practicing before VA if they violate that obligation (see 38
U.S.C. Sec. 5904(b)). In addition, although VSOs may decline to
represent an individual if representation is ``impracticable or
inappropriate because under the circumstances the facts or law
do not support the filing of a claim or appeal'' (38 C.F.R.
Sec. 14.628(d) Note (2006)), most VSOs ``essentially represent
any claimant.'' SVAC May 26, 2005, Hearing (testimony of Mr.
Rick Surratt, DAV).
Committee bill
Section 101 of the Committee bill would repeal the
provisions of section 5904(c) of title 38, United States Code,
that prevent claimants from hiring lawyers during the VA
administrative process. In addition, it would provide the
Secretary with authority (1) to require attorneys and agents
practicing before VA to have minimum levels of experience and
specialized training, (2) to set reasonable restrictions on the
amount of fees that an attorney or agent may charge for
services rendered before VA, (3) to collect from attorneys and
agents a periodic registration fee to defray costs associated
with attorneys or agents practicing before VA, and (4) to
review fee agreements and reduce fees that are excessive or
unreasonable. As a conforming change, the bill would modify the
requirements for filing fee agreements with VA. The bill also
would repeal the criminal penalties in section 5905 of title 38
applicable to representatives who impermissibly charge a fee
for services provided in connection with a proceeding before
VA.
Section 101 would allow VA to suspend any representative--
including agents, attorneys, representatives of VSOs, or
individuals recognized for particular claims--from practicing
before VA for any of the reasons specified in section 5904(b)
of title 38, as modified by this bill. The modifications to
section 5904(b) of title 38 would expand the basis for
suspension to include presenting frivolous claims, issues, or
arguments to VA or failing to comply with other conditions
specified by the Secretary in regulations.
In general, the provisions of section 101 would be
effective 6 months after the date of the enactment of the
Committee bill. The provisions that would provide additional
basis for suspension of individuals from practicing before VA
(section (b)), that would repeal the limitation on hiring
attorneys or agents (section (c)), that would modify the
requirements for filing fee agreements (section (d)), and that
would modify the Secretary's authority to review fee agreements
and reduce fees (section (e)) would apply only to claims
submitted to VA on or after that effective date.
In deciding to favorably report this bill, the Committee
recognizes that some organizations have concerns about allowing
veterans the option of hiring attorneys. After carefully
considering those views, the Committee has determined that
continuing to abridge the personal rights of all veterans, and
other VA claimants, is not an acceptable means of dealing with
those concerns. Rather, the Committee has determined that
Congress should take steps--as this bill would do--to minimize
potential problems, while ensuring that our nation's veterans,
and other VA claimants, will have the right to decide for
themselves whether to hire attorneys.
Above all, the Committee expects that, after the enactment
of this bill, VA will continue to serve all claimants in a non-
adversarial, claimant-friendly manner, regardless of the
presence of an attorney or any other representative in any case
before VA. In addition, this Committee, VA, veterans'
advocates, veterans' organizations, and other stakeholders
should continue to seek ways to reduce the complexities of the
VA adjudication system.
Regarding the implementation of this bill, the Committee
notes that VA currently has in place extensive regulations and
procedures governing agents and attorneys who represent
veterans and other claimants before VA. See, e.g., 38 C.F.R.
Sec. Sec. 14.626-14.635 (2006). Although amendments to existing
regulations and procedures may be necessary and appropriate to
reflect the new and expanded flexibility for veterans to retain
counsel, the Committee does not anticipate a major regulatory
burden on VA.
The Committee acknowledges that individuals and
organizations have recommended that the prohibition on hiring
attorneys be lifted on the bill's day of enactment for all
pending and future claims. However, the Committee has adopted a
delayed and staggered effective date, which will allow a
deliberate and gradual implementation of these policies in
order to minimize any disruption to the VA system.
Regarding the addition of ``frivolous'' filings as a basis
for suspension from practice before VA, the Committee notes
that, in recent years, the number of claims filed with VA has
increased dramatically and the number of disabilities per claim
also has increased significantly. See Department of Veterans
Affairs FY 2007 Budget Submission, Volume 2, 5A-2 (noting that
``annual claims receipts grew 36 percent from 2000 to 2005''
and that ``the number of cases with eight or more disabilities
claimed doubled from 21,814 in 2000 to 43,655 in 2005''). In
light of this workload, the Committee believes that requiring
all veterans' representatives to advocate responsibly, by
avoiding frivolous claims, arguments, or issues, could be of
significant help in ensuring that ``valid claims are not
needlessly delayed.'' VA Claims Processing Task Force, Report
to the Secretary of Veterans Affairs, at 60 (Oct. 2001).
The Committee expects that this authority with respect to
frivolous filings will be utilized by VA but that it will be
used cautiously, so as not to have an undue chilling effect on
the filing of claims that may ultimately succeed. See Abbs v.
Principi, 237 F.3d 1342, 1351 (Fed. Cir. 2001) (defining
frivolous arguments or issues as those ``that are beyond the
reasonable contemplation of fair-minded people'' (quoting State
Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1578 (Fed.
Cir. 1991))); Int'l Union of Bricklayers v. Martin Jaska, Inc.,
752 F.2d 1401, 1406 (9th Cir. 1985) (defining a frivolous
appeal ``as one in which the result is obvious, or where the
appellants'' claims are utterly meritless''). In that regard,
the Committee intends that attorneys not be sanctioned for
pursuing claims in a manner consistent with the ethical
standards of jurisdiction(s) where they are licensed to
practice law, but that VA will proceed with suspension in cases
of egregious or bad faith behavior exceeding those standards of
conduct. In no case should an attorney be suspended for
pursuing all benefits potentially available to a client or for
good faith challenges to existing regulations, statutes, or
case law necessary to that pursuit.
Section 201: Eligibility of Indian tribal organizations for grants for
the establishment of veterans' cemeteries on trust lands
Background
Section 202 of Public Law 95-476 established the State
Cemetery Grants Program within VA and is codified in section
2408 of title 38, United States Code. Through the State
Cemetery Grants Program, VA may provide up to 100 percent of
the cost to establish, expand, or improve a veterans' cemetery
owned by a State. In turn, the State must provide suitable
cemetery land and agree to operate and maintain the cemetery in
accordance with VA standards.
The State Cemetery Grants Program serves as a complement to
VA's nationwide system of national cemeteries in meeting the
overarching goal of ensuring that those who have served
honorably in the military have a dignified, final resting
place. The establishment or expansion of State veterans'
cemeteries is particularly valuable in areas of the country
where the veterans' population is insufficient to justify
construction of a VA national cemetery.
Under current law, the State Cemetery Grants Program is
limited to veterans' cemeteries that are owned and operated by
a State or U.S. territory. At present, 63 State-operated
cemeteries have received grants under the program. Because
tribal organizations are not considered States under existing
law, they do not qualify for grant assistance.
Committee bill
Section 201 of the Committee bill would authorize VA to
make grants under the State Cemetery Grants Program to any
tribal organization for the purpose of establishing, expanding,
or improving veterans' cemeteries on trust lands owned by, or
held in trust for, the tribal organization. Tribal
organizations would be defined in the same manner as in section
3765(4) of title 38, United States Code. Under section 201 of
the Committee bill, ``trust lands'' would have the same meaning
as in section 3765(1) of title 38.
Section 202: Removal of remains of Russell Wayne Wagner from Arlington
National Cemetery
Background
The commission of certain crimes after separation from
military service has long been a basis for denial of veterans'
benefits. Crimes against the Nation (e.g., mutiny, treason,
sabotage, or rendering assistance to the enemy) disqualify a
veteran from all veterans' benefits, to include cemetery burial
rights. See 38 U.S.C. Sec. Sec. 6103, 6104, 6105. The law also
provides for the reduction of VA disability compensation for
convicted felons serving a sentence of 60 days or more in a
Federal, State, or local penal institution. See 38 U.S.C.
Sec. 5313. In 1997, Public Law 105-116 was enacted to prohibit
individuals from being interred or inurned at VA national
cemeteries, Arlington National Cemetery (hereinafter,
``Arlington''), or VA-funded State cemeteries, if the
individual 1) was convicted of a Federal capital crime for
which the person was sentenced to death or life imprisonment;
2) was convicted of a State capital crime (defined as the
willful, deliberate, or premeditated unlawful killing of
another human being) for which the person was sentenced to
death or life imprisonment without parole; or 3) was found
(through an administrative process) to have committed a Federal
or State capital crime but was not convicted of that crime by
reason of death or flight from prosecution. Also in 1997,
section 1077 of Public Law 105-85 was enacted to prohibit
individuals from being interred or inurned in Arlington who are
convicted of a capital offense under Federal law for which the
death penalty may be imposed.
According to testimony received at the Committee's
September 22, 2005, hearing, Russell Wayne Wagner, a veteran
who served on active duty for 3 years during the Vietnam era,
was convicted in 2002 of the 1994 murders of Daniel and Wilda
Davis. For his crime, Wagner was given two consecutive life
sentences with the opportunity for parole. Wagner died in
prison in February 2005 while carrying out his sentence. His
cremated remains were inurned in Arlington in July 2005.
Because Wagner's sentence for his State capital crime carried
with it the possibility of parole, none of the laws enacted in
1997 provided a legal impediment to the inurnment of his
remains.
The 1997 laws first expressed the Congress's desire to
preserve the unique status of our nation's military cemeteries
as national shrines by proscribing burial eligibility to
individuals convicted of capital murder. Moved by the Wagner
case, which demonstrated that the effect of the 1997 laws was
diluted by myriad State sentencing guidelines for murder,
section 662 of Public Law 109-163 was enacted in January 2006
to, among other things, remove parole eligibility as a loophole
through which State capital offenders could retain their
eligibility for burial in a national cemetery. Wagner's
remains, however, remain inurned in Arlington. According to
cemetery officials, Wagner's is the sole case of a convicted
murderer's remains being interred or inurned in Arlington since
1997.
Committee bill
Section 202 of the Committee bill would direct the
Secretary of the Army to remove the remains of Russell Wayne
Wagner from Arlington. The Secretary of the Army would first be
required to notify the next-of-kin of record for Russell Wayne
Wagner of the impending removal of his remains so that the
next-of-kin has time to make other burial arrangements. The
Secretary of the Army would then be required to relinquish
Wagner's remains. In the event that no next-of-kin is
available, section 202 would direct the Secretary of the Army
to arrange for an appropriate disposition of the remains.
Section 202 would also make five Congressional findings
that are relevant to understanding why Wagner's remains would
be ordered removed from Arlington. The first finding is that
Arlington is a national shrine that memorializes the service of
men and women who have defended the freedoms that the people of
the United States enjoy. The second is that including remains
of persons who have committed particularly notorious, heinous
acts among those interred in Arlington would bring dishonor to
the deceased and disrespect to their loved ones. The third
finding is that the removal of remains of persons who have
committed heinous acts is not an act of punishment against
those persons, but rather is an act that would preserve the
sacredness of cemetery grounds. The fourth finding is that
Congress first enacted laws barring capital offenders from
interment or inurnment in Arlington in 1997, and then in 2006
passed a law to remove parole eligibility as a loophole through
which capital offenders could retain interment or inurnment
eligibility. And finally, the fifth finding is that Russell
Wayne Wagner is the only individual convicted of a capital
offense who has been interred or inurned in Arlington since
1997, the year Congress first expressed its intent to keep such
offenders out of the Nation's national cemeteries.
The Committee recognizes that removing entitlement to
gratuitous veterans' benefits based on actions that did not
constitute a bar to entitlement at the time the benefits were
conferred raises questions of constitutionality under ex post
facto and bill of attainder considerations. In Calder v. Bull,
3 U.S. (3 Dall.) 386, 390-392 (1798), the United States Supreme
Court established a long-standing principle that an act
violates the ex post facto clause of the U.S. Constitution when
it is punitive, or criminal, in nature rather than civil.
Whether a law is civil or punitive can, in part, be determined
through an examination of legislative intent. According to the
Supreme Court's decision in Seling v. Young, 531 U.S. 250, 261
(2001), a statute will be struck down only when a court
determines that ``the statutory scheme is so punitive in either
purpose or effect as to negate the State's intention.'' Seling
v. Young also established that a statute that has been
classified as civil cannot be ``deemed punitive `as applied' to
a single individual,'' id. at 263. Leaving aside the question
of whether any law respecting the disposition of a deceased
person's remains could ever be considered punitive, it is clear
from the Congressional findings portion of section 202 of the
Committee bill that the intent behind ordering Wagner's remains
removed is to uphold the unique status of Arlington National
Cemetery as a national shrine, as established by existing law.
It is a place for our military dead to be forever memorialized
and honored. Keeping the remains of a convicted double murderer
in Arlington is incompatible with that expressed intent.
Bills of attainder are prohibited by the U.S. Constitution
and have been interpreted to include legislative acts which
apply to certain named individuals or ``easily ascertainable''
members of a group in which the individuals are punished
without a judicial trial (United States v. Lovitt, 328 U.S.
303, 315 (1946)). A controlling case for purposes of section
202 of the Committee bill is Nixon v. Administrator of General
Services, 433 U.S. 425, 468-484 (1977). In that decision, the
Supreme Court established a three-prong test in determining
whether an act was a prohibited bill of attainder. An act was
not a bill of attainder if 1) it imposed no punishment
traditionally judged to be prohibited by the clause; 2) viewed
functionally in terms of the type and severity of burdens
imposed, it could rationally be said to further nonpunitive
legislative purposes; and 3) it had no legislative record
evincing a Congressional intent to punish. Again, leaving aside
the question of whether it is possible to further ``punish'' a
deceased individual, this three-prong test applied to the
removal of Russell Wayne Wagner's remains demonstrates no
violation of Constitutional principles relating to bills of
attainder. Furthermore, the Supreme Court in the Nixon case
concluded that even though the law in question specifically
named the subject of the law, the act would not be struck down
because the individual ``constituted a legitimate class of one,
on whom Congress could fairly and rationally focus.'' Thus,
while section 202 of the Committee bill specifically names
Russell Wayne Wagner, it does so for a fair and rational
reason, i.e., his are the only known remains of a capital
offender interred in Arlington National Cemetery since 1997,
the year Congress first expressed its desire to prohibit such
offenders from burial privileges.
Section 203: Provision of government markers for marked graves of
veterans at private cemeteries
Background
The organizational entity within VA responsible for the
administration of VA's memorial programs is the National
Cemetery Administration (hereinafter, ``NCA''). One of NCA's
strategic goals is to provide veterans and their families with
symbolic expressions of remembrance of the veteran's military
service. These symbolic expressions include NCA's burial flag
benefit, Presidential Memorial Certificate benefit, and the
headstone and marker benefit.
Under current law, VA will furnish upon request, at no
charge to the veteran or the veteran's family, a headstone or
marker to mark the grave of an eligible veteran in any cemetery
around the world. Until recently, VA only had the authority to
furnish a headstone or marker for unmarked graves, i.e., no
double marking with a privately-purchased marker and then a
government marker was permitted. As will be detailed below, the
program has been expanded to allow VA to furnish a headstone or
marker for a grave that is already privately marked.
To meet family needs and private cemetery requirements, VA
makes its full product line of headstones and markers
available. While the style of the headstone or marker chosen
must be consistent with existing monuments at the place of
burial, families may choose from among flat bronze, granite, or
marble markers and upright granite and marble headstones.
Since the end of the Civil War, Congress gradually has
expanded the provision of government headstones and markers to
mark the graves of deceased veterans. There is a two-fold
purpose behind this expansion: First, no person who served
honorably in the military should, for lack of means, be buried
in an unmarked grave. Second, irrespective of means, those who
have served deserve a permanent memorialization of their
military service.
Originally, government headstones were provided only to
mark the unmarked graves of veterans interred in military
cemeteries. On February 3, 1879, Congress authorized the
furnishing of headstones for the unmarked graves of veterans in
private cemeteries. On October 18, 1978, Congress authorized VA
to provide families of deceased veterans with a choice between
being provided a government headstone or marker, or an
allowance in lieu of a government-provided headstone or marker.
With the enactment of the Omnibus Budget and Reconciliation
Act, and effective November 1, 1990, the option of providing an
allowance was eliminated.
In its Fiscal Year 1999-2000 Report, the Advisory Committee
on Cemeteries and Memorials recommended legislation to provide
families with a VA headstone or marker for the privately-marked
graves of eligible veterans, retroactive to November 1, 1990.
In comments made within the Report, NCA noted that many
families who chose private memorialization felt that they had
lost out on a government benefit. The NCA reported that
families were upset that they could not receive government
headstones or markers to place along, or affix to, existing
headstones or markers at private cemeteries.
Section 502 of the Veterans Education and Benefits
Expansion Act of 2001 (hereinafter, ``the VEBE Act''), Public
Law 107-103, created a 5-year program during which time VA is
required, upon request, to provide a government marker for
veterans' graves in private cemeteries which are already
privately marked. The new program applies to veterans who die
on or after December 27, 2001, the date of enactment of the
VEBE Act, and expires on December 31, 2006. Section 203 of the
Veterans Benefits Act of 2002, Public Law 107-330, amended the
effective date of eligibility to apply to deaths occurring on
or after September 11, 2001. Thus, since 1978, only the
families of veterans who died between November 1, 1990, and
September 11, 2001, have not been able to avail themselves to a
government-provided benefit, i.e., either a government-provided
headstone or marker or an allowance in lieu thereof, if the
grave of a veteran was already privately marked.
In a February 2006 report required by the VEBE Act titled
Report to Congress on the Provision of Government-Furnished
Markers for Privately-Marked Graves, the Secretary recommended,
in addition to making permanent the authority to provide a
government headstone or marker for privately-marked graves,
that Congress also consider clarifying how VA will accommodate
the various needs of veterans' families when selecting and
placing a Government-furnished headstone or marker.
Furthermore, the Secretary recommended incorporating into
statute VA's existing regulatory language that describes the
delivery, placement, and availability of government headstones
and markers. Additionally, the Secretary recommended revising
existing language to support VA's furnishing a ``headstone or
marker,'' as opposed to only a government ``marker,'' for
privately-marked graves in private cemeteries.
Committee bill
Section 203 of the Committee bill would permanently
authorize VA to provide government headstones or markers for
the privately-marked graves of veterans in private cemeteries.
In addition, it would authorize VA to provide headstones and
markers for the privately-marked graves of veterans who died on
or after November 1, 1990. Section 203 would also effect the
Secretary's recommendations to put into statute language that
regulates delivery, placement, and availability of government-
furnished headstones or markers.
Section 301: Expansion of education programs eligible for accelerated
payment of educational assistance under the Montgomery GI bill
Background
Under the Montgomery GI Bill--Active Duty (hereinafter,
``MGIB-AD'') program, a veteran with at least 3 years of active
duty service generally may receive educational assistance
benefits in the maximum amount of $1034 per month for 36
months. In 2001, Congress added a new provision to the MGIB-AD
program to allow a veteran to receive ``accelerated payment''
of educational assistance benefits if the veteran is enrolled
in a program leading to employment in a high technology
industry. Programs that qualify for accelerated payments
include engineering, mathematics, computer specialities, life
science, and physical science, as long as the veteran will be
seeking employment in a high technology industry, e.g., the
aerospace industry. Generally, to qualify for accelerated
payments, the tuition and fees for a program, when divided by
the number of months in the program enrollment period, must be
more than double the amount of monthly MGIB-AD benefits. Sixty
percent of tuition and fees for the program term may be covered
through a lump sum, accelerated payment.
In 2003, President George W. Bush announced his ``High
Growth Job Training Initiative,'' an effort to prepare workers
to take advantage of new and increasing job opportunities in
high growth, high demand, and economically vital sectors of the
economy. Currently, 14 sectors have been identified as high
growth: Advanced manufacturing, aerospace, automotive,
biotechnology, construction, energy, financial services,
geospatial technology, health care, homeland security,
hospitality, information technology, retail, and
transportation.
Committee bill
Section 301 of the Committee bill would allow accelerated
payments of MGIB-AD benefits for veterans enrolled in
educational assistance programs that last fewer than 2 years
and which lead to employment in the transportation sector, the
energy sector, the construction sector, or the hospitality
sector of the economy. In addition, the Committee bill would
authorize accelerated benefits for such educational assistance
programs offered by tribally-controlled colleges or
universities.
The provisions of section 301 would take effect on October
1, 2007, and would apply only to enrollments that begin on or
after that date. The provisions would expire on September 30,
2011.
Section 302: Accelerated payment of survivors' and dependents'
educational assistance for certain programs of education
Background
In general, a spouse or child of a veteran who dies or is
totally disabled from a service-connected condition may receive
up to 45 months of educational assistance benefits under the
Survivors' and Dependents' Educational Assistance program
(hereinafter, ``DEA''). As of October 1, 2005, the maximum
monthly DEA payment is $827 per month.
DEA recipients are not currently eligible to receive
``accelerated payment'' of their educational assistance
benefits, an option which is available only to eligible
veterans under the MGIB-AD program who enroll in certain
programs leading to employment in a high technology industry.
Committee bill
Section 302 of the Committee bill would allow accelerated
payments for survivors and dependents enrolled in educational
assistance programs that last fewer than 2 years and lead to
employment in a high technology industry, or which lead to
employment in the transportation sector, the energy sector, the
construction sector, or the hospitality sector of the economy.
The provisions of section 302 would take effect on October
1, 2007, and would apply only to enrollments that begin on or
after that date. The provisions would expire on September 30,
2011.
Section 303: Reimbursement of expenses for State approving agencies in
the administration of educational benefits
Background
Under provisions of chapter 36 of title 38, United States
Code, VA contracts for the services of State Approving Agencies
(hereinafter, ``SAAs'') for the purpose of approving programs
of education at institutions of higher learning, apprenticeship
programs, on-job training programs, and other programs that are
located within each SAAs' State of jurisdiction. Generally, SAA
approval of these programs is required before beneficiaries may
use their educational assistance benefits to pay for them. SAAs
are also tasked with assisting VA with various outreach
activities to inform eligible VA program participants of the
educational assistance benefits to which they are entitled.
Since 1988, VA payment for the services of SAAs has been
made only out of funds available for readjustment benefits and
is subject to annual funding caps. Section 3674(a)(4) of title
38, United States Code, states as follows: ``The total amount
made available under this section for any fiscal year may not
exceed $13,000,000 or, * * * for fiscal year 2006, $19,000,000,
and for fiscal year 2007, $19,000,000.'' Thus, existing law
anticipates a reduction in authorized SAA funding of $6 million
beginning in fiscal year 2008. Employees of SAAs are acutely
aware of this potential problem. As is stated in the 2006
Report of State Approving Agencies: ``If no action is taken, in
2008 the cap will revert back to 13 million dollars--a 32
percent cut!''
Payments made from the readjustment benefit account are
considered mandatory, or direct, spending. Section 505 of the
fiscal year 2004 budget resolution (H. Con. Res. 95, 108th
Congress) stipulates that a point of order may be raised in the
Senate (through fiscal year 2008) against any mandatory
spending legislation not assumed in the most recently-adopted
budget resolution that would increase, or cause, an on-budget
deficit for the first fiscal year, the period of the first 5
fiscal years, or the period of the following 5 fiscal years.
Thus, legislation that would continue SAA funding at, or near,
the current $19 million level using funds available for
readjustment benefits would run afoul of Senate budget rules if
no offset is identified. Because the Committee's priority is to
use identified offsets to enhance benefit programs for veterans
and their survivors, as is evident in sections 301, 302, and
602 of the Committee bill, and given current budget
constraints, it is unlikely that SAA funding can be sustained
from mandatory accounts alone.
Committee bill
Section 303 of the Committee bill establishes an authorized
funding level for SAAs of $19 million. Furthermore, the
Committee bill establishes a hybrid funding mechanism for SAAs,
with some funding to remain available from amounts paid for
readjustment benefits, and other funding that is subject to the
availability of discretionary appropriation. Funding from
amounts available for readjustment benefits would be capped at
$19 million in fiscal years 2006 and 2007, $13 million for each
of fiscal years 2008 and 2009, $8 million in each of fiscal
years 2010 through 2013, and $13 million for fiscal year 2014
and each subsequent fiscal year.
Section 304: Modification of requirement for reporting on educational
assistance program
Background
Section 3036 of title 38, United States Code, requires both
VA and the Department of Defense (hereinafter, ``DoD'') to
submit to the Congress separate, biennial reports on the
operation of the Montgomery GI Bill educational assistance
program. DoD's report is directed to include information on
whether educational assistance benefits are adequate to meet
its recruiting and retention needs. VA's report is directed to
include information on program utilization and expenditure
levels. Both agencies' reports are directed to include
legislative recommendations for improvements, if there are any.
No report has been required under this section since January 1,
2005.
Committee bill
Section 304 of the Committee bill would reinstate the
biennial reporting requirement and extend it until January 1,
2011. The first report from each agency would be due no later
than 6 months after the date of the Committee bill's enactment.
Each subsequent biennial report would be due on January 1.
Section 401: Parkinson's Disease Research, Education, Clinical Centers,
and Multiple Sclerosis Centers of Excellence
Background
VA has a long and storied history as a leader in the
advancement of medicine, and the Committee commends the
department for its progressive and innovative research
endeavors. Among the approaches that VA uses to advance its
research efforts is the establishment of centers of excellence,
and other centers, which combine basic biomedicine,
rehabilitation, health services delivery, and clinical trials
in their focus on a specific subject matter. This combined
model was pioneered in the mid-1970s with the establishment of
Geriatric Research, Education, and Clinical Centers
(hereinafter, ``GRECCs'') which focus special attention on
conditions of the aging veteran population. There currently are
twenty-one GRECCs.
In 2003, the Veterans Health Administration established two
Multiple Sclerosis Centers of Excellence (hereinafter,
``MSCoEs'') to serve the health care needs of approximately
28,000 veterans with Multiple Sclerosis (hereinafter, ``MS'').
These centers are located in Seattle and Portland, collectively
known as ``MSCoE, West'' and Baltimore, known as ``MSCoE,
East.'' Through these centers, scientists are able to carry out
focused research on the causes, symptoms, and treatment of MS,
including on symptoms such as fatigue and spasticity associated
with MS, so as to give veterans afflicted with this disease a
better quality of life.
In 2001, VA established six Parkinson's Disease Research,
Education and Clinical Centers (hereinafter, ``PADRECCs'').
Operating as a national consortium, each PADRECC is
participating in a landmark clinical trial to assess the
effectiveness of surgical implantation of deep brain
stimulators in reducing the symptoms of Parkinson's disease,
while also studying other innovative clinical treatments. The
six PADRECCs are located in the following cities: Houston, TX;
Philadelphia, PA; Portland, OR; Seattle, WA; San Francisco, CA;
Los Angeles, CA; and Richmond, VA. Through the PADRECCs,
clinicians and educators can, among other things, determine
better ways to manage symptoms associated with Parkinson's
disease.
Committee bill
Section 401 of the Committee bill would add a new section
to title 38, United States Code, which would authorize VA to
designate at least six PADRECCs and at least two MSCoEs.
Additional centers could be established under this authority.
Proposals for any future MSCoEs or PADRECCs would have to be
vetted through a panel made up of experts in neurodegenerative
diseases.
The existing six PADRECCs and two MSCoEs serve veterans
across the entire Veterans Health Administration via a
nationally coordinated system. These centers are the model of
innovation in the delivery of highly specialized healthcare and
research for chronic disease in the veteran population. In
providing a statutory basis for these centers, the Committee
intends to ensure their continued existence.
Section 402: Repeal of term of office for the Under Secretary for
Health and the Under Secretary for Benefits
Background
Chapter 3 of title 38, United States Code, contains a
description of the fourteen VA positions for which Presidential
nomination and Senate confirmation are required. There are
seven Assistant Secretaries, one General Counsel, one Inspector
General, three Under Secretaries, a Deputy Secretary, and a
Secretary. Under Chapter 71 of title 38, United States Code,
Presidential nomination and Senate confirmation are required
for the position of BVA Chairman, whose term is for 6 years.
With the exception of BVA Chairman, only the Under
Secretary for Health and the Under Secretary for Benefits have
statutory limits to their terms of office. All other positions
serve at the pleasure of the President without a statutory term
of office.
Committee bill
Section 402 of the Committee bill would repeal the 4-year
terms of office for the Under Secretary for Health and Under
Secretary for Benefits positions. In taking this action, the
Committee recognizes that the 4-year terms of office were
originally intended to shield the office-holders from any
political influence. The hope was that statutory term limits
would allow the two officials to serve 4 consecutive years
without any political considerations regardless of whether the
service was in different administrations or under different VA
leadership. History, however, has shown that new
administrations or even new VA leadership within the same
administration often bring new people at all levels of
government, including the two Under Secretary positions. In
fact, the last three Under Secretaries for Health and the
previous Under Secretary for Benefits did not complete a full
4-year term.
The Committee also recognizes that passage of this
provision may create the impression that the Committee is
endorsing the politicization of these important jobs. However,
sections 305(a)(2) (Under Secretary for Health) and 306(a)
(Under Secretary for Benefits) require that the President
appoint individuals to these two offices ``without regard to
political affiliation or activity.'' The Committee bill would
not change these requirements.
Section 403: Modifications to existing State home authorities
Background
A. State veterans home per diem
Under current law, VA operates a program in partnership
with any State that has, or wishes to construct, a long-term
care facility for veterans (hereinafter, ``State veterans'
home''). State veterans' homes are constructed predominately
with Federal money and are maintained with Federal assistance
largely for the purpose of providing care to older veterans.
Under the terms of the State veterans' home program, VA
provides a fixed daily payment, known as a per diem, to the
State for each veteran provided care in a State veterans' home.
It is then left to each State to determine how to fund the
remaining costs of caring for the residents. Some States charge
individual veterans the balance of the cost of care. Others
provide financing to the State veterans' home from the State's
general revenue tax funds. Many even accept and bill Medicare
or Medicaid for those residents who qualify. The VA per diem is
provided regardless of the source of other revenue and
irrespective of the service-connected condition or the economic
status of the veteran.
In 1999, Public Law 106-117, the Veterans' Millennium
Health Care and Benefits Act, was enacted. That law, among
other things, established a statutory requirement for VA to
provide institutional long-term care to any veteran in need of
such care for a service-connected condition, and to any veteran
in need of such care who is also rated 70 percent or more
disabled by VA. When VA provides these services in a VA nursing
home or a private nursing care facility with which VA has a
contract, the care is provided at no cost to the veteran.
However, when the care is provided in a State veterans' home,
VA pays only the per diem to the State, which then often bills
the veteran for the remaining costs. The Committee believes
this is unfair and irrational.
The policy is irrational because under its current
strictures a veteran can obtain long-term care for a service-
connected condition in a facility owned by VA, or in a private
facility under contract with VA, at no cost. However, if that
same veteran receives the services in a State veterans' home,
the patient will likely be charged out-of-pocket expenses
because VA will only provide a per diem for his or her care.
The Committee sees no reason to continue a policy that
financially discourages veterans from using long-term care
facilities constructed primarily for their use.
Even if the economics of this policy does not discourage
veterans from using a State veterans' home, it is certainly
unfair that the Federal government assumes 100 percent of the
cost of care for these veterans in two settings, but not the
third. The Committee believes this argument alone constitutes a
sufficient justification to change the law.
B. Prescription medications for veterans in State veterans'
homes
In 1996, Public Law 104-262, the Veterans' Health Care
Eligibility Reform Act of 1996 (hereinafter, ``Eligibility
Reform Act'') created a standard health care benefits package,
which includes comprehensive medication coverage. In general,
current law requires that prescriptions for medications be
filled only on the written order of a physician employed by VA.
However, there is an exception to that general requirement. The
exception is that VA is required to provide medications on the
order of any licensed physician to 1) veterans who are in
receipt of additional disability compensation payments under
chapter 11 of title 38, United States Code, on account of being
permanently housebound, or in need of regular aid and
attendance, due to a service-connected condition, or 2)
veterans who are in receipt of non-service-connected pension
payments under chapter 15 of title 38, and who are permanently
housebound or in need of regular aid and attendance. Because
veterans residing in State veterans' homes who are receiving VA
pension under chapter 15 of title 38 are, by definition,
receiving regular aid and attendance, this requirement creates
a situation where, in some circumstances, VA is required to
provide medications to certain non-service-connected pension
recipients who reside in State veterans' homes, but cannot
provide medications to some veterans with severe service-
connected conditions who reside in the same State veterans'
home. The Committee believes that is simply irrational.
Furthermore, under VA's comprehensive medication coverage,
service-connected veterans rated 50 percent or higher are not
required to make co-payments for needed medications received on
an outpatient basis. Such veterans who are enrolled for care at
VA, or who are in receipt of care at community nursing homes
paid for by VA, can receive VA's full medication benefit at no
charge as part of their care. However, as previously mentioned,
service-connected veterans residing in a State veterans' home
are not eligible to receive the medication benefit, even if
they have a disability rating of 50 percent or higher, unless
their service-connected disability necessitated the State home
care. Pharmacy costs--in addition to the other out-of-pocket
costs described above--are levied upon these veterans. Similar
to the current policy regarding per diem payments, the
Committee believes this policy is quite inequitable.
C. Rural access to State veterans' homes
As noted above, under current law, VA provides a per diem
payment for each veteran who receives care in a State veterans'
home. This means that in order to establish beds to provide
care and services to veterans (and receive the per diem) a
State must construct an entire facility dedicated to that
purpose. While it is true that VA provides 66 percent of the
cost of construction for a State veterans' home, the State must
still contribute one-third of the cost and agree to operate the
home far into the future. Over 100 State veterans' homes have
been constructed under this arrangement. Unfortunately, in the
case of rural and remote areas of the country, major
construction of a State veterans' home would likely provide too
many beds for too few veterans. In other words, it would be
inefficient. Still, long-term care needs persist in rural areas
of the country.
Committee bill
Section 403 of the Committee bill would put service-
connected veterans receiving State veterans' home care on a
level playing field with other veterans, regardless of the
setting in which needed nursing home care is provided, by
requiring VA to reimburse State veterans' homes for the cost of
care of a veteran with a 70 percent or greater service-
connected condition.
Section 403 also would require VA to provide, at no cost,
prescription medication coverage for veterans with a 50 percent
or greater service-connected disability. The Committee notes
that existing regulations require that all State veterans'
homes in receipt of a VA per diem payment retain the services
of a pharmacist and provide all pharmaceutical services,
including procedures that ensure the accurate acquisition,
receipt, dispensation, and administration of drugs and
biologicals to meet the needs of its residents. Therefore,
State veterans' homes should have no trouble implementing this
provision of the Committee bill.
Finally, section 403 would authorize a 3-year pilot program
that would allow VA to deem a total of 100 beds in non-VA
facilities to be eligible for State veterans' home per diem
payments. By design, the limited scope and duration of the
program would ensure that the new authority does not begin to
drive the State veterans' home program from its primary focus
of construction and maintenance of separate homes for veterans,
or put an unanticipated strain on VA's budget due to a sudden
proliferation of beds in non-VA facilities across the country.
The Committee intends to assess the interest in the pilot
program from States around the country, and plans to follow its
progress closely. The Committee also intends to consult with
all interested stakeholders prior to any decision to re-
authorize or expand the pilot program.
Section 404: Office of Rural Health
Background
During the past 8 years, VA has greatly expanded its
network of individual sites for the delivery of health care
services. Sites of care across the country now number over
1,000. The vast majority of these sites are community-based
outpatient clinics, which have opened in downtown, urban
communities and, increasingly, in suburban settings.
While these new sites of care are providing more services
to more people closer to their homes, they are exacerbating the
divide between those who live close to a VA site of care and
those who do not. It is increasingly only those veterans who
reside in rural areas of the country who cannot receive VA-
provided care from a facility in close proximity to home.
Health care access in rural communities is a challenge not
only confronting veterans who seek to use the VA health care
system. Rural health access is a problem for many Americans and
has been a long-time concern of Congress. Still, while Congress
has provided funding and programs to assist the private medical
system with the construction of health care facilities in rural
communities, the training of physicians, nurses, and other
providers to work in those communities, and even provided
subsidies to encourage workers to move to remote locations,
services provided by VA to veterans in rural areas remain
sparse.
The Committee acknowledges that moving more facilities or
services to rural communities presents challenges. Facilities
must have a large enough patient base to justify their
existence or those facilities will be extremely inefficient and
fiscally questionable investments. On the other hand, services
purchased directly from community providers carry the risks of
budget over-extension and a lack of care continuity.
Committee bill
Section 404 of the Committee bill would create an Office of
Rural Health in the Office of the Under Secretary for Health.
The purpose of the Office of Rural Health would be to assist
the Committee and VA health officials with the collection of
data on, and the development of strategies for, many of the
issues outlined above. The Committee expects that VA will
devote time and attention, through this Office of Rural Health,
to develop new and creative solutions that may ultimately help
reduce the service divide between rural and non-rural veterans
that is growing with each passing year.
Section 405: Pilot program on improvement of caregiver assistance
services
Background
VA currently administers a number of services that are
geared towards providing support to severely disabled or aging
veterans, and the families of those veterans, who can no longer
care for themselves but who do not want to be cared for in an
institutional setting. These programs include, but are not
limited to: adult-day care, respite care, case management and
coordination, transportation services, home care services,
hospice, and general caregiver support, such as education and
training of family members.
Committee bill
Section 405 of the Committee bill would require VA to
conduct a 2-year pilot program to improve assistance provided
to caregivers, particularly in home-based settings. Under this
provision, $5,000,000 would be authorized for the purposes of
carrying out the pilot program. The $5,000,000 for this program
would be allocated in addition to whatever other funds VA is
already spending on caregiver assistance services. The goal of
this pilot program would be to encourage VA providers in the
field to initiate their own versions of support services for
caregivers in areas where such services are needed and where
there are few other options available for families of disabled
or aging veterans, particularly in rural or geographically
isolated areas of the country. The Committee seeks to assist VA
in building its non-institutional long-term care capacity and
believes this pilot program would be one innovative way to do
so.
The section 405 pilot program is modeled after a program
established through section 116 of Public Law 106-117. That
program expanded and enhanced mental health services for
veterans, and it has led to innovations in the treatment of
veterans who suffer from mental illnesses and disorders. It is
the Committee's hope that the program that would be established
under section 405 will have similar results, and that new
initiatives will arise from it that will be valuable to the
overall VA system.
Section 405 would also require a report to Congress on the
pilot program. The report would contain a detailed assessment
of the program's implementation, allocation of funds in support
of the program, and results of the program.
Section 501: Reaffirmation of national goal to end homelessness among
veterans
Background
Public Law 107-95, the Homeless Veterans Comprehensive
Assistance Act of 2001 (hereinafter, ``HVCA Act''), established
a goal to end homelessness among veterans within a decade of
its enactment. The HVCA Act aimed to achieve the goal through:
improved cooperation and coordination among Federal agencies
with similar missions to stem or end homelessness;
accountability of those agencies for achieving their mission;
education of the homeless population to provide greater
opportunities for work and earned income; and the establishment
of programs to prevent homelessness among veterans.
Committee bill
Section 501 of the Committee bill reiterates the goal of
Congress to end homelessness among veterans within the time
frame established under the HVCA Act. The Committee recognizes
this is an ambitious goal. However, the Committee believes that
it is a goal worth aggressively pursuing and commits to that
pursuit with this and subsequent provisions within Title V of
the Committee bill.
Section 502: Sense of Congress on the response of the Federal
Government to the needs of homeless veterans
Committee bill
Section 502 of the Committee bill provides a complete list
of concerns and views of the Committee on the needs of homeless
veterans in America and outlines the Committee's concerns with
the Federal government's response to those needs.
Section 503: Authority to make grants for comprehensive service
programs for homeless veterans
Background
VA operates a Homeless Providers Grant and Per Diem Program
to fund community agencies providing services to homeless
veterans. The program aims to help homeless veterans achieve
residential stability, improve skill levels, and increase
personal income. Only programs that offer supportive housing or
service centers for case management, education, crisis
intervention, and counseling are eligible for funds.
Since 1992, when the Homeless Providers Grant and Per Diem
Program was established, VA has been able to spur development
of increased levels of assistance at the local level for
homeless veterans living throughout the country. Indeed,
grantees' programs often fill existing gaps in the continuum of
VA care and services, thus serving as an effective complement
to VA's own efforts.
VA has been successful at leveraging new resources to
increase the overall supply of transitional housing and other
effective assistance for homeless veterans throughout the
country. The only programmatic shortcomings the Committee has
identified are that there is more interest on the part of
participating providers than there is grant money to support
those efforts, and there are some suburban and rural areas
where attracting potential community agencies to participate as
grantees has been a major challenge for VA.
Committee bill
Section 503 of the Committee bill would extend the
authorization for the Homeless Grant and Per Diem Program and
would increase the amount of funds authorized for these efforts
to $130,000,000 in each fiscal year.
Section 504: Extension of treatment and rehabilitation for seriously
mentally ill and homeless veterans
Background
The HVCA Act authorized VA to provide expanded services and
programs to homeless veterans who suffer with serious and
chronic mental illnesses. In addition to the comprehensive
services available to all veterans who are homeless, the bill
authorized: outreach services; care, treatment, and
rehabilitative services, directly or by contract in community-
based treatment facilities, including halfway houses; and
therapeutic transitional housing assistance in conjunction with
work therapy and outpatient care.
Further, the HVCA Act authorized VA to establish centers
for the comprehensive provision of homeless services to
veterans. The law directed that these service centers be in at
least the 20 largest Metropolitan Statistical Areas of the
country.
Each of the authorities above would expire on December 31,
2006.
Committee bill
Section 504 of the Committee bill would extend the
authority to operate both of these important, special programs
for homeless veterans through December 31, 2011.
Section 505: Extension of authority for transfer of properties obtained
through foreclosure of home mortgages
Background
Under current law, VA is authorized to sell, lease, or
donate to non-profit entities and State and local governments,
housing acquired by VA as a result of foreclosure on housing
financed with a VA-guaranteed loan if the housing will be used
for the purpose of providing shelter and assistance to homeless
veterans and their families. VA is also authorized to make
loans to non-profit entities for the purpose of financing the
purchase or lease of housing to provide shelter to homeless
veterans.
The law requires VA to ensure that any transactions entered
into under this authority are not to the serious financial
detriment of VA and that the agreements will not seriously
affect the financial integrity of the VA loan guaranty program.
Committee bill
The Committee continues to support the use of foreclosed,
VA-owned property under the strictures and parameters that
currently exist for its use. As such, section 505 of the
Committee bill extends the VA's authority for this purpose
through 2011.
Section 506: Extension of funding for grant program for homeless
veterans with special needs
Background
Under current law, VA operates a program through which it
makes grants to homeless veteran service providers specifically
for the purpose of encouraging those entities to provide unique
services to special needs populations. Specifically, the
program is intended to help: women veterans, including those
with dependent children; veterans with serious mental illness;
frail and elderly veterans; and those with terminal illnesses.
The Committee continues to believe that mainstream programs
which focus on recovery, employment, and reintegration may not
be perfectly suited for these special populations. The
Committee is attuned to the challenges inherent in providing
safe shelter and services for women veterans, particularly
those with dependent children. It is certainly likely that
medical recovery and employment services will not be well
suited for terminally ill and frail elderly patients.
Committee bill
Section 506 of the Committee bill extends VA's authority to
operate this program through 2011 and increases the annual
authorized expenditure amount to $7,000,000 through the same
time period.
Section 507: Extension of funding for homeless veterans service
provider technical assistance program
Background
Under current law, VA operates a program to provide
technical assistance to non-profit entities in their writing of
submissions to VA for grants to provide services to homeless
veterans. The current authority to provide the technical
assistance expired at the end of 2005.
The Committee recognizes that the grant-writing process is
often a difficult and technical exercise that can leave even
the most well-intentioned, non-profit entities searching for
answers to legitimate questions. If poorly done or understood,
the answers to these technical questions may ultimately
decrease the possibility of their grant succeeding. The
Committee does not desire to keep good providers out of Federal
programs because of technical difficulties with the grant
submission process.
Committee bill
Section 507 of the Committee bill would authorize the
continuation of the grant-application-assistance program
through 2012.
Section 508: Additional element in annual report on assistance to
homeless veterans
Background
The HVCA Act established the Advisory Committee on Homeless
Veterans (hereinafter, ``Advisory Committee''). It consists of
members appointed by the Secretary representing VSOs, homeless
advocates, community-based providers, previously homeless
veterans, and experts in the areas of mental health, substance
abuse, vocational rehabilitation, and permanent housing. In
addition, ex-officio members of the Advisory Committee include
the Secretaries of other Cabinet-level agencies with an
interest or role in the elimination and prevention of
homelessness among veterans.
Among the Advisory Committee's overarching goals is a
review of the continuum of services provided by VA, directly or
by contract, in order to improve coordination of all VA-
provided services with those of the departments that are
involved in addressing the special needs of homeless veterans.
Following its review of this and other issues, the Advisory
Committee is required by statute to submit an annual report to
VA.
Committee bill
Section 508 of the Committee bill adds as a requirement to
the Advisory Committee's annual report that it include findings
of identified redundancies and gaps in government-wide,
homeless assistance coordination efforts so that duplication
can be eliminated and gaps can be filled.
Section 509: Advisory committee on homeless veterans
Background
As discussed above, the Advisory Committee on Homeless
Veterans includes, as ex-officio members, the Secretaries of
other Cabinet-level agencies with an interest or role in the
elimination and prevention of homelessness amongst veterans.
The role of these members, among other things, is to review VA
programs serving homeless veterans and to assess VA's
coordination with housing and services provided by other
Federal agencies. The current authority for the Advisory
Committee expires on the December 31, 2006.
Committee bill
Section 509 of the Committee bill would add two new ex-
officio members to the Advisory Committee: the Under
Secretaries of Health and Benefits, who both have operational
responsibility for VA's homeless programs. Section 509 would
also add the Executive Director of the President's Interagency
Council on Homelessness as a member to the Advisory Committee
to improve the Committee's agency-wide coordination and
oversight responsibilities. Finally, section 509 would
authorize the Advisory Committee's continuation through
September 30, 2011.
Section 510: Rental assistance vouchers for Veterans Affairs supported
housing program
Background
The HVCA Act codified the existing Departments of Housing
and Urban Development and Veterans Affairs Supported Housing
(hereinafter, ``HUD-VASH'') program, which the two departments
had been operating since 1992. In this coordinated program, the
Department of Housing and Urban Development (hereinafter,
``HUD'') is required to set aside section 8 housing vouchers
for homeless veterans, and VA is required to provide
appropriate case management services for each veteran in the
program.
Committee bill
Section 510 of the Committee bill would require HUD to set
aside 500 rental assistance vouchers for homeless veterans in
fiscal year 2007, 1,000 vouchers in fiscal year 2008, 1,500
vouchers in fiscal year 2009, 2,000 vouchers in fiscal year
2010, and 2,500 vouchers in fiscal year 2011. In addition,
section 510 would require VA to report to the Committees on
Veterans' Affairs in both the House of Representatives and the
Senate on the effectiveness of the HUD-VASH program in
comparison with other VA homeless programs. It is the
Committee's hope that this report will confirm that the goals
of eliminating any existing duplication among homeless
assistance programs, and fully utilizing programs with a record
of success, have been, or soon will be, successfully
accomplished.
Section 511: Financial assistance for supportive services for very low-
income veteran families in permanent housing
Background
Poor, disabled, frail or elderly veterans, and poor
veterans who reside in rural areas that are long distances from
centrally-located services, are among a population of poverty-
level veterans (as defined by the HUD ``very low income
index'') who, while not yet ``homeless'' as it is customarily
defined, are certainly at risk of becoming homeless. Notably,
the U.S. Census Bureau has estimated that 400,000 children live
in households with poverty-level veterans. These at-risk
veterans and their families are capable of benefitting from
supportive services in home-based settings, but because they
are not yet homeless, they do not likely qualify for
traditional homeless assistance services. With the scarcity of
homeless shelters and transitional housing units that are safe
and appropriate for children, the Committee believes it is
appropriate to invest in programs that can be an optimal aid
for veterans who are committed to retaining their independence
and self-sufficiency, while keeping their families intact.
Committee bill
Section 511 of the Committee bill would establish a new VA
program to provide supportive services to poverty-level
veterans in their homes to help keep those veterans from
becoming homeless. For this purpose, it would authorize $15
million for fiscal year 2007, $20 million for fiscal year 2008,
and $25 million for fiscal year 2009, with up to $750,000 to be
made available annually for technical assistance. The funding
would be used to provide financial assistance to non-profit,
faith-based and consumer cooperatives so that they may provide
and coordinate supportive services to help keep low-income
veterans in permanent housing. The supportive services would
include physical and mental health services, if they are not
readily available at a nearby VA facility; personal financial
planning; vocational counseling, assistance in obtaining health
insurance; income support and veterans' benefits application
services; transportation and educational services; and
rehabilitation services.
In addition, section 511 of the Committee bill would
require VA to equitably distribute the program's financial
assistance across geographic regions, including rural
communities. It would require training and technical assistance
to be provided to eligible entities for planning, development,
and the provision of supportive services to very low-income
veteran families occupying permanent housing. Finally, section
511 would require a report on the effectiveness of this new
program at preventing homelessness.
Section 601: Residential cooperative housing units
Background
Under the provisions of chapter 37 of title 38, United
States Code, VA is authorized to guarantee loans for eligible
veterans and survivors to buy or build a home; to buy a
residential condominium; to repair, alter or improve a home; to
refinance an existing home loan; to buy a manufactured home
with or without a lot; to buy and improve a manufactured home
lot; to install a solar heating or cooling system or other
weatherization improvements; or to buy a home and install
energy-efficient improvements. There is no authority in law for
VA to guarantee loans to purchase stock in a cooperative
housing corporation (hereinafter, ``co-op'').
A co-op is a legal entity that owns real estate, typically
residential buildings. Owners who purchase shares in a co-op
are entitled to occupy a specific housing unit within the co-
op. In addition to making payments on loans used to purchase
shares in a co-op (hereinafter, ``share loans''), owners are
responsible for paying monthly carrying charges to cover the
co-op's debt, maintenance, and other expenses. According to the
National Association of Housing Cooperatives, in written
testimony for the record submitted for the Committee's June 8,
2006, hearing, ``[o]ver 1.2 million families now live in
townhouse and apartment housing co-ops in 30 states, the
District of Columbia, and Puerto Rico.''
The Federal Housing Administration has had authority for
over 25 years to insure share loans. VA has no authority to
guaranty share loans for veterans under its loan guaranty
program. The Committee received testimony in association with
its June 8, 2006, hearing in support of legislation to allow VA
to guarantee share loans. Mr. David Greineder, Deputy National
Legislative Director for AMVETS, submitted the following
testimony: ``Co-ops make up the vast percentage of affordable
housing in large cities and are usually less expensive than a
condo or other unit. This legislation would give veterans
greater housing choice by allowing them to use their hard-
earned benefits to buy a co-op if they prefer.'' Also
submitting testimony in support of S. 2121 were VFW, PVA, and
DAV. In addition, the Mortgage Bankers Association and the
National Association of Realtors submitted letters of support.
Committee bill
Section 601 of the Committee bill would authorize VA to
guarantee loans for the purchase of stock or membership in a
co-op. To ensure that the interests of veterans are protected,
section 601 gives VA the authority to prescribe in regulations
criteria that a co-op development, project, or structure must
comply with before VA can guarantee a share loan.
Section 602: Increase in supplemental insurance for totally disabled
veterans
Background
The Insurance Act of 1951 established the Service-Disabled
Veterans' Insurance (hereinafter, ``S-DVI'') program for
veterans with service-connected disabilities. The purpose of
the S-DVI program is to provide veterans who, because of the
nature of their disabilities, may not qualify for, or be able
to afford, commercial life insurance policies. The S-DVI
coverage limit has remained at $10,000 since the program's
inception in 1951. Veterans who are rated as totally disabled
by VA are eligible for waivers of premiums for the basic
$10,000 coverage.
In an attempt to allow certain service-connected veterans
to supplement their S-DVI life insurance coverage, the
Veterans' Benefits Act of 1992, Public Law 102-568, was enacted
to provide for $20,000 of supplemental coverage (hereinafter,
``supplemental S-DVI''). Veterans are eligible for supplemental
S-DVI if they meet three criteria: 1) be eligible for a waiver
of premiums due to total disability, 2) apply for supplemental
S-DVI within 1 year from the time the waiver of premiums was
granted, and 3) be under age 65. However, unlike the $10,000
basic coverage, premiums may not be waived for supplemental S-
DVI. Premiums on supplemental S-DVI cover about two-thirds of
the death benefit cost; the government covers the remaining
costs.
In 2001, a Congressionally mandated study, Program
Evaluation of Benefits for Survivors of Veterans with Service-
Connected Disabilities, recommended that the basic S-DVI
coverage limit be increased from $10,000 to $50,000. The study
based its recommendation on data which show that, on average,
for all surviving spouses of S-DVI policy holders, total
household income decreased from about $48,840 to $27,300 in the
year after the policy holder's, i.e., the veteran's, death. The
study concluded that basic S-DVI coverage limits should cover
the loss of income for at least 2 years after a veteran's
death. Thus, in order to meet the study's recommendation for
totally disabled S-DVI policy holders, supplemental S-DVI would
need to be increased by $20,000 to allow for an aggregate
coverage limit of $50,000 ($10,000 in basic coverage and
$40,000 in supplemental S-DVI).
Totally disabled veterans would benefit from the
availability of higher supplemental S-DVI coverage amounts.
This was reaffirmed in a July 28, 2005, letter from Secretary
R. James Nicholson to the Committee Chairman regarding the
administration's position on S. 1252:
In our view, the current aggregate S-DVI coverage of
$30,000 is insufficient to meet disabled veterans' life
insurance needs. S. 1252 would increase the financial
security of disabled veterans by affording them the
opportunity to purchase additional life insurance
coverage otherwise not available to them.
Committee bill
Section 602 would provide for a $10,000 increase in the
amount of supplemental S-DVI available to totally disabled S-
DVI policy holders. The increase would be effective from
October 1, 2007, until September 30, 2011. Veterans who
purchase the higher level of supplemental S-DVI during this
period would be able to retain the higher level of coverage,
assuming continued payment of applicable premiums.
Section 603: Reauthorization of use of certain information from other
agencies
Background
Section 5317 of title 38, United States Code, directs VA to
notify applicants for needs-based VA benefits, such as VA
pension, that information collected from the applicants may be
compared with income-related information obtained by VA from
the Internal Revenue Service and the Department of Health and
Human Services. The authority for VA to obtain such information
expires on September 30, 2008.
Section 6103(l)(7) of the Internal Revenue Code authorizes
the release of income information by the Internal Revenue
Service to VA. This authority expires on September 30, 2008.
Committee bill
Section 603 would extend until September 30, 2011, the
authority of VA to obtain income information under section 5317
of title 38, and the authority of the Internal Revenue Service
to share income information under section 6103(l)(7) of the
Internal Revenue Code.
Section 604: Clarification of correctional facilities covered by
certain provisions of law
Background
Under section 5313 of title 38, United States Code, there
is a limitation on the payment of VA compensation to an
individual incarcerated in a ``Federal, State, or local penal
institution'' for more than 60 days for conviction of a felony.
In Wanless v. Principi, the CAVC directed VA to specifically
address the question of whether the section 5313 limitation
applies to a felon incarcerated--at the expense of the
government--in a facility that is owned and operated by a
private contractor (Wanless v. Principi, 18 Vet. App. 337, 338
(2004)). In a concurring opinion, it was suggested that the
phrase ``Federal, State, or local penal institution'' would not
encompass a privately owned and operated correctional facility.
After the CAVC issued Wanless, VA requested--but has not
received--an opinion from the VA General Counsel on the issue
posed by the CAVC.
In recent years, there has been significant growth in the
number of government entities utilizing penal facilities that
are operated by private contractors. This growth may lead to
further litigation over whether the current language of section
5313 encompasses private prisons. If VA or the courts were to
conclude that private prisons do not constitute a ``Federal,
State, or local penal institution,'' as the CAVC has suggested,
there would be the anomalous situation of the section 5313
limitation applying to a felon in a publicly operated facility
and not to a felon incarcerated for the same crime in a
privately operated facility.
Committee bill
Section 604 of the Committee bill would make a technical
amendment to title 38, United States Code, to clarify that the
section 5313 limitation applies to a felon incarcerated in any
type of penal facility, including facilities operated by a
private contractor. It would make the same change in other
title 38 sections that currently have the phrase ``Federal,
State, or local penal institution.''
Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the Congressional Budget Office
(hereinafter, ``CBO''), estimates that enactment of the
Committee bill would, relative to current law, increase direct
spending for veterans' programs by less than $500,000 in fiscal
year 2007, but decrease such spending by $6 million over the
fiscal year 2007-2011 period, and by $5 million over the 2007-
2016 period. In addition, CBO projects discretionary spending
resulting from S. 2694 at $186 million in fiscal year 2007 and
$1.1 billion over the 2007-2011 period, assuming appropriation
of the necessary amounts. Enactment of the Committee bill would
not affect the budget of State, local, or tribal governments.
The cost estimate provided by CBO, setting forth a detailed
breakdown of costs, follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 19, 2006.
Hon. Larry E. Craig,
Chairman, Committee on Veterans' Affairs,
United States Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2694, the Veterans'
Choice of Representation and Benefits Enhancement Act of 2006.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sunita
D'Monte.
Sincerely,
Donald B. Marron,
Acting Director.
Enclosure.
S. 2694--Veterans' Choice of Representation and Benefits Enhancement
Act of 2006
Summary: S. 2694 would make changes to several programs at
the Department of Veterans Affairs (VA), primarily for medical
care. CBO estimates that implementing this bill would cost $186
million in 2007 and almost $1.1 billion over the 2007-2011
period, assuming appropriation of the necessary amounts. In
addition, CBO estimates that enacting this legislation would
increase direct spending for veterans programs by less than
$500,000 in 2007, but reduce it by $6 million over the 2007-
2011 period and by $5 million over the 2007-2016 period.
S. 2694 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments. State and tribal governments would benefit from
provisions of this bill.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2694 is summarized in Table 1. The costs
of this legislation fall within budget function 700 (veterans
benefits and services).
TABLE 1. ESTIMATED BUDGETARY IMPACT OF S. 2694, THE VETERANS' CHOICE OF REPRESENTATION AND BENEFITS ENHANCEMENT
ACT OF 2006
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2007 2008 2009 2010 2011
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... 216 237 238 219 220
Estimated Outlays.................................................. 186 229 240 219 220
CHANGES IN DIRECT SPENDING
Estimated Budget Authority......................................... * 6 2 -6 -10
Estimated Outlays.................................................. * 6 2 -6 -10
----------------------------------------------------------------------------------------------------------------
Note.--* = Less than $500,000.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the start of fiscal year 2007 and
that the necessary amounts will be appropriated for each year.
Most of the legislation's budgetary effects would fall within
the discretionary spending category, but a few provisions would
affect direct spending.
Spending subject to appropriation
S. 2694 would affect VA programs for homeless veterans,
nursing home care, readjustment benefits, and burial benefits.
CBO estimates that implementing this bill would cost $186
million in 2007 and almost $1.1 billion over the 2007-2011
period, assuming appropriation of the necessary amounts (see
Table 2).
Medical Care. Titles IV and V of S. 2694 would make several
changes to VA programs, primarily for nursing home care and
homeless veterans. CBO estimates those provisions would cost
about $1 billion over the 2007-2011 period, assuming
appropriation of the necessary amounts.
TABLE 2. CHANGES IN SPENDING SUBJECT TO APPROPRIATION UNDER S. 2694
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2007 2008 2009 2010 2011
----------------------------------------------------------------------------------------------------------------
MEDICAL CARE
Assistance for Homeless Veterans:
Authorization Level............................................ 153 158 163 138 138
Estimated Outlays.............................................. 131 157 161 139 138
State Veterans' Nursing Homes Payments and Benefits:
Estimated Authorization Level.................................. 58 66 69 70 71
Estimated Outlays.............................................. 52 62 68 69 71
Pilot Programs to Assist Caregivers of Veterans:
Authorization Level............................................ 5 0 0 0 0
Estimated Outlays.............................................. 3 1 1 0 0
--------------------------------------------
Subtotal-Medical Care:
Estimated Authorization Level.............................. 216 224 232 208 209
Estimated Outlays.......................................... 186 220 230 208 209
READJUSTMENT BENEFITS
Estimated Authorization Level...................................... 0 6 6 11 11
Estimated Outlays.................................................. 0 6 6 11 11
BURIAL BENEFITS
Estimated Authorization Level...................................... * 7 0 0 0
Estimated Outlays.................................................. * 3 4 0 0
============================================
Total Changes in Spending Subject to Appropriations Under
S. 2694:
Estimated Authorization Level.............................. 216 237 238 219 220
Estimated Outlays.......................................... 186 229 240 219 220
----------------------------------------------------------------------------------------------------------------
Note.--* = Less than $500,000.
Assistance for Homeless Veterans. Title V would create or
extend authorization for several programs intended to assist
homeless veterans. These provisions would increase VA spending
by about $130 million in 2007 and $725 million over the 2007-
2011 period, assuming appropriation of the authorized amounts.
In addition, section 505 would extend a mandatory program that
allows for the transfer of properties to nonprofit
organizations for use as homeless shelters. (CBO's estimate for
the cost of this program is discussed below in the ``Direct
spending'' section.)
Grants for Comprehensive Service Programs. Section 503
would provide VA with permanent authority to give grants to
organizations that provide comprehensive service programs for
homeless veterans. The prior authorization for this program
expired in September of 2005. This section would authorize the
appropriation of $130 million per year. Based on historical
spending patterns for this program, CBO estimates that
implementing this section would cost $117 million in 2007 and
about $630 million over the 2007-2011 period.
Assistance to Very Low-Income Families. Section 511 would
require VA to provide financial assistance to organizations
that help families of very low-income veterans who are living
in, or about to move in to, permanent housing. This section
would authorize appropriations for this program of $15 million
in 2007, $20 million in 2008, and $25 million in 2009. CBO
expects that it will take at least one year for the program to
be established and provide grants. We estimate that
implementing this program would cost $7 million in 2007 and
about $60 million over the 2007-2011 period.
Grants for Special Needs Veterans. Section 506 would
reauthorize funding from 2007 through 2011 for a grants program
for homeless veterans with special needs, such as women, the
elderly, and the mentally ill. (No funding was provided for
this program in 2006.) Based on the authorized amount of $7
million per year, CBO estimates that implementing this section
would cost $6 million in 2007 and about $34 million over the
2007-2011 period.
Technical Assistance Grants for Service Providers. Section
507 would reauthorize through 2012 a program that provides
technical assistance grants for organizations that help
homeless veterans. Section 507 would authorize the
appropriation of $1 million per year through 2012. CBO
estimates that implementing this section would cost about $1
million in 2007 and $5 million over the 2007-2011 period.
State Veterans' Nursing Homes Payments and Benefits.
Section 403 would modify VA payments to state-run nursing homes
for veterans and the provision of VA benefits to the veterans
who are patients in those homes. In total, implementing section
403 would cost $52 million in 2007 and $322 million over the
2007-2011 period, assuming appropriation of the necessary
amounts.
Increased Payments to State Nursing Homes. Under current
law, VA pays state nursing homes for veterans a daily allowance
to care for certain veterans. In 2006, that rate is $63.40 per
veteran. Section 403 would require VA to pay state nursing
homes for the full cost of care for veterans who have a
service-connected disability rating of 70 percent or more.
Based on information from VA and from the National Association
of State Veterans Homes, CBO estimates that it costs the states
about $200 a day to care for each veteran and that there are
about 1,000 veterans in state homes whose disability ratings
are 70 percent or more. Thus, CBO estimates that enacting this
provision would cost $48 million in 2007 and about $280 million
over the 2007-2011 period, assuming appropriation of the
necessary amounts. This estimate assumes that the daily cost
will rise at an average inflation rate of about 4 percent.
Because the amount VA currently pays the state nursing
homes for veterans does not cover the full cost of care, the
homes must also collect money from the veterans themselves and,
depending on the state, from other federal government sources
and the state itself. If the Congress appropriates the full
amount necessary to allow VA to pay for the complete costs for
these veterans' care, it is likely that there will be a
reduction in the amount of Medicaid funds used to cover the
costs of care. Based on the current estimated portion of the
cost that is paid for by Medicaid funds, CBO estimates that
there could be potential savings to the federal government of
about $5 million per year. (Such savings are contingent upon
appropriation of the amounts necessary to implement this
section.)
Hospital Beds Treated as Nursing Home Beds. Section 403
would also allow VA to treat up to 100 beds found in health
facilities such as hospitals as nursing home beds for the
purposes of making payments to cover the costs of care for
veterans. No new beds could be added to this program after
fiscal year 2009. Based on an estimated average cost of care of
$250 per day in 2007, and allowing one year for the program to
reach full capacity, CBO estimates that implementing this
provision would cost about $4 million in 2007 and $40 million
over the 2007-2011 period, assuming appropriation of the
necessary amounts.
Filling Prescriptions for Veterans in State Nursing Homes.
Finally, section 403 would require that VA furnish prescription
medicines to veterans with a service-connected disability
rating of 50 percent or more who reside in state nursing homes.
Under current law, VA can only fill prescriptions for those
veterans who are enrolled in the VA medical care system and
have prescriptions written by VA doctors. Based on data from VA
about the percentage of veterans eligible for this benefit who
are already enrolled in their system, CBO estimates that
implementing this provision would cost less than $500,000 per
year.
Pilot Program to Assist Caregivers of Veterans. Section 405
would require the Secretary to create a two-year program to
provide funds to VA medical facilities to assist those caring
for veterans by providing services such as adult daycare
programs, transportation services, and hospice care. This
section would authorize the spending of not less than $5
million on the pilot program. CBO estimates that implementing
this provision would cost $3 million in 2007 and $5 million
over the duration of the program.
Readjustment Benefits. VA is authorized to reimburse
agencies that approve courses for veterans' readjustment
(education) benefits for certain of the costs they incur in
their certification efforts. Those agencies--known as state
approving agencies--are offices designated by each state to
provide the VA with a list of approved courses provided by
educational institutions in their states. Under current law, VA
may reimburse the agencies from funds available for the payment
of readjustment benefits by a total of $19 million in both 2006
and 2007, and $13 million each year thereafter.
Section 303 would increase the amount VA may pay the
agencies to $19 million a year for all years, but would reduce
the amount VA could draw for that purpose from funds available
for the payment of readjustment benefits to $8 million a year
for 2010 through 2013. VA would be authorized to use funds,
subject to the availability of appropriations, to make up the
difference between the full amount authorized and the amount
that could be paid from funds for readjustment benefits. CBO
estimates that implementing this provision would have no cost
in 2007 but would cost $34 million over the 2008-2011 period,
assuming appropriation of the estimated amounts. (The effect of
this section on readjustment benefits is discussed under the
``Direct spending'' section.)
Burial Benefits. Section 201 would allow VA to provide
grants to tribal organizations to establish, expand, or improve
veterans' cemeteries on trust lands owned by the tribal
organizations. Under current law, VA can only provide grant
money to states for the purposes of establishing, expanding, or
improving a veterans' cemetery. Based on information from VA,
state cemetery grants range from $4 million to $7 million,
depending on the size of the project, with an average time of
24 months to establish a cemetery from design to opening. CBO
expects that one such request for a cemetery would be made over
the 2007-2011 period, and estimates that implementing section
201 would cost $7 million over that period, subject to
appropriation of the necessary amounts.
Section 202 would require the Secretary of the Army to
remove the remains of Russell Wayne Wagner, a convicted
murderer, from Arlington National Cemetery and return his
remains to his family.
Based on information from VA, CBO estimates that
implementing section 202 would cost less than $100,000 in 2007,
subject to the availability of appropriated funds.
Direct spending
S. 2694 contains provisions that would both increase and
decrease direct spending for veterans programs. On balance, CBO
estimates enacting this legislation would increase direct
spending for veterans programs by less than $500,000 in 2007,
but reduce it by $6 million over the 2007-2011 period and by $5
million over the 2007-2016 period (see Table 3).
TABLE 3. CHANGES IN DIRECT SPENDING UNDER S. 2694
----------------------------------------------------------------------------------------------------------------
Outlays by fiscal year, in millions of dollars--
-------------------------------------------------------------------------------
2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
----------------------------------------------------------------------------------------------------------------
COMPENSATION, PENSIONS, AND BURIAL BENEFITS
Income Verification Extension... 0 0 -5 -9 -13 0 0 0 0 0
Supplemental Service Disabled 0 2 3 3 3 2 2 2 2 2
Veterans Insurance.............
Grave Markers................... * * * * * * * * * *
-------------------------------------------------------------------------------
Subtotal-Compensation, * 2 -2 -6 -10 2 2 2 2 2
Pensions, and Burial
Benefits...................
READJUSTMENT BENEFITS
Accelerated Payments of MGIB.... 0 3 3 4 4 0 0 0 0 0
Accelerated Payments for 0 1 1 1 1 0 0 0 0 0
Survivors and Dependants.......
State Approving Agencies........ 0 0 0 -5 -5 -5 -5 0 0 0
-------------------------------------------------------------------------------
Subtotal-Readjustment 0 4 4 0 0 -5 -5 0 0 0
Benefits...................
===============================================================================
Total Changes in Direct * 6 2 -6 -10 -3 -3 2 2 2
Spending Under S. 2694.
----------------------------------------------------------------------------------------------------------------
Notes.--MGIB = Montgomery GI Bill; * = Less than $500,000.
Compensation, Pensions, and Burial Benefits. Several
sections of the bill would affect veterans benefits for
disability compensation, pensions, life insurance, and burial
benefits. CBO estimates that implementing these provisions
would increase direct spending for veterans programs by less
than $500,000 in 2007, but reduce it by $14 million over the
2007-2011 period and by $3 million over the 2007-2016 period.
Income Verification Extension. Section 603 would extend
authorities under current law that allow VA to acquire
information on income reported to the Internal Revenue Service
(IRS) to verify income reported by recipients of VA pension
benefits. The authorization allowing the IRS to provide income
information to VA will expire on September 30, 2008, as will
the authorization allowing VA to acquire the information.
Section 603 would extend these authorities through September
30, 2011, for both VA and the IRS. Because current law allows
VA and the IRS to conduct income verification through the end
of fiscal year 2008, CBO estimates that enacting this provision
would provide no savings until fiscal year 2009.
Based on information from VA, CBO estimates that in 2009 VA
will make approximately $5 million in pension benefit
overpayments that could be prevented by verifying veterans'
incomes. Using that information, CBO estimates that enacting
section 603 would result in direct spending savings of $26
million over the 2009-2011 period.
Supplemental Service Disabled Veterans Insurance (S-DVI).
Section 602 would temporarily increase the amount of
supplemental S-DVI a veteran may purchase. S-DVI is an
insurance program open to veterans who separated from service
on or after April 25, 1951, and who have been determined by VA
to have a service-connected disability. Under current law,
veterans who are eligible for a waiver of S-DVI premiums
(totally disabled veterans) are eligible for an additional
$20,000 in S-DVI coverage and they must apply within a year
from notice of the grant of waiver. The premiums for
supplemental S-DVI cannot be waived. By law, the premiums for
S-DVI have been held constant for many years. Since the
premiums are no longer sufficient to cover the estimated death
claims per year, the federal government now subsidizes the
program.
Section 602 would increase the amount of supplemental S-DVI
a veteran could purchase from $20,000 to $30,000 over the
period beginning on October 1, 2007, and ending on September
30, 2011. The amount of supplemental S-DVI that could be
purchased would return to $20,000 after that period. However,
veterans who purchased the additional coverage would be able to
retain the higher coverage level. Based on information from VA
on S-DVI accessions and mortality rates, CBO estimates that the
number of veterans holding S-DVI policies will increase from
about 15,000 in 2008 to 18,000 in 2011 and then decrease to
about 12,000 by 2016, and that about 20 percent of all policy
holders would chose to purchase additional coverage over the
specified period. CBO estimates that enacting section 602 would
increase direct spending for insurance benefits by $2 million
in 2008, $11 million over the 2008-2011 period, and $21 million
over the 2008-2016 period.
Grave Markers. Section 203 would allow VA to provide a
marker or headstone to be placed on a marked grave or other
appropriate location in a private cemetery to commemorate a
veteran's military service for those veterans who were buried
after November 11, 1990.
Under current law, veterans buried in a private cemetery
are eligible for a second marker or headstone only if they were
buried after September 11, 2001.
Section 203 would also indefinitely extend the period
during which a marker or headstone could be requested. The
authority for VA to provide government headstones or markers to
veterans buried in private cemeteries currently expires on
December 31, 2006.
Based on VA projections about future deaths and burials in
private cemeteries, CBO estimates that about 20,000 requests
for headstones or markers would be made over the 2007-2016
period. The estimate also reflects information from a VA study
that showed that only 27 percent of private cemeteries allow
second markers and that less than 5 percent of those eligible
would participate in this program. With an average cost of
about $92 for each marker, CBO estimates that this provision
would result in an increase in spending for burial benefits of
less than $500,000 in 2007, $1 million over the 2007-2011
period, and $2 million over the 2007-2016 period.
Veterans Readjustment Benefits. S. 2694 contains several
provisions that would modify the way veterans education
benefits are currently provided. In total, CBO estimates
enacting these provisions would not change direct spending for
veterans readjustment benefits in 2007, but would increase such
spending by $8 million over the 2008-2011 period, and would
decrease such spending by $2 million over the 2008-2016 period.
Accelerated Payments of MGIB Benefits. Section 301 would
expand the range of education programs eligible for accelerated
payment of education benefits under the Montgomery GI Bill
(MGIB). Under current law, veterans may receive a lump-sum
payment equal to 60 percent of the costs for certain courses,
if tuition for those courses exceeds twice the benefit that
would otherwise be paid. This section would add programs
leading to employment in the transportation, construction,
hospitality, and energy industries to those in high-technology
industries already eligible for such payments, but would limit
such expansion to the 2008-2011 period. Based on information
from VA about the number of veterans using the current
accelerated payment program and the number of veterans training
in the transportation, construction, hospitality and energy
fields, CBO estimates that this provision would increase direct
spending for readjustment benefits by $14 million over the
2008-2011 period.
Accelerated Payments for Survivors and Dependants. Section
302 would allow survivors and dependents to receive their
education benefits using the expanded program of accelerated
payments described above. These beneficiaries, who have not
previously been allowed to receive any accelerated payments,
would be eligible for such payments from 2008 through 2011.
Based on information from the VA about the usage of this
program by MGIB beneficiaries, CBO estimates that this
provision would increase direct spending for readjustment
benefits by $4 million over the 2008-2011 period.
State Approving Agencies. VA is currently authorized to
reimburse the state approving agencies from amounts available
for the payment of readjustment benefits. The state approving
agencies provide verification that various educational
institutions are qualified to provide courses of education so
that eligible veterans, survivors, and dependents may receive
veterans education benefits while attending those institutions.
Section 303 would reduce the amount of such reimbursements that
could be provided from funds available for payment of
readjustment benefits by $5 million a year from 2010 through
2013. (This provision also would authorize additional amounts
to be paid to the state approving agencies subject to the
availability of appropriations, which is discussed under the
``Spending subject to appropriation'' section.) CBO estimates
that enacting this provision would reduce direct spending for
veterans readjustment benefits by $20 million over the 2010-
2013 period.
Other Provisions. The following provisions would have an
insignificant impact on direct spending:
Section 101 would allow VA to periodically collect
fees from individuals recognized as agents or attorneys when
representing veterans in benefits cases so as to offset the
costs VA incurs in certifying that agents or attorneys are
properly qualified. CBO estimates that implementing this
provision would have an insignificant net effect on direct
spending because it would allow VA to spend the fees collected
to defray such costs.
Section 505 would extend from 2008 through 2011,
VA's authority to sell, lease, or donate foreclosed homes to
nonprofit organizations and state or local governments for use
as homeless shelters for veterans. The program provides savings
to VA by reducing its inventory of foreclosed homes, but those
savings are offset by discounts, ranging from 20 percent to 50
percent of the estimated property value (roughly $90,000), that
VA gives to nonprofit organizations. Because of the low volume
of homes provided under this program--an average of 10
properties a year over the last few years--CBO estimates this
provision would have no significant effect on direct spending
for the VA home loan program.
Section 601 would authorize VA to guarantee loans
made to purchase stock or membership in residential
cooperatives. According to VA, cooperative housing projects
have unique characteristics such as lack of outright ownership
of real property, restrictions on sale of stock or membership,
and blanket mortgages (a mortgage that covers the entire
cooperative project, rather than an individual borrower), that
would, in most instances, either violate VA's underwriting
criteria or make them unsuitable for the home loan program. As
a result, CBO estimates that very few loans would be guaranteed
under this provision.
Intergovernmental and private-sector impact: S. 2694
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. State and tribal governments would benefit
from provisions of this bill.
Section 201 would make tribal governments eligible for a
current program to establish, expand, or improve veteran
cemeteries. Any costs to those governments would be incurred as
a condition of participating in a voluntary federal program.
Section 403 would authorize the Secretary of the VA to
reimburse the full costs of long-term care for certain veterans
in State Veteran Homes. Currently, the VA reimburses about one-
third of those costs; one-third of the remaining costs are
collected from the veteran, and the rest is reimbursed by
Medicaid or state contributions. CBO estimates that state
governments could save about $10 million annually as a result
of this provision, assuming that appropriations are provided to
fully fund the costs of long-term care.
Estimate prepared by: Federal Costs: Medical Care: Michelle
Patterson. Readjustment Benefits: Mike Waters. Compensation,
Pensions, Burial Benefits and Other Programs: Dwayne M. Wright.
Housing: Sunita D'Monte. Impact on State, Local, and Tribal
Governments: Melissa Merrell. Impact on the Private Sector: R.
Derek Trunkey.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Veterans'
Affairs has made an evaluation of the regulatory impact that
would be incurred in carrying out the Committee bill. The
Committee finds that the Committee bill would not entail any
regulation of individuals or businesses or result in any impact
on the personal privacy of any individuals and that the
paperwork resulting from enactment would be minimal.
Tabulation of Votes Cast by Committee
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following is a tabulation of votes
cast in person or by proxy by members of the Committee on
Veterans' Affairs at its June 22, 2006, meeting. On that date,
the Committee, by unanimous voice vote, ordered S. 2694, as
amended, a bill to amend title 38, United States Code, to
remove certain limitations on attorney representation of
claimants for veterans benefits in administrative proceedings
before the Department of Veterans Affairs, and for other
purposes, reported favorably to the Senate.
Agency Report
On June 23, 2005, VA's Under Secretary for Benefits, the
Honorable Daniel L. Cooper, appeared before the Committee and
submitted testimony on, among other things, S. 909 and S. 1252.
Additional comments were provided on S. 1252 in a letter to the
Committee Chairman on July 28, 2005, from VA Secretary R. James
Nicholson. On May 11, 2006, VA's Deputy Under Secretary for
Health, Dr. Michael Kussman, appeared before the Committee and
submitted testimony on, among other things, S. 1537, S. 2433,
S. 2634, and S. 2762. On June 8, 2006, VA's Deputy Under
Secretary for Benefits, Ronald Aument, appeared before the
Committee and submitted testimony on, among other things, S.
2694 as introduced, and also on the following additional bills
from which provisions in S. 2694, as amended, are derived: S.
1252, S. 2121, S. 2416, and S. 3363. Furthermore, in a letter
from the Honorable William J. Haynes II, General Counsel of the
Department of Defense, to the Committee Chairman on February 9,
2006, additional views were provided with respect to S. 1759.
Excerpts from the hearings on June 23, 2005, May 11, 2006, and
June 8, 2006, and the February 9, 2006, letter are reprinted
below:
Statement of Daniel L. Cooper, Under Secretary for Benefits, Department
of Veterans Affairs--June 23, 2005
Mr. Chairman and members of the Committee, I appreciate
this opportunity to testify today on several bills concerning
important programs administered by the Department of Veterans
Affairs (VA).
* * * * *
S. 909
S. 909 would expand eligibility for government markers by
changing the applicability date of VA's current authority to
provide a marker for the private-cemetery grave of a veteran
regardless of whether the grave has been marked at private
expense.
Pursuant to 38 U.S.C. Sec. 2306(d)(1), VA is authorized to
furnish a Government marker for the grave of an individual who
is buried in a private cemetery, even if the gravesite is
already privately marked. However, this authority extends only
to individuals who died on or after September 11, 2001. S. 909
would authorize VA to furnish such markers for the graves of
individuals who died on or after November 1, 1990.
VA supports enactment of S. 909. Under current law, if a
veteran died before September 11, 2001, VA is authorized to
furnish a Government headstone or marker only if the veteran's
grave is unmarked. Although the current law has allowed VA to
begin to meet the needs of families who view the Government-
furnished marker as a means of honoring and publicly
recognizing a veteran's military service, VA is now in the
difficult position of having to deny this recognition based
solely on when a veteran died.
Furthermore, the law has never precluded the addition of a
privately purchased headstone to a grave after placement of a
Government-furnished marker, even though this practice results
in double marking. In contrast, if a private marker is placed
on a veteran's grave in the first instance, a Government marker
may not be provided if the veteran died before September 11,
2001. In our view, this creates an arbitrary distinction
disadvantaging families who promptly obtained a private marker.
For veterans who died during the period from October 18,
1979, until November 1, 1990, when the Omnibus Budget
Reconciliation Act of 1990 was enacted, VA may pay a headstone
or marker allowance to those families who purchased a private
headstone or marker in lieu of a Government headstone or
marker. Therefore, those families also had an opportunity to
benefit from the VA-marker program. S. 909 would, for the first
time, permit families who bought a private marker for veterans
who died between November 1, 1990, and September 11, 2001, to
participate in the VA-marker program as well.
VA estimates that enactment of S. 909 would cost $90,000
during FY 2006 and $225,000 over the ten-year period FYs 2006-
2015. VA pays for headstones and markers with funds from the
Compensation and Pension appropriation account.
* * * * *
S. 1138, S. 1252, S. 1259, S. 1271
Unfortunately, we did not receive the text of S. 1252, the
``Disabled Veterans Insurance Improvement Act,'' S. 1259, the
``Veterans Employment and Transition Services Act,'' or S.
1271, the ``Prisoner of War Benefits Act of 2005,'' in time to
be able to state our views on those bills. We will be happy to
provide the Committee with official views and estimates once
the necessary executive branch coordination has been completed.
S. 1138, a bill to authorize placement in Arlington National
Cemetery of a monument honoring veterans who fought in World
War II as members of Army Ranger Battalions, was also recently
added to the hearing agenda. We will provide our comments on
this bill to the Committee after completing necessary executive
branch coordination.
------
Letter From Secretary of Veterans Affairs R. James Nicholson
July 28, 2005.
Hon. Larry E. Craig,
Chairman, Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: As requested at the June 23, 2005,
legislative hearing before the Senate Committee on Veterans'
Affairs, I am pleased to provide the views of the Department of
Veterans Affairs (VA) on those bills for which we did not
previously submit comments, including S. 917, a bill to make
permanent the pilot program for direct housing loans for Native
American veterans, S. 1138, a bill to authorize placement in
Arlington National Cemetery of a monument honoring veterans who
fought in World War II as members of Army Ranger Battalions, S.
1252, the ``Disabled Veterans Insurance Improvement Act of
2005,'' S. 1259, the ``Veterans Employment and Transition
Services Act,'' and S. 1271, the ``Prisoner of War Benefits Act
of 2005.'' VA's views on each of these bills are discussed
below. To the extent that VA supports enactment of aspects of
these bills that have cost implications, it is assumed that the
costs would be accommodated within the scope of the President's
budget request.
* * * * *
S. 1252
S. 1252, the ``Disabled Veterans Insurance Improvement Act
of 2005,'' would amend section 1922A of title 38, United States
Code, to increase from $20,000 to $40,000 the amount of
supplemental life insurance available to veterans who are
insured under Service-Disabled Veterans' Insurance (S-DVI) and
who qualify for waiver of premiums due to total disability.
Under current law, a veteran who has a service-connected
disability but is otherwise in good health may obtain up to
$10,000 of S-DVI by applying to VA within two years from the
date of being notified that the disability is service
connected. 38 U.S.C. Sec. Sec. 1903, 1922(a). VA may, upon
application of an insured veteran, waive the payment of
premiums during a period of continuous total disability. 38
U.S.C. Sec. Sec. 1912(a), 1922(a). Section 1922A currently
provides up to $20,000 of supplemental insurance to a disabled
veteran who: (1) has basic S-DVI coverage; (2) has obtained a
waiver of premiums on this coverage because he or she is
totally disabled; and (3) applies to VA for the supplemental S-
DVI coverage within one year of being notified by VA that he or
she is entitled to waiver of premiums. 38 U.S.C. Sec. 1922A(a)
and (b). Waiver of premiums is not available on the
supplemental coverage. 38 U.S.C. Sec. 1922A(d).
By increasing the amount of available supplemental S-DVI to
$40,000, S. 1252 would address a major concern of veterans, as
shown by the Congressionally-mandated study Program Evaluation
of Benefits for Survivors of Veterans with Service-Connected
Disabilities. This study indicated that veterans were least
satisfied with the maximum insurance available and that
veterans deem the need for increased coverage to be most
important. In our view, the current aggregate S-DVI coverage of
$30,000 is insufficient to meet disabled veterans' life
insurance needs. S. 1252 would increase the financial security
of disabled veterans by affording them the opportunity to
purchase additional life insurance coverage otherwise not
available to them. Accordingly, VA supports S. 1252.
S. 1252 does not specify its scope of applicability, but we
interpret it to apply prospectively to any veteran who is
eligible to apply for and obtain supplemental S-DVI under
section 1922A, or to change the amount of supplemental S-DVI
coverage previously obtained, on or after the date of S. 1252's
enactment. Based on this interpretation, VA estimates that the
additional coverage provided by S. 1252 would cost $2.6 million
over the five-year period FY 2006 through FY 2010 and $9.5
million over the ten-year period FY 2006 through FY 2015.
* * * * *
The Office of Management and Budget advises that there is
no objection to the submission of this report from the
standpoint of the Administration's programs.
Sincerely yours,
R. James Nicholson.
------
Statement of Michael Kussman, Deputy Under Secretary for Health,
Department of Veterans Affairs--May 11, 2006
Good Morning Mr. Chairman and Members of the Committee:
Thank you for inviting me here today to present the
Administration's views on several bills that would affect
Department of Veterans Affairs (VA) programs that provide
veterans benefits and services.
S. 1537 Parkinson's Disease Research Education and Clinical Centers;
Multiple Sclerosis Research Education and Clinical Centers
Mr. Chairman, I will begin by addressing S. 1537. This bill
would require VA to establish six Parkinson's Disease Research,
Education, and Clinical Centers (PADRECCs) and two Multiple
Sclerosis Centers of Excellence (MS Centers). The bill
prescribes detailed requirements for the centers. It would
provide that any such center in existence on January 1, 2005,
must be designated as a PADRECC or MS Center under this law
unless the Secretary determines that it does not meet the
bill's requirements, has otherwise not demonstrated
effectiveness in carrying out the purposes of a PADRECC or MS
Center, or has not demonstrated the potential to carry out
those purposes effectively in the reasonably foreseeable
future. The centers would also need to be geographically
distributed. Finally, the Secretary could designate a facility
as a new PADRECC or MS Center only if a peer review panel finds
that the facility meets the requirements of the law, and
recommends designation.
VA does not support S. 1537 because it is unnecessary; the
Department is already in full compliance with the substantive
requirements of this bill. VA recommends that Congress await an
ongoing evaluation of the existing PADRECCs before it considers
whether to mandate that VA either continue their operation or
designate new centers. Additionally, VA is concerned that
statutory mandates for these ``disease specific'' centers has
the potential to fragment care in what is otherwise a well-
designed, world class integrated health care system. I am
increasingly concerned about the proliferation of this disease
specific model and its impact on patient care and VA's
integrate health care model. As it relates to a particular
disease, I believe that it is much more important for VA to
disseminate the best in evidence based practices across its
health care system than to establish centers that provide care
for a particular disease.
VA currently has PADRECCs at six sites--San Francisco,
California; Richmond, Virginia; Philadelphia, Pennsylvania;
Houston, Texas; Los Angeles, California, and Puget Sound/
Portland, Oregon (a combined site). Those sites served a total
of 18,500 patients in fiscal year 2004. We are currently
conducting an evaluation of PADRECCs' effectiveness in
disseminating best practices, impact on patient outcomes, and
the types of organizational structures that contribute to
effectiveness. The study will be completed in 2007. Until this
study is complete, VA believes that it would be unwise to
mandate continued operation of these or additional PADRECCs. VA
will, of course, share the results of the evaluation with
Congress to assist in determining the need for legislation in
the future.
For similar reasons, VA also does not support establishing
new specialty centers for the care of veterans with multiple
sclerosis. VA is well aware that Parkinson's disease and
multiple sclerosis are prevalent in the veteran population,
particularly among aging veterans. However, the nature of
battlefield injuries is changing, and VA is now treating many
new veteran patients with complex polytrauma syndromes,
including brain injuries, limb loss, and sensory loss. Treating
such disorders, and the mental and emotional disorders that
accompany them, requires an interdisciplinary approach that
moves beyond the focus on a single disease. By mandating new
``education, research, and clinical centers'' that are disease-
specific, flexibility to respond to changing combinations of
related conditions is reduced. It is also important to note
that the ``models'' on which PADRECCs and MS Centers are based,
the successful Geriatric Research, Education and Clinical
Center (GRECC) and Mental Illness Research, Education and
Clinical Center (MIRECC) programs, were not as narrowly-focused
on a disease process but addressed a wide gamut of issues
facing a significant portion of the veteran population.
S. 2433 Rural Veterans Care Act of 2006
Mr. Chairman, S. 2433 is an ambitious measure to improve
access to VA health care and other VA benefits by veterans
living in rural and remote areas by creating a new Assistant
Secretary who would be responsible for formulating,
coordinating, and overseeing all VA benefits, policies, and
procedures affecting such veterans. This would include
overseeing and coordinating personnel and policies of the three
Administrations (i.e., Veterans Health Administration (VHA),
Veterans Benefits Administration, National Cemetery
Administration) to the extent such programs affect veterans
living in rural areas.
Section 2 of the bill would establish a new Assistant
Secretary for Rural Veterans (AS) to formulate, coordinate, and
implement all policies and procedures of the Department that
affect veterans living in rural areas. It would require the new
Assistant Secretary to oversee, coordinate, promote, and
disseminate research into issues affecting veterans living in
rural areas, in cooperation with VHA and the centers that would
be established under section 6 of the bill, as well as ensure
maximum effectiveness and efficiency in the provision of
benefits to these veterans in coordination with the Departments
of Health and Human Services (HHS), Labor, Agriculture and
local government agencies.
In addition, section 2 would require the Assistant
Secretary to identify a Rural Veterans Coordinator in each VHA
Integrated Service Network (VISN), who would report directly to
the Assistant Secretary and coordinate all the functions
authorized under section 2 within his respective VISN. It would
also require the Assistant Secretary, under the direction of
Secretary, to supervise the VA employees who are responsible
for implementing these policies and procedures.
Section 3 of the bill would require the Assistant Secretary
to carry out demonstration projects to examine alternatives for
expanding care in rural areas. In so doing, the Assistant
Secretary would have to work with the Department of Health and
Human Services to coordinate care that is delivered through the
Indian Health Service, Critical Access hospitals, or Community
Health Centers. One such program would have to involve expanded
use of fee-basis care for veterans living in rural or remote
areas. Not later than one year after the date of enactment of
this Act, the Assistant Secretary would be further required to
re-evaluate VA policy on the use of fee basis care nationwide
and to revise established policies to extend health care
services to rural and remote rural areas.
Section 4 of the bill would require the Secretary to
conduct a three-year pilot program in 3 VISNs to evaluate
various means to improve access to care in highly rural or
geographically remote areas for all enrolled veterans and those
with service-connected disabilities who live in such areas. In
carrying out the pilot, the Secretary would be required to
provide these veterans with acute or chronic symptom
management, non-therapeutic medical services, and any other
medical services jointly determined to be appropriate by the
individual veteran's VA primary care physician and the
respective VISN Director. The Secretary would also have to
allocate 0.9% of the appropriated medical care funds to carry
out this section before allocating any other medical funds.
Section 5 would amend VA's authority to provide beneficiary
travel benefits to require that covered lodging and subsistence
be determined at the same rates that apply to Federal
employees. It would also require that VA's mileage allowance be
determined in accordance with the rates that apply to Federal
employees.
Finally, section 6 of the bill would require the new
Assistant Secretary to establish up to five centers of
excellence for rural health research, education, and clinical
activities. These center(s) would be required to: conduct
research on rural health services; allow for use of specific
models of furnishing services to this population; provide
education and training for health care professionals; and,
develop and implement innovative clinical activities and
systems of care.
We share the concern that rural veterans have adequate
access to VA health care and other VA services; however, we do
not agree that the bill would effectively achieve this and, so,
oppose S. 2433. First, the Under Secretaries of the three VA
Administrations are responsible for formulating and
implementing program policy in their respective areas. The
proposed Assistant Secretary could have no direct authority
over them or their organizations. The proposed role and
responsibilities of the Assistant Secretary, as provided for in
this legislation, would cause significant confusion and
disruption across organizational lines--both among, and within,
the Administrations.
Assuming there were some way to operationalize the
responsibilities of the Assistant Secretary, the ability of the
Under Secretaries to manage their employees and respective
programs efficiently and effectively would be significantly
reduced. The bill would dilute control from the Administrations
with respect to specified activities, personnel, and resources.
This would increase the potential for fragmented services,
waste, and inconsistent, if not unequal, treatment of veterans
based solely on their geographic location. For instance, 23% of
enrollees live in rural areas based on the Census' definition
of a rural area. However, only four percent of enrollees live
in a rural area and travel more than 60 minutes to a VA
facility. Under the bill, a disproportionate share of health
care resources would be directed to this population. The
planning and delivery of services to rural veteran-enrollees
would be inconsistent and incoherent with respect to the total
population of enrolled veterans. The possibility of
fragmentation in the delivery of benefits cannot be overstated.
Second, S. 2433 would adversely dilute the ability of the
Under Secretary for Health to manage not only the delivery of
VA health care to rural veterans but also the delivery of
health care to all veterans because of the significant costs
associated with enactment of this bill. The proposed
demonstration projects would cost $225 million based on the
President's Budget for Fiscal Year 07. The additional
beneficiary travel benefits would cost approximately $550
million (based on current employee-related rates), and that
estimate accounts only for the proposed increase in VA's
mileage allowance. Providing per diem (lodging and subsistence)
at the proposed rates in addition to the mileage allowance
would raise the estimate to well over $1 billion. Moreover,
these increases would assist only the limited categories of
veterans who are eligible for beneficiary travel benefits. We
believe medical care funds are better directed to the delivery
of direct health care for all eligible veterans.
We note that the mandate to expand the use of fee-basis
care in the proposed demonstration projects may not be
possible, because VA's authority to provide fee-basis care
(meaning contract care other than care furnished under a
sharing or scarce-medical-specialist agreement) is limited by
statute. Further, the mandate ignores the economic impact of
expanding the use of fee basis care. The cost of care in fee
settings is typically significantly greater than the cost of
the same care provided in VA settings. As a result, while fee-
basis expansion may make care accessible for some rural
veterans, it would disproportionately reduce the resources
available for care of all other veterans. Moreover, we do not
understand the mandate to provide non-therapeutic medical
services as part of the pilot program and would question the
wisdom of providing such service from the three medical care
appropriations. Finally, the demonstration projects and pilot
project could be achieved, to a large extent, within the
current VHA structure and existing authority. It does not
require an organizational restructuring, which, again, would
create significant risk of fragmentation and lack of continuity
of care and benefits.
* * * * *
S. 2634 Eliminating Statutory Term Limits of Under Secretary for
Health and Under Secretary for Benefits
Mr. Chairman, S. 2634 would eliminate the current statutory
four-year term limit that applies to both the Under Secretary
for Health and the Under Secretary for Benefits position, as
well as the currently mandated search-commission processes for
identifying candidates to recommend to the President for these
positions. VA supports S. 2634 as it would provide the
Secretary with needed flexibility as well as decrease the time
required to fill these vacancies.
------
Statement of Ronald Aument, Deputy Under Secretary for Benefits,
Department of Veterans Affairs--June 8, 2006
Mr. Chairman and Members of the Committee, thank you for
the opportunity to testify today on a number of legislative
items of great interest to veterans. I am joined at the witness
table by John H. Thompson, Deputy General Counsel.
S. 2121
S. 2121, the ``Veterans Housing Fairness Act of 2005,''
would authorize VA to guarantee loans for stock in certain
developments, structures, or projects of a cooperative housing
corporation (co-ops).
VA cannot support this bill because we do not believe that
VA participation in co-ops would be in the best interest of the
veteran or of the Government as guarantor of the loan. Under
current law, a veteran may purchase a conventional home, a
condominium unit, or a manufactured home and a manufactured
home lot. In all cases except a manufactured home, the veteran
is purchasing real property. Although the manufactured home is
normally considered personal property, the veteran also obtains
title to the actual home he or she will be occupying. In
contrast, the buyer of a co-op does not acquire an interest in
real estate or obtain title to his or her dwelling unit.
Instead, the purchaser acquires personal property in the form
of a share of the cooperative's stock, coupled with the right
to occupy a particular apartment in the building. A buyer
normally obtains a share loan that finances the purchase of an
ownership interest in the co-op. This loan is evidenced by a
promissory note and is secured by a pledge of the stock,
shares, membership certificate, or other contractual agreement
that evidences ownership in the corporation and by an
assignment of the proprietary lease or occupancy agreement. VA
would be guaranteeing this corporate share loan. Unlike other
VA loans, there would be no lien on real property or tangible
personal property.
Cooperative housing projects are usually subject to blanket
mortgages. This is a matter of great concern because of the
significant risk to which the buyer, the loan holder, and VA
are exposed. The buyer of a co-op is responsible for the
monthly payment on the share loan as well as the assessments
levied by the corporation, which can be significant. The
survival of the project may depend upon each member of the co-
op meeting his or her obligations. Failure to do that could
lead to foreclosure of the blanket mortgage on the entire
building. Such foreclosure would wipe out any interest
individual co-op owners, even owners who are timely in the
payment of their share loans, may have in the project since
they have no interest in real property. It would also leave the
holder of the share loan without any security. This is what
principally sets co-ops apart from condominiums.
Many co-ops also retain a right of first refusal or a right
by the co-op board to approve or reject a prospective buyer.
Rights of first refusal are not permitted by VA regulation, 38
C.F.R. Sec. 36.4350, and VA does not participate in projects
that have them. We believe that the issue of right of first
refusal alone would disqualify most projects from VA
eligibility.
We understand that some co-op projects impose other
restrictions on sales, such as imposing a fee when the owner
sells his or her unit to someone other than the corporation, or
granting the exclusive right to sell units to a particular real
estate broker, often at a higher commission. These and similar
practices would be viewed as detrimental to the interests of
veterans and, therefore, not permitted under current VA
regulations for conventional or condominium developments. These
practices could also adversely affect the marketability of a
unit. If a veteran-borrower is experiencing financial
difficulties and cannot freely dispose of his or her unit at an
advantageous price, foreclosure with a resultant loss to VA is
more likely.
We also understand that conventional lenders, as well as
the secondary mortgage market agencies, generally have
additional underwriting and project requirements for co-ops
because of the additional risks they present. In addition,
valuation of these properties would be very complicated because
of the blanket mortgage.
Costs associated with this legislation would likely be
insignificant compared to the overall VA guaranteed loan
portfolio.
S. 2416
S. 2416, the ``Veterans Employment and Training Act of
2006,'' would expand the programs of education for which
accelerated payment of educational assistance may be made under
the chapter 30 Montgomery GI Bill (MGIB) program. Specifically,
this measure would permit accelerated payment of the basic
educational assistance allowance to veterans pursuing an
approved program of education (in addition to the programs now
authorized such payment) lasting less than two years and
leading to employment in a sector of the economy that is
projected to experience substantial job growth, positively
affects the growth of another sector of the economy, or
consists of existing or emerging businesses that are being
changed by technology and innovation and require new skills for
workers, as determined by the Department of Labor (DOL).
Under current law, only an MGIB participant pursuing high-
cost courses leading to employment in a high technology
occupation in a high technology industry has the option of
receiving an accelerated benefit payment. This optional lump-
sum accelerated benefit payment may cover up to 60 percent of
the cost of such a course, provided the pro-rated course costs
exceed 200 percent of the applicable monthly MGIB rate. The
lump-sum payment is deducted from the veteran's MGIB
entitlement balance in the same manner as if paid on a monthly
basis and may not exceed that balance.
In addition, S. 2416 specifically states that, for purposes
of accelerated payment of educational assistance, the term
``program of education'' would include such a program pursued
at a tribally controlled college or university (as defined in
the Tribally Controlled College or University Assistance Act of
1978).
VA supports S. 2416, subject to Congress' enactment of
legislation offsetting the cost of the increased benefits.
However, as discussed below, we believe there may be a more
efficient way of achieving its objective.
We note that implementation would be challenging for VA.
The DOL employment projections change every two years. In
addition, depending on the definition of ``sector,'' it is
possible that almost all programs would lead to employment in
one sector of the economy that would affect at least one other
sector positively. It would be cleaner and more direct if the
bill simply stated that all high-cost short-term courses were
eligible for accelerated payment. Secondly, S. 2416 would
exclude from the proposed expansion of accelerated payment
eligibility those individuals who are enrolled in an
associate's or higher degree program. Thus, such an individual
only could receive an accelerated payment if his or her program
of education leads to employment in a high technology
occupation in a high technology industry (as determined by VA).
We can see no sound public policy basis for making this
distinction.
Concerning the bill's express provision for accelerated
payments under chapter 30 to eligible veterans pursuing a
program of education at a tribally controlled college or
university, VA has no objection. We note, however, that VA
currently considers such programs to be ``programs of
education'' for MGIB purposes, and we are not aware of any
situations pertaining to servicemembers or veterans attending
tribally controlled colleges or universities that adversely
affect their eligibility for accelerated benefit payments.
VA estimates S. 2416, if enacted, would cost $11.5 million
during FY 2007 and approximately $121.6 million over the period
FYs 2007-2016. The estimates for the years following FY 2007
would need to be reassessed annually due to DOL initiative
changes.
* * * * *
S. 2659
S. 2659, the ``Native American Veterans Cemetery Act of
2006,'' would authorize the Secretary of Veterans Affairs to
make grants to Native American tribal organizations to assist
them in establishing, expanding, or improving veterans'
cemeteries on trust lands in the same manner and under the same
conditions as grants to states are made under 38 U.S.C.
Sec. 2408. We strongly support enactment of this bill.
The cemetery grants program has proven to be an effective
way of making the option of veterans cemetery burial available
in locations not conveniently served by our national
cemeteries. S. 2659 would create another means of accommodating
the burial needs of Native American veterans who wish to be
buried in tribal lands.
S. 2694
S. 2694, the ``Veterans' Choice of Representation Act of
2006,'' would eliminate the current prohibition on the charging
of fees for services of an agent or attorney provided before
the Board of Veterans' Appeals (Board) makes its first final
decision in the case. It would also authorize VA to restrict
the amount of fees agents or attorneys may charge and subject
fee agreements between agents or attorneys and claimants to
review by the Secretary, such review to be appealable to the
Board. In addition, it would eliminate fee matters as grounds
for criminal penalties under 38 U.S.C. Sec. 5905.
S. 2694 would also authorize VA to regulate the
qualifications and standards of conduct applicable to agents
and attorneys, add three grounds to the list of grounds for
suspension or exclusion of agents or attorneys from further
practice before VA, subject VSO representatives and individuals
recognized for a particular claim to suspension on the same
grounds as apply to agents and attorneys, and authorize VA to
periodically collect registration fees from agents and
attorneys to offset the cost of these regulatory activities.
We understand, and in fact agree with, the argument that
veterans are as capable as anyone of deciding whether to employ
attorneys on their behalves. However, that is not the issue.
The Government has an obligation to ensure that veterans derive
maximum value from taxpayer-supported VA programs. This
Committee expressed its concern in 1988 when it reported out a
bill (S. 11, 100th Cong.) that would have retained the prior
$10 limitation on fees for claims resolved before or in the
first Board decision, that any changes relating to attorneys'
fees ``be made carefully so as not to induce unnecessary
retention of attorneys by VA claimants.'' Under S. 2694,
attorney fees would consume significant amounts of payments
under programs meant to benefit veterans, and Congress should
not enact this bill unless it becomes convinced veterans would
gain more in terms of increased benefits than they would lose
to their attorneys. Available evidence shows that is unlikely,
hence we cannot support the bill's enactment.
Throughout the years, Congress has recognized, correctly,
that integration of VSO representatives into the process of
developing and deciding claims is one of the most valuable
features of the VA adjudication system. These representatives
are available to guide through the claims process all claimants
who seek their assistance, without charge. VSO representatives
are well-versed in veterans benefits law as a result of the
training they receive and therefore are well-equipped to
successfully assist claimants throughout the administrative
processing of their claims. Further, VSOs must certify to VA
that their representatives are fully qualified to represent
claimants. These facts alone cause us to doubt that
participation by attorneys would gain claimants more in
increased benefits than it would cost them in fees.
Moreover, what empirical data exist do not indicate
attorneys would provide service superior to that rendered by
VSO representatives. For example, in FY 2005, 7.5 percent of
appellants before the Board of Veterans' Appeals were
represented by attorneys, and approximately 80 percent were
represented by VSOs. Approximately the same percentage of
claims was granted in matters appealed to the Board whether a
claimant was represented by a VSO representative or was
represented by an attorney. In FY 2005, the Board granted one
or more of the benefits sought in 21.3 percent of the appeals
in which a claimant was represented by an attorney. The Board
granted one or more of the benefits sought in 22.3 percent of
the cases in which a claimant was represented by a VSO.
The expense of employing an attorney to obtain veterans
benefits would appear to be largely unwarranted. For example,
many claims are granted immediately by VA based on a
presumption of service connection or incurrence of an injury or
disease during service. VA currently has presumptions of
service connection for several different kinds of service and
many diseases. For example, a Vietnam veteran is entitled to a
presumption of service connection if he or she develops
diabetes mellitus (Type 2). Giving VA an opportunity to decide
such a claim without attorney involvement may well save a
veteran money. In addition, claimants do not appeal to the
Board in about 90 percent of claims decided by VA regional
offices, suggesting a high level of satisfaction with the
regional offices' decisions in their cases. Paying an attorney
to assist in presenting these claims would seem to be a waste
of claimants' financial resources.
Also, as this Committee recognized in 1988 when it reported
out S. 11, there is ``no compelling justification'' for hiring
an attorney prior to that point. The Supreme Court recognized
in Walters v. National Ass'n of Radiation Survivors that,
``[a]s might be expected in a system which processes such a
large number of claims each year, the process prescribed by
Congress for obtaining disability benefits does not contemplate
the adversary mode of dispute resolution.'' Rather, the Supreme
Court said, ``The process is designed to function throughout
with a high degree of informality and solicitude for the
claimant.''
All a claimant need do is file a claim, and VA will notify
the claimant of the information and evidence necessary to
substantiate the claim, assist the claimant in obtaining
relevant Government and private records, provide a medical
examination or obtain a medical opinion when necessary to
decide a compensation claim, and make an initial decision on
the claim. If a claim is denied, all a claimant need do to
initiate an appeal to the Board is to write VA expressing
dissatisfaction or disagreement with the decision and a desire
to contest the result. The VA agency that made the original
decision on the claim will develop or review the claim in a
final attempt to resolve the disagreement and issue a statement
of the case if the disagreement is not resolved. VA assumes
primary responsibility for leading a claimant through the
administrative claims process, making the expenditure of a
claimant's limited financial resources on an attorney
unnecessary. Furthermore, we are concerned that enactment of
this bill would impede the Government's paramount interest in
promoting and maintaining a non-adversarial adjudicative
process, as exemplified by the Veterans Claims Assistance Act
of 2000 requiring VA to notify a claimant of the information
and evidence necessary to substantiate a claim and to assist a
claimant in obtaining such evidence. This statute was designed
to facilitate beneficial interaction between claimants and VA
during the initial adjudication process. S. 2694, by permitting
claimants to employ paid attorneys before issuance of the first
final Board decision, would be incongruent with the beneficent
VA system that Congress has nurtured over the decades.
Also, attorney-represented claimants would lose certain
benefits of the current non-adversarial system. For example,
the Court of Appeals for the Federal Circuit recently held in
Andrews v. Nicholson that VA must sympathetically read all pro
se pleadings, including a pro se motion alleging clear and
unmistakable error (CUE) in a VA decision. However, the court
stated in Andrews and in Johnston v. Nicholson that VA is not
obligated to sympathetically read pleadings filed by counsel,
and the failure to raise an issue in a CUE motion filed by
counsel before the Board is fatal to subsequently raising the
issue before the Court of Appeals for Veterans Claims. S. 2694
would attempt to maintain the non-adversarial nature of the
process by authorizing VA to suspend claim representatives who
fail to conduct themselves ``with due regard for the non-
adversarial nature of'' VA proceedings. However, a requirement
for non-adversarial conduct by an attorney appears inconsistent
with an attorney's professional responsibility to ``represent a
client zealously within the bounds of the law.'' MODEL CODE OF
PROF'L RESPONSIBILITY CANON 7 (1983). ``While serving as
advocate, a lawyer should resolve in favor of his client doubts
as to the bounds of the law'' and may urge any permissible
construction of the law favorable to his client. MODEL CODE OF
PROF'L RESPONSIBILITY EC 7-3 and 7-4 (1983). An attorney who
``appear[s] before an administrative agency, regardless of the
nature of the proceeding it is conducting, has the continuing
duty to advance the cause of his client within the bounds of
the law.'' MODEL CODE OF PROF'L RESPONSIBILITY EC 7-15.
Introducing an attorney charged with such professional
obligations into the non-adversarial claims process from its
initial stages would, in our view, inevitably make the process
more adversarial, which we believe would harm the interests of
VA claimants. Further, if S. 2694 were enacted, VA would likely
have to hire attorneys to work in its Regional Offices to
respond to the legal pleadings filed by attorneys in support of
their clients' claims. However unintentional it would be, we
predict the process would inevitably become more formal and
brief driven, to the point claimants may feel they must hire
attorneys to establish entitlement to their benefits. The
result would almost certainly be to increase the time all
veterans must wait for decisions in their claims. Finally, we
cannot support S. 2694 because it would require creation of a
substantial new bureaucracy to perform the additional
accreditation and oversight responsibilities. Currently, an
attorney in good standing with the bar of any state may
represent a claimant before VA if the attorney states in a
signed writing on his or her letterhead that he or she is
authorized to represent the claimant. If S. 2694 were enacted,
VA would have to create procedures and standards for
accrediting attorneys and for reviewing fee agreements for
services performed at the ROs to determine whether a fee
charged by an agent or attorney is ``excessive or
unreasonable.'' The additional time and substantial resources
that would be required to carry out the accreditation process
and review fee agreements for work performed before the ROs
would, in our view, be better spent adjudicating the
approximately 800,000 benefit claims that VA receives annually.
Moreover, attorneys are licensed by the various states,
which are responsible for regulating their conduct and
disciplining them if they overreach with respect to fees
charged. If attorneys are permitted to practice before the
Department and charge fees for their services, it would be far
better to have them regulated by the states responsible for
their licenses than to create a new Federal office to monitor
attorney conduct.
S. 3363
S. 3363 would provide for accelerated payment of survivors'
and dependents' educational assistance for certain programs of
education under chapter 35 of title 38, United States Code. VA
will provide its comments and costs on S. 3363 at a later time.
That concludes my statement, Mr. Chairman. I would be happy
now to entertain any questions you or the other members of the
Committee may have.
------ *
* * * * * *
Letter From William J. Haynes II, General Counsel, Department of
Defense
February 9, 2006.
Hon. Larry E. Craig,
Chairman, Committee on Veterans Affairs,
U.S. Senate, Washington, DC.
Dear Chairman Craig: I want to convey the Department of
Defense's position on S. 1759, a bill to ``require the
Secretary of the Army to remove the remains of Russell Wayne
Wagner from Arlington National Cemetery.'' The Department of
Defense has no objection to the enactment of this bill.
The Department notes that Mr. Wagner's remains were buried
in accordance with existing law and that S. 1759 would not
direct the removal of the remains of other capital offenders
interred at Arlington National Cemetery. The Department is
concerned that, as drafted S. 1759 would require the Department
of the Army to bear the costs of a subsequent interment or
inurnment in a public or private cemetery. The Department of
Defense does not provide funeral costs for veterans at public
or private cemeteries. Doing so in this case could set an
undesirable precedent. Additionally, we believe the first
option should be to offer the remains to the decedent's family.
The Office of Management and Budget advises that, from the
standpoint of the Administration's program, there is no
objection to the presentation of this letter for the
consideration of the committee.
Sincerely,
William J. Haynes II.
Changes in Existing Law Made by the Committee Bill, as Reported
In compliance with paragraph 12 of Rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the Committee bill, as reported, are shown as follows (existing
law proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 26, UNITED STATES CODE
* * * * * * *
Sec. 6103. Confidentiality and disclosure of returns and return
information
* * * * * * *
(l) * * *
(7) * * *
Only return information from returns with respect to net
earnings from self-employment and wages may be disclosed under
this paragraph for use with respect to any program described in
clause (viii)(IV). Clause (viii) shall not apply after
[September 30, 2008] September 30, 2011.
TITLE 38, UNITED STATES CODE
* * * * * * *
PART I. GENERAL PROVISIONS
* * * * * * *
CHAPTER 3. DEPARTMENT OF VETERANS AFFAIRS
* * * * * * *
Sec. 305. Under Secretary for Health
* * * * * * *
[(c) The Under Secretary for Health shall be appointed for
a period of four years, with reappointment permissible for
successive like periods. If the President removes the Under
Secretary for Health before the completion of the term for
which the Under Secretary for Health was appointed, the
President shall communicate the reasons for the removal to
Congress.]
[(d)] (c)(1) Whenever a vacancy in the position of Under
Secretary for Health occurs or is anticipated, the Secretary
shall establish a commission to recommend individuals to the
President for appointment to the position.
(2) A commission established under this subsection shall
be composed of the following members appointed by the
Secretary:
(A) Three persons representing clinical care and
medical research and education activities affected by
the Veterans Health Administration.
(B) Two persons representing veterans served by the
Veterans Health Administration.
(C) Two persons who have experience in the management
of veterans health services and research programs, or
programs of similar content and scope.
(D) The Deputy Secretary of Veterans Affairs.
(E) The Chairman of the Special Medical Advisory
Group established under section 7312 of this title.
(F) One person who has held the position of Under
Secretary for Health (including service as Chief
Medical Director of the Department), if the Secretary
determines that it is desirable for such person to be a
member of the commission.
(3) A commission established under this subsection shall
recommend at least three individuals for appointment to the
position of Under Secretary for Health. The commission shall
submit all recommendations to the Secretary. The Secretary
shall forward the recommendations to the President with any
comments the Secretary considers appropriate. Thereafter, the
President may request the commission to recommend additional
individuals for appointment.
(4) The Assistant Secretary or Deputy Assistant Secretary
of Veterans Affairs who performs personnel management and labor
relations functions shall serve as the executive secretary of a
commission established under this subsection.
Sec. 306. Under Secretary for Benefits
* * * * * * *
[(c) The Under Secretary for Benefits shall be appointed
for a period of four years, with reappointment permissible for
successive like periods. If the President removes the Under
Secretary for Benefits before the completion of the term for
which the Under Secretary for Benefits was appointed, the
President shall communicate the reasons for the removal to
Congress.]
[(d)] (c)(1) Whenever a vacancy in the position of Under
Secretary for Benefits occurs or is anticipated, the Secretary
shall establish a commission to recommend individuals to the
President for appointment to the position.
(2) A commission established under this subsection shall
be composed of the following members appointed by the
Secretary:
(A) Three persons representing education and training,
real estate, mortgage finance, and related industries, and
survivor benefits activities affected by the Veterans Benefits
Administration.
(B) Two persons representing veterans served by the
Veterans Benefits Administration.
(C) Two persons who have experience in the management of
veterans benefits programs or programs of similar content and
scope.
(D) The Deputy Secretary of Veterans Affairs.
(E) The chairman of the Veterans' Advisory Committee on
Education formed under section 3692 of this title.
(F) One person who has held the position of Under
Secretary for Benefits (including service as Chief Benefits
Director of the Department), if the Secretary determines that
it is desirable for such person to be a member of the
commission.
(3) A commission established under this subsection shall
recommend at least three individuals for appointment to the
position of Under Secretary for Benefits. The commission shall
submit all recommendations to the Secretary. The Secretary
shall forward the recommendations to the President with any
comments the Secretary considers appropriate. Thereafter, the
President may request the commission to recommend additional
individuals for appointment.
(4) The Assistant Secretary or Deputy Assistant Secretary
of Veterans Affairs who performs personnel management and labor
relations functions shall serve as the executive secretary of a
commission established under this subsection.
* * * * * * *
PART II. GENERAL BENEFITS
* * * * * * *
CHAPTER 15. PENSION FOR NON-SERVICE-CONNECTED DISABILITY OR DEATH OR
FOR SERVICE
Subchapter I. General
* * * * * * *
Sec. 1505. Payment of pension during confinement in penal institutions
(a) No pension under public or private laws administered by
the Secretary shall be paid to or for an individual who has
been imprisoned in a Federal, State, [or local penal
institution] local, or other penal institution or correctional
facility as a result of conviction of a felony or misdemeanor
for any part of the period beginning sixty-one days after such
individual's imprisonment begins and ending when such
individual's imprisonment ends.
* * * * * * *
CHAPTER 17. HOSPITAL, NURSING HOME, DOMICILIARY, AND MEDICAL CARE
* * * * * * *
Subchapter V. Payments to State Homes
1741. Criteria for payment.
1742. Inspections of such homes; restrictions on beneficiaries.
1743. Applications.
1745. Nursing home care and medications for veterans with tates.
service-connected disabilities.
* * * * * * *
Subchapter II. Hospital, Nursing Home, or Domiciliary Care and Medical
Treatment
Sec. 1710. Eligibility for hospital, nursing home, and domiciliary care
(a) * * *
* * * * * * *
(4) The requirement in paragraphs (1) and (2) that
the Secretary furnish hospital care and medical
services, the requirement in section 1710A(a) of this
title that the Secretary provide nursing home care,
[and] the requirement in section 1710B of this title
that the Secretary provide a program of extended care
services, and the requirement in section 1745 of this
title to provide nursing home care and prescription
medicines to veterans with service-connected
disabilities in State homes shall be effective in any
fiscal year only to the extent and in the amount
provided in advance in appropriations Acts for such
purposes.
* * * * * * *
Sec. 1741. Criteria for payment
(a)(1) [The] Except as provided in section 1745 of this
title, the Secretary shall pay each State at the per diem rate
of--
(A) $8.70 for domiciliary care; and
(B) $20.35 for nursing home care and hospital care,
for each veteran receiving such care in a State home,
if such veteran is eligible for such care in a
Department facility.
* * * * * * *
(f) Any State home that requests payment or reimbursement
for services provided to a veteran under this section shall
provide to the Secretary such information as the Secretary
considers necessary to identify each individual veteran
eligible for payment under such section.
* * * * * * *
Sec. 1745. Nursing home care and medications for veterans with service-
connected disabilities
(a)(1) The Secretary shall pay each State home for nursing
home care at the rate determined under paragraph (2), where
such care is provided to any veteran as follows:
(A) Any veteran in need of such care for a service-
connected disability.
(B) Any veteran who--
(i) has a service-connected disability rated
at 70 percent or more; and
(ii) is in need of such care.
(2) The rate determined under this paragraph with respect
to a State home is the lesser of--
(A) the applicable or prevailing rate payable in the
geographic area in which the State home is located, as
determined by the Secretary, for nursing home care
furnished in a non-Department nursing home (as that
term is defined in section 1720(e)(2)); or
(B) a rate not to exceed the daily cost of care, as
determined by the Secretary, following a report to the
Secretary by the director of the State home.
(3) Payment by the Secretary under paragraph (1) to a State
home for nursing home care provided to a veteran described in
that paragraph constitutes payment in full to the State home
for such care furnished to that veteran.
(b) The Secretary shall furnish such drugs and medicines as
may be ordered on prescription of a duly licensed physician as
specific therapy in the treatment of illness or injury to any
veteran as follows:
(1) Any veteran who--
(A) is not being provided nursing home care
for which payment is payable under subsection
(a); and
(B) is in need of such drugs and medicines
for a service-connected disability.
(2) Any veteran who--
(A) has a service-connected disability rated
at 50 percent or more;
(B) is not being provided nursing home care
for which payment is payable under subsection
(a); and
(C) is in need of such drugs and medicines.
(c) Any State home that requests payment or reimbursement
for services provided to a veteran under this section shall
provide to the Secretary such information as the Secretary
considers necessary to identify each individual veteran
eligible for payment under such section.
* * * * * * *
CHAPTER 19. INSURANCE
Subchapter I. National Service Life Insurance
* * * * * * *
Sec. 1922A. Supplemental service disabled veterans' insurance for
totally disabled veterans
(a) Any person insured under section 1922(a) of this title
who qualifies for a waiver of premiums under section 1912 of
this title is eligible, as provided in this section, for
supplemental insurance in an amount not to exceed [$20,000]
$30,000, during the period beginning on October 1, 2007, and
ending on September 31, 2011, or $20,000 at any other time.
* * * * * * *
CHAPTER 20. BENEFITS FOR HOMELESS VETERANS
* * * * * * *
Subchapter V. Housing Assistance
2041. Housing assistance for homeless veterans.
2042. Supported housing for veterans participating in compensated work
therapies.
2043. Domiciliary care programs.
2044. Financial assistance for supportive services for very low-income
veteran families in permanent housing.
* * * * * * *
Subchapter II. Comprehensive Service Programs
Sec. 2011. Grants
(a) Authority To Make Grants.--[(1)] Subject to the
availability of appropriations provided for such purpose, the
Secretary shall make grants to assist eligible entities in
establishing programs to furnish, and expanding or modifying
existing programs for furnishing, the following to homeless
veterans:
[(A)] (1) Outreach.
[(B)] (2) Rehabilitative services.
[(C)] (3) Vocational counseling and training
[(D)] (4) Transitional housing assistance.
[(2) The authority of the Secretary to make grants
under this section expires on September 30, 2005.]
* * * * * * *
Sec. 2013. Authorization of appropriations
[There are authorized to be appropriated to carry out this
subchapter amounts as follows:
[(1) $60,000,000 for fiscal year 2002.
[(2) $75,000,000 for fiscal year 2003.
[(3) $75,000,000 for fiscal year 2004.
[(4) $99,000,000 for fiscal year 2005.]
There is authorized to be appropriated, to carry out this
subchapter, $130,000,000 for fiscal year 2007 and each fiscal
year thereafter.
* * * * * * *
Subchapter IV. Treatment and Rehabilitation for Seriously Mentally Ill
and Homeless Veterans
Sec. 2031. General treatment
* * * * * * *
(b) The authority of the Secretary under subsection (a)
expires on December 31, [2006] 2011.
* * * * * * *
Sec. 2033. Additional services at certain locations
* * * * * * *
(d) The program under this section shall terminate on
December 31, [2006] 2011.
* * * * * * *
Sec. 2041. Housing assistance for homeless veterans
* * * * * * *
(c) The Secretary may not enter into agreements under
subsection (a) after December 31, [2008] 2011.
* * * * * * *
Sec. 2043. Domiciliary care programs
* * * * * * *
Sec. 2044. Financial assistance for supportive services for very low-
income veteran families in permanent housing
(a) Distribution of Financial Assistance.--
(1) The Secretary shall provide financial assistance
to eligible entities approved under this section to
provide and coordinate the provision of supportive
services described in subsection (b) for very low-
income veteran families occupying permanent housing.
(2) Financial assistance under this section shall
consist of per diem payments for each such family for
which an approved eligible entity is providing or
coordinating the provision of supportive services.
(3)(A) Subject to the availability of appropriations
provided for such purpose, the Secretary shall provide
to each family for which an approved eligible entity is
providing or coordinating the provision of supportive
services per diem payments in the amount of the daily
cost of care estimated by such eligible entity (as
adjusted by the Secretary under subparagraph (C)).
(B) In no case may the amount of per diem paid under
this paragraph exceed the rate of per diem authorized
for State homes for domiciliary care under subsection
(a)(1)(A) of section 1741 of this title, as adjusted by
the Secretary under subsection (c) of such section.
(C) The Secretary may adjust the daily cost of care
estimated by an eligible entity for purposes of this
paragraph to exclude other sources of income described
in subparagraph (E) that the eligible entity certifies
to be correct.
(D) Each eligible entity shall provide to the
Secretary such information with respect to other
sources of income as the Secretary may require to make
the adjustment under subparagraph (C).
(E) The other sources of income referred to in
subparagraphs (C) and (D) are payments to the eligible
entity for furnishing services to homeless veterans
under programs other than under this subchapter,
including payments and grants from other departments
and agencies of the Federal Government, from
departments or agencies of State or local government,
and from private entities or organizations.
(4) In providing financial assistance under paragraph
(1), the Secretary shall give preference to entities
providing or coordinating the provision of supportive
services for very low-income veteran families who are
transitioning from homelessness to permanent housing.
(5) The Secretary shall ensure that, to the extent
practicable, financial assistance under this subsection
is equitably distributed across geographic regions,
including rural communities and tribal lands.
(6) Each entity receiving financial assistance under
this section to provide supportive services to a very
low-income veteran family shall notify that family that
such services are being paid for, in whole or in part,
by the Department.
(7) The Secretary may require entities receiving
financial assistance under this section to submit a
report to the Secretary that describes the projects
carried out with such financial assistance.
(b) Supportive Services.--The supportive services referred
to in subsection (a) are the following:
(1) Services provided by an eligible entity or
subcontractors that address the needs of very low-
income veteran families occupying permanent housing,
including--
(A) Outreach services;
(B) health care services, including
diagnosis, treatment, and counseling for mental
health and substance abuse disorders and for
post-traumatic stress disorder, if such
services are not readily available through the
Department medical center serving the
geographic area in which the veteran family is
housed;
(C) habilitation and rehabilitation services;
(D) case management services;
(E) daily living services;
(F) personal financial planning;
(G) transportation services;
(H) vocational counseling;
(I) employment and training;
(J) educational services;
(K) assistance in obtaining veterans benefits
and other public benefits, including health
care provided by the Department;
(L) assistance in obtaining income support;
(M) assistance in obtaining health insurance;
(N) fiduciary and representative payee
services;
(O) legal services to assist the veteran
family with reconsiderations or appeals of
veterans and public benefit claim denials and
to resolve outstanding warrants that interfere
with the family's ability to obtain or retain
housing or supportive services;
(P) child care;
(Q) housing counseling;
(R) other services necessary for maintaining
independent living; and
(S) coordination of services under this
paragraph.
(2) Services described in paragraph (1) that are
delivered to very low-income veteran families who are
homeless and who are scheduled to become residents of
permanent housing within 90 days pending the location
or development of housing suitable for permanent
housing.
(3) Services described in paragraph (1) for very low-
income veteran families who have voluntarily chosen to
seek other housing after a period of tenancy in
permanent housing, that are provided, for a period of
90 days after such families exit permanent housing or
until such families commence receipt of other housing
services adequate to meet their current needs, but only
to the extent that services under this paragraph are
designed to support such families in their choice to
transition into housing that is responsive to their
individual needs and preferences.
(c) Application for Financial Assistance.--
(1) An eligible entity seeking financial assistance
under subsection (a) shall submit an application to the
Secretary in such form, in such manner, and containing
such commitments and information as the Secretary
determines to be necessary to carry out this section.
(2) Each application submitted by an eligible entity
under paragraph (1) shall contain--
(A) a description of the supportive services
proposed to be provided by the eligible entity;
(B) a description of the types of very low-
income veteran families proposed to be provided
such services;
(C) an estimate of the number of very low-
income veteran families proposed to be provided
such services;
(D) evidence of the experience of the
eligible entity in providing supportive
services to very low-income veteran families;
and
(E) a description of the managerial capacity
of the eligible entity to--
(i) coordinate the provision of
supportive services with the provision
of permanent housing, by the eligible
entity or by other organizations;
(ii) continuously assess the needs of
very low-income veteran families for
supportive services;
(iii) coordinate the provision of
supportive services with the services
of the Department;
(iv) tailor supportive services to
the needs of very low-income veteran
families; and
(v) continuously seek new sources of
assistance to ensure the long-term
provision of supportive services to
very low-income veteran families.
(3) The Secretary shall establish criteria for the
selection of eligible entities to be provided financial
assistance under this section.
(d) Technical Assistance.--
(1) The Secretary shall provide training and
technical assistance to participating eligible entities
regarding the planning, development, and provision of
supportive services to very low-income veteran families
occupying permanent housing.
(2) The Secretary may provide the training described
in paragraph (1) directly or through grants or
contracts with appropriate public or nonprofit private
entities.
(e) Funding.--
(1) From amounts appropriated to the Department for
Medical Care, there shall be available to carry out
this section amounts as follows:
(A) $15,000,000 for fiscal year 2007.
(B) $20,000,000 for fiscal year 2008.
(C) $25,000,000 for fiscal year 2009.
(2) Not more than $750,000 may be available under
paragraph (1) in any fiscal year to provide technical
assistance under subsection (d).
(f) Definitions.--In this section:
(1) The term ``consumer cooperative'' has the meaning
given such term in section 202 of the Housing Act of
1959 (12 U.S.C. 1701q).
(2) The term ``eligible entity'' means--
(A) a private nonprofit organization; or
(B) a consumer cooperative.
(3) The term ``homeless'' has the meaning given that
term in section 103 of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11302).
(4) The term ``permanent housing'' means community-
based housing without a designated length of stay.
(5) The term ``private nonprofit organization'' means
any of the following:
(A) Any incorporated private institution or
foundation--
(i) no part of the net earnings of
which inures to the benefit of any
member, founder, contributor, or
individual;
(ii) which has a governing board that
is responsible for the operation of the
supportive services provided under this
section; and
(iii) which is approved by the
Secretary as to financial
responsibility;
(B) A for-profit limited partnership, the
sole general partner of which is an
organization meeting the requirements of
clauses (i), (ii), and (iii) of subparagraph
(A).
(C) A corporation wholly owned and controlled
by an organization meeting the requirements of
clauses (i), (ii), and (iii) of subparagraph
(A).
(D) A tribally designated housing entity (as
defined in section 4 of the Native American
Housing Assistance and Self-Determination Act
of 1996 (25 U.S.C. 4103)).
(6)(A) Subject to subparagraphs (B) and (C), the term
``very low-income veteran family'' means a veteran
family whose income does not exceed 50 percent of the
median income for the area, as determined by the
Secretary in accordance with this paragraph.
(B) The Secretary shall make appropriate adjustments
to the income requirement under subparagraph (A) based
on family size.
(C) The Secretary may establish an income ceiling
higher or lower than 50 percent of the median income
for an area if the Secretary determines that such
variations are necessary because the area has unusually
high or low construction costs, fair market rents (as
determined under section 8 of the United States Housing
Act of 1937 (42 U.S.C. 1437f)), or family incomes.
(7) The term ``veteran family'' includes a veteran
who is a single person and a family in which the head
of household or the spouse of the head of household is
a veteran.
* * * * * * *
Subchapter VII. Other Provisions
Sec. 2061. Grant program for homeless veterans with special needs
* * * * * * *
(c) Funding.--
(1) From amounts appropriated to the Department for
``Medical Care'' for each of fiscal years [2003, 2004,
and 2005, $5,000,000] 2007 through 2011, $7,000,000
shall be available for each such fiscal year for the
purposes of the program under this section.
* * * * * * *
Sec. 2064. Technical assistance grants for nonprofit community-based
groups
* * * * * * *
[(b) Funding.--There is authorized to be appropriated
$750,000 for each of fiscal years 2002 through 2005 to carry
out the program under this section.]
(b) Authorization of Appropriations.--There are authorized
to be appropriated $1,000,000 for each of fiscal years 2007
through 2012 to carry out the program under this section.
Sec. 2065. Annual report on assistance to homeless veterans
* * * * * * *
(b) * * *
* * * * * * *
(4) * * *
(5) Information on the efforts of the Secretary to
coordinate the delivery of housing and services to the
homeless veterans with other Federal departments and
agencies, including--
(A) the Department of Defense;
(B) the Department of Health and Human
Services;
(C) the Department of Housing and Urban
Development;
(D) the Department of Justice;
(E) the Department of Labor;
(F) the Interagency Council on Homelessness;
(G) the Social Security Administration; and
(H) any other Federal department or agency
with which the Secretary coordinates the
delivery of housing and services to homeless
veterans.
[(5)] (6) Any other information on those programs and
on the provision of such assistance that the Secretary
considers appropriate.
* * * * * * *
Sec. 2066. Advisory Committee on Homeless Veterans
(a) * * *
* * * * * * *
(3) The Committee shall include, as ex officio
members, the following:
* * * * * * *
(D) * * *
(E) The Executive Director of the Interagency
Council on Homelessness (or a representative of
the Executive Director).
(F) The Under Secretary for Health (or a
representative of the Under Secretary after
consultation with the Director of the Office of
Homeless Veterans Programs).
(G) The Under Secretary for Benefits (or a
representative of the Under Secretary after
consultation with the Director of the Office of
Homeless Veterans Programs).
* * * * * * *
(d) Termination.--The Committee shall cease to exist
[December 31, 2006] September 30, 2011.
* * * * * * *
CHAPTER 23. BURIAL BENEFITS
* * * * * * *
Sec. 2306. Headstones, markers, and burial receptacles
* * * * * * *
(d)(1) The Secretary shall furnish, when requested, an
appropriate [Government marker] Government headstone or marker
at the expense of the United States for the grave of an
individual described in paragraph (2) or (5) of subsection (a)
who is buried in a private cemetery, notwithstanding that the
grave is marked by a headstone or marker furnished at private
expense. Such a headstone or marker may be furnished only if
the individual making the request for the Government headstone
or marker certifies to the Secretary that the headstone or
marker will be placed on the grave for which the headstone or
marker is requested, or, if placement on the grave is
impossible or impracticable, as close as possible to the grave
within the grounds of the cemetery in which the grave is
located.
(2) Any headstone or marker furnished under this subsection
shall be delivered by the Secretary directly to the cemetery
where the grave is located or to a receiving agent for delivery
to the cemetery.
[(3) The authority to furnish a marker under this
subsection expires on December 31, 2006.]
(3) In furnishing headstones and markers under this
subsection, the Secretary shall permit the individual making
the request for a headstone or marker to select among any
headstone or marker in the complete product line of Government
headstones and markers.
[(4) Not later than February 1, 2006, the Secretary shall
submit to the Committees on Veterans' Affairs of the Senate and
House of Representatives a report on the use of the authority
under this subsection. The report shall include the following:
[(A) The rate of use of the benefit under this
subsection, shown by fiscal year.
[(B) An assessment as to the extent to which markers
furnished under this subsection are being delivered to
cemeteries and placed on grave sites consistent with
the provisions of this subsection.
[(C) The Secretary's recommendation for extension or
repeal of the expiration date specified in paragraph
(3).]
* * * * * * *
(g)(1) A headstone or marker may not be furnished under
subsection (a) for the unmarked grave of a person described in
section 2411(b) of this title.
(2) A memorial headstone or marker may not be furnished
under subsection (b) for the purpose of commemorating a person
described in section 2411(b) of this title.
(3) A headstone or marker may not be furnished under
subsection (d) for the grave of a person described in section
2411(b) of this title.
* * * * * * *
CHAPTER 24. NATIONAL CEMETERIES AND MEMORIALS
* * * * * * *
Sec. 2408. Aid to States for establishment, expansion, and improvement
of veterans' cemeteries
* * * * * * *
(e) * * *
(f)(1) The Secretary may make grants under this subsection
to any tribal organization to assist the tribal organization in
establishing, expanding, or improving veterans' cemeteries on
trust land owned by, or held in trust for, the tribal
organization.
(2) Grants under this subsection shall be made in the same
manner, and under the same conditions, as grants to States are
made under the preceding provisions of this section.
(3) In this subsection:
(A) The term ``tribal organization'' has the meaning
given that term in section 3765(4) of this title.
(B) The term ``trust land'' has the meaning given
that term in section 3765(1) of this title.
* * * * * * *
PART III. READJUSTMENT AND RELATED BENEFITS
CHAPTER 30. ALL-VOLUNTEER FORCE EDUCATIONAL ASSISTANCE PROGRAM
* * * * * * *
Subchapter II. Basic Educational Assistance
3011. Basic educational assistance entitlement for service on active
duty.
3012. Basic educational assistance entitlement for service in the
Selected Reserve.
3013. Duration of basic educational assistance.
3014. Payment of basic educational assistance.
[3014A. Accelerated payment of basic educational assistance for
education leading to employment in high technology occupation
in high technology industry.]
3014A. Accelerated payment of basic educational assistance.
3015. Amount of basic educational assistance.
3016. Inservice enrollment in a program of education.
3017. Death benefit.
3018. Opportunity for certain active-duty personnel to withdraw election
not to enroll.
3018A. Opportunity for certain active-duty personnel to enroll before
being involuntarily separated from service.
3018B. Opportunity for certain persons to enroll.
3018C. Opportunity for certain VEAP participants to enroll.
3019. Tutorial assistance.
3020. Transfer of entitlement to basic educational assistance: members
of the Armed Forces with critical military skills.
* * * * * * *
[Sec. 3014A. Accelerated payment of basic educational assistance for
education leading to employment in high technology
occupation in high technology industry]
Sec. 3014A. Accelerated payment of basic educational assistance
(a) An individual described in subsection (b) who is
entitled to basic educational assistance under this subchapter
may elect to receive an accelerated payment of the basic
educational assistance allowance otherwise payable to the
individual under section 3015 of this title.
(b) An individual described in this subsection is an
individual who is--
[(1) enrolled in an approved program of education
that leads to employment in a high technology
occupation in a high technology industry (as determined
pursuant to regulations prescribed by the Secretary);
and]
(1) enrolled in either--
(A) an approved program of education that
leads to employment in a high technology
occupation in a high technology industry (as
determined pursuant to regulations prescribed
by the Secretary); or
(B) an approved program of education lasting
less than two years that (as so determined)
leads to employment in--
(i) the transportation sector of the
economy;
(ii) the construction sector of the
economy;
(iii) the hospitality sector of the
economy; or
(iv) the energy sector of the
economy.
(2) charged tuition and fees for the program of
education that, when divided by the number of months
(and fractions thereof) in the enrollment period,
exceeds the amount equal to 200 percent of the monthly
rate of basic educational assistance allowance
otherwise payable to the individual under section 3015
of this title.
* * * * * * *
Subchapter IV. Time Limitation for Use of Eligibility and Entitlement;
General and Administrative Provisions
* * * * * * *
Sec. 3036. Reporting requirement
(a) The Secretary of Defense and the Secretary shall submit
to the Congress at least once every two years, on January 1,
separate reports on the operation of the program provided for
in this chapter.
* * * * * * *
(d) No report shall be required under this section after
[January 1, 2005] January 1, 2011.
CHAPTER 31. TRAINING AND REHABILITATION FOR VETERANS WITH SERVICE-
CONNECTED DISABILITIES
Sec. 3108. Allowances
* * * * * * *
(g)(1) Notwithstanding any other provision of this title
and subject to the provisions of paragraph (2) of this
subsection, no subsistence allowance may be paid under this
section in the case of any veteran who is pursuing a
rehabilitation program under this chapter while incarcerated in
a Federal, State, [or local penal institution] local, or other
penal institution or correctional facility for conviction of a
felony.
* * * * * * *
CHAPTER 32. POST-VIETNAM ERA VETERANS' EDUCATIONAL ASSISTANCE
* * * * * * *
Subchapter III. Entitlement; Duration
* * * * * * *
Sec. 3231. Entitlement; loan eligibility
* * * * * * *
(d)(1) Subject to the provisions of paragraph (2) of this
subsection, the amount of the educational assistance benefits
paid to an eligible veteran who is pursuing a program of
education under this chapter while incarcerated in a Federal,
State, [or local penal institution] local, or other penal
institution or correctional facility for conviction of a felony
may not exceed the lesser of (A) such amount as the Secretary
determines, in accordance with regulations which the Secretary
shall prescribe, is necessary to cover the cost of established
charges for tuition and fees required of similarly
circumstanced nonveterans enrolled in the same program and the
cost of necessary supplies, books, and equipment, or (B) the
applicable monthly benefit payment otherwise prescribed in this
section 3233 of this title. The amount of the educational
assistance benefits payable to a veteran while so incarcerated
shall be reduced to the extent that the tuition and fees of the
veteran for any course are paid under any Federal program
(other than a program administered by the Secretary) or under
any State or local program.
* * * * * * *
CHAPTER 34. VETERANS' EDUCATIONAL ASSISTANCE
* * * * * * *
Subchapter IV. Payments to Eligible Veterans; Veteran-Student Services
* * * * * * *
Sec. 3482. Computation of educational assistance allowances
* * * * * * *
(g)(1) Subject to the provisions of paragraph (2) of this
subsection, the amount of the educational assistance allowance
paid to an eligible veteran who is pursuing a program of
education under this chapter while incarcerated in a Federal,
State, [or local penal institution] local, or other penal
institution or correctional facility for conviction of a felony
may not exceed such amount as the Secretary determines, in
accordance with regulations which the Secretary shall
prescribe, is necessary to cover the cost of established
charges for tuition and fees required of similarly
circumstanced nonveterans enrolled in the same program and the
cost of necessary supplies, books, and equipment, or the
applicable monthly educational assistance allowance prescribed
for a veteran with no dependents in subsection (a)(1) or (c)(2)
of this section or section 3687(b)(1) of this title whichever
is the lesser. The amount of the educational assistance
allowance payable to a veteran while so incarcerated shall be
reduced to the extent that the tuition and fees of the veteran
for any course are paid under any Federal program (other than a
program administered by the Secretary) or under any State or
local program.
* * * * * * *
CHAPTER 35. SURVIVORS' AND DEPENDENTS' EDUCATIONAL ASSISTANCE
* * * * * * *
Subchapter IV. Payments to Eligible Persons
3531. Educational assistance allowance.
3532. Computation of educational assistance allowance.
3532A. Accelerated payment of educational assistance allowance.
3533. Special assistance for the educationally disadvantaged.
3534. Apprenticeship or other on-job training; correspondence courses.
3535. Approval of courses.
3536. Specialized vocational training courses.
3537. Work-study allowance.
[3538. Repealed.]
* * * * * * *
Sec. 3532. Computation of educational assistance allowance
* * * * * * *
(e) In the case of an eligible person who is pursuing a
program of education under this chapter while incarcerated in a
Federal, State, [or local penal institution] local, or other
penal institution or correctional facility for conviction of a
felony, the educational assistance allowance shall be paid in
the same manner prescribed in section 3482(g) of this title for
incarcerated veterans, except that the references therein to
the monthly educational assistance allowance prescribed for a
veteran with no dependents shall be deemed to refer to the
applicable allowance payable to an eligible person under
corresponding provisions of this chapter or chapter 36 of this
title, as determined by the Secretary.
* * * * * * *
Sec. 3532A. Accelerated payment of educational assistance allowance
(a) The educational assistance allowance payable under
section 3531 of this title with respect to an eligible person
described in subsection (b) may, upon the election of such
eligible person, be paid on an accelerated basis in accordance
with this section.
(b) An eligible person described in this subsection is an
individual who is--
(1) enrolled in either--
(A) an approved program of education that
leads to employment in a high technology
occupation in a high technology industry (as
determined pursuant to regulations prescribed
by the Secretary); or
(B) an approved program of education lasting
less than two years that (as so determined)
leads to employment in the--
(i) transportation sector of the
economy;
(ii) construction sector of the
economy;
(iii) hospitality sector of the
economy; or
(iv) energy sector of the economy;
and
(2) charged tuition and fees for the program of
education that, when divided by the number of months
(and fractions thereof) in the enrollment period,
exceeds the amount equal to 200 percent of the monthly
rate of educational assistance allowance otherwise
payable with respect to the individual under section
3531 of this title.
(c)(1) The amount of the accelerated payment of educational
assistance payable with respect to an eligible person making an
election under subsection (a) for a program of education shall
be the lesser of--
(A) the amount equal to 60 percent of the established
charges for the program of education; or
(B) the aggregate amount of educational assistance
allowance to which the individual remains entitled
under this chapter at the time of payment.
(2) In this subsection, the term ``established charges'',
in the case of a program of education, means the actual charges
(as determined pursuant to regulations prescribed by the
Secretary) for tuition and fees which similarly circumstanced
nonveterans enrolled in the program of education would be
required to pay. Established charges shall be determined on the
following basis:
(A) In the case of an individual enrolled in a
program of education offered on a term, quarter, or
semester basis, the tuition and fees charged the
individual for the term, quarter, or semester.
(B) In the case of an individual enrolled in a
program of education not offered on a term, quarter, or
semester basis, the tuition and fees charged the
individual for the entire program of education.
(3) The educational institution providing the program of
education for which an accelerated payment of educational
assistance allowance is elected by an eligible person under
subsection (a) shall certify to the Secretary the amount of the
established charges for the program of education.
(d) An accelerated payment of educational assistance
allowance made with respect to an eligible person under this
section for a program of education shall be made not later than
the last day of the month immediately following the month in
which the Secretary receives a certification from the
educational institution regarding--
(1) the person's enrollment in and pursuit of the
program of education; and
(2) the amount of the established charges for the
program of education.
(e)(1) Except as provided in paragraph (2), for each
accelerated payment of educational assistance allowance made
with respect to an eligible person under this section, the
person's entitlement to educational assistance under this
chapter shall be charged the number of months (and any fraction
thereof) determined by dividing the amount of accelerated
payment by the full-time monthly rate of educational assistance
allowance otherwise payable with respect to the person under
section 3531 of this title as of the beginning date of the
enrollment period for the program of education for which the
accelerated payment is made.
(2) If the monthly rate of educational assistance allowance
otherwise payable with respect to an eligible person under
section 3531 of this title increases during the enrollment
period of a program of education for which an accelerated
payment of educational assistance allowance is made under this
section, the charge to the person's entitlement to educational
assistance under this chapter shall be determined by prorating
the entitlement chargeable, in the manner provided for under
paragraph (1), for the periods covered by the initial rate and
increased rate, respectively, in accordance with regulations
prescribed by the Secretary.
(f) The Secretary may not make an accelerated payment of
educational assistance allowance under this section for a
program of education with respect to an eligible person who has
received an advance payment under section 3680(d) of this title
for the same enrollment period.
(g) The Secretary shall prescribe regulations to carry out
this section. The regulations shall include requirements,
conditions, and methods for the request, issuance, delivery,
certification of receipt and use, and recovery of overpayment
of an accelerated payment of educational assistance allowance
under this section. The regulations may include such elements
of the regulations prescribed under section 3014A of this title
as the Secretary considers appropriate for purposes of this
section.
* * * * * * *
CHAPTER 36. ADMINISTRATION OF EDUCATIONAL BENEFITS
Subchapter I. State Approving Agencies
* * * * * * *
Sec. 3674. Reimbursement of expenses
(a) * * *
* * * * * * *
(2)(A) The Secretary shall make payments to State and
local agencies, out of amounts available for the
payment of readjustment benefits, and is authorized to
make additional payments subject to the availability of
appropriations, for the reasonable and necessary
expenses of salary and travel incurred by employees of
such agencies in carrying out contracts or agreements
entered into under this section, for expenses approved
by the Secretary that are incurred in carrying out
activities described in section 3674A(a)(3) of this
title (except for administrative overhead expenses
allocated to such activities), and for the allowance
for administrative expenses described in subsection
(b).
(B) The Secretary shall make such a payment to an
agency within a reasonable time after the agency has
submitted a report pursuant to paragraph (3) of this
subsection.
(C) Subject to paragraph (4) of this subsection, the
amount of any such payment made to an agency for any
period shall be equal to the amount of the reasonable
and necessary expenses of salary and travel certified
by such agency for such period in accordance with
paragraph (3) of this subsection plus the allowance for
administrative expenses described in subsection (b) and
the amount of expenses approved by the Secretary that
are incurred in carrying out activities described in
section 3674A(a)(3) of this title for such period
(except for administrative overhead expenses allocated
to such activities).
(3) Each State and local agency with which a contract
or agreement is entered into under this section shall
submit to the Secretary on a monthly or quarterly
basis, as determined by the agency, a report containing
a certification of the reasonable and necessary
expenses incurred for salary and travel by such agency
under such contract or agreement for the period covered
by the report. The report shall be submitted in the
form and manner required by the Secretary.
(4) [The total amount made available under this
section for any fiscal year may not exceed $13,000,000
or, for each of fiscal years 2001 and 2002,
$14,000,000, for fiscal year 2003, $14,000,000, for
fiscal year 2004, $18,000,000, for fiscal year 2005,
$18,000,000, for fiscal year 2006, $19,000,000, and for
fiscal year 2007, $19,000,000.] The total amount
authorized and available under this section for any
fiscal year may not exceed $19,000,000, except that the
total amount made available for purposes of this
section from amounts available for the payment of
readjustment benefits may not exceed $19,000,000 for
fiscal years 2006 and 2007, $13,000,000 for fiscal
years 2008 and 2009, $8,000,000 for each of fiscal
years 2010 through 2013, and $13,000,000 for fiscal
year 2014 and each subsequent fiscal year. For any
fiscal year in which the total amount that would be
made available under this section would exceed the
amount applicable to that fiscal year under the
preceding sentence except for the provisions of this
paragraph, the Secretary shall provide that each agency
shall receive the same percentage of the amount
applicable to that fiscal year under the preceding
sentence as the agency would have received of the total
amount that would have been made available without the
limitation of this paragraph.
* * * * * * *
CHAPTER 37. HOUSING AND SMALL BUSINESS LOANS
* * * * * * *
Subchapter II. Loans
Sec. 3710. Purchase or construction of homes
(a) * * *
* * * * * * *
(11) * * *
(12) To purchase stock or membership in a cooperative
housing corporation for the purpose of entitling the
veteran to occupy for dwelling purposes a single family
residential unit in a development, project, or
structure owned or leased by such corporation, in
accordance with subsection (h).
* * * * * * *
(h)(1) A loan may not be guaranteed under subsection
(a)(12) unless--
(A) the development, project, or structure of the
cooperative housing corporation complies with such
criteria as the Secretary prescribes in regulations;
and
(B) the dwelling unit that the purchase of stock or
membership in the development, project, or structure of
the cooperative housing corporation entitles the
purchaser to occupy is a single family residential
unit.
(2) In this subsection, the term ``cooperative housing
corporation'' has the same meaning given such term in section
216(b)(1) of the Internal Revenue Code of 1986.
(3) When applying the term ``value of the property'' to a
loan guaranteed under subsection (a)(12), such term means the
appraised value of the stock or membership entitling the
purchaser to the permanent occupancy of the dwelling unit in
the development, project, or structure of the cooperative
housing corporation.
* * * * * * *
PART IV. GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 53. SPECIAL PROVISIONS RELATING TO BENEFITS
* * * * * * *
Sec. 5313. Limitation on payment of compensation and dependency and
indemnity compensation to persons incarcerated for
conviction of a felony
(a)(1) To the extent provided in subsection (d) of this
section, any person who is entitled to compensation or to
dependency and indemnity compensation and who is incarcerated
in a Federal, State, [or local penal institution] local, or
other penal institution or correctional facility for a period
in excess of sixty days for conviction of a felony shall not be
paid such compensation or dependency and indemnity
compensation, for the period beginning on the sixty-first day
of such incarceration and ending on the day such incarceration
ends, in an amount that exceeds--
(b) * * *
* * * * * * *
(3) No apportionment may be made under this
subsection to or on behalf of any person who is
incarcerated in a Federal, State, [or local penal
institution] local, or other penal institution or
correctional facility for conviction of a felony.
(c) The Secretary shall not assign to any veteran a rating
of total disability based on the individual unemployability of
the veteran resulting from a service-connected disability
during any period during which the veteran is incarcerated in a
Federal, State, [or local penal institution] local, or other
penal institution or correctional facility for conviction of a
felony.
* * * * * * *
Sec. 5313A. Limitation on payment of clothing allowance to incarcerated
veterans
In the case of a veteran who is incarcerated in a Federal,
State, [or local penal institution] local, or other penal
institution or correctional facility for a period in excess of
60 days and who is furnished clothing without charge by the
institution, the amount of any annual clothing allowance
payable to the veteran under section 1162 of this title shall
be reduced by an amount equal to 1/365 of the amount of the
allowance otherwise payable under that section for each day on
which the veteran was so incarcerated during the 12-month
period preceding the date on which payment of the allowance
would be due. This section shall be carried out under
regulations prescribed by the Secretary.
* * * * * * *
Sec. 5317. Use of income information from other agencies: notice and
verification
* * * * * * *
(g) The authority of the Secretary to obtain information
from the Secretary of the Treasury or the Commissioner of
Social Security under section 6103(1)(7)(D)(viii) of the
Internal Revenue Code of 1986 expires on [September 30, 2008]
September 30, 2011.
* * * * * * *
CHAPTER 59. AGENTS AND ATTORNEYS
* * * * * * *
Sec. 5902. Recognition of representatives of organizations
* * * * * * *
(b)(1) No individual shall be recognized under this
section--
[(1)] (A) unless the individual has certified to the
Secretary that no fee or compensation of any nature
will be charged any individual for services rendered in
connection with any claim; and
[(2)] (B) unless, with respect to each claim, such
individual has filed with the Secretary a power of
attorney, executed in such manner and form as the
Secretary may prescribe.
(2) An individual recognized under this section shall
be subject to the provisions of 5904(b) of this title
on the same basis as an individual recognized under
section 5904(a) of this title.
* * * * * * *
Sec. 5903. Recognition with respect to particular claims
(a) In General.--The Secretary may recognize any individual
for the preparation, presentation, and prosecution of any
particular claim for benefits under any of the laws
administered by the Secretary if--
(1) such individual has certified to the Secretary
that no fee or compensation of any nature will be
charged any individual for services rendered in
connection with such claim; and
(2) such individual has filed with the Secretary a
power of attorney, executed in such manner and in such
form as the Secretary may prescribe.
(b) Suspension.--An individual recognized under this
section shall be subject to the provisions of section 5904(b)
of this title on the same basis as an individual recognized
under section 5904(a) of this title.
Sec. 5904. Recognition of agents and attorneys generally
(a)(1) The Secretary may recognize any individual as an
agent or attorney for the preparation, presentation, and
prosecution of claims under laws administered by the Secretary.
[The Secretary may require that individuals, before being
recognized under this section, show that they are of good moral
character and in good repute, are qualified to render claimants
valuable service, and otherwise are competent to assist
claimants in presenting claims.]
(2) The Secretary may prescribe in regulations
qualifications and standards of conduct for individuals
recognized under this section, including a requirement that,
before being recognized, an individual--
(A) show that such individual is of good moral
character and in good repute, is qualified to render
claimants valuable service, and is otherwise competent
to assist claimants in presenting claims;
(B) has such level of experience and specialized
training as the Secretary shall specify; and
(C) certifies to the Secretary that the individual
has satisfied any qualifications and standards
prescribed by the Secretary under this section.
(3) The Secretary may prescribe in regulations reasonable
restrictions on the amount of fees that an agent or attorney
may charge a claimant for services rendered in the preparation,
presentation, and prosecution of a claim before the Department.
(4)(A) The Secretary may, on a periodic basis, collect a
registration fee from individuals recognized as agents or
attorneys under this section.
(B) The Secretary shall prescribe the amount and frequency
of collection of such fees. The amount of such fees may include
an amount, as specified by the Secretary, necessary to defray
the costs to the Department in recognizing individuals under
this section, in administering the collection of such fees, in
administering the payment of fees under subsection (d), and in
conducting oversight of agents or attorneys.
(C) Amounts so collected shall be deposited in the account
from which amounts for such costs were derived, merged with
amounts in such account, and available for the same purpose,
and subject to the same conditions and limitations, as amounts
in such account.
(b) The Secretary, after notice and opportunity for a
hearing, may suspend or exclude from further practice before
the Department any agent or attorney recognized under this
section if the Secretary finds that such agent or attorney--
(1) has engaged in any unlawful, unprofessional, or
dishonest practice;
(2) has been guilty of disreputable conduct;
(3) is incompetent;
(4) has violated or refused to comply with any of the
laws administered by the Secretary, or with any of the
regulations or instructions governing practice before
the Department; [or]
(5) has in any manner deceived, misled, or threatened
any actual or prospective claimant[.];
(6) has presented frivolous claims, issues, or
arguments to the Department; or
(7) has failed to comply with any other condition
specified by the Secretary in regulations prescribed by
the Secretary for purposes of this subsection.
(c)[(1) Except as provided in paragraph (3), in connection
with a proceeding before the Department with respect to
benefits under laws administered by the Secretary, a fee may
not be charged, allowed, or paid for services of agents and
attorneys with respect to services provided before the date on
which the Board of Veterans' Appeals first makes a final
decision in the case. Such a fee may be charged, allowed, or
paid in the case of services provided after such date only if
an agent or attorney is retained with respect to such case
before the end of the one-year period beginning on that date.
The limitation in the preceding sentence does not apply to
services provided with respect to proceedings before a court.]
[(2)] (1) A person who, acting as agent or attorney
[in a case referred to in paragraph (1) of this
subsection], represents a person before the Department
or the Board of Veterans' Appeals [after the Board
first makes a final decision in the case] shall file a
copy of any fee agreement between them [with the Board
at such time as may be specified by the Board] with the
Secretary pursuant to regulations prescribed by the
Secretary. [The Board, upon its own motion or the
request of either party, may review such a fee
agreement and may order a reduction in the fee called
for in the agreement if the Board finds that the fee is
excessive or unreasonable. A finding or order of the
Board under the preceding sentence may be reviewed by
the United States Court of Appeals for Veterans Claims
under section 7263(d) of this title.]
(2)(A) The Secretary, upon the Secretary's own motion
or at the request of the claimant, may review a fee
agreement filed pursuant to paragraph (1) and may order
a reduction in the fee called for in the agreement if
the Secretary finds that the fee is excessive or
unreasonable.
(B) A finding or order of the Secretary under
subparagraph (A) may be reviewed by the Board of
Veterans' Appeals under section 7104 of this title.
* * * * * * *
Sec. 5905. Penalty for certain acts
Whoever [(1) directly or indirectly solicits, contracts
for, charges, or receives, or attempts to solicit, contract
for, charge, or receive, any fee or compensation except as
provided in sections 5904 or 1984 of this title, or (2)]
wrongfully withholds from any claimant or beneficiary any part
of a benefit or claim allowed and due to the claimant or
beneficiary, shall be fined as provided in title 18, or
imprisoned for not more than one year, or both.
* * * * * * *
PART V. BOARDS, ADMINISTRATIONS, AND SERVICES
* * * * * * *
CHAPTER 73. VETERANS HEALTH ADMINISTRATION-ORGANIZATION AND FUNCTIONS
* * * * * * *
Subchapter II. General Authority and Administration
7311. Quality assurance.
7312. Special medical advisory group.
7313. Advisory committees: affiliated institutions.
7314. Geriatric research, education, and clinical centers.
7315. Geriatrics and Gerontology Advisory Committee.
7316. Malpractice and negligence suits: defense by United States.
7317. Hazardous research projects: indemnification of contractors.
7318. National Center for Preventive Health.
7319. Mammography quality standards.
7320. Centers for mental illness research, education, and clinical
activities.
7321. Committee on Care of Severely Chronically Mentally Ill Veterans.
7322. Breast cancer mammography policy.
7323. Required consultations with nurses.
7324. Annual report on use of authorities to enhance retention of
experienced nurses.
7325. Medical emergency preparedness centers.
7326. Education and training programs on medical response to
consequences of terrorist activities.
7327. Centers for research, education, and clinical activities on
complex multi-trauma associated with combat injuries.
7328. Medical preparedness centers.
7329. Parkinson's disease research, education, and clinical centers and
multiple sclerosis centers of excellence.
* * * * * * *
Sec. 7328. Medical preparedness centers
* * * * * * *
Sec. 7329. Parkinson's disease research, education, and clinical
centers and multiple sclerosis centers of
excellence
(a) Designation.--The Secretary, upon the recommendation of
the Under Secretary for Health and pursuant to the provisions
of this section, shall--
(1) designate--
(A) at least 6 Department health care
facilities as the locations for centers of
Parkinson's disease research, education, and
clinical activities and (subject to the
appropriation of sufficient funds for such
purpose); and
(B) at least 2 Department health care
facilities as the locations for Multiple
Sclerosis Centers of Excellence (subject to the
appropriation of sufficient funds for such
purpose); and
(2) establish and operate such centers at such
locations in accordance with this section.
(b) Existing Facilities; Geographic Distribution.--In
designating locations for centers under subsection (a), the
Secretary, upon the recommendation of the Under Secretary for
Health, shall--
(1) designate each Department health care facility
that, as of January 1, 2005, was operating a
Parkinson's Disease Research, Education, and Clinical
Center or a Multiple Sclerosis Center of Excellence
unless the Secretary, on the recommendation of the
Under Secretary for Health, determines that such
facility--
(A) does not meet the requirements of
subsection (c);
(B) has not demonstrated effectiveness in
carrying out the established purposes of such
center; or
(C) has not demonstrated the potential to
carry out such purposes effectively in the
reasonably foreseeable future; and
(2) assure appropriate geographic distribution of
such facilities.
(c) Minimum Requirements.--The Secretary may not designate
a health care facility as a location for a center under
subsection (a) unless--
(1) the peer review panel established under
subsection (d) determines that the proposal submitted
by such facility is among those proposals which meet
the highest competitive standards of scientific and
clinical merit; and
(2) the Secretary, upon the recommendation of the
Under Secretary for Health, determines that the
facility has (or may reasonably be anticipated to
develop)--
(A) an arrangement with an accredited medical
school which provides education and training in
neurology and with which such facility is
affiliated under which residents receive
education and training in innovative diagnosis
and treatment of chronic neurodegenerative
diseases and movement disorders, including
Parkinson's disease, or in the case of Multiple
Sclerosis Centers, multiple sclerosis disease;
(B) the ability to attract the participation
of scientists who are capable of ingenuity and
creativity in health-care research efforts;
(C) a policymaking advisory committee
composed of consumers and appropriate health
care and research representatives of the
facility and of the affiliated school or
schools to advise the directors of such
facility and such center on policy matters
pertaining to the activities of such center
during the period of the operation of such
center;
(D) the capability to conduct effectively
evaluations of the activities of such center;
(E) the capability to coordinate, as part of
an integrated national system, education,
clinical, and research activities within all
facilities with such centers;
(F) the capability to jointly develop a
consortium of providers with interest in
treating neurodegenerative diseases, including
Parkinson's disease, and other movement
disorders, or multiple sclerosis in the case of
Multiple Sclerosis Centers, at facilities
without such centers in order to ensure better
access to state of the art diagnosis, care, and
education for neurodegenerative disorders, or
in the case of the Multiple Sclerosis Centers,
autoimmune disease affecting the central
nervous system throughout the health care
system; and
(G) the capability to develop a national
repository in the health care system for the
collection of data on health services delivered
to veterans seeking care for neurodegenerative
diseases, including Parkinson's disease, and
other movement disorders, or in the case of
Multiple Sclerosis Centers, autoimmune disease
affecting the central nervous system.
(d) Panel.--
(1) The Under Secretary for Health shall establish a
panel to assess the scientific and clinical merit of
proposals that are submitted to the Secretary for the
establishment of new centers under this section.
(2)(A) The membership of the panel shall consist of
experts in neurodegenerative diseases, including
Parkinson's disease and other movement disorders, and,
in the case of Multiple Sclerosis Centers, experts in
autoimmune disease affecting the central nervous
system.
(B) Members of the panel shall serve as consultants
to the Department for a period of no longer than 2
years except in the case of panelists asked to serve on
the initial panel as specified in subparagraph (C).
(C) In order to ensure panel continuity, half of the
members of the first panel shall be appointed for a
period of 3 years and half for a period of 2 years.
(3) The panel shall review each proposal submitted to
the panel by the Under Secretary and shall submit its
views on the relative scientific and clinical merit of
each such proposal to the Under Secretary.
(4) The panel shall not be subject to the Federal
Advisory Committee Act.
(e) Adequate Funding.--Before providing funds for the
operation of any such center at a health care facility other
than a health care facility designated under subsection (b)(1),
the Secretary shall ensure that--
(1) the Parkinson's disease center at each facility
designated under subsection (b)(1) is receiving
adequate funding to enable such center to function
effectively in the areas of Parkinson's disease
research, education, and clinical activities; and
(2) in the case of a new Multiple Sclerosis Center,
that existing centers are receiving adequate funding to
enable such centers to function effectively in the
areas of multiple sclerosis research, education, and
clinical activities.
(f) Authorization of Appropriations.--
(1) There are authorized to be appropriated such sums
as may be necessary for the support of the research and
education activities of the centers established under
subsection (a).
(2) The Under Secretary for Health shall allocate to
such centers from other funds appropriated generally
for the Department of medical services account and
medical and prosthetics research account, as
appropriate, such amounts as the Under Secretary for
Health determines appropriate.
(g) Funding Eligibility and Priority for Parkinson's
Disease Research.--Activities of clinical and scientific
investigation at each center established under subsection (a)
for Parkinson's disease shall--
(1) be eligible to compete for the award of funding
from funds appropriated for the Department medical and
prosthetics research account; and
(2) receive priority in the award of funding from
such account to the extent funds are awarded to
projects for research in Parkinson's disease and other
movement disorders.
(h) Funding Eligibility and Priority for Multiple Sclerosis
Research.--Activities of clinical and scientific investigation
at each center established under subsection (a) for multiple
sclerosis shall--
(1) be eligible to compete for the award of funding
from funds appropriated for the Department medical and
prosthetics research account; and
(2) receive priority in the award of funding from
such account to the extent funds are awarded to
projects for research in multiple sclerosis and other
movement disorders.
* * * * * * *
PART VI. ACQUISITION AND DISPOSITION OF PROPERTY
* * * * * * *
CHAPTER 81. ACQUISITION AND OPERATION OF HOSPITAL AND DOMICILIARY
FACILITIES; PROCUREMENT AND SUPPLY; ENHANCED-USE LEASES OF REAL
PROPERTY
* * * * * * *
Subchapter III. State Home Facilities for Furnishing Domiciliary,
Nursing Home, and Hospital Care
8131. Definitions.
8132. Declaration of purpose.
8133. Authorization of appropriations.
8134. General regulations.
8135. Applications with respect to projects; payments.
8136. Recapture provisions.
8137. State control of operations.
8138. Treatment of certain health facilities as State homes.
* * * * * * *
Sec. 8137. State control of operations
* * * * * * *
Sec. 8138. Treatment of certain health facilities as State homes
(a) The Secretary may treat a health facility, or certain
beds in a health facility, as a State home for purposes of
subchapter V of chapter 17 of this title if the following
requirements are met:
(1) The facility, or certain beds in such facility,
meets the standards for the provision of nursing home
care that is applicable to State homes, as prescribed
by the Secretary under section 8134(b) of this title,
and such other standards relating to the facility, or
certain beds in such facility, as the Secretary may
require.
(2) The facility, or certain beds in such facility,
is licensed or certified by the appropriate State and
local agencies charged with the responsibility of
licensing or otherwise regulating or inspecting State
home facilities.
(3) The State demonstrates in an application to the
Secretary that, but for the treatment of a facility (or
certain beds in such facility), as a State home under
this subsection, a substantial number of veterans
residing in the geographic area in which the facility
is located who require nursing home care will not have
access to such care.
(4) The Secretary determines that the treatment of
the facility, or certain beds in such facility, as a
State home best meets the needs of veterans for nursing
home care in the geographic area in which the facility
is located.
(5) The Secretary approves the application submitted
by the State with respect to the facility, or certain
beds in such facility.
(b) The Secretary may not treat a health facility, or
certain beds in a health facility, as a State home under
subsection (a) if the Secretary determines that such treatment
would increase the number of beds allocated to the State in
excess of the limit on the number of beds provided for by
regulations prescribed under section 8134(a) of this title.
(c) The number of beds occupied by veterans in a health
facility for which payment may be made under subchapter V of
chapter 17 of this title by reason of subsection (a) shall not
exceed--
(1) 100 beds in the aggregate for all States; and
(2) in the case of any State, the difference
between--
(A) the number of veterans authorized to be
in beds in State homes in such State under
regulations prescribed under section 8134(a) of
this title; and
(B) the number of veterans actually in beds
in State homes (other than facilities or
certain beds treated as State homes under
subsection (a)) in such State under regulations
prescribed under such section.
(d) The number of beds in a health facility in a State that
has been treated as a State home under subsection (a) shall be
taken into account in determining the unmet need for beds for
State homes for the State under section 8134(d)(1) of this
title.
(e) The Secretary may not treat any new health facilities,
or any new certain beds in a health facility, as a State home
under subsection (a) after September 20, 2009.
* * * * * * *
TITLE 42, UNITED STATES CODE
* * * * * * *
CHAPTER 8. LOW-INCOME HOUSING
* * * * * * *
Sec. 1437f. Low-income housing assistance
(o) * * *
* * * * * * *
(19) * * *
[(B) Amount.--The amount specified in this
subparagraph is--
[(i) for fiscal year 2003, the amount
necessary to provide 500 vouchers for
rental assistance under this
subsection;
[(ii) for fiscal year 2004, the
amount necessary to provide 1,000
vouchers for rental assistance under
this subsection;
[(iii) for fiscal year 2005, the
amount necessary to provide 1,500
vouchers for rental assistance under
this subsection; and
[(iv) for fiscal year 2006, the
amount necessary to provide 2,000
vouchers for rental assistance under
this subsection.]
(B) Amount.--The amount specified in this
subparagraph is--
(i) for fiscal year 2007, the amount
necessary to provide 500 vouchers for
rental assistance under this
subsection;
(ii) for fiscal year 2008, the amount
necessary to provide 1,000 vouchers for
rental assistance under this
subsection;
(iii) for fiscal year 2009, the
amount necessary to provide 1,500
vouchers for rental assistance under
this subsection; and
(iv) for fiscal year 2010, the amount
necessary to provide 2,000 vouchers for
rental assistance under this
subsection; and
(v) for fiscal year 2011, the amount
necessary to provide 2,500 vouchers for
rental assistance under this
subsection.
[(C) Funding through incremental
assistance.--In any fiscal year, to the extent
that this paragraph requires the Secretary to
set aside rental assistance amounts for use
under this paragraph in an amount that exceeds
the amount set aside in the preceding fiscal
year, such requirement shall be effective only
to such extent or in such amounts as are or
have been provided in appropriation Acts for
such fiscal year for incremental rental
assistance under this subsection.]