May 01, 2019

Impact of the VA MISSION Act on the Provision of Healthcare for Veterans with Catastrophic Disabilities

Heather Ansley and Linda Blauhut, Paralyzed Veterans of America, Washington, DC

Introduction

On June 6, 2018, President Trump signed the VA MISSION Act of 2018.1 The Act represents a seismic shift in the way the Department of Veterans Affairs (VA) offers healthcare to veterans: It will affect every veteran who receives healthcare from VA, and particularly affect catastrophically disabled veterans who are completely dependent upon VA for care.

To understand the enormity of the change – and its potential effect on veterans with catastrophic disabilities – it is helpful to look at how VA provides healthcare and what led to the VA MISSION Act.

Background

VA, through its Veterans Health Administration (VHA), operates the nation’s largest integrated healthcare system.2 VA has 1,243 healthcare facilities, including 170 medical centers and more than 1,050 outpatient clinics. Roughly nine million veterans each year receive care through the VA health system,3 and while the VA has the authority to treat all veterans, care is prioritized through a tiered statutory enrollment system that ranges from service-connected veterans in category 1, the highest priority, to veterans who, because of low income or lack of insurance, may not be eligible for treatment elsewhere under categories 7 and 8.4 This care runs the gamut from routine visits to highly specialized care, such as that provided at the VA health system’s 24 Spinal Cord Injury (SCI) centers.5

Veterans have generally been content with their VA healthcare,6 although it has always been easy to make a punching bag out of VA. Any system so large is bound to have problems. However, in 2014 the problems exploded onto the national stage. The Phoenix VA Medical Center was found to be altering wait times for appointments, hiding extraordinary waits for veterans seeking care, and causing some veterans to delay care until it was too late.7

The Phoenix VA Medical Center became a symbol of everything wrong with veterans healthcare. It also became a political opportunity to discuss topics that had previously been taboo, such as more private care for veterans or privatization of the system. VA has long supplemented the care provided to veterans in its direct care system with care in the community through a number of authorities, including fee-basis care8 and pilots to expand access to care for veterans living in highly rural areas.9 However, the Phoenix wait time scandal ignited what had been a long-smoldering view that veterans should have unfettered access to care in the community.

In response to Phoenix, Congress passed legislation to create the Veterans Choice Program.10 In general, the Choice Program provides access to healthcare in the community for veterans who live more than 40 miles from the nearest VA Medical Center or who would have to wait more than 30 days for VA direct care.11 Veterans who need care not available through VA, face excessive burdens in traveling to care, or must travel by air or water to access care are also eligible for the Choice Program.12

The Choice Program was designed to be a temporary solution to the immediate access problem. The law authorizing the Choice Program also established the Commission on Care for the purposes of examining the future of healthcare for veterans, including the role of VA-provided care and access to community care. Throughout the intervening years, lessons learned from the Choice Program and the Commission on Care, along with the views of traditional veterans groups, as well as new groups backed by outside interests,13 have been brought to Congress and VA, with each interested party competing to have a say in how care is provided to veterans. Some of the new stakeholders have sought to privatize the provision of care to veterans and dismantle the direct provision of care by VA. Other stakeholders, typically traditional veterans groups, have sought to ensure a proper mix between VA-provided care and community care as coordinated by VA.

Passage of the VA MISSION Act

The development and passage of the VA MISSION Act was the culmination of these competing visions for the future of VA-provided healthcare. It represents a carefully crafted legislative compromise designed to provide greater access to care in the community while also improving access to VA-provided care. The VA MISSION Act includes several critical components that will result in important changes to the way in which veterans receive their healthcare, such as adding a new urgent care benefit and modernizing IT systems. Importantly, the law sunsets the Choice Program, along with six other programs that authorize community care, and establishes a permanent community care program, the Veterans Community Care Program (VCCP).14 In addition, the VA MISSION Act requires VA to assess and review its infrastructure to determine the facilities needed to meet the healthcare needs of veterans.15 The law also includes authorities to help VA’s direct care system by improving the recruitment and retention of medical personnel.16

VA plans to implement the VCCP in June 2019.17 The VCCP will provide access for eligible veterans to care in the community under certain circumstances, including when VA is unable to meet its own access standards. Proposed access standards published in the Federal Register on February 22, 2019 set wait times of 20 days and 30-minute drive times for VA primary care, mental healthcare, and non-institutional care extended care services, and 28 days and 60-minute drive times for specialty care.18

Although the focus of VA’s implementation of the VCCP will mean changes to how and when veterans can access community care, the VA MISSION Act requires VA to remain the coordinator of care for individual veterans. VA will be responsible for scheduling veterans’ appointments, ensuring continuity of their care, and coordinating with the private healthcare sector. Through carrying out these responsibilities, VA will be able to retain its lead role in the delivery of healthcare for veterans, particularly those with catastrophic disabilities who may access community care.

Concerns about the Implementation of the VA MISSION Act

With the significant changes required by the VA MISSION Act, it is unclear where the tipping point is between how much private care is enough to ensure veterans access to quality healthcare and relieve some burden on VHA, and how much is too much. The VA Secretary and leaders of the Veterans’ Affairs Committees in Congress have stated on numerous occasions that they do not support privatizing healthcare for veterans. The danger of too much private care, however, is that it takes away from the veteran-centric system to the extent that VHA cannot maintain its programs, creating a no-man’s-land for veterans since there is not capacity in the private sector to serve the needs of all veterans. In other words, if VA is not there for veterans, who will be? There is no evidence that the private sector can absorb nine million additional users,19 making it hard to imagine veterans would not encounter the same problems in the private sector, such as lengthy wait times, that ultimately led to the VA MISSION Act in the first place. 

There is even less evidence that the private sector could adequately treat severely disabled veterans on a regular basis.20 For instance, the VHA SCI System of Care offers a life-long spectrum of healthcare that has no private-sector equivalent. If increasing resources for private care results in fewer resources for specialized care, it could result in these veterans receiving care from medical professionals who are not specifically trained to meet their special healthcare needs.

The healthcare access needs for veterans with disabilities are not limited to timely appointments and quality, specially-trained providers. Medical facilities, diagnostic equipment, and exam tables must also be physically accessible to veterans with catastrophic disabilities for them to receive proper care. Unfortunately, people with disabilities are often unable to get the care they need because of these types of barriers. If at some point in the future care in the community was the only option available to veterans with significant disabilities, then their health would likely suffer due to these same barriers. For example, VA’s SCI System of Care meets standards for disability access that many community providers have not fully addressed, despite the requirements of the Americans with Disabilities Act.  

It is also unclear whether VA has the resources and time to properly implement the VCCP.21 Much of the VCCP will rely on sophisticated information technology (IT). Historically, VA has had great difficulty in implementing IT solutions.22 Unfortunately, there is a concern that history may repeat itself, since the United States Digital Service’s23 March 1, 2019 report noted “significant risks surrounding software development timing, integration dependencies, and usability”24 of the Decision Support Tool, which will be used to determine eligibility for the VCCP and is the linchpin to the effective implementation of the VCCP. Furthermore, it is not clear that VA will be able to fully train its personnel and educate veterans about the VCCP prior to its implementation on June 6, 2019.

Finally, VA will continue to need sufficient funding to make sure that it is able to not only successfully implement the VA MISSION Act but also to ensure that it is able to appropriately provide care within VA. The Independent Budget veterans service organizations (IBVSOs) – Paralyzed Veterans of America (PVA), DAV (Disabled American Veterans) and Veterans of Foreign Wars (VFW) – have been making funding recommendations for VA for more than three decades.25 In assessing the Administration’s Fiscal Year 2020 budget request for VA, the IBVSOs expressed concern that the request26 lacked sufficient funding to ensure that VA can both fully fund its obligations to provide community care access while strengthening VA’s direct care system. Specifically, the IBVSOs stated, “Unless Congress acts to substantially increase VA’s funding for FY 2020, veterans will be forced to wait longer for care, whether they seek care at VA, or in the community, leaving unfulfilled the promises made to veterans in the VA MISSION Act, which did not include the funding necessary for its implementation.”27

Conclusion

After years of struggling with how to allow veterans access to care in the community and maintain VA’s direct care system, the VA MISSION Act represents Congress’s best efforts to settle the question. The implementation of the VA MISSION Act will be a critical part to ensuring that veterans, including those with catastrophic disabilities, receive the care that they need – both from VA and supplemented by community care. If carried out correctly, the VA MISSION Act has the potential to allow a balance of care in the community and VA that will result in better care delivered in a better way, and  veterans who are dependent upon VA for their care are looking to VA to strike the right balance.

  1. VA MISSION Act of 2018, Pub. L. No. 115-182, 132 Stat. 1393 (2018).
  2.  Providing Health Care for Veterans, Health Care, Veterans Health Admin., U.S. Dep’t of Veterans Affairs, available at https://www.va.gov/health/ (last visited March 26, 2019).

  3.  Id.

  4.  38 U.S.C. § 1705 (2018). This statute sets out VA’s enrollment system.  “Priority group” 1 is the “highest” priority group, in that these service-connected veterans are guaranteed access to VA care.  The system was designed so that, should the VA ever have to limit access to services, it could choose to not enroll lower priority groups.

  5.  VA’s Spinal Cord Injuries and Disorders System of Care,  Health Care, U.S. Dep’t of Veterans Affairs, available at https://www.sci.va.gov/VAs_SCID_System_of_Care.asp (last visited March 26, 2019).
  6.  See How Does Your VA Health Experience Rate?, Quality of Care, Health Care, U.S. Dep’t of Veterans Affairs, available at https://www.va.gov/qualityofcare/apps/shep/barchart.asp (last visited March 26, 2019); see generally O’Hanlon, C., Huang, C., Sloss, E. et al., Comparing VA and Non-VA Quality of Care: A Systematic Review, 32 J GEN INTERN MED 105 (2017).
  7.  See, e.g., Scott Bronstein & Drew Griffen, A fatal wait: Veterans languish and die on a VA hospital's secret list, CNN (April 23, 2014), available at https://www.cnn.com/2014/04/23/
  8. health/veterans-dying-health-care-delays/index.html (last visited March 26, 2019).
  9.  38 U.S.C. § 1703 (2018).

  10.  Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, 122 Stat. 4110 (2008).

  11.  Veterans Access, Choice, and Accountability Act of 2014, Pub. L. No. 113-146, 128 Stat. 1754 (2014).

  12.  Id. at § 101.

  13.  Id.

  14.  See Isaac Arnsdorf, Inside the Trump Administration’s Internal War Over the VA, Politico Magazine (Feb. 16, 2018), available at https://www.politico.com/magazine/story/2018/
  15. 02/16/trump-veterans-affairs-va-david-shulkin-217013 (last visited March 26, 2019).

  16.  VA MISSION Act of 2018, Pub. L. No. 115-182, § 101, 132 Stat. 1393, 1393 (2018).

  17.  Id. at § 201-209. The VA MISSION Act establishes the “Asset and Infrastructure Review Commission,” which includes nine members appointed by the President. Id. at § 202. The Commission will consider VA’s infrastructure recommendations. Id. at § 203. The President will then either approve or disapprove the Commission’s recommendations. Id. If the President approves, then Congress will be able to disapprove the recommendations. Id. at § 203, 207. If the plan is ultimately approved, then VA will move forward with its implementation. Id. at § 204-205.  

  18.  Id. at §§ 301-306.

  19.  Veteran Community Care — General Information VA MISSION Act of 2018, Fact Sheet, Office of Public Affairs Media Relations, U.S. Dep’t of Veterans Affairs, (March 2019), available at https://www.va.gov/COMMUNITYCARE/docs/pubfiles/factsheets/VHA-FS_MISSION-Act.pdf (last visited March 26, 2019).

  20.  Proposed 38 C.F.R. § 17.4040(1)-(2); Veterans Community Care Program, 84 Fed. Reg. 5629 (Feb. 22, 2019).

  21.  See, e.g., Myths and Facts: The Physician Shortage, Ass’n of Am. Medical Colleges,  (May 2018), available at https://aamc-black.global.ssl.fastly.net/production/media/filer_public/
  22. 75/fc/75fcad77-332d-419e-b066-0cc95813a5cb/dgme_-_physician_shortage_myths_and_facts_-_20180514.pdf (last visited March 25, 2019).
  23.  See Legislative Presentations of AMVETS, PVA, VVA, IAVA, SVA, AXPOW, WWP: Hearing Before the S. Comm. on Veteran’s Affairs, 116th Cong. (2019) (oral statement of David Zurfluh, National President, Paralyzed Veterans of America), available at https://www.veterans.senate
  24. .gov/hearings/legislative-presentations-of-amvets-pva-vva-iava_sva-axpow-wwp (last visited March 26, 2019).
  25.  Serious questions have been raised about resources and the cost of the Choice Program, with one study finding that contractors charged VA extraordinary fees for handling veteran appointments and referrals without improving quality or accuracy. See Isaac Arnsdorf & Jon Greenberg, The VA’s private care program gave companies billions and vets longer waits, PolitiFact (Dec. 18, 2018), available at https://www.politifact.com/truth-o-meter/article/2018/dec/18/veterans-choice-private-firms-billions-vets-wait/ (last visited March 25, 2019).
  26.  See U.S. Department of Veterans Affairs, Office of Inspector General, Forever GI Bill: Early Implementation Challenges (2019), available at https://www.va.gov/oig/pubs/VAOIG-19-06452-97.pdf (last visited March 27, 2019); U.S. Gen. Accounting Office, VA Health IT Modernization: Historical Perspective on Prior Contracts and Update on Plans for New Initiative (2018), available at https://www.gao.gov/assets/690/689472.pdf (last visited March 27, 2019).

  27.  The United States Digital Service, which includes technical specialists from a variety of backgrounds throughout the federal government, works to “better government services to the American people through technology and design.” Our Mission, The United States Digital Service, available at https://www.usds.gov/mission (last visited April 16, 2019).

  28.  Chris Eldredge, Lauryn Fantano, Natalie Kates, Rick Lee, Sheri Trivedi, & Aaron Wieczorek, USDS Discovery Sprint Report, Mission Act: Community Care 6 (2019), available at https://www.documentcloud.org/documents/5766330-USDS-Mission-Act-Report.html (last visited March 26, 2019).

  29.  See generally DAV, Paralyzed Veterans of America, & Veterans of Foreign Wars, The Independent Budget, available at http://www.independentbudget.org/ (last visited March 26, 2019).

  30.  In VA’s proposed budget for FY 2020, the Administration requested $15.3 billion while the Independent Budget recommended $18.1 billion. In addition, the Independent Budget’s recommendation did not take into account those veterans who would be able to access community care based on the proposed access standards. Press Release: Authors of The Independent Budget Statement on VA’s FY 2020 Budget Request, The Independent Budget (Mar. 12, 2019) (on file with author).

  31.  Id.

Heather L. Ansley

Paralyzed Veterans of America

Heather L. Ansley is the Associate Executive Director of Government Relations at Paralyzed Veterans of America (PVA). Her responsibilities include managing the organization’s efforts on Capitol Hill and working with the Administration to promote legislation and policies that ensure veterans with catastrophic disabilities receive the healthcare and benefits that they have earned and the civil rights protections that they deserve. She also leads the organization’s legal advocacy efforts focused on disability civil rights. 

Prior to joining PVA, Ms. Ansley served as Vice President of VetsFirst, a program of the United Spinal Association, and as the Director of Policy and Advocacy for the Lutheran Services in America Disability Network. She also served as a Research Attorney for the Honorable Steve Leben with the Kansas Court of Appeals. Ms. Ansley holds an MSW from the University of Missouri-Columbia and a JD from the Washburn University School of Law in Kansas.   She can be reached at heathera@pva.org

Linda E. Blauhut

Paralyzed Veterans of America

As Deputy General Counsel of Paralyzed Veterans of America (PVA), Linda E. Blauhut manages PVA’s veterans claims litigation and has more than 25 years of experience representing veterans and other VA claimants before the U.S. Court of Appeals for Veterans Claims (CAVC) and the U.S. Court of Appeals for the Federal Circuit. She also represents the organization in general corporate matters, and has developed outreach and awareness campaigns for PVA to educate the public on veterans law. 

Ms. Blauhut teaches the Veterans Advocacy course at the George Washington University Law School and has previously taught at Catholic University.  She has served on various CAVC committees and is a past chair of the Court’s Rules Advisory Committee. She is also an arbitrator for the D.C. Bar’s Attorney/Client Arbitration Board.  She can be reached at lindab@pva.org.