January 31, 2020 Public Contract Law Journal

Ensuring Choice in the Veterans Community Care Program: Reforming Scheduling & Claims Processing Systems Under the Choice Act to Guarantee Veterans Timely Healthcare

by Emily B. Jones

Emily B. Jones is a J.D., expected May 2020, The George Washington University Law School; BS in Anthropological Sciences and BFA in Dance, 2013, The Ohio State University. I owe a special thanks to Christine Chen, Brenda Jones, and Collin Swan for their time, energy, and crucial edits. This Note is written for John W. Dziak, remembering you always.

I.  Introduction

To prepare for good conversation, I remember my maternal grandfather, Papa Dziak, crossing his fingers over a pair of calloused palms and launching into anecdotes that brought him joy. One of his stories involved a Veterans Administration (“VA”) outpatient clinic. Papa Dziak served in World War II and traveled loyally to this facility for medical care. Apparently, the staff at this VA clinic called him on his birthday one year, telling him to swing by for a medical reason, but, when he arrived, he was instead presented with a full- fledged birthday celebration, complete with cake. Papa Dziak spoke highly of the clinic and its staff, and he was well-loved there. However, when he began experiencing stomach pain several years ago, the clinic could not provide him with either the appropriate examination or the necessary referrals for outside care. It was not until later, through his access to Medicare at a private medical center, that Papa Dziak was diagnosed with stomach cancer and provided medical attention.

Thankfully, Papa Dziak ultimately received some form of care for his illness, which is more than may be said for many veterans who suffer inexcusably long waiting times or substandard care from VA medical facilities.1 In 2014, whistleblowers released reports to CNN that VA hospital staff in Phoenix, Arizona, were fudging, and therefore hiding, appointment wait times.2 At the time, veterans were waiting anywhere from two to four months for VA hospital staff to schedule their appointments, an unacceptable fact that remained under the public radar until whistleblowers went to the press.3 Extensive wait times resulted in the death of dozens of veterans that could possibly have been prevented had the VA referred these veterans to outside providers.4

This leak produced a cascade of reports from other VA medical facilities detailing disturbing inadequacies, and Congress quickly responded by passing the Veterans Access, Choice, and Accountability Act of 2014 (“Choice Act”).5 The Choice Act encouraged changes in VA structure and policy.6 One provision, in particular, charged the VA with expanding the “availability of hospital care and medical services for veterans through the use of agreements with non-Department of Veterans Affairs entities.”7 This provision gave rise to the Choice Program, which not only expanded already existing programs for out- side care but also provided veterans greater flexibility and more treatment options.8 Specifically, any healthcare provider “participating in the Medicare program[,] . . . [a]ny [f]ederally-qualified health center[,] . . . [t]he Department of Defense[,] . . . [and the] Indian Health Service” was eligible for a contract with the VA under the Choice Act, and the resulting extension of provider networks earned veterans larger pools in which to seek medical care.9 If any providers under these categories wished to participate in the program, they had to meet additional requirements, which included acceptance of Medicare rates and “compliance with all applicable federal and state regulatory requirements.”10 Third-party administrators assist the VA by establishing agreements with such non-VA providers once they meet all criteria.11 This includes negotiating rates for provided medical care and methods for timely reimbursement.12 The same third-party administrators are responsible for managing the contractual relationship between the VA and non-VA providers; related support services include scheduling appointments, manning call centers, overseeing medical services reporting, and coordinating care with private insurers.13

Unfortunately, the VA has yet to fulfill its good intentions with the Choice Program, evidenced by the large number of veterans who continue to wait to see medical professionals or struggle to ensure that their claims are accurately processed once they finally have an appointment.14 The Government Accountability Office (“GAO”) reports that in FY 2015 and 2016, veterans referred to the Choice Program waited up to seventy calendar days for their appointments.15 Additionally, veterans relay personal experiences where either they were sent to the wrong non-VA health professional or they could not receive necessary treatment because the health professional was not yet authorized via Choice Program procedures.16 Aware of the persistent problems facing the VA healthcare system, and specifically those of the Choice Program, President Donald Trump signed the VA MISSION Act of 2018 into law on June 6, 2018.17 Among its provisions, the VA MISSION Act consolidated all Community Care programs — including the Choice Program — into one program known as the “Veterans Community Care Program.”18 The Veterans Community Care Program officially launched on June 6, 2019, implementing standards set forth in the VA MISSION Act and replacing the Choice Program.19

For over half a century, the VA has utilized Community Care programs to provide care for veterans through non-VA-affiliated facilities, but their growing numbers only made them more difficult to administer.20 Consolidation brought all Community Care programs under one regulatory authority and meant that the VA must consider new contracts for third-party administrators to assist with implementation and operation.21 In preparation for these newly consolidated contracts, the VA decided to reclaim responsibilities that were previously left to third-party administrators, including appointment scheduling.22 The VA’s Request for Proposals for the contracts stated “that VAMCS — rather than [third-party administrators] — will carry out community care appointment scheduling.”23 This Note suggests that, instead of adding to its own responsibilities, the VA should entrust third-party administrators with scheduling and claims processing duties and additionally empower veterans to make their own decisions.

This Note argues that the VA should reform two Choice Program aspects that were consolidated into the Veterans Community Care Program: the process of scheduling veterans for appointments and the procedure for processing claims once appointments are scheduled. Veterans currently must rely on too many actors in a sequence of unnecessarily repetitive steps to schedule appointments.24 To make matters worse, the VA failed to adopt a system to accurately compare and track veteran wait times.25 The VA cites understaffing and authorization delays in response to the complaint that non-VA providers were not receiving timely compensation for their claims and thus could not afford to continue Choice Program participation.26 This is particularly troublesome at a time when the VA is increasingly referring veterans to outside providers because if those providers do not receive timely compensation, they gain little ability or incentive to renew their contracts. To effect meaningful change, the VA must adopt several new operative measures: the VA must streamline the methods for scheduling appointments, support veterans in scheduling their own appointments, contract out claims processing duties, and designate routine care for automatic authorizations.

Part II of the Note provides background on the origin of VA healthcare and preliminary Community Care programs, as well as the lead up to and implementation of the Choice Act. Part III of the Note describes the Choice Program scheduling and claims processing systems in detail and identifies specific flaws in both systems. Part IV presents solutions for scheduling under the consolidated Veterans Community Care Program, and Part V follows with suggested solutions for claims processing. Finally, Part VI concludes with the central theory that, if each presented solution is combined and incorporated, the VA would rightfully delegate much of its responsibility under the Veterans Community Care Program to selected contractors and individual veterans.  

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