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Witness Testimony of Thomas Murphy, Director, Compensation Service, Veterans Benefits Administration, Thomas Murphy, Director, Compensation Service, Veterans Benefits Administration, U.S. Department of Veterans Affairs

Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to testify and present the views of the Department of Veterans Affairs (VA) on several legislative items of great interest to Veterans and the Department.  Joining me today are Jack Thompson, Deputy General Counsel, and Roger Baker, Assistant Secretary for Information and Technology.  

H.R. 2383

H.R. 2383, the “Modernizing Notice to Claimants Act,” would amend 38 U.S.C. § 5103 to authorize the Secretary of Veterans Affairs to use electronic communication to provide required notice to claimants for benefits under laws administered by the Secretary.  This bill would also amend 38 U.S.C. § 5103A to clarify the Secretary’s duty to assist claimants in obtaining relevant private records.

VA fully supports this bill, which would significantly enhance the efficiency by which VA carries out its duty to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA).  Although the VCAA requirements are designed to promote more efficient and effective development of claims, some aspects of those requirements, as interpreted by the courts over the last decade, have had the unintended effect of complicating and unnecessarily delaying the claims process while confusing Veterans and their dependents.  This bill would represent a valuable step forward in addressing those concerns.

Section 2 of the bill would amend 38 U.S.C. § 5103 to provide increased flexibility in how VA delivers notice to claimants of the information and evidence necessary to substantiate their claims.  It would authorize VA to provide notices through the most expeditious means available, including electronic communication, which is critical during this time of transformation to a paperless claims process.  This will enable VA to maximize the successes of Information Technology initiatives such as the eBenefits portal, the Veteran Benefits Management System, and the Veterans Online Application.

By eliminating the language that directs VA to issue VCAA notices “upon receipt of a complete or substantially complete application,” section 2 of this bill would also significantly increase efficiency in the beginning stages of the claims process.  For example, by attaching VCAA notices to certain forms or sending a Veteran an electronic VCAA notice at the same time VA sends the claimant an application, VA could shorten the overall development time associated with the claim.  In these instances, VA would essentially be initiating development before the claim is received in the regional office.  Once the claims folder is handled for the first time by a Veterans Service Representative (VSR), the VCAA notice obligation would be fulfilled, and other actions to move the claim along could be readily taken.  This added flexibility would eliminate a significant number of VSR actions and significantly shorten overall claim development time.

As a technical matter, we note that section 2(1)(B) of the draft bill would revise 38 U.S.C. § 5103(a)(1) by replacing “notify the claimant” with “provide to the claimant.”  For clarity, we suggest inserting the term “notice” following “provide” or, alternatively, before the phrase “of any information,” as it appears in section 5103(a)(1).

Section 2 also would eliminate a particular delay in the claims process that occurs when VA receives a subsequent claim while the same type of issue from a prior claim is pending before VA.  This routinely occurs when a Veteran files a multi-issue claim and a few months later, while that claim is still pending, files another claim involving the same type of issue as in the currently pending claim.  In many of these cases, the subsequent claim can be decided, or at least developed, along with the previously pending issues.  However, the development and decision are delayed in order to provide a new, but essentially duplicative “VCAA notice” to the Veteran on the subsequent claim. 

Sections 2 and 3 of this bill would add provisions to both 38 U.S.C. § 5103 and 5103A to make it clear that VA’s duty to notify or duty to assist does not apply to any claim or issue when the benefit sought can be awarded based on the evidence of record.  This would eliminate significant delays that occur when claims are unnecessarily developed.

Section 3 of the bill would clarify that “reasonable efforts” to assist the claimant in retrieving his or her private records would require VA to make no less than two requests to a custodian of the claimant’s records.  This reasonable clarification would help ensure that VA is following the intent of Congress. 

Section 3 would also direct the Secretary to encourage claimants to submit private medical evidence if such submission does not burden the claimant.  VA would, however, continue to assist the claimant if he or she requests such assistance.  This approach would empower the claimant to take an active role with VA in preparing his or her claim for a decision.  In many instances, Veterans want to procure their own records and can do so more quickly than VA.  However, under the current VCAA process, many Veterans feel obligated to fill out the release forms VA provides to permit VA to procure such records.  This results in delays in the claims process because of duplicate or unnecessary requests to custodians of records.  This bill allows VA to enhance its communication with claimants and offer them clear options as to the types of VA assistance they want or need.  In crafting regulations to implement this authority, VA would emphasize the valuable role the claimant may play in retrieving records while at the same time ensuring that the claimant understands VA’s readiness to assist as necessary.  This approach will better balance the responsibilities of both parties to obtain evidence in support of a claim.

One of VA’s claim cycle time indicators, “average days awaiting development,” was 53 days for the national pending inventory of 802,391 rating claims at the end of June 2011.  The efficiencies gained through this bill would significantly reduce the time it takes to initiate development to a much more reasonable time period.  Furthermore, by attaching VCAA notices to claims forms, VA could shorten development time.  This improvement to the claims process is paramount to VA’s ability to achieve its 125-day goal for completion of rating claims.

There are no benefit or administrative costs associated with this proposal.  The enactment of this bill will not affect benefit amounts and does not affect obligations in any given fiscal year. 

 H.R. 2243

H.R. 2243, the “Veterans Employment Promotion Act,” would amend 38 U.S.C. § 4212(d) to require the Secretary of Labor to publish on an Internet Web site certain information about the number of Veterans who are employed by Federal contractors.  VA defers to the Department of Labor to provide views on this bill.

H.R. 2388

H.R. 2388, the “Access to Timely Information Act,” would amend title 38, and also effectively amend the Privacy Act to require VA to disclose sensitive personal information to the Chairs and Ranking Members of the House and Senate Veterans’ Affairs Committees and Subcommittees, or to anyone else the Chairs and Ranking Members designate to make such requests.  Because the bill would diminish the privacy rights of Veterans, who deserve the same information protections enjoyed by other Americans, we strongly oppose its enactment. 

VA appreciates the important oversight responsibilities shared by this Committee and its Senate counterpart.  The Department expends considerable effort in responding to Committee requests for information.  However, current laws are intended to ensure that the privacy rights of individuals are respected during the exercise of legitimate Congressional oversight.  First, absent express waivers by affected individuals, the laws permit agencies to disclose records protected by the Privacy Act and title 38 to only the Congressional committees or subcommittees themselves that have oversight authority or persons acting under a grant of authority from the committees, which has long been interpreted to mean only the chairpersons because only they are authorized to act on those bodies’ behalves.  Second, the disclosures may be made only in furtherance of legitimate oversight activities that are within the particular committees’ purviews.

In order to document and ensure the validity of such requests, VA requires that they 1) be made in writing, 2) be signed by the Chair of the Committee or Subcommittee, and 3) specify how the information is relevant to a matter within the oversight jurisdiction of the Committee or Subcommittee.  These requirements give assurances to VA employees that the requests can be lawfully fulfilled, and also create a record that can be used in the event the employees’ authority to disclose the information is later questioned.  This latter point is significant in that the penalties for unlawful disclosure can be severe.  An agency employee who discloses information in violation of an applicable confidentiality statute or regulation may be subject to criminal and civil penalties.  Furthermore, the Department may be subject to civil liability under these provisions.  Absent the explicit prior written consent of the Veteran, the Department must carefully evaluate the contemplated disclosure and the particular oversight purpose for which the information is sought, and make an informed and reasoned decision as to whether the release qualifies under any of the exceptions.  Often, upon negotiation with an oversight committee, it may be determined that the request can be satisfied without compromising the privacy of an individual Veteran.

Veterans’ Affairs committee staff frequently request Veterans’ medical records, which contain among the most sensitive and private information imaginable.  When medical records are shared inappropriately, it can cause a patient great harm ranging from embarrassment and social stigma to loss of a job and insurance.  VA actively reaches out to Veterans to encourage them to seek health care.  Because of social stigma associated with many medical and psychiatric conditions, patients often conceal their illnesses and treatment from their employers and even their immediate families, and they have a well-deserved expectation that their records will be protected from disclosure to the general public.  Any release of Veterans’ health information outside the Department – even when permitted by statutory exception – has the potential for undermining Veterans’ trust in VA.

Current law sufficiently balances Veterans’ personal-privacy interests and the need for congressional oversight.  All that VA requires is a brief request, signed by the chair of a committee or subcommittee, sufficient to allow VA to exercise its responsibility to determine whether the invasion of the Veterans’ privacy is necessary to satisfy the oversight purpose.  A single such request can seek records concerning multiple individuals.  The proposed legislation would remove existing legal protections for only one class of individuals – our nation’s Veterans – by requiring the Department to deem valid every request made by a chair, by a ranking member, or by an unlimited number of individuals delegated by a chair or ranking member of the two committees. 

By mandating VA to accommodate any such request without even inquiring whether the information requested is necessary or within a committee’s or subcommittee’s jurisdiction, the legislation would strip Veterans of the assurance that VA will share only the personally identifiable health information which it has verified as being truly necessary for congressional oversight purposes.  In fact, the legislation would confer upon any person the authority to make such a request as long as the committee chair or ranking member so delegates, and places no restrictions on who may receive this highly sensitive information.  As a result, the draft bill has at least some potential for affecting Veterans’ willingness to supply VA health-care providers with full and accurate health information, and could undermine their trust in the VA health-care system.  Sensitive information is, of course, also maintained by other elements of the Department, including in VBA claims files, which include not only medical records but also information concerning home addresses, social security numbers, and banking information.

Events of the not-too-distant past were urgent reminders to our Department concerning the need to safeguard the sensitive personal information with which we are entrusted.  We took those events seriously, and along with Congress, have worked to significantly enhance VA’s protection of Veterans’ personal information. We cannot support legislation which would in any way diminish the existing legal protections this information rightfully enjoys.

H.R. 2470

H.R. 2470, the “Ensuring Servicemembers’ Electronic Records’ Viability (E-SERV) Act,” would amend Section 1635(b)(2)(A) of the Wounded Warrior Act (title XVI of Public Law 110–8 181; 10 U.S.C. 1071 note) to alter the role, functions and oversight of the Interagency Program Office (IPO) of the Department of Defense (DoD) and the Department of Veterans Affairs with respect to electronic health records.  It would also transfer control and responsibility of vital and sensitive programs for VA’s electronic health records away from the clinicians and VA IT specialists who have made it a success.     

Mr. Chairman, while the VA agrees that leadership and accountability will be vital to delivering an integrated Electronic Health Record (iEHR), VA opposes H.R. 2470 as written.  Together with our partners in DoD, we have created a governance structure to ensure delivery of an iEHR that will be comprehensive and inclusive.  The IPO office has been placed at the head of the structure reporting to the Secretaries of Veterans Affairs and Defense, with the iEHR Advisory Board and the Health Executive Council performing a necessary oversight role.  The bill would alter this infrastructure with what we see as no discernable benefit.  It would shift our focus from developing an effective and safe iEHR to reorganizing the governance structure already in-place. 

H.R. 2470 would also transfer control of the VA’s legacy EHR, VistA to the IPO.  VistA is at the heart of what VA does; delivering health care to our nation’s Veterans.  VistA is at the forefront as a model system that has a 99.95 percent ‘up-time’ nationally and is highly responsive.  To transfer all responsibility for the “development, implementation, and sustainment of all electronic health record systems and capabilities” away from VA to the IPO would create disruption and uncertainty in the management of the most vital set of tools VA uses to deliver world-class care for our Veterans.

While we have strong concerns regarding this bill, VA is always open to discussing our joint efforts with our DoD partners to advance iEHR capabilities and the important work of the IPO with the Committee.

This concludes my statement, Mr. Chairman.  Thank you for the opportunity to testify.  I would be happy to entertain any questions you or the other Members of the Subcommittee may have.