Chairman Johnson, Ranking Member Donnelly, and Members of the Subcommittee:
Thank you very much for inviting Wounded Warrior Project (WWP) to testify today, and particularly to provide views on H.R. 5948, the Veterans Fiduciary Reform Act of 2012.
As this Committee’s February oversight hearing on the VA fiduciary program underscored, the program continues to experience serious problems and weaknesses. We concur that legislation is needed. Our principal concern, however, is that H.R. 5948 falls short of resolving longstanding problems raised at February’s oversight hearing, and prior to that, issues covered in a WWP statement submitted to an April 2010 hearing before the Subcommittee on Disability and Memorial Affairs. We welcome the opportunity to explain what we see as an omission, and hope to work with you prior to markup to develop pertinent language to address these issues.
As an organization dedicated to honoring and empowering wounded warriors, we keenly appreciate the importance of assuring responsible stewardship of veterans’ benefits and the protection of vulnerable beneficiaries. We appreciate many of the steps H.R. 5948 would take to add safeguards and strengthen the program.
Mr. Chairman, in opening February’s hearing, you observed that numerous honorable fiduciaries serve our veterans and they all too often find it difficult to navigate the maze of the fiduciary program. At the same time, you called attention to the existence of “bad actors” in the system. As one of your colleagues observed in citing a need for balance, abuses are the exception and not the rule.
WWP works closely with family members of severely wounded warriors who are both full-time caregivers and fiduciaries for those warriors. Recognizing the sacrifices these family members have made to care for their loved ones, and the emotional and financial toll associated with caregiving, Congress two years ago established the Comprehensive Caregiver Assistance program in Public Law 111-163 to provide them needed supports. To qualify and win formal approval for this VA assistance, family members of seriously wounded warriors must undergo VA review, training, home-inspection, and a determination that the proposed arrangement is in the veteran’s best interest. The caregiver must also undergo regular quarterly home-inspections and monitoring of the veteran’s well-being to continue to receive VA assistance. Any “red flags” that might arise in the course of these home-inspections can result in revocation of VA support. In short, Veterans Health Administration (VHA) staff assist and work closely with family caregivers – who in many instances are also fiduciaries and who have not only been screened before qualifying for the program, but whose care of the veteran is closely monitored.
In administering the Fiduciary Program, the Veterans Benefits Administration (VBA), however, does not take account of the unique circumstances of family members who have given up careers and depleted savings to care for their loved ones, and who have already been screened and monitored under VHA’s caregiver program. Surely that process and ongoing oversight provide ample evidence that these individuals are trustworthy, and do not pose a risk of misusing the veteran’s benefits.
WWP is not proposing that caregiver-fiduciaries have no accountability for management of the beneficiary’s funds. But we do see a need to make provision in law formore balanced accountability and far less intrusive oversight under circumstances where caregiver-fiduciaries have demonstrated that they do not pose significant risk and have earned VA’s trust. Dedicated caregiving, as evidenced through unblemished participation in VA’s comprehensive caregiver assistance program, should be recognized as establishing that trust.
WWP has seen all too clearly that VBA’s intensely detailed reporting requirements can be overwhelming to an already emotionally drained family member who is shouldering a young veteran’s total-care needs. As one mother described it, “we are probed yearly by a forensic accounting that seemingly investigates for ‘murderous’ infractions,” even requiring fiduciaries to “line-item Walmart receipts.”
We greatly appreciate the Committee’s work in getting VA to remove language from its fiduciary form 21-4703 that had stated, “VA must approve any use of a beneficiary’s VA funds,” and we very much welcome the inclusion of language in H.R. 5948 to make it clear that a fiduciary has the ability to spend money in the veteran’s best interest. It bears noting, however, that VBA’s April 19, 2012 instructions to the field that VA-appointed fiduciaries do not need to seek prior VA approval for any single expenditure made on behalf of a beneficiary from the beneficiary's funds, nevertheless advises that examiners “must carefully review expenditures in excess of $1,000 when auditing a fiduciary's annual accounting and may request receipts or other documentation to verify questionable expenditures.”
While we applaud the wisdom of eliminating required pre-approval of significant expenditures, we see nothing in H.R. 5948 that would eliminate the inquisitorial audits caregivers too often experience. Consider the following examples:
- A mother/caregiver having to explain to a VBA examiner why she allowed her wounded-warrior son to spend “too much” money on Christmas gifts;
- An auditor insisting that the caregiver’s electric bill was too high and asserting that during the summer in Florida she shouldn’t run the air-conditioning at night;
- A family’s being questioned about expenditures for gasoline used in transporting the wounded veteran; and
- A VBA examiner questioning the caregiver as to why she was buying movies and music for her son given that he has a brain injury.
As summed up by one caregiver-fiduciary, VBA fiduciary program staff “don’t really help with management [of assets] but audit every two years every penny I spend for my son’s care. [There are] not many guidelines and auditors question expenses when they know nothing about the care needed.”
We do not foresee in H.R. 5948 any real reversal in the “guilty until proven innocent” framework many caregiver-fiduciaries experience under VBA’s fiduciary-management practices. While this approach may be prudent regarding unknown potential “bad actors,” we think it goes too far in dealing with proven caregiver-fiduciaries.
Caregivers also emphasize that just trying to comply with the expectations of the program is not easy. VA’s demanding requirements are not only difficult, fiduciaries report that they are on their own:
“When the paperwork arrived at the end of the year, there were no instructions or assistance to do it. I had to figure out how to do everything on my own. I asked for software that I could use to make it easier to do the accounting but I was told there was none. I had to create an excel spreadsheet to enter in the amounts in the categories that were requested, and sometimes it takes me up to 2 weeks to complete all the data entry.”
We invite the Committee to recall the testimony in February of Pam Estes, a caregiver-fiduciary for her son Jason. Mrs. Estes – herself an accountant -- related the frustrating and stressful experience of being threatened with removal as her son’s fiduciary over the manner in which she had documented expenditures when VBA had never provided her instructions or forms for annual reporting, and “when we’d been working so hard to do what’s best for Jason, including saving much of his money for the future when we’re not here to care for him.” As she related in a recent email (excerpted), she has continued to have difficulties over the same problem to which she testified in February, to include having spent two months and four trips to bank branches to obtain a VBA-required months-old account-balance for a date falling in the middle of a month (and thus not reflected in any bank statement or otherwise readily attainable). Mrs. Estes’ frustrations are hardly unique among VA caregiver-fiduciaries.
We applaud the efforts in H.R. 5948 to tighten this program (though we note that the bill would actually add to the reporting burden that is already problematic for caregiver-fiduciaries with the addition of requirements in new section 5509(c)). In sum, we urge that further work be done on the bill to address the caregiver-fiduciaries’ concerns that we have outlined. We would be happy to work with the Committee to develop language to address those concerns.
Thank you for your consideration of WWP’s views.
Ralph Ibson is the National Policy Director for Wounded Warrior Project (WWP), a national veterans’ service organization dedicated to empowering those wounded in Iraq and Afghanistan. In that capacity, he heads up research and policy development for WWP’s Washington, DC Office of Policy and Government.
Prior to joining WWP in December 2008, Mr. Ibson served as Vice President for Government Affairs at Mental Health America (previously, the National Mental Health
Association (NMHA)), where he led federal relations in support of MHA programs and
mission, including advocacy in Congress that culminated in enactment of mental health
parity legislation. Prior to joining NMHA in 2000, Mr. Ibson served for ten years on the staff of the Committee on Veterans Affairs in the U.S. House of Representatives where he helped develop major veterans’ health legislation including the Veterans Health Care
Eligibility Reform Act and the Veterans Millennium Health Care and Benefits Act. During
that period, he served as Staff Director of the Subcommittee on Health. Before working in Congress, Mr. Ibson was a Deputy Assistant General Counsel at the Department of Veterans Affairs. Mr. Ibson holds a JD degree from the University of Pennsylvania Law
School and a bachelor's degree in political science from Tufts University. He is a
veteran of service in the U.S. Army.
Mr. Ibson and Wounded Warrior Project have not received any federal grants or
contracts, during this year or in the last two fiscal years, from any agency or program
relevant to the subject of this June 20, 2012 hearing.
 Department of Veterans Affairs, Veterans Benefits Administration, Fast Letter 12-13 (April 19, 2012), accessed at
 “… you may recall that my issue for the 2011 audit began when I was playing telephone tag with the Baltimore office of the VBA. Since we were unable to connect, I had sent my accounting to them in early December so that I would not be considered delinquent. In spite of that, I received a letter a month later indicating that I was delinquent. Following our testimony in February, the Fiduciary Manager from Baltimore came to our home the next day. He indicated that they did have the accounting I had submitted (and did indeed bring it with him), but wanted to re-do it to better meet the process requirements. You should also keep in mind that this was the third or fourth set of instructions I've been given. We redid the form and he requested that I have the banks complete form 21-4718a confirming the account balances on 9/19/11. Although the original bank statements were submitted, I did not realize that account balance confirmation was required as of a specific date (not to be confused with the statement date) and asked him if banks would even be able to provide that information 5 months later.
He assured me it would not be a problem. Nothing could have been further from the truth! It took me 2 months and 4 trips to the banks to find branches that could get me something even close to what was requested.
“On May 25, 2012, the hub office in Indianapolis sent me a letter letting me know that my accounting had been DISAPPROVED! It turns out that the original form I had submitted in December (the one they originally said they didn't have) had been forwarded from the Baltimore office to the Indianapolis hub office. So on June 3, 2012, I sent a letter to the hub office letting them know that they didn't have the proper form and submitted copies of the revised information. I also sent a letter to the Fiduciary Manager in Baltimore alerting him to the issue. I haven't heard back yet from either office.