Controversial VA Email Accepted into Evidence in Veterans' Rights Class Action Lawsuit Case

Latest updates on this and related VA/Army lawsuits posted in "As Second Legal Attempt Fails to Force VA Hand on Disability Claims Processing, Army Sued Over Discharged Veteran PTSD Disability Ratings." -- Ilona Meagher, 12/17/08

A federal judge presiding over an important veterans' health care rights case against the VA has accepted into evidence a controversial email suggesting fewer PTSD diagnoses be given to veterans coming in for care. This is the same case that first had the government attempt to dismiss it in its entirety, arguing that vets have no legal right to expect specific types of medical care. The case moved forward nonetheless, with testimony and closing arguments taking place in April.

Read more on this in the Fog City Journal, or more on April's trial (which I was too swamped to cover here at the time) in extended.

In educational interest, article(s) quoted from extensively.

The latest development from AP:

A recently surfaced e-mail by a Department of Veterans Affairs psychologist was added Friday to the evidence a federal judge is considering in deciding whether to order a massive overhaul of the agency's health care system.

Two veterans groups sued the VA last year, alleging that its mental health care and benefits award system were so flawed that a federal judge was needed to step in. U.S. District Court Judge Samuel Conti was deciding what to do with the VA after a two-week trial without a jury ended in April.

On Friday, he took the unusual step of briefly reopening the case so he could formally consider the e-mail, in which the psychologist suggests that counselors minimize their diagnoses of severe mental disorders in soldiers. A transcript from a June 4 hearing on the missive before the Senate Veterans' Affairs Committee also was added to the trial evidence.

From Government Executive's Bob Brewin:

Suicides among veterans of wars overseas occur "just like cancer occurs," and are not an indication of negligence by Veterans Affairs Department mental health care providers, a top VA official has argued in a lawsuit filed by two veterans groups. The official said he does not know how well VA hospitals are complying with a directive to provide 24-hour referrals to veterans with mental health problems. ...

Internal VA memos released at the trial in April disclosed that in February, the department knew it was facing 1,000 suicide attempts per month, which the veterans groups argued could have been avoided if VA had adhered to its 2004 Veterans Health Administration Mental Health Strategic Plan, which called for development of a "national, systemic program for suicide prevention."

A deposition by a VA medical center psychiatrist caring for veterans of the wars in Iraq and Afghanistan backed up the veterans groups' assertion that the department had not done enough to provide adequate mental health care for all veterans.

Dr. Marcus Nemuth, medical director of Psychiatry Emergency Service for VA's Puget Sound Health Care System in Seattle, which operates three hospitals, said in his deposition on March 25 that he expected a high volume of post-traumatic stress disorder cases among veterans returning from Afghanistan and Iraq. He said he was concerned with both with the quantity and quality of care provided to those veterans.

Nemuth said during the past year he had seen such a growth in the caseload of Afghanistan and Iraq veterans seeking psychiatric emergency help at the Seattle VA hospital that he concluded the department faced a "tsunami of medical need."

But William Feeley, the Veterans Health Administration's deputy undersecretary for health for operations and management, said in an April 9 deposition that VA did not have a metric to track suicides or attempts. He added that he could not recall a time since he took office in February 2006 when VA had conducted a quarterly review of suicides or attempts among the department's 21 Veterans Integrated Services Networks. ...

In June 2007 Feeley sent out a memo to Veterans Integrated Services Network directors requiring hospitals and community-based outpatient clinics to provide an initial evaluation within 24 hours to veterans who requested or were referred for mental health evaluation and/or substance abuse treatment. Feeley also told network directors that as of Aug. 1, 2007, follow-up to these evaluations should occur within 14 days.

In his deposition Feeley said the June 2007 memo was sent in part in response to a May 2007 VA inspector general report that found initiatives detailed in the mental health plan pertaining to 24-hour crisis availability, outreach, referral and development of methods for tracking veterans at risk had not been deployed systemwide.

The inspector general recommended that VHA facilities make arrangements for 24-hour crisis and mental health care availability, either on site or through a hot line staffed by trained personnel. In addition, the IG said, an on-call mental health specialist should be available to crisis staff.

Feeley could not say during his deposition whether the policies laid out in his memo for 24-hour mental health referral and 14-day follow-up had been adopted throughout VHA. And aside from the suicide hot line, he could not say whether VHA had complied with other recommendations contained in the IG report. He said he "would have some trust in the organization" that the memo had been met with compliance. Otherwise, he said, "we will be spending millions of dollars related to auditing procedures."
Melvin Goldman, an attorney at Morrison & Foerster, the San Francisco law firm representing the veterans groups, asked Feeley: "If those millions of dollars resulted in the saving of one veteran's life, wouldn't they be worthwhile?" Feeley answered: "I think we have to make tough judgments in the industry on how to best measure success."

Feeley said he intended to ensure compliance with his memo through random site visits, saying he had completed five or six such visits as of April. But Antonette Zeiss, deputy chief consultant for patient care services at VA's Office of Mental Health Services, said at a pretrial hearing in March that site visits had been completed at only two VA facilities, in Los Angeles and Pittsburgh. Zeiss did not provide details on compliance in Pittsburgh, but said the Los Angeles facility was not in full compliance.

Gordon Erspamer, a Morrison & Foerster attorney, said in a trial brief that the 24-hour mental health evaluation procedures detailed in the Feeley memo as well as other suicide prevention steps taken by VA, such as the suicide hot line, amount to "nothing more than an empty promise on which too many veterans have tragically learned they cannot rely."

Justice Department attorney Daniel Bensing in his closing argument on April 30 called the charges by the veterans' groups "extreme and outrageous," adding that VA is providing "world-class health care in the mental health area."

From Paul Elias of AP:

A top-ranking official at the Department of Veterans Affairs defends the agency’s treatment of disabled veterans and denies the agency has tried to cover up the number of veterans committing suicide.

Dr. Michael Kussman, a department undersecretary for health, testified during a trial in San Francisco federal court that will determine whether the VA is shirking its duty to provide adequate mental health care and other medical services to millions of veterans. ...

In court, plaintiffs’ lawyer Arturo Gonzalez clashed Thursday with Kussman over how to compile and report the suicide rates. For instance, VA Secretary James Peake told Congress in a Feb. 5 letter that 144 combat veterans of Iraq and Afghanistan committed suicide between October 2001 and December 2005.

But Gonzalez produced internal VA e-mails that contended that 18 veterans a day were committing suicide. Kussman countered that the figure, provided by the Centers for Disease Control and Prevention, included all 26 million veterans in the country, including aging Vietnam veterans who are reporting an increased number of health problems.

Kussman said Thursday that suicide prevention was a VA priority and that the agency instituted new measures in the past 18 months, including training its workers to identify suicidal patients and establishing a 24-hour suicide hot line for veterans. Court documents given to the judge by Gonzalez showed that 2,508 veterans called the hot line in March, the busiest month so far.

“People are using it,” Kussman said. “It’s a good thing.”

Gonzalez also asked Kussman to explain several e-mail chains among agency officials that discussed an unwillingness to share suicide statistics with CBS News, which was preparing a story on the subject.

“I don’t want to give CBS any more numbers on veterans suicides or attempts than they already have — it will only lead to more questions,” wrote Everett A. Chasen, chief communications officer in a March 10 e-mail to several VA officials.

On Monday, the first day of trial, an e-mail message written in December by Dr. Ira Katz, the agency’s mental health director, was given as evidence. It alerted Kussman and others that 12,000 veterans under VA care were attempting suicide a year.

“Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?” the e-mail asks. Katz also reported that of the average of 18 military veterans who kill themselves each day, four to five of them are under VA care when it happens.

From Neil MacFarquhar of the New York Times:

The issue of whether veterans with mental health problems are neglected or whether their sheer numbers are overwhelming the system divided closing arguments on Wednesday in a class-action lawsuit in federal court here.

Arturo J. Gonzalez, the lawyer arguing on behalf of the Veterans for Common Sense and the Veterans United for Truth, the two groups who brought the lawsuit against the Department of Veterans Affairs, said that the agency had failed to fully put into effect an action plan it developed four years ago.

The fact that it takes more than 180 days to process a veteran’s claim for benefits represents a “pattern of neglect,” Mr. Gonzalez said, adding that anyone who enters an appeal has to wait four and a half years for a resolution.

“I don’t know how any veteran can stand it and stick with it and get to the end of this process,” Mr. Gonzalez said. He also emphasized the high rate of suicide attempts, 1,000 a month, among the 5.6 million veterans that the V.A. treats, as a sign that mental health issues need far greater attention.

Daniel Bensing, who made the closing arguments for the V.A., noted that 838,000 claims were filed last year, an increase of 25 percent, because of the jump in veterans from Iraq and Afghanistan and a surge from aging Vietnam veterans. While acknowledging the delays were lengthy, he said that the increase in claims for help was one of four factors causing problems.

The others he cited were that the claims are highly complex, not least because the ties linking veterans’ military records to their medical problems have to be investigated; that the claims process is an open one that allows veterans to add information at any time; and budgetary limitations.

While acknowledging suicide as a serious problem, Mr. Bensing also emphasized that change takes time given that the V.A. runs the largest health care system in the country. “It cannot all be done immediately like plaintiffs seem to think,” he said.

The plaintiffs were not seeking monetary damages but want the judge, Samuel Conti, to intervene to force the V.A. to run more efficiently.

Thursday, June 12, 2008

Controversial VA Email Accepted into Evidence in Veterans' Rights Class Action Lawsuit Case

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