Court Demands Mental Health Care Reform for Veterans, Cites VA’s “Unchecked Incompetence“

Before he left office two years ago, George W. Bush released two reports touting his accomplishments during his tenure as president, boasting that he “provided unprecedented resources for veterans” and “increased the benefits available to those who have served our Nation and transformed the veterans health care system to better serve those who have sacrificed for our freedom.”

Those reports, “Highlights of Accomplishments and Results of the Administration of George W. Bush,” and “100 Things Americans May Not Know About the Bush Administration Record,” further claimed that Bush “instituted reforms for the care of wounded warriors … and dramatically expanded resources for mental health services.”

On Tuesday, the Ninth Circuit Court of Appeals essentially shredded Bush's assertions, ruling in a sweeping 104-page opinion that years of “unchecked incompetence” at the Department of Veterans Affairs (VA) were directly responsible for an epidemic of suicides and lengthy delays in processing disability benefits for war veterans who suffer from post-traumatic stress disorder (PTSD) that began while Bush was in office and has continued under President Barack Obama's leadership.

“VA's unchecked incompetence has gone on long enough,” Judge Stephen Reinhardt wrote for the majority. “No more veterans should be compelled to agonize or perish while the government fails to perform its obligations.”

The Ninth Circuit's surprise 2-1 decision came in response to a federal lawsuit filed four years ago by nonprofit advocacy groups Veterans for Common Sense (VCS) and Veterans United for Truth. The organizations sought a preliminary injunction to force the VA to immediately treat war veterans, particularly those who served in Iraq and Afghanistan and showed signs of or were already suffering from PTSD. In addition, the veterans' groups wanted a federal judge to force the VA to overhaul its internal systems that handles disability benefits claims and medical services.

Following a trial in the summer of 2008, US District Court Judge Samuel Conti ruled that he lacked the legal authority to implement those measures and said the veterans groups should get “Congress, the Secretary of the Department of Veterans Affairs, the adjudication system within the VA and the Federal Circuit” to address the matter.

Instead, the veterans groups appealed to the Ninth Circuit, stating that Conti's ruling was legally flawed and that he “erred in denying relief to remedy both VA's mental health care delays and the lack of procedural safeguards to challenge those delays.”

Paul Sullivan, executive director of VCS, said in an interview two years ago that VCS and Veterans United for Truth appealed to the Ninth Circuit because VA continuously failed to fully implement its Mental Health Strategic Plan (MHSP) and conduct oversight of it.

The MHSP, unveiled in 2004, would have provided veterans who show signs of being at risk of suicide or are suffering from PTSD with immediate mental health care and eliminate the waiting period for receiving treatment.

But according to a November 2006 report by the Government Accountability Office (GAO), spending for the program was substantially less than what the VA had proposed – leaving untreated tens of thousands of veterans who were at risk of suicide.

In June 2007, in response to a VA inspector general's report that also criticized the VA's failure to implement the MHSP, William Feeley, then the VA's undersecretary for health, operations and management, issued a memo requiring VA hospitals and outpatient treatment centers to provide urgent mental health care within 24 hours and nonurgent care to veterans within 14 days.

But Feeley, who was one of a handful of VA officials who received lucrative bonuses in 2006, admitted in a deposition in the lawsuit VCS and Veterans United for Truth filed against the VA, that he never conducted any oversight to ensure his directives were being adhered to. In that deposition, Feeley said an uptick in veterans' suicides and suicide attempts did not mean the VA failed to provide proper care to veterans.

“A suicide does not mean negligence on the part of a medical center director or a network director,” Feeley said. “Suicide occurs just like cancer occurs.”

In his prior position as director of the Veterans Integrated Services Network in upstate New York, Feeley was required to implement several elements of the MHSP at the network's community-based outpatient clinics with a population of at least 1,500 veterans. But Feeley said in his deposition that he only read an executive summary of the MHSP after it was released in June 2004 and had no idea whether the clinics adopted the proposals.

Internal VA memos that surfaced during the trial showed VA officials were aware of and attempted to cover-up the fact that 18 veterans per day took their own lives and more than 1,000 veterans had attempted suicide per month, which attorneys representing the veterans' advocacy groups argued could have been avoided if the MHSP, which called for the development of a “national, systemic program for suicide prevention,” was implemented.

The Ninth Circuit agreed. In its opinion issued Tuesday, the appeals court directed the VA to immediately put a “systemwide” plan into place to address, among other things, a shortage of suicide counselors at 800 outpatient clinics used by veterans, and take steps to correct the poor health care treatment and the benefits backlog at the VA, which the Ninth Circuit said amounts to a violation of veterans' “due process rights to receive the care and benefits they are guaranteed by statute for harms and injuries sustained while serving our country.”

“We do not reach this answer lightly,” Judge Reinhardt wrote. “We would have preferred Congress or the President to have remedied the VA's egregious problems without our intervention when evidence of the Department's harmful shortcomings and its failure to properly address the needs of our veterans first came to light years ago. Had Congress taken the requisite action and rendered this case unnecessary even while it was pending before us, we would have been happy to terminate the proceedings and enter an order of dismissal.

“When the government harms its veterans by the deprivation at issue here, [veterans] are entitled to turn to the courts for relief. Indeed, our Constitution established an independent Judiciary precisely for situations like this, in which a vulnerable group, that is being denied its rights by an unresponsive government, has nowhere else to turn. No more critical example exists than when the government fails to afford its injured or wounded veterans their constitutional rights. Wars, including wars of choice, have many costs. Affording our veterans their constitutional rights is a primary one.”

At a press briefing Thursday, White House press secretary Jay Carney said, “the Veterans Administration and the Justice Department are taking a very hard look at the [Ninth Circuit's] ruling and will work closely to address any of the issues raised by the court.”

When Bush was president, he stacked the VA with political cronies, such as former Republican National Committee Chairman Jim Nicholson, who, as VA Secretary, defended a budget measure that sought major cuts in staffing for health care and at the Board of Veterans Appeals, slashed funding for nursing home care and blocked four legislative measures aimed at streamlining the backlog of veterans' benefits claims.

Obama vowed to reverse that trend. Prior to being sworn in as president, Obama said on his transition web site, Change.gov, that he intended to “Fix the [VA] Benefits Bureaucracy” by hiring “additional claims workers and improve training and accountability so that VA benefit decisions are rated fairly and consistently.” Moreover, Obama vowed to “transform the paper benefit claims process to an electronic one to reduce errors and improve timeliness.”

But those efforts have not yet been fully implemented. Although Obama proposed a dramatic increase in VA's budget, of which Congress approved, implemented a series of new suicide prevention programs and selected retired Vietnam War veteran Gen. Eric Shinseki, who has advocated on behalf of veterans, to lead the VA, the administration has been slow in cutting through the bureaucratic red tape that began with his predecessor.

The backlog of unfinished disability claims at the VA has increased from less than half a million at the turn of the millennium to more than one million today. Veterans who file claims must wait an average of five to six months before receiving a response from VA as to whether their claim has been accepted. Currently, there are about 200,000 veterans who have appealed VA's disability claims decisions and they wait an average of four years for a response, the Ninth Circuit found, noting that the VA was unable to provide the “court with a sufficient justification for the delays.”

In a statement Wednesday, Sullivan said, “The ball now sits in VA's court.”

“Will VA fight against veterans by appealing the case? Or, will VA face reality, especially the broken claims system and work with veterans, Congress, academic experts and others to finally fix VA so our veterans don't face mountains of paperwork, endless delays and other obstacles to care?”

On Monday, a day before the Ninth Circuit issued its opinion, Sullivan's group obtained new statistics from the VA and Department of Defense under the Freedom of Information Act. The documents reveal that as of December 31, 2010, nonfatal battlefield casualties among Iraq and Afghanistan war veterans exceed 90,000. Additionally, of the 654,000 service members of those conflicts treated at VA hospitals and clinics, 332,000 were diagnosed by the VA with one or more mental health conditions.

Despite these dramatic figures, Sullivan said VA “still has no strategic plan to meet sharply rising demand for treatment and benefits.”

“Tragically,” Sullivan added, “the [appeals] court confirms veterans died (more than a thousand during a few month period during the 2008 trial) while waiting for VA to provide healthcare and benefits.”