Caregiver Program: Veterans risk loss of care due to inability to appeal VHA decisions
When President Obama signed the Caregivers and Veterans Omnibus Health Services Act of 2010 into law, there was great excitement. The Caregiver Program had the potential to provide benefits for the dedicated caregivers of disabled Post-9/11 Veterans. When the law was finally enacted in 2011, the families of veterans overwhelmed VA with applications to become official caregivers. The program has since grown to nearly 23,000 approved caregivers.
The Caregiver Program
Many caregivers involved with the program are spouses or relatives who must leave their jobs to care for the veteran. Veterans who require this level of care often suffer from traumatic brain injuries, severe PTSD, and other serious disabilities. The Caregiver Program provides caregivers with much-needed resources and benefits like monthly compensation, medical training, healthcare, and respite.
The Caregiver Program is run by the Veterans Health Administration (VHA). Thus, decisions about eligibility and treatment are made by coordinators at local VA medical centers.
Caregivers are being cut from the program
Unfortunately, recent reports show that some VA medical centers are dropping caregivers from their rolls at alarming rates. According to NPR, during the past three years, the Portland, Oregon VA cut 66 percent of its caregivers; the South Texas VA cut 48 percent; and the Charleston, South Carolina VA went from 197 caregivers in 2014 to just 11 in February of 2017 – a 94 percent reduction.
According to NPR, the VA denies any cuts in funding or enrollment to the program. In fact, the program has added 6,300 caregivers since 2014. NPR reports, however, that 32 out of 140 VA medical centers were cutting their programs during that same period.
Can veterans appeal Caregiver Program decisions?
Because the Caregiver Program is housed under the VHA, the appeals process in caregiver cases is different than that of disability compensation cases. Disability compensation cases are housed under the Veterans Benefits Administration (VBA). In compensation cases, decisions can be appealed to the Board of Veterans’ Appeals (BVA) if the disagreement cannot be resolved by the VA Regional Office. In caregiver cases, however, appeals cannot go beyond the VHA. When VHA severs or denies benefits under the Caregiver Program, they explicitly tell the Veteran and his/her caregiver that they are not allowed to appeal to the BVA.
After the bill was signed in 2010, the VA spent several months negotiating the regulations that would guide the program. During these negotiations, VA published in the Federal Register that it concluded all determinations made about veterans’ caregivers would be considered “medical determinations” That could not be appealed to the BVA.
In most cases of VHA determinations, the BVA has jurisdiction – the official power to make legal decisions – over “medical determinations.” For example, whether someone is eligible for nursing home placement or is entitled to healthcare falls under BVA jurisdiction. But according to VHA, all decisions made in regard to the Caregiver Program are considered “clinical” decisions by VHA. Thus, according to VHA, they are not appealable.
Veterans risk losing their care
Many of the caregivers initially approved by the program are caring for veterans with permanent, 100% disability ratings. This means that the inability to appeal beyond the VHA may leave some of the most vulnerable veterans without care if their caregivers are dropped from the program and the local VA is not receptive to their appeals. Caregivers may have to return to work, leaving these veterans alone at home or forcing them into institutions, incurring further costs and distancing the veterans from their loved ones.
Chisholm Chisolm & Kilpatrick is actively pursuing options for rectifying this failing in the VA system.
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