Tuesday, May 8, 2012
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Panel Rejects Proposed Overhaul of VA Mental Health Care
From Staff and Wire Service Reports
Federal district courts have no power to order the Department of Veteran Affairs to overhaul how it treats veterans with mental health problems, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court held, in a 10-1 en banc ruling, that the remedies sought by veterans’ groups are largely unavailable because Congress has granted exclusive jurisdiction over veterans’ benefits disputes to the Court of Veterans Appeals, whose rulings are reviewable only by the Federal Circuit.
To the extent that some of the requested remedies fall within the district courts’ jurisdiction, Judge Jay Bybee wrote for the court, those matters are within the purview of Congress; the Constitution, he said, cannot be read as imposing specific requirements as to how the VA is to provide care.
The court granted en banc rehearing after a three-judge panel ruled last year that the VA must ensure that suicidal vets are seen immediately, among other changes. It found the VA’s “unchecked incompetence” in handling the flood of post-traumatic stress disorder and other mental health claims was unconstitutional.
Long Waits
Bybee expressed sympathy for the plaintiffs, who presented evidence that hundreds of thousands of veterans had to wait an average of four years to fully receive the mental health benefits owed them.
“There can be no doubt that securing exemplary care for our nation’s veterans is a moral imperative,” the judge wrote. “But Congress and the president are in far better position” to decide whether and what changes need to be done.
The court said veterans are free to file individual legal claims, but courts had no business ordering systemic overhauls.
Bybee was joined by Chief Judge Alex Kozinski and Judges Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, Johnnie B. Rawlinson, Consuelo M. Callahan, Sandra S. Ikuta, N. Randy Smith, and Sidney R. Thomas.
Senior Judge Mary Schroeder dissented, writing that the ruling put veterans into a classic Catch-22 conundrum. Schroeder said the ruling essentially leaves the vets without recourse to force the VA to change a system they view to be fatally flawed, and condemns “veterans to suffer intolerable delays inherent in the VA system.”
Plaintiffs’ lawyer Gordon P. Erspamer said he will ask the U.S. Supreme Court to review the case.
“If the courts don’t have jurisdiction, then the veteran is left without a remedy,” Erspamer said.
Veterans Groups
Veterans for Common Sense and Veterans United for Truth filed the lawsuit at the heart of the ruling in San Francisco federal court in 2007.
During the two-week trial without a jury in April 2008, lawyers for the groups showed the judge emails between high-ranking VA officials that the attorneys said confirmed high suicide rates among veterans and a desire to keep quiet the number of vets under VA care who attempt suicide.
“Shhh!” began a Feb. 13, 2008, email from Dr. Ira Katz, a VA deputy chief. “Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month among the veterans we see in our medical facilities. Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?”
Katz wrote in another email that 18 veterans kill themselves daily, on average.
Another E-mail
After the trial another email surfaced that was written by VA psychologist Norma Perez suggesting that counselors in Texas make a point to diagnose fewer post-traumatic stress disorder cases. The veterans’ lawyers argued that email showed the VA’s unwillingness to properly treat mental health issues.
More recently, federal investigators reported last month that nearly half of the veterans who seek mental health care for the first time waited about 50 days before receiving a full evaluation, far short of the 14 days that the VA said 95 percent of new patients seeking mental health treatment get a full evaluation.
Since 2007, the VA has experienced a 35 percent increase in the number of veterans receiving mental health services. The department says it’s made strides in part by developing a more extensive suicide prevention program and by increasing the number of counseling centers.
VA officials told a Senate Veterans Affairs committee that they’ve invested heavily in mental health care over the past few years.
The VA said last week it was adding about 1,900 workers to its existing mental health staff of roughly 20,590.
The case is Veterans for Common Sense v. Shinseki, 08-16728.
Copyright 2012, Metropolitan News Company