[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 894 Introduced in House (IH)]

113th CONGRESS
  1st Session
                                H. R. 894

 To amend title 38, United States Code, to improve the supervision of 
fiduciaries of veterans under the laws administered by the Secretary of 
                           Veterans Affairs.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 28, 2013

 Mr. Johnson of Ohio (for himself, Mr. Stivers, Ms. Titus, and Mr. Roe 
of Tennessee) introduced the following bill; which was referred to the 
                     Committee on Veterans' Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend title 38, United States Code, to improve the supervision of 
fiduciaries of veterans under the laws administered by the Secretary of 
                           Veterans Affairs.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. IMPROVEMENT OF FIDUCIARIES FOR VETERANS.

    (a) Appointment and Supervision.--
            (1) Section 5502 of title 38, United States Code, is 
        amended to read as follows:
``Sec. 5502. Appointment of fiduciaries
    ``(a) Appointment.--(1) Where it appears to the Secretary that the 
interest of the beneficiary would be served thereby, payment of 
benefits under any law administered by the Secretary may be made 
directly to the beneficiary or to a relative or some other fiduciary 
for the use and benefit of the beneficiary, regardless of any legal 
disability on the part of the beneficiary.
    ``(2) When in the opinion of the Secretary, a temporary fiduciary 
is needed in order to protect the benefits provided to the beneficiary 
under any law administered by the Secretary while a determination of 
incompetency is being made or appealed or a fiduciary is appealing a 
determination of misuse, the Secretary may appoint one or more 
temporary fiduciaries for a period not to exceed 120 days. If a final 
decision has not been made within 120 days, the Secretary may not 
continue the appointment of the fiduciary without obtaining a court 
order for appointment of a guardian, conservator, or other fiduciary 
under the authority provided in section 5502(b) of this title.
    ``(b) Appeals.--(1) If the Secretary determines a beneficiary to be 
mentally incompetent for purposes of appointing a fiduciary under this 
chapter, the Secretary shall provide such beneficiary with a written 
statement detailing the reasons for such determination.
    ``(2) A beneficiary whom the Secretary has determined to be 
mentally incompetent for purposes of appointing a fiduciary under this 
chapter may appeal such determination.
    ``(c) Modification.--(1) A beneficiary for whom the Secretary 
appoints a fiduciary under this chapter may, at any time, request the 
Secretary to--
            ``(A) remove the fiduciary so appointed; and
            ``(B) have a new fiduciary appointed.
    ``(2) The Secretary shall comply with a request under paragraph (1) 
unless the Secretary determines that the request is not made in good 
faith.
    ``(3) The Secretary shall ensure that any removal or new 
appointment of a fiduciary under paragraph (1) does not delay or 
interrupt the beneficiary's receipt of benefits administered by the 
Secretary.
    ``(d) Independence.--A fiduciary appointed by the Secretary shall 
operate independently of the Department to determine the actions that 
are in the interest of the beneficiary.
    ``(e) Predesignation.--A veteran may predesignate a fiduciary by--
            ``(1) submitting written notice to the Secretary of the 
        predesignated fiduciary; or
            ``(2) submitting a form provided by the Secretary for such 
        purpose.
    ``(f) Appointment of Non-Predesignated Fiduciary.--If a beneficiary 
designates an individual to serve as a fiduciary under subsection (e) 
and the Secretary appoints an individual not so designated as the 
fiduciary for such beneficiary, the Secretary shall notify such 
beneficiary of--
            ``(1) the reason why such designated individual was not 
        appointed; and
            ``(2) the ability of the beneficiary to modify the 
        appointed fiduciary under subsection (c).
    ``(g) Priority of Appointment.--In appointing a fiduciary under 
this chapter, if a beneficiary does not designate a fiduciary pursuant 
to subsection (e), to the extent possible the Secretary shall appoint a 
person who is--
            ``(1) a relative of the beneficiary;
            ``(2) appointed as guardian of the beneficiary by a court 
        of competent jurisdiction; or
            ``(3) authorized to act on behalf of the beneficiary under 
        a durable power of attorney.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 55 of title 38, United States Code, is 
        amended by striking the item relating to section 5502 and 
        inserting the following:

``5502. Appointment of fiduciaries.''.
    (b) Supervision.--
            (1) In general.--Chapter 55 of title 38, United States 
        Code, is amended by inserting after section 5502, as amended by 
        subsection (a)(1), the following new section:
``Sec. 5502A. Supervision of fiduciaries
    ``(a) Commission.--(1)(A) In a case in which the Secretary 
determines that a commission is necessary in order to obtain the 
services of a fiduciary in the best interests of a beneficiary, the 
Secretary may authorize a fiduciary appointed by the Secretary to 
obtain from the monthly benefits provided to the beneficiary a 
reasonable commission for fiduciary services rendered, but the 
commission for any month may not exceed the lesser of the following 
amounts:
                    ``(i) The amount that equals three percent of the 
                monthly monetary benefits under laws administered by 
                the Secretary paid on behalf of the beneficiary to the 
                fiduciary.
                    ``(ii) $35.
    ``(B) A commission paid under this paragraph may not be derived 
from any award to a beneficiary regarding back pay or retroactive 
benefits payments.
    ``(C) A commission may not be authorized for a fiduciary who 
receives any other form of remuneration or payment in connection with 
rendering fiduciary services for benefits under this title on behalf of 
the beneficiary.
    ``(D) In accordance with section 6106 of this title, a commission 
may not be paid to a fiduciary if the Secretary determines that the 
fiduciary misused any benefit payments of a beneficiary.
    ``(E) If the Secretary determines that the fiduciary has misused 
any benefit or payments of a beneficiary, the Secretary may revoke the 
fiduciary status of the fiduciary.
    ``(2) Where, in the opinion of the Secretary, any fiduciary 
receiving funds on behalf of a Department beneficiary is acting in such 
a number of cases as to make it impracticable to conserve properly the 
estates or to supervise the persons of the beneficiaries, the Secretary 
may refuse to make future payments in such cases as the Secretary may 
deem proper.
    ``(b) Court.--Whenever it appears that any fiduciary, in the 
opinion of the Secretary, is not properly executing or has not properly 
executed the duties of the trust of such fiduciary or has collected or 
paid, or is attempting to collect or pay, fees, commissions, or 
allowances that are inequitable or in excess of those allowed by law 
for the duties performed or expenses incurred, or has failed to make 
such payments as may be necessary for the benefit of the ward or the 
dependents of the ward, then the Secretary may appear, by the 
Secretary's authorized attorney, in the court which has appointed such 
fiduciary, or in any court having original, concurrent, or appellate 
jurisdiction over said cause, and make proper presentation of such 
matters. The Secretary, in the Secretary's discretion, may suspend 
payments to any such fiduciary who shall neglect or refuse, after 
reasonable notice, to render an account to the Secretary from time to 
time showing the application of such payments for the benefit of such 
incompetent or minor beneficiary, or who shall neglect or refuse to 
administer the estate according to law. The Secretary may require the 
fiduciary, as part of such account, to disclose any additional 
financial information concerning the beneficiary (except for 
information that is not available to the fiduciary). The Secretary may 
appear or intervene by the Secretary's duly authorized attorney in any 
court as an interested party in any litigation instituted by the 
Secretary or otherwise, directly affecting money paid to such fiduciary 
under this section.
    ``(c) Payment of Certain Expenses.--Authority is hereby granted for 
the payment of any court or other expenses incident to any 
investigation or court proceeding for the appointment of any fiduciary 
or other person for the purpose of payment of benefits payable under 
laws administered by the Secretary or the removal of such fiduciary and 
appointment of another, and of expenses in connection with the 
administration of such benefits by such fiduciaries, or in connection 
with any other court proceeding hereby authorized, when such payment is 
authorized by the Secretary.
    ``(d) Temporary Payment of Benefits.--All or any part of any 
benefits the payment of which is suspended or withheld under this 
section may, in the discretion of the Secretary, be paid temporarily to 
the person having custody and control of the incompetent or minor 
beneficiary, to be used solely for the benefit of such beneficiary, or, 
in the case of an incompetent veteran, may be apportioned to the 
dependent or dependents, if any, of such veteran. Any part not so paid 
and any funds of a mentally incompetent or insane veteran not paid to 
the chief officer of the institution in which such veteran is a patient 
nor apportioned to the veteran's dependent or dependents may be ordered 
held in the Treasury to the credit of such beneficiary. All funds so 
held shall be disbursed under the order and in the discretion of the 
Secretary for the benefit of such beneficiary or the beneficiary's 
dependents. Any balance remaining in such fund to the credit of any 
beneficiary may be paid to the beneficiary if the beneficiary recovers 
and is found competent, or if a minor, attains majority, or otherwise 
to the beneficiary's fiduciary, or, in the event of the beneficiary's 
death, to the beneficiary's personal representative, except as 
otherwise provided by law; however, payment will not be made to the 
beneficiary's personal representative if, under the law of the 
beneficiary's last legal residence, the beneficiary's estate would 
escheat to the State. In the event of the death of a mentally 
incompetent or insane veteran, all gratuitous benefits under laws 
administered by the Secretary deposited before or after August 7, 1959, 
in the personal funds of patients trust fund on account of such veteran 
shall not be paid to the personal representative of such veteran, but 
shall be paid to the following persons living at the time of 
settlement, and in the order named: The surviving spouse, the children 
(without regard to age or marital status) in equal parts, and the 
dependent parents of such veteran, in equal parts. If any balance 
remains, such balance shall be deposited to the credit of the 
applicable current appropriation; except that there may be paid only so 
much of such balance as may be necessary to reimburse a person (other 
than a political subdivision of the United States) who bore the 
expenses of last sickness or burial of the veteran for such expenses. 
No payment shall be made under the two preceding sentences of this 
subsection unless claim therefor is filed with the Secretary within 
five years after the death of the veteran, except that, if any person 
so entitled under said two sentences is under legal disability at the 
time of death of the veteran, such five-year period of limitation shall 
run from the termination or removal of the legal disability.
    ``(e) Escheatment.--Any funds in the hands of a fiduciary appointed 
by a State court or the Secretary derived from benefits payable under 
laws administered by the Secretary, which under the law of the State 
wherein the beneficiary had last legal residence would escheat to the 
State, shall escheat to the United States and shall be returned by such 
fiduciary, or by the personal representative of the deceased 
beneficiary, less legal expenses of any administration necessary to 
determine that an escheat is in order, to the Department, and shall be 
deposited to the credit of the applicable revolving fund, trust fund, 
or appropriation.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 55 of title 38, United States Code, is 
        amended by inserting after the item relating to section 5502 
        the following new item:

``5502A. Supervision of fiduciaries.''.
    (c) Definition of Fiduciary.--Section 5506 of title 38, United 
States Code is amended--
            (1) by striking ``For purposes'' and inserting ``(a) For 
        purposes''; and
            (2) by adding at the end the following new subsection:
    ``(b)(1) For purposes of subsection (a), the term `person' includes 
any--
            ``(A) State or local government agency whose mission is to 
        carry out income maintenance, social service, or health care-
        related activities;
            ``(B) any State or local government agency with fiduciary 
        responsibilities; or
            ``(C) any nonprofit social service agency that the 
        Secretary determines--
                    ``(i) regularly provides services as a fiduciary 
                concurrently to five or more individuals; and
                    ``(ii) is not a creditor of any such individual.
    ``(2) The Secretary shall maintain a list of State or local 
agencies and nonprofit social service agencies under paragraph (1) that 
are qualified to act as a fiduciary under this chapter. In maintaining 
such list, the Secretary may consult the lists maintained under section 
807(h) of the Social Security Act (42 U.S.C. 1007(h)).''.
    (d) Qualifications.--Section 5507 of title 38, United States Code, 
is amended to read as follows:
``Sec. 5507. Inquiry, investigations, and qualification of fiduciaries
    ``(a) Investigation.--Any certification of a person for payment of 
benefits of a beneficiary to that person as such beneficiary's 
fiduciary under section 5502 of this title shall be made on the basis 
of--
            ``(1) an inquiry or investigation by the Secretary of the 
        fitness of that person to serve as fiduciary for that 
        beneficiary to be conducted in advance of such certification 
        and in accordance with subsection (b);
            ``(2) adequate evidence that certification of that person 
        as fiduciary for that beneficiary is in the interest of such 
        beneficiary (as determined by the Secretary under regulations);
            ``(3) adequate evidence that the person to serve as 
        fiduciary protects the private information of a beneficiary in 
        accordance with subsection (d)(1); and
            ``(4) the furnishing of any bond that may be required by 
        the Secretary, in accordance with subsection (f).
    ``(b) Elements of Investigation.--(1) In conducting an inquiry or 
investigation of a proposed fiduciary under subsection (a)(1), the 
Secretary shall conduct--
            ``(A) a face-to-face interview with the proposed fiduciary 
        by not later than 30 days after the date on which such inquiry 
        or investigation begins; and
            ``(B) a background check of the proposed fiduciary to--
                    ``(i) in accordance with paragraph (2), determine 
                whether the proposed fiduciary has been convicted of a 
                crime; and
                    ``(ii) determine whether the proposed fiduciary 
                will serve the best interest of the beneficiary, 
                including by conducting a credit check of the proposed 
                fiduciary and checking the records under paragraph (5).
    ``(2) The Secretary shall request information concerning whether 
that person has been convicted of any offense under Federal or State 
law. If that person has been convicted of such an offense, the 
Secretary may certify the person as a fiduciary only if the Secretary 
finds that the person is an appropriate person to act as fiduciary for 
the beneficiary concerned under the circumstances.
    ``(3) The Secretary shall conduct the background check described in 
paragraph (1)(B)--
            ``(A) each time a person is proposed to be a fiduciary, 
        regardless of whether the person is serving or has served as a 
        fiduciary; and
            ``(B) at no expense to the beneficiary.
    ``(4) Each proposed fiduciary shall disclose to the Secretary the 
number of beneficiaries that the fiduciary acts on behalf of.
    ``(5) The Secretary shall maintain records of any person who has--
            ``(A) previously served as a fiduciary; and
            ``(B) had such fiduciary status revoked by the Secretary.
    ``(6)(A) If a fiduciary appointed by the Secretary is convicted of 
a crime described in subparagraph (B), the Secretary shall notify the 
beneficiary of such conviction by not later than 14 days after the date 
on which the Secretary learns of such conviction.
    ``(B) A crime described in this subparagraph is a crime--
            ``(i) for which the fiduciary is convicted while serving as 
        a fiduciary for any person;
            ``(ii) that is not included in a report submitted by the 
        fiduciary under section 5509(a) of this title; and
            ``(iii) that the Secretary determines could affect the 
        ability of the fiduciary to act on behalf of the beneficiary.
    ``(c) Investigation of Certain Persons.--(1) In the case of a 
proposed fiduciary described in paragraph (2), the Secretary, in 
conducting an inquiry or investigation under subsection (a)(1), may 
carry out such inquiry or investigation on an expedited basis that may 
include giving priority to conducting such inquiry or investigation. 
Any such inquiry or investigation carried out on such an expedited 
basis shall be carried out under regulations prescribed for purposes of 
this section.
    ``(2) Paragraph (1) applies with respect to a proposed fiduciary 
who is--
            ``(A) the parent (natural, adopted, or stepparent) of a 
        beneficiary who is a minor;
            ``(B) the spouse or parent of an incompetent beneficiary;
            ``(C) a person who has been appointed a fiduciary of the 
        beneficiary by a court of competent jurisdiction;
            ``(D) being appointed to manage an estate where the annual 
        amount of veterans benefits to be managed by the proposed 
        fiduciary does not exceed $3,600, as adjusted pursuant to 
        section 5312 of this title; or
            ``(E) a person who is authorized to act on behalf of the 
        beneficiary under a durable power of attorney.
    ``(d) Protection of Private Information.--(1) A fiduciary shall 
take all reasonable precautions to--
            ``(A) protect the private information of a beneficiary, 
        including personally identifiable information; and
            ``(B) securely conducts financial transactions.
    ``(2) A fiduciary shall notify the Secretary of any action of the 
fiduciary that compromises or potentially compromises the private 
information of a beneficiary.
    ``(e) Potential Misuse of Funds.--(1) If the Secretary has reason 
to believe that a fiduciary may be misusing all or part of the benefit 
of a beneficiary, the Secretary shall--
            ``(A) conduct a thorough investigation to determine the 
        veracity of such belief; and
            ``(B) if such veracity is established, transmit to the 
        officials described in paragraph (2) a report of such 
        investigation.
    ``(2) The officials described in this paragraph are the following:
            ``(A) The Attorney General.
            ``(B) Each head of a Federal department or agency that pays 
        to a fiduciary or other person benefits under any law 
        administered by such department of agency for the use and 
        benefit of a minor, incompetent, or other beneficiary.
    ``(f) Bond.--In requiring the furnishing of a bond under subsection 
(a)(4), the Secretary shall--
            ``(1) ensure that any such bond is not paid using any funds 
        of the beneficiary; and
            ``(2) consider--
                    ``(A) the care a proposed fiduciary has taken to 
                protect the interests of the beneficiary; and
                    ``(B) the capacity of the proposed fiduciary to 
                meet the financial requirements of the bond without 
                sustaining hardship.
    ``(g) List of Fiduciaries.--Each regional office of the Veterans 
Benefits Administration shall maintain a list of the following:
            ``(1) The name and contact information of each fiduciary, 
        including address, telephone number, and email address.
            ``(2) With respect to each fiduciary described in paragraph 
        (1)--
                    ``(A) the date of the most recent background check 
                and credit check performed by the Secretary under this 
                section;
                    ``(B) the date that any bond was paid under this 
                section;
                    ``(C) the name, address, and telephone number of 
                each beneficiary the fiduciary acts on behalf of; and
                    ``(D) the amount that the fiduciary controls with 
                respect to each beneficiary described in subparagraph 
                (C).''.
    (e) Annual Receipt of Payments.--
            (1) In general.--Section 5509 of title 38, United States 
        Code, is amended--
                    (A) in subsection (a)----
                            (i) by striking ``may require a fiduciary 
                        to file a'' and inserting ``, subject to 
                        regulations prescribed pursuant to subsection 
                        (f), shall require a fiduciary to file an 
                        annual''; and
                            (ii) by adding at the end the following new 
                        sentence: ``The Secretary shall transmit such 
                        annual report or accounting to the beneficiary 
                        and any legal guardian of such beneficiary.'';
                    (B) by adding at the end the following new 
                subsections:
    ``(c) Matters Included.--An annual report or accounting under 
subsection (a) shall include the following:
            ``(1) For each beneficiary that a fiduciary acts on behalf 
        of--
                    ``(A) the amount of the benefits of the beneficiary 
                accrued during the year, the amount spent, and the 
                amount remaining; and
                    ``(B) if the fiduciary serves the beneficiary with 
                respect to benefits not administered by the Secretary, 
                an accounting of all sources of benefits or other 
                income the fiduciary oversees for the beneficiary.
            ``(2) A list of events that occurred during the year 
        covered by the report that could affect the ability of the 
        fiduciary to act on behalf of the beneficiary, including--
                    ``(A) the fiduciary being convicted of any crime;
                    ``(B) the fiduciary declaring bankruptcy; and
                    ``(C) any judgments entered against the fiduciary.
    ``(d) Random Audits.--The Secretary shall annually conduct random 
audits of fiduciaries who receive a commission pursuant to subsection 
5502A(a)(1) of this title.
    ``(e) Status of Fiduciary.--If a fiduciary includes in the annual 
report events described in subsection (c)(2), the Secretary may take 
appropriate action to adjust the status of the fiduciary as the 
Secretary determines appropriate, including by revoking the fiduciary 
status of the fiduciary.
    ``(f) Regulations.--(1) In prescribing regulations to carry out 
this section, the Secretary, in consultation with the Under Secretary 
for Benefits and the Under Secretary for Health, shall ensure that the 
care provided by a fiduciary described in paragraph (2) to a 
beneficiary is not diminished or otherwise worsened by the fiduciary 
complying with this section.
    ``(2) A fiduciary described in this paragraph is a fiduciary who, 
in addition to acting as a fiduciary for a beneficiary, provides care 
to the beneficiary pursuant to this title (including such care provided 
under section 1720G of this title).''; and
                    (C) by striking the section heading and inserting 
                the following: ``Annual reports and accountings of 
                fiduciaries''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 55 of title 38, United States Code, is 
        amended by striking the item relating to section 5509 and 
        inserting the following new item:

``5509. Annual reports and accountings of fiduciaries.''.
    (f) Repayment of Misused Benefits.--Section 6107(a)(2)(C) of title 
38, United States Code, is amended by inserting before the period the 
following: ``, including by the Secretary not acting in accordance with 
section 5507 of this title''.
    (g) Annual Reports.--Section 5510 of title 38, United States Code, 
is amended by striking ``The Secretary shall include in the Annual 
Benefits Report of the Veterans Benefits Administration or the 
Secretary's Annual Performance and Accountability Report'' and 
inserting ``Not later than July 1 of each year, the Secretary shall 
submit to the Committees on Veterans' Affairs of the House of 
Representatives and the Senate a separate report containing''.
    (h) Report.--Not later than one year after the date of the 
enactment of this Act, the Secretary of Veterans Affairs shall submit 
to the Committee on Veterans' Affairs of the Senate and the Committee 
on Veterans' Affairs of the House of Representatives a comprehensive 
report on the implementation of the amendments made by this Act, 
including--
            (1) detailed information on the establishment of new 
        policies and procedures pursuant to such amendments and 
        training provided on such policies and procedures; and
            (2) a discussion of whether the Secretary should provide 
        fiduciaries with standardized financial software to simplify 
        reporting requirements.
                                 <all>