[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON H.R. 2383, H.R. 2243, H.R. 2388 AND H.R. 2470
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JULY 20, 2011
__________
Serial No. 112-25
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Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
CLIFF STEARNS, Florida BOB FILNER, California, Ranking
DOUG LAMBORN, Colorado CORRINE BROWN, Florida
GUS M. BILIRAKIS, Florida SILVESTRE REYES, Texas
DAVID P. ROE, Tennessee MICHAEL H. MICHAUD, Maine
MARLIN A. STUTZMAN, Indiana LINDA T. SANCHEZ, California
BILL FLORES, Texas BRUCE L. BRALEY, Iowa
BILL JOHNSON, Ohio JERRY McNERNEY, California
JEFF DENHAM, California JOE DONNELLY, Indiana
JON RUNYAN, New Jersey TIMOTHY J. WALZ, Minnesota
DAN BENISHEK, Michigan JOHN BARROW, Georgia
ANN MARIE BUERKLE, New York RUSS CARNAHAN, Missouri
TIM HUELSKAMP, Kansas
Vacancy
Vacancy
Helen W. Tolar, Staff Director and Chief Counsel
______
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
BILL JOHNSON, Ohio, Chairman
CLIFF STEARNS, Florida JOE DONNELLY, Indiana, Ranking
DOUG LAMBORN, Colorado JERRY McNERNEY, California
DAVID P. ROE, Tennessee JOHN BARROW, Georgia
DAN BENISHEK, Michigan BOB FILNER, California
BILL FLORES, Texas
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
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C O N T E N T S
__________
July 20, 2011
Page
Legislative Hearing on H.R. 2383, H.R. 2243, H.R. 2388 and H.R.
2470........................................................... 1
OPENING STATEMENTS
Chairman Bill Johnson............................................ 1
Prepared statement of Chairman Johnson....................... 33
Hon. Joe Donnelly, Ranking Democratic Member, prepared statement
of............................................................. 34
Hon. Jerry McNerney.............................................. 2
Prepared statement of Congressman McNerney................... 34
WITNESSES
U.S. Department of Veterans Affairs, Thomas Murphy, Director,
Compensation Service, Veterans Benefits Administration......... 4
Prepared statement of Mr. Murphy............................. 34
U.S. Department of Defense, Hon. Elizabeth A. McGrath, Deputy
Chief Management Officer....................................... 6
Prepared statement of Ms. McGrath............................ 38
Disabled American Veterans, Jeffrey C. Hall, Assistant National
Legislative Director........................................... 23
Prepared statement of Mr. Hall............................... 43
Filippi, Debra M., Former Director, U.S. Department of Defense/
U.S. Department of Veterans Affairs Interagency Program Office. 22
Prepared statement of Ms. Filippi............................ 39
Veterans of Foreign Wars of the United States, Ryan M. Gallucci,
Deputy Director, National Legislative Service.................. 25
Prepared statement of Mr. Gallucci........................... 48
SUBMISSIONS FOR THE RECORD
U.S. Department of Labor, Veterans' Employment and Training
Service, statement............................................. 50
LEGISLATIVE HEARING ON H.R. 2383,
H.R. 2243, H.R. 2388 AND H.R. 2470
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WEDNESDAY, JULY 20, 2011
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Oversight and Investigations,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:03 a.m., in
Room 334, Cannon House Office Building, Hon. Bill Johnson
[Chairman of the Subcommittee] presiding.
Present: Representatives Johnson, Roe, Flores, Donnelly,
McNerney, and Barrow.
OPENING STATEMENT OF CHAIRMAN JOHNSON
Mr. Johnson. Good morning. This hearing will come to order.
I want to welcome everyone to today's legislative hearing
on H.R. 2383, the ``Modernizing Notice to Claimants Act,'' H.R.
2243, the ``Veterans Employment Promotion Act,'' H.R. 2388, the
``Access to Timely Information Act,'' and H.R. 2470, the
``Ensuring Servicemembers' Electronic Records' Viability Act.''
These bills we are discussing today are the result of
months of input, work, research, and investigation.
The ``Modernizing Notice to Claimants Act,'' which I
introduced last month, makes several important steps toward
streamlining part of the claims process that will contribute
toward reducing the disability claims backlog.
Section 5103 of title 38 currently requires the Secretary
of Veterans Affairs to provide a claimant a written notice of
responsibility that informs both the veteran and the U.S.
Department of Veterans Affairs (VA) of their responsibilities
regarding each claim. Furthermore, as written, this law
requires a separate written notice of responsibility for any
subsequent claim, even if that subsequent claim is covered
under the original pending claim. Additionally, the section
requires VA to make a reasonable effort to obtain private
records relevant to a veteran's claim.
The ``Modernizing Notice to Claimants Act'' would allow for
the most efficient delivery for any notice, including
electronic written responses. Additionally, the proposed
changes will not require VA to provide an additional notice for
a subsequent issue that is already covered under a previous
claim. The bill would also define VA's ``reasonable effort'' to
acquire a veteran's record to no less than two requests, and
also encourage the veteran to play an active role in providing
evidence for his or her claim. Lastly, if a veteran's claim can
be adjudicated in the veteran's favor without additional
evidence, there is no need for VA to acquire any further
evidence.
One of the primary effects of these changes would be a
reduction in claims processing time by approximately 40 days.
Often, we have laws on the books that date back many years
and do not allow for utilizing all the tools at an agency's
disposal. It is important that this Committee and the Congress
revisit laws to ensure that they still achieve their original
intent. By clarifying several key areas in the law, the
``Modernizing Notice to Claimants Act'' reinforces
Congressional intent and delivers a better service to veterans.
Another bill I wish to mention in my opening remarks is
H.R. 2388, the ``Access to Timely Information Act,'' introduced
by Chairman Miller. The need for this clarifying legislation
results from frequent obstruction by VA in providing necessary
information to this Committee. And the bill's objective can be
summarized as enabling the Legislative Branch to better conduct
its oversight responsibilities.
Even in requests for information that do not contain
sensitive information, the VA often takes several weeks in
providing responses, often demanding that the request be sent
in the form of a signed letter. The longstanding agreement that
was supposedly based off of VA policy had been that if a
request from the Committee involved personally identifiable
information, or PII, then the request would be sent in a signed
letter. However, it has come to light that staff at VA
inconsistently applies this policy and that the policy itself
is not even in writing.
After multiple requests over several months for a written
policy from VA, nothing has been presented to the Committee.
And the end result has been obstructive behavior that hinders
this Committee's efforts to help our veterans. This bill
clarifies that requests from Committee Members and staff are
covered under the pertinent privacy laws with respect to
sensitive information.
This is not rocket science, and I am frustrated and
disheartened that we have reached a point where we need this
legislation. As I stated before, this bill will simply help us
do our job. Past efforts at working with VA to establish a
consistent policy have met the same type of resistance as the
information request that I just discussed. And so we are taking
the next step in fixing that problem.
I appreciate everyone's attendance at this hearing.
And I now yield to the Ranking Member for his opening
statement.
[The prepared statement of Chairman Johnson appears on p.
33.]
OPENING STATEMENT OF HON. JERRY MCNERNEY
Mr. McNerney. Thank you.
I want to thank the Chairman, Mr. Johnson, for holding this
legislative hearing this morning. Having this Subcommittee
conduct a legislative hearing is a little unusual, and I think
it is a good idea, because it gives us a little more say in to
what is going on here. And it will provide us the ability to
conduct oversight and also to review legislation that affects
many issues that fall within our own jurisdiction.
Today's hearing includes several bills. Among others, we
will evaluate a proposal to change policies affecting claimants
seeking benefits. We will also discuss legislation that
addresses ongoing concerns regarding the need to improve the
Interagency Program Office (IPO).
In addition, one of the bills included in today's hearing
is H.R. 2243, the ``Veterans Employment Promotion Act,'' which
I introduced. My bill directs the Secretary of Labor to make
public veterans' employment records data reported by the
Federal contractors and subcontractors.
In the past, this Subcommittee has heard concerns from
veterans service organizations and other stakeholders about
compliance with veterans hiring policies. The purpose of the
VETS-100 and the VETS-100A reports is to ensure that the
Federal contractors comply with relevant laws.
Through this report, the contractor submits certain
information to the U.S. Department of Labor (DoL), including
information about new hires who are veterans. By making the
information contained in these reports publicly available, my
bill increases much-needed oversight and accountability. This
bill is a step in the right direction and will help us as we
continue to seek ways to improve enforcement of Federal
contractor compliance.
Thank you, Mr. Chairman, and I look forward to today's
discussion of H.R. 2243 and the other bills we are considering.
I yield back.
[The prepared statement of Congressman McNerney appears on
p. 34.]
Mr. Johnson. I thank Mr. McNerney for yielding back.
I would just like to comment on one point that he made. It
is unusual for this Subcommittee, the Oversight and
Investigations Subcommittee, to hold legislative hearings. That
should be an indicator of the seriousness that this Committee
takes its role and responsibility in making sure that our
veterans are cared for. And you can depend and our veterans can
depend that we are going to stay the course to make sure that
we get some action and some results from some of these
outstanding issues.
And, with that, I invite the first panel to the witness
table.
On this panel, we will hear testimony from Thomas Murphy,
Director of Compensation Service at the Veterans Benefits
Administration (VBA) at the Department of Veterans Affairs. Mr.
Murphy is accompanied by the Honorable Roger Baker, Assistant
Secretary for Information and Technology at the Department of
Veterans Affairs, and John H. ``Jack'' Thompson, Deputy General
Counsel at the Department of Veterans Affairs. We will also
hear on this panel from the Honorable Elizabeth A. McGrath, the
Deputy Chief Management Officer at the U.S. Department of
Defense (DoD).
Both of your complete written statements will be made part
of the hearing record.
Mr. Murphy, you are now recognized for 5 minutes.
STATEMENTS OF THOMAS MURPHY, DIRECTOR, COMPENSATION SERVICE,
VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS
AFFAIRS; ACCOMPANIED BY HON. ROGER BAKER, ASSISTANT SECRETARY
FOR INFORMATION AND TECHNOLOGY, AND CHIEF INFORMATION OFFICER,
U.S. DEPARTMENT OF VETERANS AFFAIRS; AND JOHN H. ``JACK''
THOMPSON, DEPUTY GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL,
U.S. DEPARTMENT OF VETERANS AFFAIRS; HON. ELIZABETH A. MCGRATH,
DEPUTY CHIEF MANAGEMENT OFFICER, U.S. DEPARTMENT OF DEFENSE
STATEMENT OF THOMAS MURPHY
Mr. Murphy. Thank you, Mr. Chairman and Members of the
Subcommittee, for the opportunity to testify and present VA's
views on several legislative items of great interest to
veterans and the Department.
Joining me today are Roger Baker, Assistant Secretary for
Information and Technology, and Jack Thompson, Deputy General
Counsel.
H.R. 2383, the ``Modernizing Notice to Claimants Act,''
would amend section 5103 to authorize the VA to use the most
efficient means to provide required notice to claimants. This
bill would also amend section 5103A to clarify VA's duty to
assist claimants in obtaining relevant private records.
VA fully supports this bill, which would significantly
enhance its efficiency in carrying out its duty to assist and
notify under the Veterans Claims Assistance Act (VCAA). VCAA
requirements have had the unintended effect of complicating and
unnecessarily delaying the claims process, while confusing
veterans and their dependents. This bill represents a valuable
step forward in addressing these concerns.
Section 2 of the bill would provide increased flexibility
in how VA delivers notice to claimants. It would authorize VA
to provide notices through the most expeditious means
available, including electronic communications, which is
critical during this time of transformation to a paperless
claims process. By eliminating the language that directs VA to
issue VCAA notices upon receipt of a complete or substantially
complete application, section 2 of this bill would also
significantly increase efficiency in the beginning stages of
the claim process.
Sections 2 and 3 of this bill would add provisions to both
section 5103 and 5103A to make it clear that VA's duty to
notify or duty to assist does not apply to any claim or issue
when VA can award all the benefits sought entitled under the
law. This little change can take months out of the development
process, thereby speeding delivery of benefits to veterans.
Section 3 would direct VA to encourage claimants to submit
private medical evidence if such submission does not burden the
claimant. VA would continue to assist the claimant if he or she
requests such assistance. This approach would empower the
claimant to take an active role with VA in preparing his or her
claim for a decision.
In many instances, veterans want to procure their own
records and can do so more quickly than VA. In crafting
regulations to implement this authority, VA would emphasize the
value in partnering with the claimant while, at the same time,
ensuring that they understand VA's readiness to assist as
necessary. This approach will assist VA in engaging veterans
earlier in the process.
H.R. 2243, the ``Veterans Employment Promotion Act,'' we
defer this to the Department of Labor.
H.R. 2388, the ``Access to Timely Information Act,'' would
amend title 38 and also effectively amend the Privacy Act to
require VA to disclose sensitive personal information to the
Chairs and Ranking Members of the House and Senate Veterans'
Affairs Committees and Subcommittees and their designees.
Because the bill would diminish the privacy rights of veterans
who deserve the same information protection enjoyed by other
Americans, we strongly oppose its enactment.
Current laws are intended to ensure that the privacy rights
of individuals are respected during the exercise of legitimate
Congressional oversight. In order to document and ensure the
validity of such requests, VA has a clearly defined process.
This creates a record that can be used in the event that VA's
authority to disclose the information is later questioned.
This latter point is significant, in that the penalties for
unlawful disclosure can be severe. An agency employee who
discloses information in violation of an applicable
confidentiality statute or regulation may be subject to
criminal or civil penalties. Furthermore, the Department may be
subject to civil liability under these provisions.
Veterans Affairs' Committee staff frequently request
veterans' medical records, which contain among the most
sensitive and private information imaginable. Because of social
stigma associated with many medical and psychiatric conditions,
patients often conceal their illness and treatment from their
employers and even their immediate family. Any release of
veterans' health information outside the Department, even when
permitted by statutory exception, has the potential for
undermining veterans' trust in VA. We cannot support
legislation which would in any way diminish the existing legal
protections this information rightfully enjoys.
H.R. 2470, the ``Ensuring Servicemembers' Electronic
Records' Viability Act,'' would amend the Wounded Warrior Act
to alter the role, functions, and oversight of the Interagency
Program Office of the DoD and VA with respect to electronic
health records. It would also transfer control and
responsibility of vital and sensitive programs for VA's
electronic health records away from the clinicians and VA IT
specialists who have made it such a success.
While the VA agrees that leadership and accountability will
be vital to delivering an integrated Electronic Health Record
(iEHR), VA opposes H.R. 2470 as written. The bill would alter
VA-DoD infrastructure currently in place, with no discernible
benefit.
H.R. 2470's transfer of control of VistA to the IPO would
shift all responsibility for the development, implementation,
and sustainment of all electronic health records systems and
capabilities away from VA to the IPO. This will create
disruption and uncertainty in the management of the most vital
set of tools VA uses to deliver world-class care for our
veterans.
While we have strong concerns regarding this bill, VA is
always open to discussing our joint efforts with our DoD
partners to advance iEHR capabilities and the important work of
the IPO and the Committee.
This concludes my statement. Thank you for the opportunity
to testify today. I would be happy to entertain any questions
you or other Members of the Subcommittee may have.
[The prepared statement of Mr. Murphy appears on p. 34.]
Mr. Johnson. Thank you, Mr. Murphy.
Ms. McGrath, you are now recognized for 5 minutes.
STATEMENT OF HON. ELIZABETH A. MCGRATH
Ms. McGrath. Good morning, Chairman Johnson, Ranking Member
Donnelly, and Members of this Committee. Thank you for
including the Department of Defense in today's discussion
regarding your recently introduced bill, ``Ensuring
Servicemembers' Electronic Records' Viability Act,'' H.R. 2470,
to improve the electronic health information systems and
capabilities of the Department of Defense and Department of
Veterans Affairs.
We do truly appreciate this Committee's desire to be
helpful in strengthening the role of the Interagency Program
Office for electronic health records. However, the Department
of Defense does not support H.R. 2470 as currently written, but
looks forward to working with this Committee to ensure we have
the right balance of authority, accountability, and focus for
the Interagency Program Office.
We believe that existing legislation on this subject
provides sufficient authority and flexibility to the
Secretaries of Defense and Veterans Affairs to effectively
administer the integrated Electronic Health Record Way Ahead.
Specifically, section 1635 of the National Defense
Authorization Act for 2008 (NDAA) established the IPO and
vested it with significant authority.
Since its establishment, we have leveraged that authority
to successfully deliver capabilities in two specific health
information technology areas: the Virtual Lifetime Electronic
Record (VLER) and the James A. Lovell Federal Health Care
Center in north Chicago. With the daily focus on delivery-
required capability for north Chicago, the IPO is well-
positioned to identify and mitigate issues, enabling a
successful opening of the facility in the fall of last year and
a smooth transition from the Great Lakes Naval Hospital into
the new center. We recognize that there is more to do, but we
believe we have the right structure in place.
Additionally, in creating a common ground and way ahead for
VLER, the IPO is essential in the establishment of an effective
governance structure, including the establishment of executive
committees, senior management committees, and also establishing
the strategic plan with milestones and deliverables to ensure
that we have our common collective focus on a joint health IT
strategy.
The VLER Concept of Operations (CONOPS) was also identified
and established with specific goals and issues, milestones and
timelines, to hold us all collectively accountable, and to lay
the foundation for success in a joint interagency master
schedule.
And, finally, the two departments are currently updating
the IPO's charter to reflect the directions of the Secretaries
of Defense and Veterans Affairs and take advantage of the full
authority provided in the legislation to ensure that we both
maintain focus on delivering of the joint common platform based
on standards and common practices and processes that achieve
the interoperability that we collectively desire. This would be
as opposed to focusing on the sustainment of a legacy
environment, which may take our eye off the ball.
The revised charter will be complete this summer, and we
look forward to sharing it with this Committee. The governance
structure agreed to by the Secretaries for the integrated
health record reflects the pivotal role of the IPO as the
central program office responsible and empowered for delivering
capability.
Thank you again for the opportunity to testify today, and I
look forward to continuing the dialogue in the future.
In short, DoD and VA are both counting on the IPO, under
its governance model, and acting with the intent of the
original legislation to achieve the goal: our joint vision of a
modern electronic health record that works seamlessly across
our departments.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. McGrath appears on p. 38.]
Mr. Johnson. Thank you very much, Ms. McGrath.
At this time, I would like to thank Ranking Member
Donnelly. He was doing the people's business and came in a
little after we got started.
Do you have any opening comments that you would like to
make before we start questioning?
Mr. Donnelly. The only opening comment I would like to make
is: Thank you, Mr. Chairman. I look forward to the discussion
of these bills.
And H.R. 2470, a bill which I recently introduced, we
believe will increase the authority given to the IPO.
So, with that, I will turn it back over to you, sir.
Mr. Johnson. Thank you very much.
And at this point then, we will begin with the questioning.
Mr. Murphy, based on past testimony to the House and Senate
VA Committees and the input received by VA, how do you feel the
Modernizing Notice to Claimants Act would be received by the
veterans service organization (VSO) community?
Mr. Murphy. Mr. Chairman, I went back and did some research
in preparation for this hearing today and looked back through
from 2008 forward The Independent Budget and testimony provided
by various veterans service organizations. And, in each case, I
found that they have come out in support of the very provisions
that are in this bill.
And I will give you a couple examples out of the 2012
Independent Budget: ``In order to support efforts to encourage
the use of private medical evidence, Congress should also
consider amending 38 U.S.C., section 5103A, to provide that
when a claimant submits private medical evidence, that that
evidence is a component credible, probative, and otherwise
adequate for rating purposes. The Secretary shall not also
request such evidence from a VA health care facility.''
And this is just one example that goes through the last 4
years of testimony that I see is in support of this bill.
Mr. Johnson. Okay, good. I take it, then, that--you just
named one--there are specific examples where these changes have
been requested by the VSOs, such as The Independent Budget?
Mr. Murphy. Yes, that is correct, Mr. Chairman.
Mr. Johnson. Okay.
Mr. Murphy, do you perceive anything in this bill affecting
court precedents related to claims processing and disability
ratings?
Mr. Murphy. No, sir, I do not.
Mr. Johnson. Would anything in this bill incentivize or
allow VA to give a minimum disability rating when a higher
rating might apply?
Mr. Murphy. No, sir, absolutely not.
The advantage of this bill is and the challenge to VA is
for us to figure out how to preserve all rights, entitlements,
benefits, and notices that the veteran has, but take out some
of the administrative times in here, reducing that timeline
that it takes in order to deliver that same set of benefits to
veterans.
And I have to give you an example of the fully developed
claim process, which we have been running for the last year or
so. We have done in excess of 5,000 cases. And in these cases,
where the private medical evidence was submitted up front with
the claim, we have cut our processing time, average days to
complete those claims, by more than 50 percent. And this bill
drives toward that very process.
Mr. Johnson. Okay. Thank you.
While I know that the second panel's testimony was
embargoed until this morning, would VA be willing to respond to
the concerns about this bill raised by the members of that
panel?
Mr. Murphy. Yes, sir, we would be happy to take their
testimony for the record and provide VA's response.
[The VA subsequently provided comments on the Disabled
American Veterans (DAV) and the Veterans of Foreign Wars of the
United States (VFW), which will be retained in the Committee
files.]
Mr. Johnson. Okay.
All right. Let's talk about Congressional inquiries for
just a minute. In your testimony regarding H.R. 2388, you state
that it has long been interpreted to mean only the chairpersons
who have oversight authority or acting under a grant of
authority from the Committees and, therefore, can receive
disclosed information under the Privacy Act and title 38.
When was this interpretation formulated? And is it in
writing?
Mr. Murphy. On this matter, I have to defer to Mr. Thompson
from VA General Counsel.
Mr. Thompson. Sir, that reference is to a Department of
Justice opinion that was written in 2001. And I would be glad
to supply that for the record.
Mr. Johnson. I would appreciate that. When do you think you
can get that?
Mr. Thompson. This afternoon.
Mr. Johnson. Okay.
Mr. Thompson. Yes, sir.
[The VA subsequently provided the information, which will
be retained in the Committee files.]
Mr. Johnson. If chairpersons are the only ones acting under
a grant of authority from the Committees, then under what
authority does VA consider staff members to be acting?
Mr. Murphy. Same response, sir.
Mr. Thompson----
Mr. Johnson. The staff members are under the authority of
the chairmen. So if chairpersons are the only ones, according
to your interpretation, the Justice Department's
interpretation, as acting under a grant of authority from the
Committees, then under what authority does the VA consider that
staff members are acting?
Mr. Thompson. Certainly, staff members act for the
Committee, and report to and work for the Committee. The
Department of Justice opinion is that, under House rules, under
Senate rules, only the chairpersons of the Committees are
authorized to act on behalf of the entire Committee. The law
authorizes disclosure to the Committee, and, therefore, the
Department of Justice says the requests have to emanate from
the chairmen.
Mr. Johnson. I look forward to receiving that Justice
Department opinion.
I will yield now to the Ranking Member for his questions.
Mr. Donnelly. Thank you, Mr. Chairman.
And this would be for Mr. Baker or Ms. McGrath, either one.
What has been the driver behind the recent attempts to
empower the IPO? And if this Public Law 109-461, if it was
passed 3 years ago, why are we just now beginning to attempt to
improve the IPO?
Mr. Baker. I believe the primary driver, at this point, is
the two Secretaries' agreement that the two departments should
establish a single, common electronic health record. If we go
back to the President's directive in 2009 that we move forward
with a virtual lifetime electronic record, we have made
progress on that. But what the Secretaries recognized last fall
was that we needed to achieve agreement and move forward on a
single, common electronic health records system between the two
departments.
It is their intent, expressed in a memorandum, that the IPO
structure be used as the point, and the implementation point,
for that new electronic health records system. And that is, in
fact, what Ms. McGrath and I are driving, under direction from
the Secretaries.
Mr. Donnelly. Are you aware--and, again, Mr. Baker or Ms.
McGrath--that the former director has retired, the deputy has
been recently reassigned, and is this where we are right now?
Ms. McGrath. Certainly we are aware of the current state of
the population of the IPO.
If I could just add to Mr. Baker's comments a moment ago,
as I mentioned in my opening remarks, the IPO has been focused
on the successful opening and delivery of the capabilities
there in north Chicago, in addition to the Virtual Lifetime
Electronic Record. In our two organizations, looking forward
toward, I will say, our modernization efforts for the
electronic health record, we have made the determination to
take a very joint approach. And those decisions were made
starting in December and through the last few months. As this
Department, DoD, went through our analysis of alternatives, we
are utilizing the IPO; we are adding to what we currently had
them focused on.
Roger mentioned that he and I are both very active in terms
of the oversight of the activities with all of those things--
north Chicago, VLER, and the integrated electronic health
record. We have established effective governance surrounding
not only the IPO but in total, to ensure that we have the
functional representation at the table where they need to be,
as well.
So I don't view this necessarily as new as much as I do as
an evolution based upon the decisions that the departments have
made, fully taking advantage of the authorities in the
legislation that does exist.
Mr. Donnelly. Let me ask you this. When the IPO was
created, there were 22 billets, with 2 senior executives. And
as of the present time today, there are 8 full-time people,
with both directors departed. Why are we in this spot?
Ms. McGrath. So, to look at the current population of the
IPO I think is perhaps a little bit incomplete, given the fact
that, at least within the Department of Defense, we also have
efforts such as an office established for an Electronic Health
Record Way Ahead program office.
What we are doing is capitalizing on not only the IPO
assets but also those other assets that were previously focused
on a DoD-unique capability. And we are moving all of those into
the IPO so that it has both the right numbers and skill sets to
ensure a successful program office. We are doing an
organizational assessment, just like you would for any program,
to say, what are the right skills and people I need in certain
jobs? And what is the right mix of both functional, technical,
DoD, and VA to ensure that that is positioned for success.
And so, although the numbers might not appear, I will say,
to be complete, the rest of the story includes the fact that we
have people working in both organizations under both my and
Roger's direction to ensure that we are focused on having all
those piece parts in place to deliver a successful capability.
Mr. Baker. I believe an important point there, Congressman,
is that the DoD has named one of their most senior and,
certainly, in my view, one of their best Senior Executive
Service's, the Acting Director for the IPO moving forward, Mr.
Wennergren. He is Ms. McGrath's deputy. That has been taken
throughout both organizations as a recognition of where the two
Secretaries intend to go with the IPO moving forward on the
iEHR.
Mr. Donnelly. Is the Acting Director, is he or she
currently in the Rosslyn headquarters full-time now?
Mr. Baker. I see him mostly in the Pentagon as we get
together to talk about the EHR meetings, where all of us go for
those meetings.
Mr. Donnelly. Has he met with the organization yet, do you
know?
Mr. Baker. I do not know.
Ms. McGrath. So, we meet on a very routine basis, and the
IPO participates in all of our meetings.
Mr. Donnelly. Thank you, Mr. Chairman.
Mr. Johnson. Thank you, Mr. Donnelly.
At this time, we will go in order of arrival. Mr. Flores,
do you have any----
Mr. Flores. Mr. Chairman, thank you. I have no questions.
You asked my question about H.R. 2388, so I would yield to any
other Member that has questions.
Mr. Johnson. I do have some questions, but I was going to
hold it for a second round. But if you have no questions and
you would like to yield your time to Dr. Roe, we can go
directly there.
Okay. Dr. Roe.
Dr. Roe. Thank you.
First of all, I want to introduce a friend of mine, Bill
Darden, from my hometown of Johnson City, Tennessee, who is in
this meeting today.
And, Bill, we are glad to have you here.
Back to the IPO, you know you are a first-term Congressman
when you get to go to Great Lakes, Illinois, in January, which
I did last Congress. And we looked at the interoperability of
the record then. To be honest with you, I was underwhelmed at
what had been accomplished. And I have gotten no further
follow-up and feedback, and I would like to.
Because I think what you said, Mr. Donnelly, was correct,
and I wanted to follow up with that a little bit, because I
haven't seen what was accomplished and I think it was a good
idea to combine the VA and the Great Lakes Hospital. Does that
record work at all, or do we need to make another trip so we
can get another look and see? And I would prefer, this time, to
go when it is warm. But I do want to know if that works.
Is it working now? It will be 2 years this coming January,
so it was 19 months ago when I was there.
Mr. Baker. Congressman, thank you.
As you recall, I was freezing on that trip, along with you
and----
Dr. Roe. Yes.
Mr. Baker [continuing]. Several other folks, I believe Mr.
Herbert.
Large parts of the IT are working, at this point. They were
working at the point where we moved into the facility. The
medical single sign-on, so that when a clinician pulls up a
patient record in one medical records system, if they look at
something in the other medical records system, that we know it
is the same patient has been implemented.
Single patient registration has been implemented----
Dr. Roe. How long does that wind-up take? And the reason I
get into the weeds with this is because if you are seeing 30
people a day or 25 people a day and it takes you 2 minutes to
wind up, which doesn't sound like much but that is an hour a
day just to get on the computer.
I have implemented an electronic medical records system. It
may be why I am in Congress now, because that thing was so
frustrating. Are you able to get on?
Mr. Baker. My understanding is the answer to that is, yes,
Congressman. I have not looked at it directly, but the
clinicians that I have talked to have been very happy with that
capability. As you are probably aware, certainly VA clinicians
are pretty vocal about things they don't like on the IT with
me, and I have not heard that kind of feedback from our
clinicians, that those pieces are slow for them.
Dr. Roe. So they can access the record, they can pull it up
in a timely manner?
Mr. Baker. Right. Correct.
Dr. Roe. And what I saw happening when we were up there
before was that you had to go to two different systems to be
able to get the information that you needed. I mean, you could
get a blood count. Well, you can do that very simply; I mean,
those systems have been available forever.
Are they actually able to work now? Because I would like to
go see if it does. If it does, we can implement it across the
whole system pretty quickly.
Mr. Baker. I believe that it works pretty well. As you
know, there are a few things that have not been delivered, in
particular on the pharmacy and the consults side. But items
like interoperability and orders portability on lab and--I am
trying to--there is one other area--have been implemented
between the two medical records systems.
The main thing that occurs is a physician primarily works
inside of one of the medical records systems. If necessary to
look at the other one, that is what the single sign-in----
Dr. Roe. Well, if a sailor gets hurt over at the Great
Lakes side and comes over to the VA hospital, how does that
work?
Mr. Baker. I believe that the clinician is going to be
working inside of VistA, inside the facility. A lot of it
depends on what clinic the sailor is seen in, because the
functionality is pretty much defined as one medical records
system or the other based on which clinic you are being seen
in. And so I believe, in general, they are going to be seen and
the record is going to be kept inside of the records system for
that clinic and then moved to the other records system through
the----
Dr. Roe. So the VistA; when the sailor went back to duty,
how would the medical officer pull that up?
Mr. Baker. I believe that is going to be through the
Bidirectional Health Information Exchange.
Dr. Roe. Well, I would like to see that work.
Ms. McGrath. Sir, if I could just add, the access to the
information is available to the clinicians. They are still
housed in the two separate solutions, because they are not yet
integrated solutions. That is the biggest difference between
how things work today and where we are aiming for tomorrow.
So, in north Chicago, we moved the two organizations
together, but we retained our legacy environment. And we are
trying to ensure that we have communications, robust
communications, real-time, so that the clinician sees the
information.
Where we are heading in the future with this integrated
electronic health record is to adopt the same data standards
and achieve data interoperability so that it is a single record
when the clinician pulls up the information. So we are not
talking about things like Bidirectional Health Information
Exchange. It is real-time access----
Dr. Roe. ``Bidirectional,'' the English language
translation is two different records, right?
Ms. McGrath. Two different sources.
Dr. Roe. Yep. That is what I thought.
I will yield back. Will we get a chance to ask some more
questions? Okay, thank you.
Mr. Johnson. Yes. For everyone's information, I suspect we
will have a second round of questions.
At this time, Mr. McNerney.
Mr. McNerney. Thank you, Mr. Chairman.
And I thank the panel for coming today.
One of my pet peeves is the backlog. And, Mr. Murphy, I
would like to know what the VA is doing to reduce the backlog
of claims by adjudicating through the electronic written
responses. Is there anything that you are doing to make this
better?
Mr. Murphy. I guess I don't understand the question. The
written responses as it is--are we talking about through this
bill here?
Mr. McNerney. In the current law.
Mr. Murphy. In the current law. Okay.
We are in the process of full development of the VBMS,
Veterans Benefits Management System, which is essentially the
replacement for what is largely a paper process today. And it
is literally--I am sure you have seen our regional offices--
volumes upon volumes of paper. This process takes it, allows us
to gather the information in an electronic format, process it
in an electronic format, run it through an electronic
knowledge-based decision matrix, put the entire package in
front of an experienced rater to have the human interaction and
to make sure that the computer is driving to the right
decision, and then adjudicate the case.
This is in direct support of the Secretary's goals of no
claim over 125 days with 98 percent accuracy by 2015. And this
system and all of the pieces that are integrated into it are
what is going to solve this breaking the back of the backlog.
Mr. McNerney. The word ``solve'' is a big word. But there
are going to be people that are going to resist that. I mean,
as Dr. Roe just mentioned, people are going to resist going to
electronic means. Are the veterans that are submitting these
forms aware of the help that is available, getting their
information on electronic media?
Mr. Murphy. We are facing a large education campaign,
getting veterans to understand, that with no giving up of their
rights, benefits, entitlements, notices, et cetera, that the
electronic process will allow them to receive the same thing
that they are getting from us today in a significantly reduced
time frame.
Mr. Baker. Congressman, if I could, there are two main
parts of, if you will, the intake piece of VBMS. The first
part, where we are working with National Archives, is a smart
scanning approach, where we take the paper that is coming and
scan it in and harvest the data off it so that we have actual
data to feed into the automation system.
The second piece is, as you point out, to encourage
veterans to actually have the information be electronic at the
source. So bringing them to a Web site for what has often been
phrased as a ``TurboVet'' approach to filling out the
information necessary, using what we call DBQs, or the
disability benefits questionnaires, to make certain that they
are providing a fully completed claim so that it can be
adjudicated quickly. And, as Mr. Murphy points out, there is a
large education piece to that.
But in the beginning, as we roll this forward, we are
anticipating the veteran still largely operating in paper, if
they choose to, and with us going back and forth with them in
paper. But inside the VBA, it will be all electronic. All those
images will be scanned.
Mr. McNerney. Thank you.
Mr. Murphy, you have deferred to the Department of Labor to
provide views on H.R. 2243. Are there any comments you are
prepared to offer in broad terms about the issue of improving
Federal contractor compliance?
Mr. Murphy. No, Congressman, we are not prepared at this
time.
Mr. McNerney. Okay.
Ms. McGrath, what additional steps would you recommend for
improving coordination between the two departments, the
Department of Veterans Affairs and the Department of Defense?
Ms. McGrath. With regard to the electronic health record?
Mr. McNerney. Correct.
Ms. McGrath. I actually think that a lot of the steps we
have taken in the last few months have driven our two
organizations very close together with regard to focusing on
the capabilities that we need, bringing the functional process,
architecture, and the technical folks together so that we are
joined in every aspect of our Way Ahead.
The governance model that we have presented and has been
approved by the Secretaries, I think positions us well for
every aspect of delivering that capability. I think oversight,
rigorous oversight, both within our respective departments and
by the Members of Congress, will be critical to ensure that we
continue to keep and maintain the focus to deliver these joint
capabilities so that we aren't, I will say, deferring or coming
off the path that we are currently on.
So I really do think there is a super-strong partnership
between these two organizations in every aspect of the
development and delivery of the capabilities.
Mr. McNerney. Well, you certainly have chosen the right
words to say.
I will yield back.
Mr. Johnson. Thank you for yielding back.
I want to continue that line of questioning, because the
cooperation and the sense of urgency that you say in your words
that exists don't show up in the results. The IPO has been in
existence for approximately 4 years, yet today we see the
organization is not fully staffed and still we have no record
integration.
When was the Acting Director appointed?
Mr. Baker. I believe that was effective with the June 23rd
meeting between the Secretaries.
Mr. Johnson. So it has just been within the last few weeks.
Mr. Baker. Within the last month, yes.
Mr. Johnson. Within the last month. Okay.
And, you know, I will submit to you that this lack of a
sense of urgency, and that we are 4 years into this process and
we still have no record integration, we still don't have an IPO
that is fully staffed, that is just further indication of the
lethargic response that we get on IT-related issues in solving
our veterans issues. So I am still very concerned about that.
I want to go back to the issue of responding to requests
for information. Mr. Murphy, you indicated that many of the
requests from the Committee staff--or that they frequently
request veterans' medical records. How many of the requests do
you receive in a year that require medical records?
Mr. Thompson. Sir, I am not sure that there is a tally on
that.
Mr. Johnson. Okay. Can you find out and report back to us?
Mr. Thompson. I am not sure a log is kept of that, but I
will----
Mr. Johnson. Well, certainly, if that is a concern of the
VA, that the staff is requesting medical records, there would
be some record of that.
Mr. Murphy. We can provide a response to that one, yes, Mr.
Chairman.
[The VA subsequently provided the following information.]
[The attached documents will be retained in the Committee files.]
Question:
Please provide historical information on VA responsiveness to
Committee oversight requests.
Response:
Calendar year 2011 to date, the Department of Veterans Affairs (VA)
has received approximately 76 requests for information (RFI) from the
Oversight and Investigation Subcommittee of the House Committee on
Veterans many of which were communicated by phone call or e-mail. Of
those requests, 12 involved medical records and/or other privacy-
protected information.
VA may only disclose such information relating to an individual's
privacy in response to: (1) a request from Congress or from a committee
or subcommittee of either house of Congress in connection with a matter
within its oversight jurisdiction, (2) an inquiry from a member of
Congress made at the request of a constituent, or (3) a request from a
member of Congress or a staff member processed under the Freedom of
Information Act (FOIA), 5 U.S.C. Sec. 552.
Additionally, such a document, which in its original form contains
privacy-protected information, may be disclosed if the document is
redacted such that all information that would render the document
privacy-protected is omitted.
Of the 12 RFIs relating to privacy-protected information, below
shows the number for each of the excepted categories mentioned above:
Outstanding: 3
Redacted: 2
Chairman's Letter: 3
Privacy Act Release: 3
Not provided/Excepted categories not met: 1
Average response time: 32 calendar days
Shortest response time: 1 calendar day
Longest response time: 75 calendar days
Instances that may affect response times include when inquiries
have been amended in scope, when clarifications were needed, or when
discussion was necessary on the prerequisites for providing privacy-
protected information.
Mr. Johnson. Okay. I would appreciate that.
What about instances where no medical records are
requested? Because, as I indicated in my opening statement,
we've got situations where the information is relatively
benign, administrative, and yet we still get pushback from the
VA requiring that the Chairman sign a letter of request.
Mr. Thompson. Sir, our testimony goes to requests that
involve Privacy Act-protected information.
Mr. Johnson. Okay. I hear that.
Mr. Thompson. Yes.
Mr. Johnson. But what I am asking is, why, when it does not
require Privacy Act information, do we still get pushback?
Mr. Thompson. Well, you should not be getting pushback on
the basis that the law precludes its disclosure.
Mr. Johnson. Well, vis-a-vis the need for this legislation,
because, apparently, we still do get pushback, even though you
say that the law should not preclude that.
When was the last time that VA's longstanding policy in
this regard was transmitted to the House, to this Committee? We
have asked for the policy, and we have yet to receive a written
response. So when can we expect to see a written response on
this policy?
Mr. Thompson. We can certainly provide a letter
describing----
Mr. Johnson. When?
Mr. Thompson. Very shortly, sir.
Mr. Johnson. When? Give me a date.
Mr. Thompson. How about tomorrow? Does that do it?
Mr. Johnson. Yep. That would be great, Mr. Thompson.
Mr. Thompson. Good.
Mr. Johnson. Because we have asked for it repeatedly, and
we get the same answer, ``We will provide it,'' and it never
shows up. So by tomorrow I am going to expect it.
Mr. Thompson. Okay. I haven't been asked before.
Mr. Johnson. Okay.
Let's go back to the IPO issue. Ms. McGrath, you mentioned
in your testimony that the revision of the IPO charter
currently is under way. What can you tell us about why this
revision was needed? Why is the charter being revised?
Ms. McGrath. The charter is being revised to include the
focus of the integrated electronic health record, as recently
decided by the two Secretaries. I also mentioned that we are
ensuring that we have the right construct in terms of skill
sets, that is the right technical, functional, business
operating, and implementation change management types. It is a
very, what I will call, standard practice in terms of ensuring
that we establish the foundational footprint prior to
populating it with additional skill sets.
I should also mention, to the gentleman's comment or
questions earlier, we have people--the IPO is a piece of the
delivery. Prior to implementation from a program office, the
clinicians or the functionals, if you will, must identify very
clearly what their stated needs are, also working with our
technical folks so that when we deliver a capability it is
something that the clinicians will use, which has been somewhat
of a struggle in the Defense Department in terms of the
usability aspects of some of our legacy environment.
And so we absolutely have reached across DoD and VA, using
the existing functional boards, the Health Executive Council
being an example, to ensure we get the prioritization right
from them, and so that we get the right input, functional
input, before handing them over to, if you will, the IT folks.
Also, I should mention that we have architectural teams
working on both DoD and VA doing a gap analysis of our military
health system architecture to see what we can leverage from our
existing architecture, again, to drive the capabilities.
In addition to the business process re-engineering, Mr.
Baker mentioned pharmacy. Today, it is amazing to me how
differently we execute the business, pharmacy being an example.
To ensure that we deliver the IT capability that is needed by
the clinicians, we are taking a very business-process focus to
ensure that when we have common practices, common processes, we
are utilizing those, documenting them in the enterprise
architecture, and then ensuring that we deliver those
capabilities against that. Again, it does take longer, but if
you don't take those necessary steps, the probability of
delivering an IT capability that does not meet the functional
requirements is higher.
And so it is all of those aspects, both inside and external
to the IPO, that must participate in all of those activities to
ensure that we have that capability.
Mr. Johnson. Wow. You have just made my case for why an
architecture is so very, very important----
Ms. McGrath. It is extremely important.
Mr. Johnson [continuing]. To accomplish--yeah.
And, you know, this Committee has repeatedly requested to
see the VA's IT architecture, and, as we speak today, we have
still yet to receive one. So I am curious, how do you get
insight from those architectural inputs? I would like to know
what your secret is. Because we haven't seen an IT architecture
from the VA, and we are very concerned about that.
I am asking Ms. McGrath.
Ms. McGrath. So, I can focus on the electronic health
record part. We are doing a gap analysis. Again, architects
from both organizations--and, again, I can----
Mr. Johnson. Have you seen the VA's IT architecture with
which to do that gap analysis?
Ms. McGrath. I personally have not seen the----
Mr. Johnson. But your team has, or----
Ms. McGrath. It is my understanding that, yes, that the VA
has brought forward their current architecture design in
addition to the DoD's military health system architecture, and
are doing a gap analysis, again----
Mr. Johnson. Can you provide this Committee what you have
seen in terms of their architecture design?
Ms. McGrath. I would be happy to.
[The DoD subsequently provided the following information:]
In response to your question, please see the attached documents.
[The attached documents will be retained in the Committee files.]
These documents represent a variety of architectural diagrams and
descriptions produced by and used by DoD and VA teams. A summary of the
documents is provided below:
iEHR Pharmacy Process Model Summary Report--The Joint DoD/VA
Pharmacy TO-BE process and sub-processes described in Business Process
Modeling Notation (BPMN) and associated text. The processes and sub-
processes give the architects and developers a detailed description of
the steps associated with the Pharmacy Module, thus allowing them to
construct the technical functionality necessary to fulfill these tasks.
EHR Operational View (OV)-1--An overview describing the TO-BE EHR
lifecycle from initiation of care to end of benefits. This diagram
describes the key steps in the EHR lifecycle in a non-technical manner.
EHR Blood Management High-Level Business Processes--This business
process diagram is a formal model in BPMN describing the AS-IS DoD
Blood Management workflow. The diagram enables the architects and
developers to understand the necessary tasks in the process such that
they can translate the business task into a collection of technical
tasks.
2010 Target DoD/VA Health Standards Profile--A comprehensive list
of health care, communication and interoperability standards. The iEHR
solution will comply with these standards in order to maximize
interoperability with other EHR and non-EHR systems while ensuring
patient safety, privacy and overall EHR integrity.
Conceptual iEHR Architecture--The Conceptual Architecture is a
high level representation of the joint DoD/VA capabilities that
captures the common functionality as well as DoD and VA specific
functionality. It acts as a reference for architects and engineers as
to how the iEHR solution should be constructed.
High-Level Service Architecture--A component diagram representing
the high level capabilities and supporting capabilities necessary to
deliver iEHR functionality. The component diagram provides a somewhat
more granular reference for architects and engineers as to what
functionality must be present in the EHR.
MHS Enterprise Portal Reference Architecture OV-1--The OV-1
provides an overview of the functionality provided by the Enterprise
Portal and its interaction with the supporting systems such as the
Service Oriented Enterprise. The Reference Architecture provides a high
level view of recommended functionality within the Portal such that
architects and engineers can implement the appropriate Portal
technologies in support of iEHR requirements.
EHR System Functional Model--Chapter 3: Direct Care Functions--
Descriptions of the Health Level 7 (HL7) EHR requirements to deliver
health care and clinical decision support. The EHR System Functional
Model provides a comprehensive list of capabilities that are used by
architects and engineers to construct an iEHR solution that is in
keeping with HL7 recommendations.
EHR System Functional Model--Chapter 4: Supportive Functions--
Descriptions of the HL7 EHR requirements to deliver administrative,
financial, public health, and research related services. The Supportive
functions are required to enable the capabilities described in the
Direct Care Functions.
EHR System Functional Model--Chapter 5: Information Infrastructure
Functions--Descriptions of the HL7 EHR requirements to address patient
safety, security, and operational efficiency that are not necessarily
health care specific. The infrastructure functions are necessary to
implement the Supportive and Direct Care Functions.
Common Services Spreadsheet--A description of the Service Oriented
Architecture (SOA) Services in support of the EHR System Functional
Model. The Services described in the Spreadsheet described a collection
of low level technical functions that can be combined to fulfill the
capabilities of the iEHR solution.
Workflow Functions--A mapping of the EHR System Functional Model
to business process activities. The mapping shows how the EHR
requirements are fulfilled by the various workflows of the iEHR
solution.
Mr. Johnson. Okay. Thank you very much.
Does the DoD and the VA intend to brief this Committee on
the updated IPO charter prior to its release?
Mr. Baker. Congressman, as you are aware, I have monthly
meetings with your staff. We have kept them apprised of the
progress in the meetings with the Secretaries, going through
the memorandums. It has been moving quickly, the work with the
Secretaries.
So, absolutely, just as a normal course of that, as we have
something to report out, I plan on making certain that we walk
through with your staff those items.
Mr. Johnson. Okay. All right. I appreciate that.
The clock didn't start, so I have no idea how much time I
have consumed. So I am going to yield now to the Ranking Member
to ask some more questions just in case I am over my time.
Mr. Donnelly. I have no additional questions at this time,
Mr. Chairman.
One comment I would like to make is to Dr. Roe, that we
just consider that brisk weather in January in Illinois in our
neck of the woods.
Mr. Johnson. And I am with you. I don't like to be cold,
and I am enjoying this heat wave we are having up here. I am
probably the only one that is.
Dr. Roe, do you have additional questions? Mr. Flores, do
you have any questions?
Mr. Flores. I have no further questions. I would say this
is just moderate weather, though.
Mr. Johnson. Okay.
Dr. Roe.
Dr. Roe. Just very briefly, I can certainly appreciate on
Health Insurance Portability and Accountability Act (HIPAA). It
is frustrating from our standpoint, because everybody is busy.
I mean, you guys are busy, we are busy. And if we ask for a
request and it doesn't show up for a month or 6 weeks or 2
months, you almost forget about what the request was about.
And so how long does it take, if the Committee makes a
request of VA, by the time it works through all of the
processes it has to, that we get feedback? Is it months, is it
days, or what?
I know, Mr. Thompson, you are going to get a request back
tomorrow. I know what ``tomorrow'' is, unless you are a
building contractor, and ``tomorrow'' is sometime in the
future. But we expect ``tomorrow'' will be tomorrow we will get
it back.
So how long is that?
Mr. Murphy. I don't have that information with me. But as
part of my response talking about the number of requests we get
without PII, I can certainly respond with a timeliness, the
number of requests, number of days.
Dr. Roe. And also, on the medical record, just a comment.
That information ought to be available. We kept it in our
office. If someone requested a medical record, you could call
us at the end of the week and we could tell you how many we
had. So that shouldn't be hard to get that information. How
much is HIPAA protected? And then some of this is not HIPAA-
protected information. That ought to be fairly forthcoming.
Mr. Murphy. Yes. The non-HIPAA information is where I was
going to focus this response on, but I can expand it to all
requests, because we do track them inside our agency of which
requests we have and the timeliness of those.
Dr. Roe. Okay. I yield back.
Mr. Johnson. Any other follow-on questions, Mr. McNerney?
Mr. McNerney. Yes, I actually do, Mr. Chairman, if you will
allow it.
You know, Ms. McGrath, I just have to say, I was impressed
with the words that you used there when I had my last set of
questions, but I didn't see in your tonality or your body
language a real belief in those words.
And I just have to say, the IPO--and I am following up some
earlier words--the IPO was passed 3 years ago, and yet we are
still haggling about it.
I mean, would it be completely and totally unfair to say
that there is a jurisdictional dispute or jurisdictional issue
between the two departments on this issue? Or are we just
cooperating like we are all up in heaven and getting along just
fine?
Ms. McGrath. I would like to say that since the Deputy
Secretary has asked me to engage in the integrated electronic
health record effort, starting back in December, to try and
ensure that we collectively, both the DoD and VA, were on the
most common path we could be on, we have been in lockstep. And,
I mean, I live this every day. And these aren't words for
words' sake; these are words with actions behind them.
And even though Mr. Baker identified that we put an interim
program manager in place on the 23rd of June, we have been
managing the effort for months to ensure that we are focused on
common data standards, common business process, the
architectural piece. The teams have been working side-by-side
in my conference room multiple times a week, hours upon hours,
to ensure that we have put the foundational pieces in place to
drive this forward.
And so it is unfortunate that perhaps my body language
isn't speaking the volumes of the day-to-day activity. I do not
feel that there is jurisdictional disconnect between the two
organizations. In fact, I feel that we are more aligned today.
And I don't have a past with VA, and I have not worked
collaboratively with them on any IT projects before, but I can
tell you where we are headed today. The level of cooperation,
coordination, and leadership, frankly, between our two
organizations is demonstrated throughout them.
Mr. Baker. Congressman, I just have to tell you that Ms.
McGrath's strong commitment to this has been pivotal to the
progress we have made over the last 6 months. I couldn't
estimate the amount of her time that goes into this, but in a
range of probably close to 50 percent of what she does as an
Under Secretary is going into this effort inside of DoD.
And so I think it is fair to separate prior to the
engagement of the Secretary of Defense, Secretary of Veterans
Affairs and post that. Post that, I believe there is no issue
and we are in lockstep. Prior to that, I think that there were
substantial issues that showed up in the IPO relative to
agreement between the two departments.
But that is why it took the two Secretaries stepping in and
saying that they weren't going to take ``no'' for an answer
anymore, that ``yes'' was the required answer. And that is what
you have seen over the last 6 months.
Mr. McNerney. So that has been the driver, the two
Secretaries making it clear that this is high-priority?
Mr. Baker. Absolutely. You can see that in the memorandums
that have come out of those meetings.
Mr. McNerney. Now, earlier, the Chairman mentioned the
difference, perceived difference, in the architecture between
the two departments. Is there a lack or a lag in the VA with
regard to that issue, the architecture?
Mr. Baker. Absolutely, yeah. The Chairman--we had a hearing
here a few months ago, and I concur with the Chairman. There
has been a lack of a well--documented architecture at VA for
years. We are working to address that, but the Chairman knows,
that is not an easy--it is not a tomorrow. I will make no
commitments relative to delivering an architecture tomorrow. It
is something we are wrestling with.
Mr. Johnson. I was going for today, Mr. Baker, but okay.
Mr. Baker. We need someone as good as you to help us with
that, sir.
I do believe, though, that what we are able to share with
the DoD is what is in place at the VA now and where we intend
to go. Is it a well-documented, formalized architecture that I
would feel proud to deliver to a Congressional Committee? No.
But we have an understanding of where we are and where we are
going along those lines.
Mr. McNerney. Thank you, Mr. Chairman. I yield back.
Mr. Johnson. Thank you very much for yielding.
Seeing no further questions, Representative Donnelly I
think has one final question for this panel.
Mr. Donnelly. The question would be, you know, we have
talked a lot about the last 6 months. What happened for years
before that, and when you come before us and say, well, we have
this handled, don't worry about it, there is really no need for
you to go into legislation on this side we went years with a
gap, and so how come the truck never left the garage during
those years?
Mr. Baker. Congressman, I can't speak for previous
administrations. I can tell you that the driver in this
administration has been the President's vision of a virtual
lifetime electronic record, and then the two Secretaries view
that that meant making hard decisions that might have been
resisted.
Mr. Donnelly. What happened before December of last year?
Mr. Baker. We have made substantial progress on the
lifetime electronic record as the two organizations have
defined it and in working together. I believe what the
Secretaries found, using north Chicago as an example, was that
trying to continue to exist in a world where two different
medical records were trying to be implemented at the same
hospital was not one that made logical sense anymore. And so at
that point it was clear to them that they needed to personally
tackle the issue. The organizations by themselves were not
going to solve the issue. It was going to take the two
Secretaries in a series of meetings to make the decisions
necessary to get past ``no'' and on to ``yes.'' I recognize
that the bureaucracy does not move fast. It did take those two
individuals getting involved.
Mr. Donnelly. Thank you, Mr. Chairman.
Dr. Roe [presiding]. On behalf of the Committee, thank you
for your testimony. You are now excused.
At this point I would like to invite the second panel to
the witness table. On this panel we will hear testimony from
Ms. Debra Filippi, former Director of the DoD/VA Interagency
Program Office, the IPO. We will also hear testimony from Jeff
Hall, Assistant National Legislative Director for the Disabled
American Veterans; and Brian Gallucci, Deputy Director of the
National Legislative Service for Veterans of Foreign Wars of
the United States. Your complete written testimony and
statements will be made a part of the hearing record, and you
are now recognized, Ms. Filippi, for 5 minutes.
STATEMENTS OF DEBRA M. FILIPPI, FORMER DIRECTOR, U.S.
DEPARTMENT OF DEFENSE/U.S. DEPARTMENT OF VETERANS AFFAIRS
INTERAGENCY PROGRAM OFFICE; JEFFREY C. HALL, ASSISTANT NATIONAL
LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS; AND RYAN M.
GALLUCCI, DEPUTY DIRECTOR, NATIONAL LEGISLATIVE SERVICE,
VETERANS OF FOREIGN WARS OF THE UNITED STATES
STATEMENT OF DEBRA M. FILIPPI
Ms. Filippi. Mr. Chairman, Ranking Member Donnelly,
distinguished Members of the Committee, thank you for this
opportunity to provide testimony on the ``Ensuring
Servicemembers' Electronic Records' Viability Act,'' H.R. 2470,
to improve the electronic health record information systems and
capabilities of the Department of Defense and the Department of
Veterans Affairs.
I offer this testimony today as the former Director of the
Interagency Program Office, serving from October of 2009 to
June of 2011. I retired from that post June 3rd after a
fulfilling 34-year career with the Federal Government. It is my
privilege to have this opportunity to provide remarks regarding
the proposed legislation that would strengthen the functions
and the authorities of the IPO to better serve our military,
veterans and their families.
Since its inception, the IPO has had a positive impact on
enhancing the interagency approach to electronic health record
development for DoD and VA. The IPO created interagency plans
and schedules that provided a road map of joint activities,
established a multitiered governance approach that guided the
interagency decision process, and provided a neutral meeting
environment that minimized biases and fostered accountability
between the two Departments on the execution of their separate
electronic health record initiatives.
However, these steps were marginal in comparison to what
could have been accomplished had the appropriate functions and
necessary authorities been assigned to the IPO to fulfill the
law. The role and mission of the IPO as defined in a charter
signed by the two Deputy Secretaries in September 2009 was to
be the single point of accountability for coordination and
oversight, not for development and implementation as stated in
the law.
Furthermore, the authorities necessary to execute section
1635 of the 2008 NDAA were specifically retained by the DoD and
VA program offices, not conveyed to the IPO. Accordingly, the
control of the budgets, contracts and technical development
remained with the two Department program offices. As a result,
the IPO was not empowered by the Departments with the necessary
functions or authorities to execute the intent of the law.
Initiatives such as the James A. Lovell Federal Health Care
Center Project in north Chicago would have benefited, greatly
from converged solutions implemented by a single entity rather
than the complex, duplicative, two-department solutions they
received.
Congress established the IPO to improve the fielding of an
interoperable health record capability for those who have
served our country so nobly. The quantum leap for both
Departments is to unite their development efforts into one
organization and create a single superlative electronic health
record that by definition is interoperable and yields a
transparent, effective and efficient capability for our
warriors, present and past.
The IPO is the medium for DoD and VA to merge their
resources, their intellectual property and their spirit as
force multipliers for operational as well as economic success.
The promise of a fully empowered IPO is synergy, solidarity and
unity between DoD and VA, and a patient-focused capability for
our patrons. The chosen path for the IPO was only a step in the
right direction, a bunt in baseball parlance that resulted in
modest progress. Now we need a home run: a single program
office embraced by the two Departments and empowered with the
necessary authorities to develop, implement and sustain the
best electronic health record capability.
This draft legislation is a designated hitter for this home
run. It declares to the Departments what is expected in
establishing a true Interagency Program Office, to include the
authorities necessary to execute the functions. The language
serves as a template for the necessary modification to the IPO
charter and obviates any conflict or resistance that still may
exist.
The most important issue to be reconciled is who is the
responsible party for executing the funding, for that
organization is truly the one accountable for interoperability
of EHR systems. This is not only about interoperability, it is
about pursuing economic-minded approaches to Federal Government
best business practices.
Creating the IPO was an innovative idea, one that will no
doubt cast the mold for future Federal partnerships. I strongly
endorse the passing of this language for the benefit of our
military, veterans and their families. Thank you.
[The prepared statement of Ms. Filippi appears on p. 39.]
Dr. Roe. Thank you.
Mr. Hall.
STATEMENT OF JEFFREY C. HALL
Mr. Hall. Thank you, Chairman Roe, Ranking Member Donnelly
and Members of the Subcommittee. Thank you all for inviting
Disabled American Veterans to testify at this legislative
hearing of the Subcommittee on Oversight and Investigations.
Due to time constraints I will focus my remarks on the pending
bill most concerning to us.
H.R. 2383, the ``Modernizing Notice to Claimants Act,''
would make a number of changes to VA's current duty to notify
and assist claimants seeking disability compensation benefits.
Mr. Chairman, while we believe the intent of this legislation
is to help streamline the claim process in order to reduce the
backlog of claims for disability benefits, we have serious
concerns about whether some of the new regulatory provisions in
the bill might be implemented by VA in a way that could instead
weaken the ability of veterans to receive their full benefits.
In the context of VA's focus on reducing the large and
growing backlog of claims, the regulatory changes proposed in
H.R. 2383 could create opportunities to speed claims through
the process regardless of whether VA has provided sufficient
notice and assistance to ensure that the veterans receive
maximum benefits to which they are entitled.
Mr. Chairman, DAV agrees that VA must have the ability to
fully utilize electronic communication, but we do have concerns
about the language proposed to achieve this goal. H.R. 2383
would require VA to send notice by the most expeditious means
available, including electronic notification or notification in
writing. However, because we believe the only way to reduce the
backlog is to create a system designed to decide the claims
right the first time, not just get them done quickly, we also
believe that notice should be sent by the most effective means,
not simply the most expeditious means. We recommend the bill
language be changed so rather than direct VA to use the
quickest means, they instead seek to use the most effective
means.
Just as many of us are given such a choice in communicating
with our banks or paying bills, so, too, should veterans be
given the choice to elect the best method for VA to communicate
with them.
H.R. 2383 would also allow both notice and duty-to-assist
requirements to be waived at VA's sole discretion if they can
award the benefits sought based on the evidence of record.
Though DAV is supportive of the general intent of this section
of the legislation, which is to provide veterans the benefits
to which they are entitled at the earliest stage in the
process, we have concerns about how this language might be
implemented in the field.
For example, many claims are for conditions that have more
than one possible disability rating, and it is important that
VA not waive its duty to notify and assist claimants unless
they are awarding the full benefit to which the veteran is
entitled. In an environment where eliminating the backlog is
VA's focus, we are concerned that allowing VA this type of
authority might create incentives and opportunities for ratings
to be awarded at a lower level, even if there is some
likelihood that further development might lead to a higher
rating based on additional evidence.
We are also concerned that such a waiver of authority might
create disincentives to review a claim for inferred or
secondary conditions. There are situations when the claimants
feels an increased rating--feels he is entitled to an increased
rating and indicates the condition has adversely affected
employment. This could lead to an inferred claim for individual
unemployability, which might require additional development to
establish. However, under the new language, benefits sought,
i.e., increased rating, could be awarded without further
development to determine whether the veterans should be rated
for the individual unemployability.
To clarify the provision of this bill, DAV recommends the
language be changed to make clear that such a waiver of VA's
obligation should only occur when maximum benefits sought can
be awarded, including benefits for inferred or secondary
claims.
Section 3 of the bill would also change VA's duty to assist
to a new standard that VA would assist only if the claimant
requests assistance. We believe the intent of this provision is
to reduce unnecessary development for private records that have
no material impact on the outcome of a decision. We are
concerned that it could create too great a burden on those
veterans who may not have the physical or financial means to
obtain private medical records.
Finally, DAV has serious concerns about inserting language
into title 38 to allow a claimant to waive all or part of VA's
duty-to-assist requirements. As with many of the changes
proposed in this legislation, we are particularly apprehensive
about unrepresented veterans who may not have the knowledge or
expertise to fully understand the ramifications of agreeing to
such a waiver. Moreover, it is not clear when and how VA might
seek to use such waiver of authority. For example, would VA try
to get veterans to waive their duty to assist in obtaining
private medical records in exchange for a faster decision?
In closing, we agree with the goal of preventing
unnecessary overdevelopment of the claim. To help with this,
DAV has proposed and supported legislation directed at ensuring
private medical evidence be given the same weight as VA medical
evidence, and that private treating physicians be allowed to
electronically submit disability benefit questionnaires.
Mr. Chairman, we would welcome the opportunity to work with
you and the Committee along with our colleagues in the veterans
community to craft comprehensive legislation to achieve these
other shared goals. This concludes my statement, and I will be
happy to answer any questions the Subcommittee may have.
[The prepared statement of Mr. Hall appears on p. 43.]
Dr. Roe. Thank you, Mr. Hall.
Mr. Gallucci.
STATEMENT OF RYAN M. GALLUCCI
Mr. Gallucci. Chairman Roe, Ranking Member Donnelly and
Members of the Subcommittee, on behalf of the 2.1 million
members of the Veterans of Foreign Wars of the United States
and our auxiliaries, I thank you for the opportunity to present
our views on today's pending legislation.
The bills before the Committee today seek to remedy
persistent oversight issues keeping veterans from receiving the
timely care, benefits and opportunities they deserve. The VFW
generally supports many of the ideas up for discussion today;
however, we have several concerns that we hope the Subcommittee
will address before proceeding.
On H.R. 2388, the ``Access to Timely Information Act,'' the
VFW supports this bill, and we applaud efforts to ensure the VA
provides timely information to the Committees.
On H.R. 2243, the ``Veterans Employment Protection Act,''
the VFW supports the intent of this bill, but views publishing
of veteran employment information by Federal contractors is
only one small step in ensuring that veterans actually have the
employment opportunities that companies have reported.
Today, the Department of Labor fails to follow up on
information provided by contractors in their VETS-100
paperwork. In Congressional testimony last year, the VFW
outlined a series of reforms that must take place in Department
of Labor reporting and auditing processes to ensure compliance
with veteran hiring mandates. This bill would only satisfy one
of our recommendations, and the VFW would be happy to work with
the Committee on ways to implement others.
The VFW is proud to support H.R. 2470, the ``Ensuring
Servicemembers' Electronic Records' Viability Act,'' which will
create a final reporting authority for the creation and
implementation of electronic health and service records for use
by the Department of Defense and the VA.
As an Iraq veteran, I can tell you that this electronic
record is long overdue. When I completed my enlistment in 2007,
my Reserve unit sent me my health and service records, the only
complete copy of my military records available. Since 2007, I
have requested copies of certain paperwork only to learn that
DD-214s, awards, schools and, most importantly, my medical
records may be missing from certain military databases.
Thankfully I already enrolled with VA while I was still a
drilling Reservist and authorized VA to copy what they needed
from my record at the time. If I had simply transferred out of
the military before enrolling at VA, I can only imagine the
hurdles I would have had to jump through simply to prove my
eligibility. This is just one example of why a bidirectional
and fully electronic health record with the ability to be
updated by both DoD and VA is of the utmost importance.
Since DoD and VA were tasked with creating the joint
electronic record, we have seen little progress. This bill,
which establishes a joint office no lower than a Deputy
Secretary level and dedicates budget line items for funding,
will set into motion a chain of accountability and authority to
ensure that the electronic record finally becomes a reality.
Finally, I will dedicate the balance of my time to
discussing H.R. 2383, the ``Modernizing Notice to Claimants
Act.'' Today duty-to-assist requirements can mean that
veterans' claims can remain idle within the VA system for more
than a month and a half, exacerbating the backlog and creating
potential financial hardships for veterans. The VFW agrees that
steps must be taken to reduce delays due to statutory
requirements; however, the VFW insists any changes must not
negatively affect veterans.
The VFW views the notion that the VA can communicate
electronically with veterans positively, considering that many
conduct business online. However, online communication may not
be the most expeditious to all; therefore, it must be requested
by the veterans and not mandated by VA.
The VFW also has three concerns with placing the duty-to-
assist notice with the claim application. First, this could
shift the burden to gather evidence from the VA to the veteran.
Second, it could also encourage veterans to collect their
own medical evidence prior to formally filing a claim, delaying
their effective date. The VFW believes that any changes must
include a clear, easy-to-follow process in the instructions to
VA form 21-526 whereby a veteran can initiate an informal
claim, receiving an immediate effective date.
Third, the VFW is concerned that by moving the duty-to-
assistant notification, veterans will no longer be notified of
VA's receipt of the claim. The VFW suggests that if the duty to
assist is moved to the application phase, then VA must continue
to send receipt notifications.
The VFW also believes that language of the bill must ensure
that duty-to-assist notifications comply with current
regulation and precedent established by the Court of Veterans
Appeals whereby VA must assume that the veteran is seeking the
maximum benefit allowed for the disability.
I direct the Committee to our submitted remarks for how we
believe section 2, paragraph 5 of this bill should read. The
VFW must reiterate that veterans can neither have the burden to
gather evidence shifted to them, nor shall any changes in
regulation harm a veteran's ability to receive the most
complete and accurate claim as possible.
The VFW's full recommendations are included in our
submitted testimony, and we look forward to working with the
Committee on how to streamline the process to deliver the best
outcomes for our veterans.
Chairman Roe, this concludes my testimony. I would be happy
to answer any questions the Committee may have.
[The prepared statement of Mr. Gallucci appears on p. 48.]
Dr. Roe. Thank you very much.
And also, thank you all for your service to our country.
I had to chuckle a little bit when you were talking about
your medical record, because when I was in, I had a Manila
envelope, and if it got lost, your whole record was--it was
Thomas Jefferson's medical record. We have to do better than
that.
And I think certainly the trip I made to Detroit 2 years
ago, Mr. Hall, to look at the amount of paperwork was, I was
amazed at how much paperwork there is. We have to do better.
And I guess, fortunately or unfortunately, we are right now
in a transition where we are going from a paper record to a
paperless one, and it is a huge challenge. I had them put an
electronic medical record in my office, and I can't imagine the
millions and millions of pieces of paper. We have to do that,
though, because you are absolutely correct, when you leave the
military, if you hadn't done that, you might still be looking
for your records and information.
Mr. Hall, I read your testimony before I came this morning,
and I know your concern is legitimate, but do you think that
the VA is heading in the right direction here? I just filled
out my online form for my Social Security. I finally got old
enough to get it. The only problem, I found out next month is
that there is not going to be any money to get my check, so I
was a little disappointed in that. But other than that, it was
a pretty easy process to go through. And I really was amazed in
just about 10 minutes; they called the next day. It was
literally not a 30-minute deal.
I realize that a veteran's disability is much more
complicated, because there may be multiple physicians and years
of information. The VA is trying to streamline this. I know
certainly Secretary Shinseki is. He is absolutely committed,
instead of veterans going for years and years before they get a
decision.
And I read your concerns about this, about how an older
veteran might be more reluctant to use a computer or can't use
or doesn't have a computer, whereas maybe the younger folks
could--I mean, they don't even talk on the phone anymore, they
just text each other, so it is very easy for them. Am I correct
on that?
Mr. Hall. Yes, sir. For DAV, I mean, the VA--in our
opinion, the VA is moving in the right direction, albeit slowly
with certain aspects of it, especially the moving from paper to
a paperless claims process with the VBMS system, different
things like that, which--you know, we have had the opportunity
to look at snapshots of the VBMS and how it might affect the
overall claims process, and that is still far out from where it
is going to be. I believe delivery is expected in 2015. So that
is just one aspect of it.
A newer one, the eBenefits system, being able to go online
and file your claims, we like the idea of that. Certainly there
are going to be veterans that really, really appreciate having
that means to be able to do it. They can go online; they can do
it simply as you have described it.
What we want to ensure with something like that is that
things like proper duty to notice and assistance from VA is not
lost in the translation of that. For example, veterans should
be offered the opportunity to know that free representation,
adequate professional representation by service organizations
like DAV, they need to know that that information is there for
them, that they can obtain it. So if they go online on the
eBenefits system, one of the first things they should see is,
do you have a representative? Do you know that some
representatives do not charge for their services? Here is an
example of some of them.
What we have seen of lately is they have made progress of
getting that there to where when you log on, you click on it,
there it is. ``Do you have a representative'' appears. When you
go to select DAV, it goes to DAV national headquarters as an
address, not the nearest one that the person--and that is who
they need, not my office per se. Maryland, as an example,
doesn't even exist. We have an office in Baltimore; it doesn't
exist in there.
There are obviously things that have to be tweaked and
fixed with that, but the idea of the fact that progress is
moving? Yes, progress is moving. We don't think that an
electronic notification of ``we are providing you notice that
A, B and C will be done in your claim, and it is your
responsibility to do D, E and F,'' because if it is a
disclaimer where I accept the terms and conditions of this that
is 10,000 pages deep, nobody will read it, and the veteran is
going to miss that. Albeit maybe they don't read the one--you
know, a lot of them don't read the paper duty for notification,
the VCAA notice letter.
But the point is they are moving in the right direction
with the electronic technology. We just want to make sure that
the notice isn't lost nor the duty to assist is lost in
translation. Thank you.
Dr. Roe. Ms. Filippi, you made some great points in your
testimony. If you were the head of all this right now, what
would you do to make this move along quicker? See, I think what
would have made more sense--and again, you have DoD with
records, you have VA with records; both were digging in their
turf. I like my record, this outfit likes their record. It
would have been simpler if we just went to one record; said,
look, on day 1 we are going to switch. It is painful to do, but
that is absolutely the easiest way to do it, and trying to
integrate them apparently for 10 years and $10 billion hadn't
been successful. What would you do?
Ms. Filippi. As I said in my comments and testimony, I
think the real key here is the notion of unity of effort. And
frankly, up until very recently I still think the two
Departments had very separate paths that they were pursuing.
That is why I feel so strongly that the IPO needs to represent
and really needs to be a merge of the two program offices from
the two Departments so you will have that unity; you will have
them thinking as one; you will have them creating that one
architecture, that one data source, and that one capability
that they field out there to all their constituency.
So that is where I think the center of gravity is is
creating this oneness so that we are not thinking about two
different approaches or two different strategies.
Dr. Roe. Thank you.
Mr. Donnelly.
Mr. Donnelly. Thank you, Mr. Chairman.
And, Ms. Filippi, what were some of the challenges you
faced as Director of the IPO in regards to people going on two
different tracks, in fact?
Ms. Filippi. Yes, sir, that is a great question. I think it
really boils down to as long as everybody is pleased with the
decision, everyone cooperates. So it is when you get to the
real tough conflict where the two parties don't really see
things that same way and want to go in two different
directions, where does the conflict resolution occur?
And unfortunately, the IPO didn't have the empowerment to
resolve conflict, and it always had to go back to very high
authorities to try to resolve the day-to-day kinds of things.
And so I think that is really why this notion of merging
together under one roof.
And, Chairman Roe, you mentioned earlier in the Rosslyn
program office, that is really where the center of gravity
should be, not in the Pentagon, not over at VACO headquarters,
but in Rosslyn. That is where the resources should be, that is
where the decisions should be made, and that will expedite
moving things forward.
Mr. Donnelly. And this would be for Mr. Gallucci, Mr. Hall,
either one. H.R. 2383 requires the VA to communicate with
veterans electronically. Do you think it is a concern with our
older veterans who may not be technologically savvy as to this
requirement, and how do we deal with that?
Mr. Gallucci. Thank you for the question.
We do agree that we don't believe that many older veterans
would be as technologically savvy. This is why we pointed out
that it may not always be the most expeditious form of
communication. You can't guarantee that a veteran is going to
check their email or even have an account. So what we would
prefer the bill to say is that the veteran can choose to use
electronic communication as the most expeditious means, but
that we would prefer VA not mandate it.
Mr. Hall. I agree, with the addition of, as I had stated in
my oral remarks, expeditious is going to mean one thing to one
individual, but we are looking really towards VA communicating
in the most effective means possible. That may be
electronically for a large part of the claim population, it may
not be. Veterans should be given that choice of how they want
to communicate.
Also it adds to the question of what is really meant by
``electronic communication''? What is the limit to that? What
is the intent of the legislation? Is it broad to say that if I
receive something from VA that I can turn around and email
back, and I am going to have this daily email chat with VA? We
don't know because it is not written in the law.
That is something that is going to be a major concern,
because if we have regionalized call centers, and we are trying
to go to a more slimmer or reduced amount of information in a
notice, how apt are we going to be--speaking as VA, how apt are
we going to be to reply to emails? So those are things that
concern us as well.
Mr. Donnelly. I want to thank the witnesses.
Thank you, Mr. Chairman.
Dr. Roe. I notice Mr. Donnelly looked over here when he
said ``older veteran.''
Mr. McNerney.
Mr. McNerney. Thank you, Mr. Chairman.
Ms. Filippi, I certainly thought your testimony was
informative, and thank you for your thoughtful remarks.
You know, the prior panel had given the impression that
things are coming along pretty well, and I appreciate that. But
what I would like to ask is do you agree with that assessment?
Is the IPO moving along in an expeditious manner at this point?
Ms. Filippi. Well, sir, obviously my involvement is dated
as of June 3rd, but I will say that, back to the comments that
were made earlier, we are moving in the right direction, but we
are not moving fast enough. As I said in my comments, I think
we have hit a bunt; we need to hit a home run. We need to
invest the execution authority into the IPO. We need to merge
the program personnel from the two Departments into the IPO.
There was mention made that a charter is being written and
should be done by August. A charter had been rewritten for the
IPO last fall that had all the authorities and the
responsibilities in it that were really required to move
forward in an expeditious fashion. So I am not sure what
additional time is needed to create the right environment. I
just think action is required, and authority needs to be
invested.
Mr. McNerney. Good.
It was testified that the work and the urgency imparted by
the Secretaries in a joint manner has been important in terms
of moving the process forward, and that seems reasonable. Do
you think that is sufficient, or do we need to do legislation
to make sure that that actually happens?
Ms. Filippi. Well, I came here today to say that I endorse
the legislation that has been proposed. And I still think that
it is a good thing, that it has the right words and the right
expectations of what the intent of Congress was for the IPO to
move forward as the sole organization on behalf of the
Department. So I do endorse the legislation.
Mr. McNerney. So specifically H.R. 2470 is the legislation
you are referring to?
Ms. Filippi. Yes, sir.
Mr. McNerney. And you think that may be a home run, maybe a
triple, but it is getting us farther down in terms of scoring.
Ms. Filippi. Yes, sir. I like the analogy.
Mr. McNerney. Thank you.
Mr. Gallucci, I appreciate your comments regarding H.R.
2243. I think what you are saying basically is similar to what
was said: It is a bunt, it is a step in the right direction,
more needs to be done. And I certainly would be willing to work
with your office, my staff and the Committee staff, to get
those additional measures involved.
Is there anything specifically you would like to point out
at this time that would be an improvement?
Mr. Gallucci. Well, one of the points that the VFW made in
earlier Congressional testimony is that there need to be
auditing processes whereby the Federal contractors who file
their VETS-100, VETS-100A paperwork can be held accountable for
the numbers that they report on veteran hires.
Right now the way that we understand it is once the
paperwork is filed, that is the end of the process, it is taken
at face value. So the VFW would encourage a stronger piece of
legislation to allow the Department of Labor to take action
against contractors who don't actually meet compliance or
report false information.
Mr. McNerney. Thank you for that suggestion.
With that, I yield back.
Dr. Roe. Thank you for yielding.
Mr. Hall, in the actual legislation it says, by inserting
``the most expeditious means available, including electronic
communication or notification in writing'' before ``of any
information.'' So I guess what you are saying is once--and I
agree with you--once we begin to communicate, is it going to be
electronic, is it going to be by the mail? I think that is what
I heard you say; am I correct?
Mr. Hall. You are correct. I mean, if you are looking
specifically at just the electronic communication,
understanding that the legislation also says, you know, by
written notification. Again, what concerns us with that is once
the law is changed, and once the regulatory amendment comes
into play, how does that affect the field offices? Will this VA
regional office communicate primarily by electronic means? I
mean, the directive may be from VA central office that this is
the way we are going to do it, and you have no choice. But they
have things like that in place now, that the local authority
supersedes that, and they are able to choose which path.
So, yeah, we simply think that--we agree with your
assessment of it that it needs to be inclusive in that.
Dr. Roe. Any further questions from the panel?
Thanks to the panel. You are now excused.
Oh, you had one, I am sorry. Go ahead.
Mr. McNerney. Mr. Gallucci, a little bit more follow-up on
H.R. 2243. Do you believe that making the VETS-100 reports
public will encourage contractors to better comply with hiring
laws?
Mr. Gallucci. We would agree with that assertion. This is
something that the VFW said in past testimony is that this was
one of the recommendations. And just to go back to the baseball
analogy, by mandating that companies file the VETS-100, DoL has
the runner on base; just need to move them over now. And by
encouraging that public discourse, it would hold Federal
contractors accountable for what they report.
Mr. McNerney. So would that be useful to your organization,
that information, in terms of making sure that the veterans are
treated in accordance with the law?
Mr. Gallucci. Yes, it would. And one of the points that I
brought up in my submitted remarks is that the Federal
Government is held to a higher standard on hiring veterans. We
saw the Veterans Hiring Initiative over the last couple of
years, and we just want to ensure that contractors that do
business with the government are held to a similar high
standard.
Mr. McNerney. Thank you.
All right, Mr. Chairman, I yield back.
Dr. Roe. I thank the gentleman for yielding.
Certainly with a 14 percent unemployment rate for veterans
now, that is absolutely critical.
Our thanks to the panel. You are now excused, and your
complete written testimonies will be part of the hearing
record.
I ask unanimous consent that all Members have 5 legislative
days to revise and extend their remarks and include extraneous
material. Without objection, so ordered.
I also want to thank the Members and witnesses for their
participation today. The hearing is now adjourned.
[Whereupon, at 10:36 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Bill Johnson, Chairman,
Subcommittee on Oversight and Investigations
Good morning. This hearing will come to order.
I want to welcome everyone to today's legislative hearing on H.R.
2383, the Modernizing Notice to Claimants Act; H.R. 2243, the Veterans
Employment Promotion Act; H.R. 2388, the Access to Timely Information
Act; and H.R. 2470, the Ensuring Servicemembers' Electronic Records'
Viability Act.
The bills we are discussing today are the result of months of
input, work, research, and investigation. The Modernizing Notice to
Claimants Act, which I introduced last month, makes several important
steps toward streamlining part of the claims process that will
contribute toward reducing the disability claims backlog. Section 5103
of Title 38 currently requires the Secretary of Veterans Affairs to
provide a claimant a written notice of responsibility that informs both
the veteran and the VA of their responsibilities regarding each claim.
Furthermore, as written, this law requires a separate written notice of
responsibility for any subsequent claim, even if that subsequent claim
is covered under the original pending claim. Additionally, the section
requires VA to ``make a reasonable effort to obtain private records
relevant to'' a veteran's claim.
The Modernizing Notice to Claimants Act would allow for the most
efficient delivery method for any notice, including electronic written
responses. Additionally, the proposed changes will not require VA to
provide an additional notice for a subsequent issue that is already
covered under a previous claim. The bill would also define VA's
``reasonable effort'' to acquire a veteran's record to no less than two
requests and also encourage the veteran to play an active role in
providing evidence for her or his claim.
Lastly, if a veteran's claim can be adjudicated in the veteran's
favor, without additional evidence, there is no need for VA to attempt
to acquire any further evidence.
One of the primary effects of these changes would be a reduction in
claim processing time by approximately 40 days. Often, we have laws on
the books that date back many years and do not allow for utilizing all
the tools at an agency's disposal. It is important that this Committee
and the Congress re-visit laws to ensure they still achieve their
original intent. By clarifying several key areas in the law, the
Modernizing Notice to Claimants Act reinforces congressional intent and
delivers a better service to veterans.
Another bill I wish to mention in my opening remarks is H.R. 2388,
the Access to Timely Information Act, introduced by Chairman Miller.
The need for this clarifying legislation results from frequent
obstruction by VA in providing necessary information to this Committee,
and the bill's objective can be summarized as enabling the legislative
branch to better conduct its oversight responsibilities.
Even in requests for information that do not contain sensitive
material, the VA often takes several weeks in providing responses,
often demanding that the request be sent in the form of a signed
letter.
The longstanding agreement, that was supposedly based off of VA
policy, had been that if a request from the Committee involved
personally identifiable information, or PII, then the request would be
sent in a signed letter. However, it has come to light that staff at VA
inconsistently applies this policy, and that the policy itself is not
even in writing. After multiple requests over several months for a
written policy from VA, nothing has been presented to the Committee,
and the end result has been obstructive behavior that hinders this
Committee's efforts to help our veterans.
This bill clarifies that requests from Committee Members and staff
are covered under the pertinent privacy laws with respect to sensitive
information.
This is not rocket science, and I am frustrated and disheartened
that we have reached a point where we need this legislation. As I
stated before, this bill will simply help us do our job. Past efforts
at working with VA to establish a consistent policy have met the same
type of resistance as the information requests I just discussed, and so
we are taking the next step in fixing that problem.
I appreciate everyone's attendance at this hearing, and I now yield
to the Ranking Member for an opening statement.
Prepared Statement of Hon. Joe Donnelly, Ranking Democratic
Member, Subcommittee on Oversight and Investigations
Thank you Mr. Chairman.
H.R. 2470, a bill which I recently introduced, will increase the
authority given to the Interagency Program Office (IPO).
The IPO is charged with making decisions on behalf of DoD and VA
Secretaries to ensure the electronic health record initiative succeeds.
Currently, the IPO lacks the authority and clarity that the IPO is
the single point of contact on EHR issues. My bill addresses this
serious concern.
I am also aware that although Public Law 110-181 indicates the IPO
was developed to implement the on-going efforts to establish the
Electronic Health Care Record initiative, this office is often bypassed
by the VA and DoD.
It seems to me that there is little interest by both VA and DoD to
incorporate the IPO in ongoing EHR efforts.
For this and other reasons I introduced H.R. 2470, the E-SERV Act.
This bill empowers the Interagency Program Office with the clear
authority to provide our servicemembers and veterans the 21st Century
Electronic Health Record they deserve.
Thank you and I yield back.
Prepared Statement of Hon. Jerry McNerney
I would like to thank Chairman Johnson for holding this legislative
hearing. Having the Subcommittee conduct a legislative hearing will
provide us the ability to conduct oversight and also to review
legislation that affects many of the issues that fall within our
jurisdiction.
Today's hearing includes several bills. Among others, we will
evaluate a proposal to change policies affecting claimants seeking
benefits. We'll also discuss legislation that addresses ongoing
concerns regarding the need to improve the Interagency Program Office.
In addition, one of the bills included in today's hearing is H.R.
2243, the Veterans Employment Promotion Act, which I introduced. My
bill directs the Secretary of Labor to make public the veterans'
employment data reported by Federal contractors and subcontractors.
In the past, this Committee has heard concerns from veteran service
organizations and other stakeholders about compliance with veterans
hiring policies. The purpose of the VETS-100 report is to ensure that
Federal contractors comply with relevant laws. Through this report,
contractors submit certain information to the Department of Labor,
including information about new hires who are veterans.
By making the information contained in these reports publicly
available, my bill increases much needed oversight and accountability.
This bill is a step in the right direction that will help us as we
continue to seek ways to improve enforcement of Federal contractor
compliance.
Thank you Mr. Chairman, and I look forward to today's discussion of
H.R. 2243 and the other bills we are considering.
I yield back.
Prepared Statement of Thomas Murphy, Director, Compensation Service,
Veterans Benefits Administration, U.S. Department of Veterans Affairs
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to testify and present the views of the Department of
Veterans Affairs (VA) on several legislative items of great interest to
Veterans and the Department. Joining me today are Jack Thompson, Deputy
General Counsel, and Roger Baker, Assistant Secretary for Information
and Technology.
H.R. 2383
H.R. 2383, the ``Modernizing Notice to Claimants Act,'' would amend
38 U.S.C. Sec. 5103 to authorize the Secretary of Veterans Affairs to
use electronic communication to provide required notice to claimants
for benefits under laws administered by the Secretary. This bill would
also amend 38 U.S.C. Sec. 5103A to clarify the Secretary's duty to
assist claimants in obtaining relevant private records.
VA fully supports this bill, which would significantly enhance the
efficiency by which VA carries out its duty to notify and assist under
the Veterans Claims Assistance Act of 2000 (VCAA). Although the VCAA
requirements are designed to promote more efficient and effective
development of claims, some aspects of those requirements, as
interpreted by the courts over the last decade, have had the unintended
effect of complicating and unnecessarily delaying the claims process
while confusing Veterans and their dependents. This bill would
represent a valuable step forward in addressing those concerns.
Section 2 of the bill would amend 38 U.S.C. Sec. 5103 to provide
increased flexibility in how VA delivers notice to claimants of the
information and evidence necessary to substantiate their claims. It
would authorize VA to provide notices through the most expeditious
means available, including electronic communication, which is critical
during this time of transformation to a paperless claims process. This
will enable VA to maximize the successes of Information Technology
initiatives such as the eBenefits portal, the Veteran Benefits
Management System, and the Veterans Online Application.
By eliminating the language that directs VA to issue VCAA notices
``upon receipt of a complete or substantially complete application,''
section 2 of this bill would also significantly increase efficiency in
the beginning stages of the claims process. For example, by attaching
VCAA notices to certain forms or sending a Veteran an electronic VCAA
notice at the same time VA sends the claimant an application, VA could
shorten the overall development time associated with the claim. In
these instances, VA would essentially be initiating development before
the claim is received in the regional office. Once the claims folder is
handled for the first time by a Veterans Service Representative (VSR),
the VCAA notice obligation would be fulfilled, and other actions to
move the claim along could be readily taken. This added flexibility
would eliminate a significant number of VSR actions and significantly
shorten overall claim development time.
As a technical matter, we note that section 2(1)(B) of the draft
bill would revise 38 U.S.C. Sec. 5103(a)(1) by replacing ``notify the
claimant'' with ``provide to the claimant.'' For clarity, we suggest
inserting the term ``notice'' following ``provide'' or, alternatively,
before the phrase ``of any information,'' as it appears in section
5103(a)(1).
Section 2 also would eliminate a particular delay in the claims
process that occurs when VA receives a subsequent claim while the same
type of issue from a prior claim is pending before VA. This routinely
occurs when a Veteran files a multi-issue claim and a few months later,
while that claim is still pending, files another claim involving the
same type of issue as in the currently pending claim. In many of these
cases, the subsequent claim can be decided, or at least developed,
along with the previously pending issues. However, the development and
decision are delayed in order to provide a new, but essentially
duplicative ``VCAA notice'' to the Veteran on the subsequent claim.
Sections 2 and 3 of this bill would add provisions to both 38
U.S.C. Sec. 5103 and 5103A to make it clear that VA's duty to notify or
duty to assist does not apply to any claim or issue when the benefit
sought can be awarded based on the evidence of record. This would
eliminate significant delays that occur when claims are unnecessarily
developed.
Section 3 of the bill would clarify that ``reasonable efforts'' to
assist the claimant in retrieving his or her private records would
require VA to make no less than two requests to a custodian of the
claimant's records. This reasonable clarification would help ensure
that VA is following the intent of Congress.
Section 3 would also direct the Secretary to encourage claimants to
submit private medical evidence if such submission does not burden the
claimant. VA would, however, continue to assist the claimant if he or
she requests such assistance. This approach would empower the claimant
to take an active role with VA in preparing his or her claim for a
decision. In many instances, Veterans want to procure their own records
and can do so more quickly than VA. However, under the current VCAA
process, many Veterans feel obligated to fill out the release forms VA
provides to permit VA to procure such records. This results in delays
in the claims process because of duplicate or unnecessary requests to
custodians of records. This bill allows VA to enhance its communication
with claimants and offer them clear options as to the types of VA
assistance they want or need. In crafting regulations to implement this
authority, VA would emphasize the valuable role the claimant may play
in retrieving records while at the same time ensuring that the claimant
understands VA's readiness to assist as necessary. This approach will
better balance the responsibilities of both parties to obtain evidence
in support of a claim.
One of VA's claim cycle time indicators, ``average days awaiting
development,'' was 53 days for the national pending inventory of
802,391 rating claims at the end of June 2011. The efficiencies gained
through this bill would significantly reduce the time it takes to
initiate development to a much more reasonable time period.
Furthermore, by attaching VCAA notices to claims forms, VA could
shorten development time. This improvement to the claims process is
paramount to VA's ability to achieve its 125-day goal for completion of
rating claims.
There are no benefit or administrative costs associated with this
proposal. The enactment of this bill will not affect benefit amounts
and does not affect obligations in any given fiscal year.
H.R. 2243
H.R. 2243, the ``Veterans Employment Promotion Act,'' would amend
38 U.S.C. Sec. 4212(d) to require the Secretary of Labor to publish on
an Internet Web site certain information about the number of Veterans
who are employed by Federal contractors. VA defers to the Department of
Labor to provide views on this bill.
H.R. 2388
H.R. 2388, the ``Access to Timely Information Act,'' would amend
title 38, and also effectively amend the Privacy Act to require VA to
disclose sensitive personal information to the Chairs and Ranking
Members of the House and Senate Veterans' Affairs Committees and
Subcommittees, or to anyone else the Chairs and Ranking Members
designate to make such requests. Because the bill would diminish the
privacy rights of Veterans, who deserve the same information
protections enjoyed by other Americans, we strongly oppose its
enactment.
VA appreciates the important oversight responsibilities shared by
this Committee and its Senate counterpart. The Department expends
considerable effort in responding to Committee requests for
information. However, current laws are intended to ensure that the
privacy rights of individuals are respected during the exercise of
legitimate Congressional oversight. First, absent express waivers by
affected individuals, the laws permit agencies to disclose records
protected by the Privacy Act and title 38 to only the Congressional
Committees or Subcommittees themselves that have oversight authority or
persons acting under a grant of authority from the Committees, which
has long been interpreted to mean only the chairpersons because only
they are authorized to act on those bodies' behalves. Second, the
disclosures may be made only in furtherance of legitimate oversight
activities that are within the particular Committees' purviews.
In order to document and ensure the validity of such requests, VA
requires that they 1) be made in writing, 2) be signed by the Chair of
the Committee or Subcommittee, and 3) specify how the information is
relevant to a matter within the oversight jurisdiction of the Committee
or Subcommittee. These requirements give assurances to VA employees
that the requests can be lawfully fulfilled, and also create a record
that can be used in the event the employees' authority to disclose the
information is later questioned. This latter point is significant in
that the penalties for unlawful disclosure can be severe. An agency
employee who discloses information in violation of an applicable
confidentiality statute or regulation may be subject to criminal and
civil penalties. Furthermore, the Department may be subject to civil
liability under these provisions. Absent the explicit prior written
consent of the Veteran, the Department must carefully evaluate the
contemplated disclosure and the particular oversight purpose for which
the information is sought, and make an informed and reasoned decision
as to whether the release qualifies under any of the exceptions. Often,
upon negotiation with an oversight Committee, it may be determined that
the request can be satisfied without compromising the privacy of an
individual Veteran.
Veterans' Affairs Committee staff frequently request Veterans'
medical records, which contain among the most sensitive and private
information imaginable. When medical records are shared
inappropriately, it can cause a patient great harm ranging from
embarrassment and social stigma to loss of a job and insurance. VA
actively reaches out to Veterans to encourage them to seek health care.
Because of social stigma associated with many medical and psychiatric
conditions, patients often conceal their illnesses and treatment from
their employers and even their immediate families, and they have a
well-deserved expectation that their records will be protected from
disclosure to the general public. Any release of Veterans' health
information outside the Department--even when permitted by statutory
exception--has the potential for undermining Veterans' trust in VA.
Current law sufficiently balances Veterans' personal-privacy
interests and the need for congressional oversight. All that VA
requires is a brief request, signed by the chair of a Committee or
Subcommittee, sufficient to allow VA to exercise its responsibility to
determine whether the invasion of the Veterans' privacy is necessary to
satisfy the oversight purpose. A single such request can seek records
concerning multiple individuals. The proposed legislation would remove
existing legal protections for only one class of individuals--our
Nation's Veterans--by requiring the Department to deem valid every
request made by a chair, by a Ranking Member, or by an unlimited number
of individuals delegated by a chair or Ranking Member of the two
Committees.
By mandating VA to accommodate any such request without even
inquiring whether the information requested is necessary or within a
Committee's or Subcommittee's jurisdiction, the legislation would strip
Veterans of the assurance that VA will share only the personally
identifiable health information which it has verified as being truly
necessary for congressional oversight purposes. In fact, the
legislation would confer upon any person the authority to make such a
request as long as the Committee chair or Ranking Member so delegates,
and places no restrictions on who may receive this highly sensitive
information. As a result, the draft bill has at least some potential
for affecting Veterans' willingness to supply VA health-care providers
with full and accurate health information, and could undermine their
trust in the VA health-care system. Sensitive information is, of
course, also maintained by other elements of the Department, including
in VBA claims files, which include not only medical records but also
information concerning home addresses, social security numbers, and
banking information.
Events of the not-too-distant past were urgent reminders to our
Department concerning the need to safeguard the sensitive personal
information with which we are entrusted. We took those events
seriously, and along with Congress, have worked to significantly
enhance VA's protection of Veterans' personal information. We cannot
support legislation which would in any way diminish the existing legal
protections this information rightfully enjoys.
H.R. 2470
H.R. 2470, the ``Ensuring Servicemembers' Electronic Records'
Viability (E-SERV) Act,'' would amend Section 1635(b)(2)(A) of the
Wounded Warrior Act (title XVI of Public Law 110-8 181; 10 U.S.C. 1071
note) to alter the role, functions and oversight of the Interagency
Program Office (IPO) of the Department of Defense (DoD) and the
Department of Veterans Affairs with respect to electronic health
records. It would also transfer control and responsibility of vital and
sensitive programs for VA's electronic health records away from the
clinicians and VA IT specialists who have made it a success.
Mr. Chairman, while the VA agrees that leadership and
accountability will be vital to delivering an integrated Electronic
Health Record (iEHR), VA opposes H.R. 2470 as written. Together with
our partners in DoD, we have created a governance structure to ensure
delivery of an iEHR that will be comprehensive and inclusive. The IPO
office has been placed at the head of the structure reporting to the
Secretaries of Veterans Affairs and Defense, with the iEHR Advisory
Board and the Health Executive Council performing a necessary oversight
role. The bill would alter this infrastructure with what we see as no
discernable benefit. It would shift our focus from developing an
effective and safe iEHR to reorganizing the governance structure
already in-place.
H.R. 2470 would also transfer control of the VA's legacy EHR, VistA
to the IPO. VistA is at the heart of what VA does; delivering health
care to our Nation's Veterans. VistA is at the forefront as a model
system that has a 99.95 percent `up-time' nationally and is highly
responsive. To transfer all responsibility for the ``development,
implementation, and sustainment of all electronic health record systems
and capabilities'' away from VA to the IPO would create disruption and
uncertainty in the management of the most vital set of tools VA uses to
deliver world-class care for our Veterans.
While we have strong concerns regarding this bill, VA is always
open to discussing our joint efforts with our DoD partners to advance
iEHR capabilities and the important work of the IPO with the Committee.
This concludes my statement, Mr. Chairman. Thank you for the
opportunity to testify. I would be happy to entertain any questions you
or the other Members of the Subcommittee may have.
Prepared Statement of Hon. Elizabeth A. McGrath, Deputy Chief
Management Officer, U.S. Department of Defense
Chairman Johnson, Ranking Member Donnelly, and Members of this
distinguished Committee thank you for extending the invitation to the
Department of Defense to address your recently introduced bill, ``The
Ensuring Servicemembers' Electronic Records' Viability (E-SERV) Act,''
H.R. 2470. To improve the electronic health information systems and
capabilities of the Department of Defense and the Department of
Veterans Affairs.''
The Department of Defense does not support H.R. 2470 as currently
written. While we appreciate the Committee's desire to be helpful in
strengthening the role of the Interagency Program Office (IPO) for
electronic health records, we believe that existing legislation on this
subject provides sufficient authority and flexibility to the
Secretaries of Defense and Veterans Affairs to effectively administer
the integrated electronic health record way ahead.
Section 1635 of the National Defense Authorization Act for FY 2008
established the IPO and vested it with authority:
A. To act as a single point of accountability for the Department
of Defense and the Department of Veterans Affairs in the rapid
development and implementation of electronic health record systems or
capabilities that allow for full interoperability of personal health
care information between the Department of Defense and the Department
of Veterans Affairs.
B. To accelerate the exchange of health care information between
the Department of Defense and the Department of Veterans Affairs in
order to support the delivery of health care by both Departments.
Section 1635 therefore tasked the IPO with a dual role: to
collaborate with the Departments in order to accelerate the exchange of
health care information between them, and to serve in an oversight
capacity to ensure that interoperability is achieved.
The two Departments are currently revising the IPO's charter to
reflect the direction of the Secretaries of Defense and Veterans
Affairs and take advantage of the authority provided in Section 1635.
The revised Charter will be complete in August 2011. The Department of
Defense does not believe that additional legislation is necessary, and
in fact, could jeopardize the progress that has recently been made.
Additionally, the Department is concerned by the provision in H.R.
2470 that would make the IPO the only office of the Department of
Defense and the Department of Veterans Affairs responsible for
electronic health record capabilities, including any such capabilities
existing before January 16, 2008. We believe that this would divert the
attention of the IPO toward day to day management of legacy systems and
make it less effective in what we view as its primary and proper
function of developing the integrated electronic health record way
ahead.
Finally, let me say that although we do not support H.R. 2470 as
currently written, I am glad to appear before the Committee today to
discuss the growing role of the IPO and, most importantly, to emphasize
to you the partnership, level of effort and shared sense of urgency
that exist between the Department of Defense and the Department of
Veterans Affairs regarding the vital need to achieve a common
integrated electronic health record for our servicemembers and
veterans. We strongly believe that we are on the right track and that
sufficient legislation is already in place to ensure that we reach our
mutual goal.
I look forward to your questions.
Prepared Statement of Debra M. Filippi, Former Director,
U.S. Department of Defense/U.S. Department of Veterans Affairs
Interagency Program Office
Executive Summary
Since it's inception, the IPO has had a positive impact on
enhancing the interagency approach to electronic health record (EHR)
development for DoD and VA. The IPO created interagency plans and
schedules that provided a roadmap of joint activities, established a
multi-tiered governance approach that guided the interagency decision
process, and provided a neutral meeting environment that minimized
biases and fostered accountability between the two Departments in the
execution of their separate electronic health record initiatives.
However, these steps were marginal in comparison to what could have
been accomplished had the appropriate functions and necessary
authorities been assigned to the IPO to fulfill Section 1635 of the
2008 NDAA law. The role and mission of the IPO, defined in a Charter
signed September 2009 by the two Deputy Secretaries, was to be the
``single point of accountability for coordination and oversight,'' not
the ``single point of accountability for . . . development and
implementation'' of EHR capability as stated in the law. Furthermore,
the authorities necessary to execute Section 1635 were specifically
retained by the DoD and VA program offices and NOT conveyed to the IPO.
Accordingly, the control of the budget, contracts and technical
development remained with the two program offices. As a result, the IPO
was not empowered by the departments with the necessary functions or
authorities to execute the intent of section 1635. Initiatives, such as
the James A. Lovell Federal Health Care Center (JALFHCC) project in N.
Chicago, would have benefitted greatly from converged solutions
fostered by this empowered interagency organization.
Congress established the IPO to improve the fielding of an
interoperable electronic health record capability for those who have
served our country so nobly. To date, DoD and VA have made strides in
sharing pertinent components of electronic health information; however,
the quantum leap for both organizations is to unite their development
efforts as one organization and create a single, superlative electronic
health record that by definition is interoperable and yields a
transparent, effective and efficient capability for our servicemembers
and veterans. The IPO is the medium for these two largest Federal
Departments to merge their resources, their intellectual property and
their spirit as force multipliers for operational as well as economic
success. The promise of a fully empowered IPO is synergy, solidarity
and unity between DoD and VA. The chosen path for the IPO was only a
step in the right direction--a ``bunt'' in baseball parlance--that has
resulted in modest progress. Now we need a home run: a single program
office, embraced by both DoD and VA, empowered with the necessary
authorities to develop, implement and sustain the best electronic
health record capability for our military, veterans and their families.
This draft legislation is the designated hitter for this home run. It
declares to the Departments what is expected in establishing a true
interagency program organization, to include the authorities necessary
to execute the functions. The language serves as a template for the
necessary modifications to the IPO Charter and obviates any conflict or
resistance that may still exist in the current document or in the
departments. The most important issue to be reconciled is who is the
responsible party for the execution of the funding, for that
organization is truly the one accountable for the interoperability of
the EHR systems/capabilities for DoD and VA. This is not only about
interoperability; it's also about pursuing economic-minded approaches
to Federal Government best business practices. Creating the IPO was an
innovative idea, one that will no doubt cast the mold for future
Federal partnerships. I strongly endorse the passing of this language
for the benefit of our military, veterans and their families.
__________
I. Introduction
Chairman Johnson, Ranking Member Donnelly, thank you for this
opportunity to provide testimony on the proposed changes to Section
1635 of the 2008 National Defense Authorization Act to improve the
electronic health information systems and capabilities of the
Department of Defense (DoD) and the Department of Veterans Affairs
(VA). I offer this testimony as the former Director of the Interagency
Program Office (IPO) serving from October 2009 until June 2011. I
retired from that post on June 3, 2011, after a fulfilling 34-year
career with the Federal Government. It is my privilege to have this
opportunity to provide remarks regarding the proposed legislation that
would strengthen the authorities of the IPO to better serve our
military, veterans and their families.
Since it's inception, I believe the IPO has had a positive impact
on enhancing the interagency approach to electronic health record (EHR)
development for DoD and VA. The IPO created interagency plans and
schedules that provided a roadmap of joint activities, established a
multi-tiered governance approach that guided the interagency decision
process, and provided a neutral meeting environment that minimized
biases and fostered accountability between the two Departments in the
execution of their separate electronic health record initiatives. By
all accounts these are very important steps in fostering a more
cohesive relationship between the two Departments that should improve
the interoperability of electronic health records. However, these
steps, while important, were marginal in light of what could have been
accomplished had the appropriate functions and necessary authorities
been assigned to the IPO to fulfill the NDAA requirement. The resources
of the two departments could have been merged into one program office
leveraging intellect, manpower and dollars for a single solution to EHR
capabilities. Projects like the James A. Lovell Federal Health Care
Center (JALFHCC) in N. Chicago would have had a greater commitment to
converged solutions rather than duplicative products. Not only would a
greater interoperability have been achieved but also more economic-
minded solutions would have prevailed. The language proposed by the
Committee reflects the original intent of the 2008 Law; let's move
forward to empower the IPO with the appropriate roles, responsibilities
and authorities. For the benefit of our servicemembers and our
veterans, I strongly endorse the passing of this language.
II. Background
The charter for the IPO implementing Section 1635 of the 2008 NDAA
was signed in September 2009 by the Department Deputies. The IPO was
cast in a ``coordination and oversight'' role for the two department
program offices versus that of ``the'' single, accountable program
office. Also specified in the charter, the control of the budget,
contracts and technical development remained with the two program
offices. As a result, each Department continued to pursue separate
strategies and implementation paths that were true to their desired
approaches rather than coming together to build a unified,
interoperable approach. Additionally, the governance structure for
leading the interagency initiatives was driven by a Committee of
department senior executives. There was no interagency decision
authority below this Committee. As a result, the departments maintained
the functions and authority--and therefore the accountability--for
their individual EHR efforts; it was not instilled in the IPO.
I believe the role intended for the IPO in Section 1635 of the 2008
NDAA was to be the sole program office for EHR initiatives and, if
chartered accordingly, would become that single point of
accountability, leveraging the intellect and experience of the DoD and
VA assets to yield one strategy, one design and one implementation of
an EHR capability. Providing one solution versus two compatible
solutions would establish the critical bedrock for a seamless, premier
health care continuum that our servicemembers, veterans and their
families so deeply deserve. For this to be effective, the Departments
must empower the interagency program office with planning, programming,
budgeting and execution authorities commensurate with the mission of
accountability. These authorities will be the very tools used by the
IPO to accomplish the necessary program management activities for the
EHR, unite the efforts of the two Departments and implement an
integrated, interoperable capability.
The draft legislation clarifies Congress' intent for the role of
the IPO to be the ``single program office'' in the development of the
EHR capabilities. The language acknowledges that the necessary
authorities--programming, budgeting and execution--MUST be vested in
the IPO in order for it to successfully execute the role. It also
clarifies that the IPO should indeed become the ``sole responsible
office'' on behalf of DoD and VA and not be considered as a separate,
third party organization to ``coordinate'' two distinct efforts. The
draft language is pivotal in ensuring that the Departments shift from a
two-department approach to a single interdepartmental approach with the
IPO at the helm. In my opinion, the most important issue to be
reconciled is who is the responsible party for the execution of the
funding, for that organization is truly the one accountable for the
interoperability of the EHR systems/capabilities for DoD and VA.
Ideally, this interagency effort should be led by an executive from
a third party Department such as Health and Human Services (HHS) or
Office of Management and Budget (OMB) that would create a more neutral
environment and obviate any concerns by either department of bias.
However, if the Director of the IPO reported to the two Department
Secretaries or their Deputies, each having equal authority over the
Director as well as the Director having their support, this, too, would
result in a more positive organizational alignment that would
strengthen the effectiveness of a single, accountable program. The real
key to success is that the two Departments turn to this organization as
their ``go to'' asset, empowering them as their spokesperson, their
program manager and their ``single point of accountability'' for EHR.
Each Department must invest in this interagency organization and feel
ownership and have the confidence in its ability to deliver on behalf
of each.
III. Interagency Office Functions
This proposed language is clear in describing what Congress
intended for the IPO with respect to the EHR initiatives: ``. . . be
the single program office''; ``. . . the function of the office shall
be to develop, implement, and sustain electronic health record systems
and capabilities for the Department of Defense and the Department of
Veterans Affairs''; ``Sole responsible office . . . be the only office
of the Department of Defense and the Department of Veterans Affairs
responsible for electronic health record capabilities . . . .'' It is
clear by these words that the IPO is intended to be the one and only
program office responsible for developing and representing the EHR
initiatives for both DoD and VA. The Charter stipulates that the IPO is
the single point of accountability for ``coordination and oversight''
which established a very limited, passive role for the IPO. The IPO was
not seen OR staffed as a program office responsible for the design,
development, test, implementation and fielding of the EHR capabilities;
instead, it was used more as a ``check point'' for the two Departments
in reviewing plans, schedules and milestones after they were developed,
resulting in a more inefficient and less effective interagency plan.
For example, the Departments developed separate strategies for
implementing the information technology (IT) capabilities that were to
support the N. Chicago demonstration project, the James A. Lovell
Federal Health Care Center (JALFHCC). These strategies were linked to
each Department's health IT plans versus a joint JALFCC plan. At one
progress review, The IPO questioned DoD and VA regarding their
decisions to implement separate pharmacy capabilities rather than just
one at N. Chicago. The Department representatives acknowledged that the
chosen paths for each complimented their separate strategies and were
committed accordingly. This approach ultimately resulted in a delay in
the delivery of the pharmacy capability due to additional time needed
to develop highly complex interfacing software to support the two
systems. Additionally, in another function fielded at JALFHCC, Medical
single sign on (MSSO), each Department implemented the same capability
using two different commercial tools. This has resulted in a burden for
the user to learn two different interfaces and missed opportunities to
leverage contracts and other sustainment costs. Each of these examples
illuminates the challenge to interoperability if the Departments
continue separate development paths. Recently, the departments
revisited these decisions and are now planning to field one pharmacy
capability and converge on one MSSO tool. Ultimately, this is the right
decision; however, now they are incurring additional expenses and a
delay in fielding a capability that could have been avoided had the
Departments been working together as a single program office with joint
goals. One organization needs to be responsible for promoting common
solutions for the same requirements or we will continue to be consumed
by overbearing mediation that at best will result in lowest common
denominator solutions--neither efficient nor effective for the
taxpayer, veteran, military and their families.
IV. Authorities for the IPO
All the critical authorities--program management, supervisory and
most important, financial--remained under the control of the two
separate Departmental program offices as stipulated by the charter: ``.
. . DoD and VA will retain responsibility for . . . life cycle program
management activities including financial management, IT systems
development and implementation.'' This eliminated any ability of the
interagency office to be accountable as envisioned by the Law.
Furthermore, this language implied that the IPO was not a part of
either Department, which represents the mindset of each department
relative to the IPO. The IPO should be considered as the single program
office for electronic health care records development and be vested
with the appropriate authorities to execute that role. This would
enable the IPO to perform the design, development, test, acquisition,
implementation and sustainment of all electronic health record
initiatives--all those activities reflective of a true program office.
DoD and VA must embrace the IPO as ``their'' program office with all
the same confidence and trust they have today in their individual
program offices. Most importantly, the IPO MUST be given planning,
programming, budgeting and execution authorities in order to be the
single point of accountability. The proposed language does this and
therefore should obviate any confusion or contradiction by the 2009
Charter. The proposed language that calls for the IPO to ``be the
single program office'' of DoD and VA, ``responsible for the
development, implementation and sustainment of all electronic health
record systems and capabilities'' greatly clarifies what Congress
originally expected of the two Departments in empowering the IPO. This
language should cause a shift in the ``center of gravity'' of the
electronic health record initiatives from the DoD and VA program
offices to that of the IPO. In addition to this proposed language, the
most important mechanism necessary to execute this language is to
assign the budget for EHR to the IPO, as proposed in the following
words: ``. . . the budget materials submitted to the President by the
Secretary of Defense and the Secretary of Veterans Affairs in
connection with the submission to Congress, . . . each Secretary shall
ensure that the Office is listed as a separate, dedicated budget
line.'' To ensure the IPO is indeed vested with the Program Management
and execution authorities for EHR, assign the EHR budgets from both
Departments to the IPO. The current 2011 budget for the IPO is $14.6
million, while the EHR budgets in DoD and VA are in the hundreds of
millions of dollars. This is a clear indication that the Departments
are executing the program management role of design, develop, test and
implement, and the IPO is executing a very small coordinating role in
the EHR effort. The resources that exist in the respective Department
budget lines today should be ``merged'' into a single ``virtual line''
to be executed and accounted for by the IPO for the EHR program.
V. Supervision and Organization
The hierarchy, mission and composition of the IPO organization are
critical to its foundation and its success. Working across the two
largest Departments in the Federal Government poses certain challenges
to customary practices, but they are not insurmountable. The reporting
relationship of the IPO must connote trust and assurance that the
interests of the two Departments will be honored and supported and,
moreover, that the IPO is seen as the Department's asset versus an
outsider. The Director should be the ``go to person'' for Department
Secretaries and Deputy Secretaries rather than other Department
executives. This will reflect that the effort is a single, joint
initiative and establish a single information loop that is consistent
and responsive to both Department leaders. In the past, each Department
has had a separate spokesperson they turn to on the various EHR
projects (e.g., Virtual Lifetime electronic Record (VLER), N. Chicago,
EHR) and the message was often inconsistent or tailored to the specific
Department. This caused much confusion and posed challenges for
establishing a baseline platform to report from and measure progress
against. The IPO should be the organization responding to all inquiries
and issues associated with the electronic health record initiatives on
behalf of DoD and VA. They should be the ``sole responsible office''
contacted by any outside entity, to include Congress, OMB, and GAO to
respond on all EHR inquiries. The mission needs to be clear,
unambiguous and universally supported throughout the two Departments,
particularly at the execution level.
The reporting relationship for the IPO has endured ambiguity and
ineffectiveness. As a DoD employee, the Director reports to and is
rated by the Undersecretary for Personnel and Readiness. This has
caused some concern by the VA leadership that the IPO was more
favorable to DoD. As an interagency initiative legislated to execute
Title 10 and Title 38 authorities on behalf of DoD and VA, the IPO
needs to be organized equitably so the Departments trust that the
organization serves both with a balanced perspective. The IPO did not
have the visibility with the Department executives as the interagency
organization responsible for EHR. If the IPO reported to a third-party
Federal organization outside of DoD or VA, the Departments may be more
trusting of the IPO. However, an equally suitable alternative would be
to have the Director report to the Department Secretaries to instill
confidence and trust that this organization is acting in their best
interests. Stipulating in the draft legislation that the IPO Director
report to both Secretaries or Deputy Secretaries with each having 50
percent input to the performance review of the Director is a
significant step toward building the needed trust. This will also
bolster the Director to be the trusted agent on the EHR subject matter
with top Departmental Executives and dissuade the Secretaries from
turning to other department executives within DoD or VA.
Organizationally, the IPO should be structured as any other
organization with the Deputy Director reporting to the Director, the
next-tier employees reporting to the Deputy, and so on down the
hierarchy. This reinforces the unity of chain of command within the
IPO, regardless of whether they occupy DoD or VA billets. The current
billet structure for the IPO consists of 10 DoD employees and 10 VA
employees, plus 2 Senior Executives--the Director from DoD and the
Deputy Director from VA. However, most of the VA billets (7) remained
vacant since the inception of the IPO as a result of no hiring
authority. Additionally 5 of the 10 VA billets were downgraded to GS-14
and -13 levels, while DoD rated all of their billets at the GS-15
level. This billet structure is austere in comparison to that of the
Department program offices and clearly indicates that a very modest
role was intended for the IPO. Additionally, this low-graded structure
made it very difficult for the IPO to engage peer-to-peer with the
Departments
A more effective way to provide staffing to the IPO is to merge the
personnel from the DoD and VA program offices into the IPO so that it
is a true ``unity of effort.'' Collocate the personnel; capitalize on
the intellectual property that already exists in the Department PMOs
and position DoD and VA personnel to start thinking as one team. In
this scenario, the discussions, the thinking and the solutions will
take on a solidarity that will result in a cohesive end-to-end solution
for the military and veterans. ``They'' will become ``us,'' ``their
ideas'' will become ``our ideas'' and the solutions will be joint.
VI. Conclusion
Congress established the IPO to improve the fielding of an
interoperable electronic health record capability for those who have
served our country so nobly. To date, DoD and VA have made strides in
sharing pertinent components of electronic health information; however,
the quantum leap for both organizations is to unite their development
efforts as one organization and create a single, superlative electronic
health record that by definition is interoperable and yields a
transparent, effective and efficient capability for our users. The IPO
is the medium for these two largest Federal Departments to merge their
resources, their intellectual property and their spirit as force
multipliers for operational as well as economic success. The promise of
the IPO is synergy, solidarity and unity between DoD and VA. The 2008
law created an innovative yet startling approach to the
interdepartmental development environment that challenged the accepted
practices of both Departments. The chosen path for the IPO was only a
step in the right direction--a ``bunt'' in baseball parlance--that has
resulted in modest progress. Now we need a home run: a single program
office, embraced by both DoD and VA, empowered with the necessary
authorities to develop, implement and sustain the best damned
electronic health record capability for our military, veterans and
their families. This draft legislation is the designated hitter for
this home run. It declares to the Departments what is expected in
establishing a true interagency program organization, to include the
authorities necessary to execute the functions. The language serves as
a template for the modifications to the IPO Charter as well as the
streamlining of fielding EHR capability. This is not only about
interoperability; it's also about pursuing economic minded approaches
to Federal Government business practices. Creating the IPO was an
innovative idea, one that will no doubt cast the mold for future
Federal partnerships.
Thank you for the privilege of providing testimony on this subject.
I wish you and the Departments all the best in achieving success on
this very worthy cause.
Prepared Statement of Jeffrey C. Hall, Assistant National
Legislative Director, Disabled American Veterans
EXECUTIVE SUMMARY
H.R. 2383--the Modernizing Notice to Claimants Act would make
changes to title 38, United States Code, sections 5103 and 5103A
altering the Department of Veterans Affairs' current duty to notify and
assist claimants seeking disability compensation benefits.
DAV believes the intent of this legislation is to
help streamline and speed the claims process in order to reduce
the backlog of claims for disability benefits; however, we are
concerned that the new regulatory provisions in the bill might
be implemented by VA in a way that could weaken the ability of
some veterans to receive the full benefits to which they are
entitled.
H.R. 2388--the Access to Timely Information Act, would codify
certain procedural steps that VA must follow in response to information
requests from certain members of the Veterans' Affairs Committees of
the House and Senate. DAV does not oppose enactment of this
legislation.
H.R. 2243--the Veterans Employment Promotion Act, would modify
title 38, United States Code, section 4212(d) requiring the Department
of Labor (DOL) to publicly report via the Internet the information
contained in the VETS-100 or VETS-100A reports submitted annually by
Federal contractors to DOL. DAV does not oppose enactment of this
legislation.
Draft Legislation--intended to improve the electronic health
information systems and capabilities of the Department of Defense (DoD)
and the Department of Veterans Affairs (VA). If enacted, this
legislation would amend Public Law 110-181 (the ``Wounded Warrior
Act'') to implement a fully interoperable electronic health record to
serve both departments. DAV recommends the Subcommittee conduct a study
as to its potential unintended effects on the basic functions of this
and the authority Congress intended for VA's Chief Information Officer.
__________
Chairman Johnson, Ranking Member Donnelly and Members of the
Subcommittee:
Thank you for inviting the Disabled American Veterans (DAV) to
testify at this legislative hearing of the Subcommittee on Oversight
and Investigations. As you know, DAV is a non-profit organization
comprised of 1.2 million service-disabled veterans and focused on
building better lives for America's disabled veterans and their
families. I am pleased to be here today to present DAV's views on
legislation being considered by the Subcommittee.
H.R. 2383, the Modernizing Notice to Claimants Act, would make a
number of changes to the Department of Veterans Affairs (VA) current
duty to notify and assist claimants seeking disability compensation
benefits. Specifically, H.R. 2383 would amend Sections 5103 and 5103A
of title 38, which were the central provisions of the Veterans Claims
Assistance Act (VCAA) of 2000.
Mr. Chairman, while we believe that the intent of your legislation
is to help streamline and speed the claims process in order to reduce
the backlog of claims for disability benefits, we have serious concerns
about whether some of the new regulatory provisions in the bill might
be implemented by VA in a way that could weaken the ability of some
veterans to receive the full benefits to which they are entitled. As
currently drafted, H.R. 2383 would change or eliminate a number of
duties and responsibilities that VA is now required to perform in
notifying and assisting a claimant when a claim for benefits is
received. Taken together, and in the context of the large backlog of
claims VA is focused on reducing, these regulatory changes could create
opportunities for VA to speed claims through the process, regardless of
whether they have provided sufficient notice and assistance to ensure
that the veterans receive the maximum benefits to which they are
entitled.
Under current law, when a claim for benefits is received by VA, the
Secretary is required to send a notice to the claimant, often referred
to as a ``VCAA notice'' (referring to Public Law 106-475, which serves
to acknowledge the claim was received, state the issue or issues being
claimed, and lists the evidence the claimant wishes to be considered.
The VCAA notice also informs a claimant if there is any additional
information or evidence VA requires, such as private medical treatment
records, and requests that the claimant complete and return a VA Form
21-4142 (``Authorization and Consent to Release Information'') so that
VA is authorized to obtain such private medical treatment records. The
claimant is asked to include detailed information regarding health
provider, facilities, findings and diagnoses. The claimant is also
instructed to identify any VA medical treatment, including the dates
and specific facilities, so VA can also obtain any such records.
Additionally, the claimant is informed he or she may provide their own
statement regarding the claimed condition or conditions, as well as any
lay statements from persons with knowledge of how the claimed condition
or conditions may affect the claimant.
The VCAA notice includes specific time periods in which additional
information or evidence must be received and informs the claimant of
what actions VA has already taken, such as requesting records or a
medical examination from the VA medical center. The notice informs the
claimant that should the VA medical examination be missed without good
cause, VA may move forward and decide the claim based on the evidence
of record.
The VCAA notice explains what evidence is needed to support any
claim for service-connection, secondary service-connection, increased
evaluations, individual unemployability, or other claims. The claimant
is also informed of VA's responsibility to assist them and the
reasonable efforts they will take in obtaining evidence, as well as
explain the role the claimant can play to ensure all relevant evidence
is submitted for consideration. VCAA notice also explains how VA
determines a disability rating and determines an effective date.
Finally, each VCAA notice contains a VCAA Notice Response Form, which
identifies the date of claim and provides a brief explanation regarding
the submission of any additional information or evidence. If the
claimant has nothing further to submit in support of the claim, he or
she may elect to have the claim decided as soon as possible, which may
alleviate unnecessary delays in processing; or the claimant may elect
to submit additional information or evidence.
While there are certainly improvements that can be made to the
current VCAA notice, DAV believes that on balance it provides
claimants, especially unrepresented claimants, with valuable
information to help them submit stronger claims leading to more
accurate results. Prior to enactment of the VCAA, notification to a
claimant was generalized and limiting, causing difficulty and confusion
for both the claimant in filing and VA in developing and adjudicating
claims. The intent of the VCAA was to fully inform a claimant about the
process VA would follow deciding their claim. Taken together, the
notification and duty to assist requirements have served to temper the
tremendous pressure VA and VA employees have been and are currently
under to speed claims through the process in order to reduce the
backlog, rather than to decide each claim right the first time. For
this reason, we urge this Subcommittee and the full Committee to move
cautiously in considering changes to these fundamental tenets of
veterans' rights.
Mr. Chairman, the bill would remove the requirement that VCAA
notices be provided ``upon receipt'' of a claim, thereby allowing VA
greater flexibility in the timing of such notice. Such a change would
allow VA to attach general notice statements to claims forms
themselves, thereby eliminating one of the first steps taken in the
development part of claims processing. However, this revised notice
process would eliminate some of the benefits of the current system. For
example, current VCAA notices contain not just generic boilerplate
language about how claims are substantiated, but also individualized
information about exactly what evidence has been submitted, what
evidence VA will seek and what evidence the claimant must seek or
authorize VA to obtain. As a former National Service Officer (NSO) for
DAV, I can attest that having such information from VA allowed us to
better represent veterans. We are concerned that this and other efforts
to reduce VCAA notice to generic, nonspecific information will
significantly reduce its value in assisting veterans who file claims.
We also have concerns about how this would be implemented when filing
electronically over the Internet, an environment where users have
become accustomed to checking the box on license and other disclaimer
agreements without first reading them. How such change would be
implemented must be spelled out in greater detail in the legislation to
meet the variety of circumstances. Finally, the VCAA notice is often
the only acknowledgement a veteran may get that his claim has been
received by VA, a basic piece of information most veterans want and
should have as they navigate their way through the often frustrating
process.
Mr. Chairman, DAV agrees that VA must have the ability to fully
utilize electronic communication; however we have concerns about the
language proposed to achieve this goal. H.R. 2383 would amend Section
5103 to require VA to send notice, ``. . . by the most expeditious
means available, including electronic notification or notification in
writing.'' Once again, we believe the only way to reduce the backlog is
to create a system designed to get claims done right the first time,
not just get them done quickly. As such, we believe that notice should
be sent by the most ``effective'' means, not simply the most
``expeditious'' means. For many veterans that may well be by way of
electronic communication; but others may strongly prefer written
communication. We would recommend that this language be changed so that
rather than direct VA to use the quickest means, they instead seek to
use the most effective means. Further, just as many of us are given
such a choice in communicating with our banks and paying bills, so too
should veterans be given the choice to elect the best method for VA to
communicate with them.
H.R. 2383 also proposes to waive VA's obligation to send a VCAA
notice to a claimant who has a pending claim for the same type of
issue, such as service-connection, and was provided one for that prior
claim. This provision seeks to eliminate unnecessary and duplicative
notices being sent to a claimant when the previous notice provided the
``information and evidence necessary to substantiate such subsequent
claim.'' While we certainly agree with the goal of eliminating
redundant mailings, it is not clear how broadly VA might seek to
implement this provision and we would recommend that more specific
definition or description be added to the legislation to clarify when
such notice requirements would be waived. We are particularly concerned
about unrepresented veterans who may have failed to fully understand
the notice sent for the pending claim and will receive no further
information to help guide them how to effectively support their new or
additional claim.
The legislation would also eliminate the requirement of sending a
VCAA notice to a claimant should the VA be able to ``. . . [a]ward the
benefit sought based on the evidence of record.'' Though DAV is
supportive of the intent of this section of the legislation--to provide
veterans with the benefits to which they are entitled at the earliest
stage in the claims process--we have concerns about how this would be
implemented in the field. For example, many claims are for conditions
that have more than one possible disability rating, and it is important
that VA not waive its duty to notify and assist claimants unless they
are awarding the full benefit to which the veterans is entitled. In an
environment where eliminating the backlog is VA's mantra, we are
concerned that such new waiver authority would create incentives and
opportunities for claims to be awarded at the minimum level for a
condition when justified by current evidence, even if there is some
likelihood that further development might lead to a higher rating. Even
when a claim for service-connection is granted, the claimant may
disagree with the disability percentage assigned and respond with a
notice of disagreement seeking a higher rating. A claim for service-
connection and a claim for increased rating are separate types of
benefits sought by claimants. Under the proposed legislation, we feel
this could be construed as necessitating a separate claim for a higher
evaluation and forfeit entitlement to the effective date of the
original claim. Likewise, we have concerns as to how VA will be
affected when a claim is received for different types of benefits, such
as a claim for service-connection and increased rating of an already
established service-connected condition.
We are also concerned that such waiver authority might create
disincentives to inferring secondary conditions to conditions that are
already service-connected. Rather than leaving this language open to
interpretation, DAV recommends that the language be changed to make
clear that such a waiver of VA's obligations should only occur when the
``maximum'' benefit sought can be awarded, including benefits for
inferred and secondary conditions.
Section 3 of H.R. 2383 would similarly allow VA to waive its ``duty
to assist'' in obtaining private records when they can award the
benefit sought based on the evidence of record. Questions again arise
regarding whether a maximum rating was granted and whether the
identified private medical records not obtained might have allowed for
a higher evaluation. There are also situations when the claimant is
seeking an increased rating and indicates the condition has adversely
affected employment. This could lead to an inferred claim for
individual unemployability, which might require additional development
to establish. However under this new language, the ``benefit sought''--
i.e., increased rating--could be awarded without further development to
determine whether the veteran should be rated for individual
unemployability. While our National Service Officers (NSOs) are adept
in deciphering such claims and thereby address such inferred conditions
from the outset, we are concerned that claimants without
representation, and without a strong VA ``duty to assist,'' may receive
less than they are entitled to under the law. We therefore offer the
same recommendation as above so that VA's duty to obtain private
records could only be waived when the ``maximum'' benefit sought,
including benefits for inferred and secondary conditions, can be
awarded.
Section 3 of the bill would also change the standard for VA's
``duty to assist'' a claimant in developing facts pertinent to a claim,
which is particularly important for unrepresented claimants. Currently,
the duty to assist standard requires VA to seek records, ``. . . that
the claimant adequately identifies to the Secretary and authorizes the
Secretary to obtain,'' with respect to any private medical records
identified by a claimant. Under the proposed legislation, the new
standard would change to, ``. . . if the claimant requests assistance,
in a manner prescribed by the Secretary.'' (Emphasis added.) This
seemingly subtle change in language could create a new regulatory
process that significantly shifts the burden for obtaining private
records from VA to veterans. While we believe that the intent of this
provision is to reduce unnecessary development for private records that
do not materially impact VA's decisions on claims, we are concerned
that it could create too great a burden on veterans. Oftentimes, a
claimant does not have the physical or financial means to obtain
private medical records.
The bill also calls for new regulations to ``. . . encourage
claimants to submit relevant private medical records . . . if such
submission does not burden the claimant.'' We agree with the idea of
encouraging veterans to fully participate in supporting their own
claims; in fact, DAV's NSOs make this a routine practice. However, we
do not believe that VA needs to open a new regulatory process to do so
since current law does not prohibit VA from ``encouraging'' veterans to
submit the most fully developed claims possible; a goal we share with
VA.
Finally, DAV has serious trepidations about inserting language into
Section 5103A of title 38 to allow a claimant to waive all or part of
VA's duty to assist requirements. As with many of the changes proposed
in this legislation, we are particularly apprehensive about
unrepresented veterans who may not have the knowledge or expertise to
fully understand the likely ramifications of agreeing to such a waiver.
Moreover, it is not clear how VA would seek to use such waiver
authority. For example, would VA try to get veterans to ``waive'' its
duty to assist obtaining private records in exchange for a faster
decision? With so much emphasis on ``breaking the back of the
backlog,'' could this become a tool to speed claims through the system,
even if veterans may not receive the full benefits to which they are
entitled? Until such questions are answered, we would have grave
concerns about creating such waiver authority.
Mr. Chairman, we agree with the goal of preventing unnecessary
overdevelopment of claims and we have proposed and supported
legislation to ensure that private medical evidence be provided due
deference. Too often, VA orders a medical examination even when a
veteran has submitted recent and competent private medical evidence.
Furthermore, we believe VA must be required to accept properly
completed Disability Benefits Questionnaires (DBQs) from private
treating physicians, and that those private treating physicians must be
allowed to file DBQs electronically. We would welcome the opportunity
to work with you and others on the Committee, in concert with our
colleagues in the veterans' community, to craft comprehensive
legislation to achieve our shared goals.
H.R. 2388, the Access to Timely Information Act, would codify
certain procedural steps that VA must follow in response to information
requests from certain members of the Veterans' Affairs Committees of
the House and Senate. While DAV does not have a resolution on this
matter, we are not opposed to enactment of this legislation.
H.R. 2243, the Veterans Employment Promotion Act, would modify
Section title 38, United States Code, section 4212(d) requiring the
Department of Labor (DOL) to publicly report via the Internet the
information contained in the VETS-100 or VETS-100A reports submitted
annually by Federal contractors to DOL.
Currently, the DOL Veterans' Employment and Training Service (VETS)
monitors the reporting requirements of the Vietnam Era Veterans'
Readjustment Assistance Act (VEVRAA) of 1974, requiring Federal
contractors and subcontractors alike to annually report the number of
veteran employees in their workforces by various categories as
specified under the affirmative action provisions of VEVRAA. Those with
Federal contract of $25,000 or more, that were entered into before
December 1, 2003, file a VETS-100 report while those with Federal
contract of $100,000 or more, that were entered into on or after
December 1, 2003, file a VETS-100A report. The database is used by
contracting officers to expeditiously verify reporting compliance and
by DOL to monitor whether contractors are meeting their goals as set
forth in their affirmative action plans. While DAV does not have a
resolution on this particular matter, we are not opposed to enactment
of this legislation.
Finally Mr. Chairman, regarding the draft legislation to improve
the electronic health information systems and capabilities of the
Department of Defense (DoD) and the VA; if enacted, this legislation
would amend title XVI of Public Law 110-181 (the ``Wounded Warrior
Act'') by sharpening requirements on, and strengthening the functions
of, an office established by that Act at section 1635 whose purpose is
to implement a fully interoperable electronic health record to serve
both departments. This bill would elevate the organizational position
of the existing office as a shared appendage of the Office of the
Secretaries of Defense and VA, strengthen its responsibilities under
existing law and give it new responsibilities and accountabilities to
ensure a joint VA-DoD electronic health record is put in place, and
that it accomplishes its essential purposes of documenting a veteran's
lifelong relationship to government health care.
As we have consistently urged time and again in The Independent
Budget (IB), including the IB for fiscal year 2012 (``The Continuing
Challenge of Caring for War Veterans and Aiding them in Their
Transition to Civilian Life,'' page 78), both DoD and VA need to
accelerate progress in implementing a joint health record that is
accessible to each agency, and to the active duty personnel and
veterans about whom health records are maintained. Along with our
partner organizations in the IB, we believe the absence of a joint
records system stymies seamless transition, serves as a barrier to
rehabilitation and recovery, and prevents some veterans from gaining
the benefits and services they have earned through their sacrifice and
loss.
While we agree with the principles of this draft legislation and
commend its author for proposing it, we are concerned that giving the
joint office broad acquisition authority for major electronic records
systems may clash with the preexisting authority Congress granted to
the VA Office of Information Technology in Public Law 109-461
(including many of the same responsibilities as outlined in this bill
for the joint office). Therefore, should this draft legislation
advance, we recommend the Subcommittee conduct a study as to its
potential unintended effects on the basic functions and authority
Congress intended for VA's Chief Information Officer.
Mr. Chairman, this concludes my testimony and I would be happy to
answer any questions the Subcommittee may have. Thank you.
Prepared Statement of Ryan M. Gallucci, Deputy Director, National
Legislative Service, Veterans of Foreign Wars of the United States
Mr. Chairman and members of this committee, on behalf of the 2.1
million members of the Veterans of Foreign Wars of the United States
and our Auxiliaries, the VFW would like to thank this Committee for the
opportunity to present its views on these bills.
H.R. 2383, Modernizing Notice to Claimants Act
H.R. 2383 seeks to do four things: Allow VA to communicate with
claimants electronically; provide the Veterans Claims Assistance Act
(VCAA) notice, or duty to assist, to veterans during the application
period; stop sending duty to assist notices for subsequent claims if
available evidence substantiates said claim; and allow VA to rate a
claim without duty to assist notifications if evidence available can
award the benefit sought by the veteran. All of these provisions are
intended to reduce the average days awaiting development. Currently,
the average period of time is more than 45 days, meaning veterans'
claims sit idle, waiting to be developed, while duty to assist
notifications are mailed, received and responded to.
The VFW agrees that to reduce the backlog and to make the average
length of claim meet the Secretary's 125-day mandate steps must be
taken to reduce delays that occur due to statutory requirements when a
viable alternative is available. However, the VFW insists that any
changes made must not have a negative effect on veterans.
The VFW views the idea of allowing VA to communicate with veterans
electronically positively. Many veterans conduct business via email and
web-based portals. Providing this choice will grant veterans the option
to use this efficient form of communication. This form of communication
will also be beneficial as VA moves forward with its electronic-based
filing system. However, this new method of communication may not be
considered the most expeditious means to the veteran; therefore, it
must be requested by the veteran and not mandated by VA.
Informing veterans of VA's duty to assist at the application phase
of the claims process does two things: It reduces the time it takes for
a claim to go to development, and it allows veterans to be proactive in
providing evidence to VA to substantiate their disability claim. The
VFW has three chief concerns with placing the duty to assist notice
with the application. First, depending on how the duty to assist notice
is presented to veterans, the burden to gather private medical records
could be shifted to the veteran. Although the statutory burden would
still rest on VA, veterans could infer that the burden rests on them.
Any changes to the duty to assist notification must be in plain, easy-
to-understand language that informs the veteran what type of evidence
is needed to substantiate claims and that the ultimate burden to
collect medical evidence belongs to VA.
Second, the VFW wants to ensure that any changes to when the duty
to assist notice is provided will not have a negative effect on the
veteran's effective date of the claim. Currently, when VA receives a
complete or substantially complete claim application, VA stamps it with
an effective date, marking when the veteran's compensation or pension
date begins. Under this proposal, veterans may spend weeks and months
collecting their medical evidence based on VA's encouragement to
veterans to collect their own records. This will negatively affect
veterans by making their effective date later. Any changes to when the
duty to assist is provided must include a clear, easy-to-follow process
in the instructions of the VA Form 21-526 to initiate an informal
claim, providing an immediate effective date.
Third, the VFW is concerned that by placing the duty to assist
notification at the beginning of the process, the veteran will not be
notified of VA's receipt of the claim. By virtue of the current
process, veterans are notified by VA with the duty to assist letter.
Now veterans will be waiting and wondering if VA has received their
claim and started processing. The VFW suggests that if the provisions
moving duty to assist to the application phase are implemented, a
notification of receipt must be sent to the veteran. The VFW agrees
that VA does not need to send a second duty to assist notification for
subsequent claims when the evidence necessary to substantiate the claim
is sufficient to rate.
The VFW's last point of contention is in regard to Section 2,
paragraph 5 of the bill. Under current regulation and based on legal
precedent, VA must assume that the veteran is seeking the maximum
benefit allowed for the disability. To ensure precedent established by
the Court of Veterans Appeals applies to new regulation regarding duty
to assist, the VFW suggests that this bill language be amended to read
``this section shall not apply to any claim or issue where the
Secretary may award the benefit sought based on the evidence of record
when the maximum benefit allowed can be awarded.''
The VFW must reiterate that veterans can neither have burden
shifted to them, nor shall any changes in regulation harm a veteran's
ability to receive the most complete and accurate claim possible. The
VCAA was developed to protect veterans and any changes to this act to
expedite the claims process must not come at the expense of veterans.
For the VFW to support any changes to current law, our above concerns
must first be satisfied.
H.R. 2243, Veterans Employment Promotion Act
The VFW supports the intent of this bill, insofar as the Department
of Labor must make a concerted effort to ensure that Federal
contractors and subcontractors are complying with affirmative action
mandates to employ veterans within their companies. However, the VFW
believes that steps must also be taken by DOL to ensure that
contractors are meeting their obligations through the current VETS-100
filing system, and hold contractors responsible for failure to comply.
Though the VETS-100 form is mandatory for contractors to conduct
business with the Federal Government, auditing procedures currently are
not in place for DOL to verify outreach efforts and veteran employment
figures reported by Federal contractors. The VFW welcomes working with
the Committee to develop further plans to hold contractors accountable
for their reports through the VETS-100 system to ensure that veterans
actually have the opportunities they have earned and that Federal
contractors have reported.
In the last year, DOL and other Federal agencies have made a
concerted effort to ensure that veterans have an opportunity to enter
the Federal workforce. The VFW believes that the DOL also has an
obligation to ensure that those who do business with the Federal
Government are held to a similar high standard.
H.R. 2388, Access to Timely Information Act
The VFW supports this legislation. H.R. 2388 would expedite
information requests from VA to the House and Senate VA Committees by
clarifying in law that all requests are ``covered'' for purposes of
administrative procedure on records maintained on individuals, and is a
permitted disclosure under HIPAA regulations. It also stipulates that
the VA must send the Chairman of the Committee any information that is
also sent to another Member of the Committee when acting as a designee
of the Chairman or Ranking Member. We agree that it could assist the
Committee in their work, and we thank the Chairman for his efforts.
H.R. 2470, Ensuring Servicemembers' Electronic Records' Viability Act
The VFW supports this legislation, which would give the Department
of Defense and the Department of Veterans Affairs a better chance of
implementing an electronic health information system that meets current
and future challenges by modifying the Department of Defense-Department
of Veterans Affairs Interagency Program Office to redefine its mission.
Working together, the two departments have achieved some success in
creating a system that would make all personal health records bi-
directional and fully electronic, with the ability to update and edit
where needed. However, much more work needs to be done before such a
system would be fully operational and deployed for the use of all
relevant employees and contractors. Each of these key features--bi-
directional, fully electronic, and editing capability for both
departments when needed--must be part of the final health and service
record-keeping solution. It must also not be rendered ineffective by
onerous and unnecessary privacy concerns. Turf battles, institutional
preference for existing solutions, and aversion to change have
needlessly slowed down this process. At this point, human behaviors and
constructs are causing more problems than technical limitations, and we
find that to be completely unacceptable.
This bill will put DoD and VA in a position to make serious
progress toward implementation of a state-of-the-art electronic health
record. By making it clear in that the joint office must be the single
point of accountability and authority, and that it has the sole
responsibility for finishing the job and sustaining the capability into
the future, there can be no more obfuscating who is responsible for
successes, and who is responsible for failures. By ensuring that all
reporting out of the office is done by an official not lower than a
Deputy Secretary, this bill communicates the importance of the task at
hand. By obligating both organizations to have a dedicated line item
for funding the joint office, this bill ensures that both departments
are fully at the table, and are fully sharing responsibility. We
believe these are commonsense steps. This problem is truly larger than
either department and they must work together to bring forward a
solution that meets the challenge and is a scalable platform that can
more easily adapt to future innovations.
Mr. Chairman, this concludes my statement. I would be happy to
answer any questions that you or the Members of the Committee may have.
Prepared Statement of the Veterans' Employment and
Training Service, U.S. Department of Labor
Chairman Johnson, Ranking Member Donnelly, and Members of the
Subcommittee: The Department of Labor (DOL) is pleased to provide you
with this statement on pending legislation.
President Obama and Secretary Solis are committed to ensuring that
the men and women who serve this country have the employment support,
assistance and opportunities they deserve to succeed in the civilian
workforce. As a result, the Administration has undertaken initiatives
to train, transition and employ Veterans; encouraged the Federal hiring
of Veterans; and called upon the private sector to hire and employ
America's Veterans.
The Veterans' Employment and Training Service (VETS) at DOL is
playing an important role in these and other initiatives by providing
Veterans and transitioning servicemembers with resources and expertise
to assist and prepare them to obtain meaningful careers, maximize their
employment opportunities and protect their employment rights. Moreover,
VETS programs are an integral part of Secretary Solis's vision of
``Good Jobs for Everyone,'' and her commitment to help Veterans and
their families get into the middle class and maintain financial
stability.
This hearing is focused on four bills before the Committee: H.R.
2383, H.R. 2243, H.R. 2388 and Draft legislation. I will limit my
remarks to H.R. 2243, the ``Veterans Employment Promotion Act,'' which
would fall under the Secretary of Labor's (the Secretary) jurisdiction.
The Department of Veterans' Affairs (VA) would administer the remaining
legislation and we defer to the VA with respect to those bills.
H.R. 2243, the ``Veterans Employment Promotion Act''
The Vietnam Era Veterans' Readjustment Assistance Act of 1974
(VEVRAA), as amended, 38 U.S.C. 4212, currently requires that certain
Federal contractors and subcontractors (hereafter, ``contractors'')
file a VETS-100 and/or VETS-100A report \1\ annually to the Secretary
that contains certain statistical data on their workforce, including
the number of employees and new hires who belong to the categories of
Veterans protected under the statute.\2\ H.R. 2243 would modify title
38, United States Code, section 4212(d) to require DOL to publicly
disclose via the Internet information contained in the VETS-100 or
VETS-100A reports submitted annually by Federal contractors to DOL.
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\1\ VETS promulgated two sets of regulations to implement the
reporting requirements under VEVRAA. The regulations in 41 CFR Part 61-
250 requires contractors with a Federal contract or subcontract of
$25,000 or more that was entered into prior to December 1, 2003 and has
not been modified to provide information on the number of covered
Veterans in their workforces by filing a completed VETS-100 Report
annually. The regulations at 41 CFR Part 61-300 implement the Jobs for
Veterans Act (JVA) amendments to the reporting requirements under
VEVRAA, and require Federal contractors and subcontractors with a
contract or subcontract of $100,000 or more awarded or modified on or
after December 1, 2003, to file a VETS-100A Report.
\2\ For instance, Federal contractors completing the VETS-100A
Report are to provide information on the number of employees and new
hires during the reporting period who are: (1) Disabled Veterans; (2)
Veterans who served on active duty in the U.S. military during a war or
campaign or expedition for which a campaign badge is awarded; (3)
Veterans who, while serving on active duty in the Armed Forces,
participated in a United States military operation for which an Armed
Forces service medal was awarded pursuant to Executive Order 12985; and
(4) Recently separated Veterans (Veterans within 36 months from
discharge or release from active duty).
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DOL supports enactment of this legislation. In our view, providing
public access to the information contained in VETS-100/VETS-100A
reports is consistent with the President's commitment to openness and
transparency in government, and supports the Secretary's ``Good Jobs
for Everyone'' initiative. Qualified Veterans seeking employment may
find the information contained in the VETS-100A Reports useful in
targeting their job search, by helping them to identify Federal
contractors who employ or have recently hired Veterans with similar
skill sets. Moreover, by making information contained in these reports
publicly available, H.R. 2243 will encourage Federal contractor
compliance. However, the Department would want to work with Congress,
the contractor community and others to ensure the appropriate treatment
of proprietary or other confidential or protected information.
Every day, we are reminded of the tremendous sacrifices made by our
servicemen and women, and by their families. One way that we can honor
those sacrifices is by providing them with the best possible services
and programs our Nation has to offer. Secretary Solis and VETS strongly
believe that Veterans deserve the chance to find good jobs.
I again thank this Subcommittee for your commitment to our Nation's
Veterans and for the opportunity to testify before you.