Judge orders VA to reform mental health care, cites 'unchecked incompetence'

By Bob Brewin

May 11, 2011

This is the tenth story in an ongoing series.

A federal appeals court in California on Tuesday ordered the Veterans Affairs Department to develop a systemwide mental health care plan, citing "unchecked incompetence" in the department's care for veterans.

Judge Stephen Reinhardt, on the 9th Circuit Appeals Court in Pasadena, found that although VA is obligated to provide veterans with mental health services, many veterans with severe depression or post-traumatic stress disorder are forced to wait weeks for such care. He noted that on average, 18 veterans commit suicide every day and another 1,000 attempt suicide each month.

Nextgov reported in March that slightly more than half of all Afghanistan and Iraq war veterans treated by the Veterans Affairs Department received care for mental health problems, roughly four times the rate of the general population.

Read the entire Broken Warriors series.In the court's ruling, Reinhardt said VA must fulfill it obligations to those who answered the call of duty: "No more veterans should be compelled to agonize or perish while the government fails to fulfill its obligations."

The court added, "Having chosen to honor and provide for our veterans by guaranteeing them the mental health care and other critical benefits to which they are entitled, the government may not deprive them of that support through unchallengeable and interminable delays."

The opinion overturns a decision by the San Francisco District Court in 2008 in a lawsuit brought by Veterans for Common Sense and Veterans United for Truth in July 2007 charging that VA had failed to make mental health services immediately and widely available to returning veterans. Judge Samuel Conti ruled, among other things, that the two veterans groups had no standing under the Administrative Procedures Act and that VA had constitutional immunity from such suits.

Arguments made before the district court focused on the length of time it took veterans to get mental health care appointments, and the appeals court ruled that such delays violate the due process clause of the Fifth Amendment to the Constitution.

The appeals court said the record from the district court case is "replete with examples of deleterious delays in . . . [VA's] provision of mental health care and shows that many veterans throughout the country have no means available to appeal the delays to which they are subjected."

The appeals court said that though it was reluctant to interfere with VA or Congress in their roles, "There comes a time when the political branches have so completely and chronically failed to respect the people's constitutional rights the courts must be willing to enforce them. We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war."

Paul Sullivan, executive director of Veterans for Common Sense, said, "We had our day in court, we won and now we urge VA to move forward so no veteran is delayed or denied health care or disability benefits." Tom Vande Burgt, an Army National Guard veteran who served in Iraq and runs a veterans support group in Charleston, W.Va., said he is concerned that the appeals court ruling will not make much difference.

"The lower court judge who punted on this case in the first place must now sit down and work out a plan that will satisfy the VA and the vet groups. What a joke, he has no clue what he is supposed to want or to do, the VA will demand the status quo and the groups will demand comprehensive care, and in the end, nothing will change," Vande Burgt said.

VA declined to comment on the appeals court ruling, and said any comments needed to come from the Justice Department. Tracy Schmaler, a Justice spokeswoman, said the department is reviewing the court's ruling.


By Bob Brewin

May 11, 2011

http://www.govexec.comhttp://www.nextgov.com/health/2011/05/judge-orders-va-to-reform-mental-health-care-cites-unchecked-incompetence/49050/